1. This appeal arises out of a suit for pre-emption. The plaintiffs alleged that the transaction between the defendants was in reality a usufructuary mortgage dressed up in the guise of a simple mortgage, so as to defeat their right of pre-emption. They went on further to say that even if the Court found that the transaction was a simple mortgage, they had a right to be substituted in the mortgage. The lower Appellate Court has found as a matter of fact that the transaction was a simple mortgage, and this finding is binding upon us in second appeal.
2. It is contended, however, on behalf of the appellants that even on this finding the plaintiffs are entitled to pre-empt the mortgage. We shall assume for the purposes of the present appeal that some right of pre-emption does exist. We shall also assume that this right of pre-emption extends to the case of a usufructuary mortgage. The question remains, have the plaintiffs satisfactorily' proved the existence of a custom applying to the case of a simple mortgage? The evidence in support consists of an extract from the wajib-ul-arz of 1875. This entry records rights of pre-emption in the cabe of sale, mortgage and conditional sale. With regard to mortgage the expression used is rehan'. At the present time no doubt this expression is capable of including any transaction which is a 'mortgage' within the meaning of the Transfer of Property Act; but it is an expression which would have been hardly appropriate to a simple mortgage in the year 1875. It is an expression which most people would understand when used by villagers as meaning a usufructuary mortgage. That this is not an unreasonable view of the case is clearly shown by what happened in the Court below. All the arguments and the evidence centred round the question whether the transaction was a simple mortgage or a usufructuary mortgage. This was the only point argued in the. Court below, and it seems as if it were there conceded that unless the Court held the transaction to be a usufructuary mortgage, the plaintiffs had no case. In our opinion the plaintiffs failed to prove, by the evidence they adduced, the existence of a custom entitling pre-emption in the case of a simple mortgage.
3. The appeal fails and is dismissed with costs.