JUDGMENT S.N. Dwivedi, J. - Syed Mohammad Ahmad Rizvi challenges the orders of the Assistant Custodian (judicial), Lucknow, the Additional Custodian, Evacuee Property, U.P., Lucknow, and the Deputy Custodian General, Evacuee Property, Mussoorie, and prays for the issue of a writ in the nature of certiorari to quash those orders. 2. The petitioner is one of the sons of the late Manzoor Ali. Akhtari Bai alias Akhtari Begam was a widow of the late Manzoor Ali. After the death of Manzoor Ali, on April 25, 1946 the petitioner and the other sons of the said Manzoor Ali executed a registered deed with respect to the immoveable and immoveable properties left by the said Manzoor Ali. Akhtari Bai alias Akhtari Begam was a party to the deed. One of the clauses of the deed deals with the dower debt due to Akhtari Bai, and another clause with the provision for maintenance allowance to her. Those clauses also specify the mode in which she could recover the dower debt and arrears of maintenance in the event of default in payment by the sons of Manzoor Ali. She migrated to Pakistan. And then there arose a question before the respondents whether those clauses created a mortgage or a charge in favour of Akhtari Bai. The petitioner and his brothers claimed that the clauses created a charge. The Assistant Custodian (judicial) and the Additional Custodian held that the clauses created a mortgage' in favour of Akhtari Bai. In revision the Deputy Custodian General held that the clause dealing with the payment of dower debt created a mortgage and that the clause providing for the maintenance allowance created a charge. Accordingly I am now concerned only with the former clause. The main argument of the petitioner before me is that clause also creates a charge in favour of Akhtari Bai. But before I take up this point, it is necessary to dispose of two other arguments advanced on behalf of the petitioner. 3. The first argument is that the notice under Section 7-A of the Administration of Evacuee Property Act was issued on April 25, 1955 after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954. The argument cannot succeed for two reasons. Firstly, it was not raised before the respondents. It involves a question of fact. The argument cannot succeed for two reasons. Firstly, it was not raised before the respondents. It involves a question of fact. As it was not raised before the respondents, I am not inclined to permit the petitioner to advance it for the first time in the writ proceeding. Secondly, it is not proved on the record before me that the notice was issued after six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954. There is no clear allegation in the petitioner's affidavit that no notice was issued within the prescribed period. All that is said is that he,was not served with any notice prior to the notice dated April 25, 1955. A counter affidavit has been filed on behalf of the respondents by B. B. Verma, Managing Officer II, Evacuee Property, Allahabad. He has alleged in the counter-affidavit that a notice was issued on March 25, 1955 and that the record of the case showed that it was served on April 6, 1955. The original notice has been annexed to the petition. It purports to be dated 25-4-55, and the petitioner banks on this date. At the top of the notice there is mentioned in the i handwriting of the issuing clerk the office number of the notice along with the date 25-3-55. It would suggest that the notice was really issued on March 25, 1955 and not on April 25, 1955. The notice was issued from the office of the Assistant Custodians, Lucknow. The notice required the petitioner and Akhtari Bai to appear before the Assistant Custodian on April 26, s 1955 and to show cause why the property mentioned on the back of the notice I should not be declared to be evacuee property. The counter-affidavit mentions that the notice was sent to the Tahsildar, Malihabad (district Lucknow) for service. It could hardly be expected that the notice issued on April 25 and sent to the Tahsildar, Malihabad, could be served on the petitioner and Akhtari Bai in time to enable i them to appear before the Assistant Custodians on April 26, 1955, at 3 p.m. This is another circumstance which strongly suggests that the notice was in fact issued on e March 25, 1955, and that the date 25-4-55 is a clerical mistake for 25-3-55. 4. 4. The second argument is that the notice did not conform to the language of clause (b) of Section 7-A. 5. Clause (b) of Section 7-A is attracted when a person has migrated on or after March 1, 1947 from India and was resident of Pakistan on May 7, 1954. According to the notice the ground of taking action is : "Having migrated to Pakistan was not in a position to manage the property in person." 