1. This is a plaintiff's appeal arising out of a suit for pre-emption. The plaintiff claimed the right of a cosharer under the Pre-emption Act by virtue of a deed dated 19th October 1894 which was ostensibly a deed of sale with a condition for retransfer on payment of the amount. The condition was embodied in the document itself. Both the Courts below have held that this was a mortgage deed and not a sale deed. The case is covered by the definition of a mortgage by conditional sale as given in Section 58, Sub-clause (C), and there can be no doubt that this was a mortgage by conditional sale and not an out and out sale: Man Singh v. Guman Singh : AIR1929All619 .
2. The next point urged is that even as a mortgagee in possession the plaintiff is a cosharer entitled to pre-empt the property. A cosharer is now defined in Section 4, Sub-clause (1), Pre-emption Act, as meaning any person other than a petty proprietor entitled as proprietor to any share or part in the mahal or village. It is quite clear that the plaintiff is entitled to a share of the profits as the mortgagees, but not in the capacity of a proprietor. We think that the expression 'as proprietor' means by virtue of his proprietary right, and would not apply to a case where a person is in possession of the property and his title falls short of the proprietary interest. We therefore think that the view taken by the Court below is correct and the plaintiff has no locus standi be sue.
4. No other point is discussed before us.
5. The appeal is dismissed with costs including in this Court fees on the higher scales.