Muhammad Rafiq and Piggott, JJ.
1. This is an appeal by the defendant vendee in a suit described as one for pre-mortgage; i.e., certain zamindari shares have been mortgaged to the appellant and the plaintiffs came into court claiming that as co-sharers in the villages in question they possess a preferential rig]it, established by village custom, to obtain a contract of mortgage in their favour on the same terms on which the mortgage had been granted to the appellants There was controversy, in the trial court, also as regards the amount of the mortgage debt, and this point is also raised in the memorandum of appeal before us. We are concerned, however, mainly with the question whether the plaintiffs have or have not established their preferential right on the basis of village custom. The main evidence consisted of records of rights for the three villages, namely, Kusmaha, Kanail and Doboli. As. regards the settlement record of 1833, the entry would seem prima facie to record a customary right of pre-mortgage in favour of any co-sharer in the village, such as that upon which this claim is based; but in respect of this very same village we have before us also the settlement record of the year 1860. The custom there recorded is expressed in very peculiar terms, ft is noted in the first instance that the co-sharers are in possession and occupation of their own shares and that there has been no sale, mortgage or lease, in favour of any person. Hereafter, it is stated, the said co-sharers possess unlimited power of transfer, subject only to the condition that any co-sharer desiring to sell must first ascertain the wish of the other co-sharers. If the entry stopped there, it would be beyond question that it recorded no right of pre-mortgage. There is, however, one further phrase which is certainly not easy to interpret. Literally translated, it runs as follows: 'In case none of the co-sharers is prepared to purchase or to accept a mortgage or a lease, then the co-sharer in question may sell to a. stranger.' As it stands, this entry does not purport to record a right of pre-mortgage but merely imposes a further, and certainly somewhat peculiar and unusual, restriction on the right of sale. The trial court has come to the conclusion that the word 'farokht' as used in this passage must be given a general sense and read as equivalent to 'intiqal' or transfer. We are aware of no other case in which such an interpretation has been put upon the word 'farokht.' It is inconsistent with the ordinary meaning of the word and we are not prepared to say that anything in the particular text obliges us to put so unusual a meaning on the word. The conclusion we feel driven, to is that the wajib-ul-arz in question does not record the existence of a customary right of pre-mortgage. The case is exactly the same regarding the village of Kusmaha, except that here we have before us only the settlement record of 1869 and not that of 1833. The share in the village Doboli is a very small one in proportion to the rest of the property mortgaged and we may take it from the judgment of the trial court that the existence of a customary right of pre-mortgage-in that village was not very seriously contested. We think it at least doubtful whether the entry in the wajib-ul-arz of village Doboli made at the settlement of 1860 ought, in accordance with the canons of interpretation accepted by this Bench, to-be treated as a record of custom or a record of contract. But, in any case, if we are not prepared to decree this claim in respect of the properties in villages Kusmaha and Kanail, we-have no materials before us on which a decree could be framed regarding the small share in Doboli. This suit must in our opinion succeed or fail as a whole. There was very little other evidence in the case. The most important item, apart from the entries in the settlement papers already referred to, was a decree in a contested suit decided on the 25th of May, 1920, in which the existence of a customary right of pre-emption was affirmed in favour of co-sharers in villages Kusmaha and Kanail. From the judgment which is on the record it would seem that this was a claim of pre-mortgage, although the decree as printed suggests an ordinary claim to pre-empt a sale. At any rate it is quite certain that the learned Additional District Judge who decided that case in appeal did not touch upon the question which has caused us most difficulty, namely, the correct interpretation of the entries in the wajib-ul-arz of 1860 for the villages of Kusmaha and Kanail. He assumed throughout his judgment that if there was a customary right of pre-emption at all in those villages, it must apply to mortgages as well as to sales. Under the circumstances we cannot treat his decision as a particularly strong piece of evidence in favour of the existence of the customary right pleaded by the plaintiff in this case. The conclusion we come to is that the plaintiff has not proved to our satisfaction the existence of the customary right upon which his claim is based. We set aside the decree of the court below and in lieu thereof dismiss this suit with costs throughout.