6. It is said that the notice does not specify that Akhtari Bai was resident of Pakistan on May 7, 1954. Reliance is placed on Mohammad Husain v. S.S. Joshi, A.I.R. 1961 M.P. 30 and Rubab Bai v. Assistant Custodian of Evacuee Property, A.I.R. 1962 M.P. 38 These cases are clearly distinguishable. 7. This argument was also not raised before the respondents. It is also not clearly taken in the petition. Section 7-A does not require the authority issuing the notice to mention in the notice the fact that the person to whom the notice was being issued has migrated from India on or after March 1, 1947, and that he was resident of Pakistan on May 7, 1954. This is not disputed by the petitioner, but it is said on his behalf that rule 6 of the Administration of Evacuee Property Rules does make it obligatory to mention the grounds in the notice. Sub-rule (1) of rule 6 provides that where the Custodian is satisfied from information or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served in Form No. 1 on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property. Sub-rule (2) further provides that the notice : "shall, as far as practicable, mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Act under which the person claiming any title to, or interested in, such property is alleged to be an evacuee." 8. Sub-rule (2) itself shows that the obligation to mention the grounds on which the property is sought to be declared evacuee property is not inflexible. The grounds are to be stated as far as practicable. Sub-rule (2) itself shows that the obligation to mention the grounds on which the property is sought to be declared evacuee property is not inflexible. The grounds are to be stated as far as practicable. Then it seems to me that the omission to state in the notice that Akhtari Bai was residing in Pakistan on May 7, 1954, would not render it illegal if such omission has caused no prejudice to the petitioner or other interested parties. It has neither been alleged in the petition nor has been argued before me that the omission has caused any prejudice to him. It was admitted by the petitioner before the respondents that Akhtari Bai had migrated to Pakistan. After this admission he should have given evidence that she was not residing in Pakistan on May 7, 1954. Far from that, he did not raise this point at all before the respondents. 9. It is also suggested that there is no finding by the respondents that Akhtari Bai was residing in Pakistan on May 7, 1954. She had admittedly migrated to Pakistan. She did not appear before the respondents. It was neither pleaded nor argued before them that she was not resident in Pakistan on May 7, 1954. Accordingly I am of opinion that it could be presumed that she was in Pakistan on the said date and that such a finding is necessarily implicit in the impugned orders. 10. Now I shall deal with the main question. During the course of arguments at the bar certain cases were cited for and against the petitioner's contention. I have also examined the other reported cases on the point. The reported cases establish the following principles : (1) A charge is different from a mortgage. A mortgage is a transfer of an interest in property, while a charge is merely a right to receive payment out of some specified property. The mortgage is described as a jus in rem and the charge as a . In the case of a simple mortgage, there is a personal liability to pay the debt. The liability may be express or implied. Vide Janapareddy Latchan Naidu v. Janapareddy Sanyasumma, A.I.R. 1963 S.C. 1556. (2) The distinction between a charge created by the act of parties and a simple mortgage is often very fine. Vide Akshoy Kumar Benerji v. Corporation of Calcutta, I.L.R. 42 Cal. The liability may be express or implied. Vide Janapareddy Latchan Naidu v. Janapareddy Sanyasumma, A.I.R. 1963 S.C. 1556. (2) The distinction between a charge created by the act of parties and a simple mortgage is often very fine. Vide Akshoy Kumar Benerji v. Corporation of Calcutta, I.L.R. 42 Cal. 625 and Matlul Hasan v. Mt. Kalawati, A.I.R. 1933 Alld. 934. (3) Whether a deed creates a charge or a simple mortgage would depend on the intention of the parties to it. Their in is to be ascertained from the language of the deed. Govind Chandra Pal v. Dwarka Nath Pale, I.L.R. 35 Cal. 837, Jent Koeri v. Mathura Koeri, A.I.R. 1928 Alld. 171, and Banaras Bank Ltd. v. Har Prasad, AIR 1936 Lahore 482. (4) The decisions based on other