Henry Richards, C.J.
1. This appeal arises out of a suit in which the plaintiffs seek to enforce their claim for pre-emption. The document which gave rise to the alleged cause of action is in the following terms:
We agree that we shall pay annually the interest and in default of payment of interest for two years, the creditors shall have the right, without waiting for the expiry of the time fixed, to file suit and to recover their due from the property mortgaged (niakbuza) and if the creditors make delay in realizing the principal and interest then the aforesaid creditors shall not be entitled to recover their dues under the deed from any other property of myself excepting the property mortgaged (makbuza).
2. The plaintiffs came into court alleging that in reality the transaction was a sale and that they were entitled to get possession upon payment of the consideration. They further claimed, however, in the alternative that if the transaction was a mortgage they might be substituted for the mortgagees. The court of first instance held that the transaction was not a sale, but a mortgage, and granted the plaintiffs the alternative relief. The lower appellate court, agreeing with the court of first instance that the transaction was not a sale and that the document merely operated as a 'charge' on the property, held that there was no right of substitution, and accordingly dismissed the suit.
3. Section 58 (clause b) of the Transfer of Property Act is as follows: 'Where without delivering possession of the mortgaged property the mortgagor binds himself personally to pay the mortgage money and agrees expressly or impliedly that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.'
4. If we omit from the definition the words, 'mortgage' and 'mortgaged' and substitute for the word 'mortgagor' the word 'borrower' and the word 'lender' for the word 'mortgagee,' the document in question seems to me to come clearly within the definition of a 'simple mortgage.' The borrowers had bound themselves to pay the money lent and had agreed that in the event of the money not being paid, the lenders should have a right to cause the property made security for the loan to be sold. I have substituted the words 'borrowers' and 'lenders' for 'mortgagors' and 'mortgagees' in order to get over the difficulty created by the previous part of Section 58, which defines 'mortgagor' as 'the transferor of an interest' and 'mortgagee' as 'the transferee of an interest.' I do not think the substitution alters the meaning of the clause. I think what are ordinarily treated as 'simple mortgages' in these provinces are not strictly 'simple mortgages' within the definition of Section 58, because I think there is in almost all these documents no 'transfer of an interest' in specific immovable property for the purpose of securing the payment of money advanced. If therefore I was satisfied that the present plaintiffs were entitled to be substituted for what is generally called a simple mortgagee, I would hold that they were entitled In the present case to be so substituted, because I find the greatest difficulty in distinguishing the transaction which is evidenced by the document in question from what is ordinarily called a 'simple mortgage.' The mere fact that a somewhat unusual word (makbuza) is used, does not make the document either more or less a 'simple mortgage' than if the more usual word 'maqful' or 'mustagaraq' was used.
5. There remains the question whether or not the plaintiffs have proved the existence of a custom which gives a right to be substituted in the case of what is ordinarily called a simple mortgage. The only evidence adduced in support of the alleged custom is the wajib-ul-arz of 1872. The entry is in the following terms: 'If any co-sharer wishes to make a transfer of any kind, he will first do so to a hissadar karibi, next to the hissadar of that thok, next to the hissadar of another thok. If none of the co-sharers of the village takes it he may then transfer it to a stranger. If he does not conform to it, then hiasadar karibi, hissadar thok, and hissadar of another thok, according to the aforesaid order of priority, have the preferential right to take the property by pre-emption. If at the time of the issue of a proclamation or at the time of the expiry of the limitation prescribed in Clause 15 of Section 1 of Act XIV of 1869, or of any other Act relating to redemption of mortgage (chorane miad rehan), the owner of the property be not capable of redeeming, or do not wish to redeem, then hiasadar karibi, etc., had power to take the property for himself by depositing the mortgage-money together with the costs. If any hissadar of arazi or hissa take any additional sum of money from the creditor to whom the property is mortgaged (rehah hai) by making a maqful of the same property, then the terms of the mortgage bond will apply to the said debt also.'
6. It seems to me that this record points very much to transactions which involve an actual change of possession. According to the most natural meaning of the earlier part of the clause transactions of this kind seemed to be contemplated. Then the latter part of the record deals, I think, with possessory mortgages and shows that the right intended to be recorded was that even where co-sharers had not availed themselves of their right when the transfer was originally made, they would still have a right of getting the property at any time before the right of redemption was entirely gone. It was pointed out, and no doubt correctly pointed out, that the word intiqal (transfer) is a very general word and includes all classes of transfers, but in my opinion the decision does not depend upon the interpretation to be put upon particular words occurring in the wajib-ul-arz. The extract from the wajib-ul-arz is evidence to be taken into consideration in considering the issue as to whether or not the custom exists. The record is supposed to be the record of an old custom existing for a long time, and I think that it will be found that in olden times mortgages without possession (or at least the right to possession) were hardly recognised. In my Judgment the mere production of the extract from the wajib-ul-arz was insufficient to prove the existence of the custom which it is necessary for the plaintiffs to prove in order to entitle them' to be substituted for the defendants. On these grounds I would dismiss the appeal.
7. I agree that the appeal fails, chiefly for the reason that I have considerable doubt that the parties to the document in suit ever intended to create a mortgage at all. Assuming that the custom as alleged by the plaintiff does exist and that the mortgage falls within that custom, the bond in question does not use the ordinary vernacular terms which are used in these provinces when parties wish to create a mortgage and give the mortgagee the right to sell the property. Beyond doubt it is difficult to distinguish between a document which merely creates a charge and a simple mortgage. But there are certain terms which are in common use in these provinces in vernacular documents when the parties wish to create what is commonly known as a simple mortgage. The word makbuza which is used in the document has been considered and discussed by a Bench of this Court in Dalip Singh v. Bahadur Ram (1912) I.L.R. 34 All. 446, and I agree with the conclusion of the learned Judges who constituted that Bench, that in using this word the parties can hardly be said to have contemplated, anything more than a charge.
8. It was for this reason that the court below dismissed the - suit. I must also add that I have considerable doubt that the custom which the plaintiff has put forward as evidenced by the wajib-ul-arz ever contemplated a case like the present. However, as the appeal in my opinion ought to be dismissed on the other ground, I think it unnecessary to decide this point.
9. The order of the Court is that the appeal be dismissed with costs.