1. This second appeal has been filed by a plaintiff Hako who has failed in both the lower Courts in a suit for possession of 46 'kanals' ana 17 'marlas' of land. The history ot the land is as follows. Sher Singh defendant No. 3 mortgaged the land with possession on the 22nd of June in 1928 with Beg singh and Jowand Singh defendants Nos. 1 and 2 for Rs. 1,4357- but in fact this was only a 'benarni' transaction and the real mortgagee was a money-lender named Khushi Ram who was a non-agriculturist. The plaintiff Hako purchased the rights of the mortgagees on 23-7-1936 and thus entered into possession, in July 1945 Udham Singh defendant No. 4, the son of Sher Singh mortgagor, applied to the Deputy Commissioner under Section 9, Punjab Alienation of Land Act, for redemption of the land on the ground that the mortgage was 'benami' and by his order dated 5-11-1946 the Deputy Commissioner, Mr. K. D. Rogers, held that the real mortgagee was Khushl Ram and that the mortgage must, therefore, be altered under Section 6(1)(A) so as to be one for twenty years in the names of Mulk Raj and Chajju Ram, the sons of Khushi Ram, who had died in the meantime, and at the same time he ordered that since the mortgagees had by that time recovered the amount of the original mortgage debt, under Sections 7(5) and 7(2) of the Act the mortgage should be terminated. From this the order followed that the present appellant Hako was to be ejected and possession given to Udham Singh.
2. In the trial Court and in the lower appellate Coart the plaintiff's case was that the order of the Deputy Commissioner was ultra vires and he strenuously contested the allegation that the mortgage in the first instance was 'benami' in spite of the fact that he himself had admitted it to he so in the proceedings before the Deputy Commissioner. His learned counsei has not now attempted to challenge the fact that the mortgage was 'benami' but has relied on a new aspect of the case which does not appear to have been brought up before or considered by either of the Courts below. By the Punjab Alienation of Land (Second Amendment) Act, 10 of 1938, a new Section 13-A wasadded to the Act dealing specifically with 'benami' transactions. Sub-section (1) reads:
'When a sale, exchange, gift, will, mortgage, lease or farm purports to be made either before or after the commencement of the Punjab Alienation of Land (Second Amendment) Act, 1938, by a member of an agricultural tribe to a member of the same agricultural tribe or of the tribe in the same group, but the effect of the transaction is to pass the beneficial interest to a person who is not a member of the same tribe or of a tribe in the same group, the transaction shall be void for all purposes, and the alienor shall be entitled to possession of the land so alienated, notwithstanding the fact that he may have himself intended to evade the provisions of this Act.'
The Second sub-section provides for action by the Deputy Commissioner to set aside such 'benami' transactions either on his own motion or on application by the alienor. These provisions came up for consideration before the Federal Court in -- 'Punjab Province v. Daulat Singh', AIR 1942 FC 38 (A) and it was held by Sir Maurice Gwyer, C. J., and Varadachariar J. (Beaumont J. dissenting) that the provisions of the Amending Act were invalid so far as they purported to avoid transactions entered into or titles acquired before the impugned Act became law. This decision was challenged by the Punjab Government in an appeal to the Privy Council whose decision is reported as -- 'Punjab Province v. Daulat Singh', AIR 1946 PC 66 (B) and their Lordships also held that the Punjab Alienation of Land (Second Amendment) Act, 10 of 1938, was ultra vires so far as it purported to operate retrospectively. On the strength of these decisions, it is contended by the learned counsel for the appellant that since the mortgage in this case was entered into in 1938, the Deputy Commissioner was not competent to extinguish it as he did. It will be seen from the order of the Deputy Commissioner, a copy of which is exhibited as D. 4, that nowhere does he purport to be acting under the provisions of Section 13-A of the Act at all. He was removed by Udham Singh under Section 9(1) of the Act and his final order was based on the provisions of Sections 6(1)(A) and 7(5) and 7(2). Section 9(1) provides that if a member of an agricultural tribe makes a mortgage of his land in any manner or form not permitted by or under this Act, the Deputy Commissioner shall have authority to revise and alter the terms of the mortgage so as to bring it into accordance with such form of mortgage permitted by or under this Act as the mortgagee appears to him to be equitably entitled to claim. The question which arises, is whefher before Section 13-A was added to the Act in 1938 the Deputy Commissioner had power to go into the question whether a mortgage was 'benami', and to make a suitable adjustment in the terms of the mortgage if he so found that it was, so as to bring it within one of the forms mentioned in Section 6. I cannot see that there was anything in the Act to debar the Deputy Commissioner from examining the nature of any transaction to find out its real nature and to make a suitable adjustment in its terms if he found that the real nature of the transaction in any way contravened the provisions of the Act. and the learned counsel for the appellant has not been able to cite any authority against this view. On, the other hand, certain remarks in the judgment of their Lordships of the Privy Council on which he himself relied appear to support the view which I have expressed. I quote the following passage from the judgment which was delivered by Lord Thankerton :
'The result is that the impugned Act being 'ultra vires' and void in so far as it purports to operate retrospectively, it cannot affect the position of respondent No. 1 under the mortgage in suit, but the decision of the present suit will not affect or prejudice any question that may arise as to action by the Deputy Commissioner under section 9 of the principal Act.'
In the circumstances, I see no reason to upset the findings of the Courts below on the new point which has been raised before me and I accordingly dismiss the appeal with costs.