Henry Richards, C.J. and Tudball, J.
1. This appeal arises out of a suit for preemption. The facts may be very shortly stated. In the year 1804 the owner of the property mortgaged it. There had been two prior mortgages, in 1892 and 1893. The mortgage of 1894 was a consolidation of these mortgages with a further advance. This mortgage was again consolidated by a last mortgage in the year 1895. This mortgage will be found printed at page 9 of the respondents' book It was in form what is called^ simple mortgage, except for the last clause, which provided that if the period mentioned in the mortgage expired and the money had not been paid up the document should be treated as a sale, In the year 1906 a suit was, instituted on this document treating it as a mortgage by conditional sale and a decree for foreclosure was obtained. This decree was made absolute in the year 1911, and shortly after that the decree-holder, mortgagee obtained possession. In the year 1914 .the present suit was instituted, the plaintiff claiming to get possession of the property by virtue of a custom set forth in the wajib-ul-arzes appertaining to the various villages. The court below dismissed the plaintiff's suit. The pre-emptor has appealed.
2. The custom as recorded in the several wajib-ul-arzes does not materially differ from the wajib-ul-arz for Mauza Patti Yakubpur. It is as follows:-'If a pattidar wants to transfer his share by sale or mortgage, he should do so first to another pattidar of the same thok, and in case of his refusal to the pattidars of another thok of the village. If he (the pattidar) wants to sell his share to a stranger by entering an excessive and fictitious price the pattidar having the right of preemption shall be entitled to acquire that property on payment of the price awarded by the arbitrators appointed privately or by the court.'
3. We think (subject to what may be said having regard to certain authorities which have been quoted) that the question which the Court had to consider was whether or not the plaintiff proved by this record the existence of a custom which entitled him to get possession of the property under the circumstances of the present case as set forth above. We may here point out that the mortgages in the present case were made after the passing of the Transfer of Property Act. Even assuming that the mortgage of 1895 was in reality a mortgage by conditional sale as defined by Section 58 of the Transfer of Property Act, it was one of the modes recognised by the Act itself by which an owner mortgages his property. If one reads again the extract from the wajib-ul-arz, which we have quoted above, it can hardly be doubted that the sale referred to in the wajib-ul-arz was the ordinary voluntary sale which a co-sharer makes. This is clear from the language of the Wazib-ul-arz itself. It begins by stating that if he 'wishes,' which we take to mean 'has necessity' to sell, he must do so to another pattidar in the same thok, etc. Again the reference to price shows that the sale referred to was the voluntary sale of the co-sharer. It he was observing the custom, the moment he wanted to sell his duty would be to go to the other co-sharers as recorded in the wajib-ul-arz. The very same remark will apply to the mortgage. If the transaction was a mortgage then his duty, if he observed the custom, was to first ask the other co-sharers if they would take a mortgage of the property. In either case it would seem that the right of the pre-emptor in case of non-observance of the custom was to step into the shoes of the vendee in the case of a sale and in case of a mortgage to step into the shoes of the mortgagee. Now let us consider for a moment what the pre-emptor did in the present case. He never sought to step into the shoes of the mortgagees of 1892 and 1893. He never sought to step into the shoes of the mortgagees of 1894 and 1895. He waited until about three years after the defendant had obtained possession of the property in due course of law through the intervention of the Court, and the suit was brought something like nineteen or twenty years after the latest mortgage transaction. We are perfectly satisfied that the plaintiff in the present case failed to prove by the production of these extracts from the wajib-ul-arzes the existence of a custom which gave him a right to get the property under these circumstances. It is true no doubt that the mortgagee eventually became the owner of the property but there never was a 'sale' of the nature referred to in the wajib-ul-arz.
4. A great difficulty is created in the case by the ruling of the Full Bench in the case of Alu Prasad v. Sukhan (1) (1881) I. L. R. SAIL, 610. In that case the mortgage had been made prior to the passing of the Transfer of Property Act of 1882. The majority of the Court in the case, no doubt, held that the pre-emptor had a right of pre mortgage when the original transaction took place, and that he had a further right of pre-emption when that mortgage ripened into a complete sale after the expiration of the period of grace which was prescribed for by the regulation. The case was argued before that Bench on a different basis from the arguments in this Court. We think that the decision of the Court must have reference to the custom which the court finds to exist in each case, and if in the present case after considering the evidence we do not believe, or do not consider; a custom to be 'proved' (see definition in the Evidence Act of the expression 'proved') to exist which entitles the pre-emptor to get the property under the circumstances of the present case, we are not bound simply by reason of the Fall Beach case to give the plaintiff a decree. We may mention here as having a distinct bearing upon the question of the existence or non-existence of such a custom a case which was decided by this Bench, namely S. A. No. 252 of 1911, decided on the 7th of July, 1911. In that case the custom as recorded in the wajib-ul-arz expressly provided for preemption upon ordinary sale and conditional sale. The record was as follows:
If any co-sharer wishes to sell conditionally or absolutely his share, he can-transfer it for the price that may he offered him by others, first, to a near co-sharer, next, to other co-sharers in the patti, and in ease of their refusal to his near oo-sharers in other pattis: should they also refuse, then to others in the