documents will not serve a good guide. Jent Koeri v. Mathura Koeri, A.I.R. 1928 Alld. 171. (5) The existence of personal liability to pay is by itself not decisive. Raghukul Tilak v. Pitam Singh, A.I.R. 1931 Alld. 99 and Matlul Hasan v. Mt. Kalawati, A.I.R. 1933 Alld. 934 (6) The absence of personal liability to pay may incline the balance against the deed being a simple martgage. Banaras Bank v. Har Prasad, AIR 1936 Lahore 482. (7) A clear recital in the deed that he debt may be recovered by sale is not essential. Kishan Lal v. Ganga Ram, I.L.R. 13 Alld. 28, Sri Raja Papamma Rao v. Sri Vira Pratapa, I.L.R. 19 Mad. 249, and Balasubramania Nadar v. Sivaguru Asari, I.L.R. 11 I.C. 629. (8) A clear recital that there was a transfer of interest in property is also not essential. Balasubramania Nadar v. Sivaguru Asari, I.L.R. 11 I.C. 629. (9) Documents dealing with annuiand maintenance allowance have been invariably held to create a charge. Masutna Khatun v. Tahira Khatun, I.L.R. 19 I.C. 661. Jent Koeri v. Mathura Koeri, A.I.R. 1928 Alld. 171, Altaf Begam v. Brij Narain, A.I.R. 1929 Alld. 281, Raghukul Tilak v. Pitam Singh, A.I.R. 1931 Alld. 99 Matlul Hasan v. Mt. Kalawati, A.I.R. 1933 Alld. 934, Sikandar Ara Amina Begam v. Hasan Araegam, A.I.R. 1936 Oudh. 196, Sharif Ahmad v. H. Hunter A.I.R. 1937 Oudh. 35, and Jenendra Nath Foy v. Bashi Mukha Debya, AIR 1940 Calcutta 60. 171, Altaf Begam v. Brij Narain, A.I.R. 1929 Alld. 281, Raghukul Tilak v. Pitam Singh, A.I.R. 1931 Alld. 99 Matlul Hasan v. Mt. Kalawati, A.I.R. 1933 Alld. 934, Sikandar Ara Amina Begam v. Hasan Araegam, A.I.R. 1936 Oudh. 196, Sharif Ahmad v. H. Hunter A.I.R. 1937 Oudh. 35, and Jenendra Nath Foy v. Bashi Mukha Debya, AIR 1940 Calcutta 60. (10) Documents providing for payment of a debt, giving specific immoveable property as security, creating personal liability to pay the debt and clearly stating that the aforesaid property may be sold for recovery of debt, have been held to create a mortgage. Balasubramania Nadar v. Sivaguru Asari, I.L.R. 11 I.C. 629. Kishan Lal v. Ganga Ram, I.L.R. 13 Alld. 28, Sri Raja Papamma Rao v. Sri Vira Pratapa, I.L.R. 19 Mad. 249, Tokhan Singh v. Girwar Singh, I.L.R. 32 Cal. 494, Shiva Prasad Singh v. Beni Madhub Chowdhary, AIR 1922 Patna 529, and Banaras Bank Ltd. v. Har Prasad, AIR 1936 Lahore 482. 11. In the light of these principles I shall proceed to decide whether the deed in the present case creates a mortgage or a charge. 12. The deed is annexure A to the petition. It appears from the deed that the late Manzoor Ali had married three times. Presumably Akhtari Bai was his third wife. She is the step-mother of the petitioner and his brothers. It also appears that the relations between the petitioner and his brothers and their step-mother, Akhtari Bai, were strained. The deed provides for the partition of the properties left by the late Manzoor Ali. It was executed as a result of good counsel for the family elders. It consists of 9 clauses. Clause 2 deals with the dower debt due to Akhtari Bai. Clause 3 deals with the dower debt due to Sarwari Begam, the pre-deceased wife of the late Manzoor Ali. Clause 4 deals with the dower debt due to another pre-deceased wife. Clause 7 deals with the payment of maintenance allowance to Akhtari Bai. Clauses 2,3,4 and 7 are very important for our purposes. Clause 2 acknowledges that Rs. 5000/- were due to Akhtari Bai as dowel debt. Clause 4 deals with the dower debt due to another pre-deceased wife. Clause 7 deals with the payment of maintenance allowance to Akhtari Bai. Clauses 2,3,4 and 7 are very important for our purposes. Clause 2 acknowledges that Rs. 5000/- were due to Akhtari Bai as dowel debt. It states that the said amount would be paid to her within a week of the sons of the late Manzoor Ali receiving the Provident Fund, Insurance amount and the amount deposited in the Savings Bank account of the late Manzoor Ali and the zamindari Compensation Bonds. Then it goes on to state that : "so long as the said sum was not paid, the immoveable property of the late Manzoor Ali situate in villages Malihabad, Binai, Ghandoli, Prag, Faizullapur, Bibipur and Charmari, would remain encumbered (Bar) with it. And in the event of default in payment of the said amount. the second party, Mst. Akhtari Bai, would he entitled to recover it by auction sale of the said immoveable property or from the first party jointly or severally". The first party consists of the sons of the late Manzoor Ali including the petitioner. 