RANGUBAI W/O. KISAN Vs. GOVIND LAXMAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption of a sale dated 25th April 1941 (Ex. P-2) executed by one Purushottam Jairam in favour of the original defendant Kisan. Kisan is now dead and his legal representatives are the appellants here.

(2.) THE plaintiff bases his right to pre-empt on a deed, Ex. P-1, dated 11th September 1936, which he obtained from the same owner Purushottam Jairam. The only question in appeal is whether that document is a sale out and out or a mortgage. If a sale, then the plaintiff's right to pre-empt is undoubted. If a mortgage, the plaintiff has no right.

(3.) IT is conceded that these two transactions constitute a sale out and out with an agreement to reconvey as between the parties to them be-cause of the proviso to Section 58(c), T.P. Act. But it is argued that the present defendants were not parties to those transactions and, therefore, they are not precluded by Section 92, Evidence Act, from showing that the transactions are not what they seem to be. Reliance for this was placed on Gangabai v. Pandoo 4 N.L.R. 115; Maung Kyin v. Ma Shwe La 88 Cal. 892, Maung Kyin v. Ma Shwe La A.I.R. (4) 1917 P.C. 207 and Mahesh. chandra Shaha v. Anandaohandra Shaha A.I.R. (21) 1934 Cal. 564.