13. Clause 3 provides that Rs. 3000/ would be payable to Syed Rais Ahmad Rizvi and Syed Afaq Ahmad Rizvi in lieu of the dower debt due to their mother, Mst. Sarwari Begam. Then it goes on to say that if the said amount was not paid to them, they could recover it from the person and property of the executant's nos. 1 to 3 jointly and severally. The executants nos. 1 to 3 are Syed Mohammad Ahmad Rizvi, Syed Mohammad Rizvi and Syed Ahmad Rizvi. Clause 4 provides that a sum of Rs. 5000/- would be payable to the executants nos. 1 to 3 in lieu of the dower debt due to their mother. Clause 7 provides that the executant's nos. 1 to 3 and their successors would each pay Rs. 10/- per month to the second party, Mst. Akhtari Bai, as maintenance during her life time or until remarriage. Then it goes on to say that all the properties left by the late Manzoor Ali would remain encumbered with the payment of the maintenance allowance. In the event of default in payment of the allowance, the second party would be entitled to recover it through court from the person or property of the executant's nos. Then it goes on to say that all the properties left by the late Manzoor Ali would remain encumbered with the payment of the maintenance allowance. In the event of default in payment of the allowance, the second party would be entitled to recover it through court from the person or property of the executant's nos. I to 3. 14. The difference in the language of these four clauses is evident and illuminating. Clause 2 secures the payment of a debt. It specifies immoveable property in certain villages, which would be encumbered with the payment of the debt. It also clearly states that in the event of default in payment the debt could be recovered by auction sale of the encumbered properties. It further states that the sons of the late Manzoor Ali would be jointly and severally liable. Clause 2 thus falls within the last principle emerging from the decided cases. It would accordingly create a simple mortgage in favour of Akhtari Bai alias Akhtari Begam. Clauses 3 and 4 also deal with the dower debts of the two other wives of the late Manzoor Ali. But they have been drafted in a manifestly different language. Clause 7, which provides for maintenance allowance to Akhtari Bai, is also drafted in a manifestly different language, and it has rightly been held not to create a mortgage. 15. Counsel for the petitioner has also re lied on Moti Begam v. Har Prasad, 19 I.C. 658, Jawahar Lal v. Indomati, I.L.R. 36 All. 201, Nathan Lal v. Durga Das, A.I.R. 1931 Alld. 62 and Babu Ram v. Inam Ullah, 1935 A.L.J. 279 The first case related to the payment of dower debt. The document recited that until the debt was paid, the specified property could not be transferred. The document provided that the property would remain Arh and Mustagharak. It was held that those words did not create a mortgage. It may be observed that there was nothing, either express or implied, in the document to show that the creditor was given a power of selling the property. In the second case the document neither used the word 'mortgage' nor gave any right of sale to the creditor. It merely specified certain properties, a covenant to pay the loan and a covenant not to alienate the properties so long as the loan unpaid. In the second case the document neither used the word 'mortgage' nor gave any right of sale to the creditor. It merely specified certain properties, a covenant to pay the loan and a covenant not to alienate the properties so long as the loan unpaid. Richards C. J. held that the document created a charge, while Banerji J. held that it created a mortgage. In the third case the only question was whether a document created a charge or not. Th question whether it created a charge o mortgage did not arise. The last case was the case of a charge by operation o law. All these cases are distinguishable from the present case. 16. According to one of the principle already stated the distinction between charge and a mortgage is often very fin The Deputy Custodian General has he that the document in the instant case treat es a mortgage. I have already said t it creates a mortgage. Counsel for respondents has however pressed in service the argument that in any case would be difficult to hold that the or of the Deputy Custodian General is visited by an error of law apparent on t face of the record. It seems to me there is considerable force in this agreement. If the distinction between a cha and a simple mortgage is often very it cannot be said that the impugned order staffers from a manifest mistake of law. 17. For the reasons already stated I no force in this petition and it is accordingly dismissed with costs.