JUDGMENT
Burkitt, J.
1. This is an appeal in a pre-emption suit. The vendor, one Ram Khilawan, by a registered sale-deed dated the 6th of June 1887, sold certain property to one Sheoraj Ahir. Subsequently, in May 1888, a suit was instituted by one Bharos to pre-empt that property on the ground that the vendee was not a co-sharer. The suit was brought under the provisions of the wajib-ul-arz as to pre-emption. Before that suit came to a hearing in Court an agreement was entered into by the vendor, the vendee and the pre-emptor and was registered on the 6th of July 1888. The effect of that document is that the vendee, practically admitting the pre-emption right of Bharos, agreed to hand back the property on the Puran Mashi of Jeth of any year on being repaid by either the vendor or the pre-emptor the amount he had given for it. Nothing further appears to have been done in the matter till the year 1891, when, on the 20th of June of that year, the vendor, assuming to treat the sale of 1887 as a mortgage, and after referring to the stipulation contained in the agreement of July 1888, applied to the Court under the provisions of Section 83 of the Transfer of Property Act to permit him to deposit the mortgage money in Court on the ground that Sheoraj had refused to accept it. This application appears to have been shelved on the 3rd of August, 1891. Subsequently in November 1891, Earn Khilawan applied for leave to withdraw the money from Court and asked that the agreement of 6th July 1888, should be considered null and void, and stated that he had no longer any desire to interfere with Sheoraj’s possession. This application of the 13th of November 1891, is the foundation of the plaintiff’s suit. In the sixth paragraph of the plaint plaintiff alleges that this transaction of the 13th of November 1891, amounted to a sale and that therefore he is entitled to pre-empt. In the first Court the Subordinate Judge very properly held that the suit was barred by limitation, being of opinion that the plaintiff’s pre-emptive rights were, as I understand him, in no way affected by the agreement of July 1888, or by the application of the 13th of November 1891. The Lower Appellate Court disagreed with the first Court, and held that though the sale of June 1887, was an absolute out-and-out sale, the agreement of the 6th of July 1888, had the effect of turning that absolute sale into a mortgage by conditional sale. He further held that “the effect of the application of the 13th of November 1891, is that the conditional vendor relinquished his equity of redemption and made the sale absolute.” He further held that, as the sale thus became absolute on the 13th of November 1891, the plaintiff’s cause of action arose on that date, and that therefore his suit was in time. I am unable to concur in any one of the conclusions at which the learned Judge arrived, excepting so far as he finds that the sale of June 1887, was an out-and-out absolute sale. In that matter he is quite right. But the agreement dated the 6th of July 1888, did not have, could not have, and was not intended to have, the effect of turning the absolute sale of June 1887, into a mortgage by conditional sale. From the beginning to the end of that instrument the word “mortgage” is nowhere mentioned, and the sale of June 1887, is described in it as an absolute sale (bainamah la ka lami.) The matter to which the parties to that instrument agreed is no more than that if either the vendor or the pre-emptor repaid the purchase money on a fixed date to the vendee the latter would recovery the property. In fact this document can be considered as neither more nor less than a promise by the vendee to re-sell the property on certain conditions. The sale as originally made remained untouched as an out-and-out absolute sale and the only right which the vendor or the pre-emptor acquired was a right of repurchase. The learned Judge in the Court below is quite wrong in holding that under the deed of July 1880, the previous absolute sale became a conditional sale with power of redemption, and the vendor’s statement in his petition of June 1891, as to the sale having become a mortgage, and, in his petition of November 1891, as to his relinquishment of his supposed equity of redemption are simply absurd. I concur fully with the view of the law taken by the Court of First Instance and dissent in toto from that laid down by the District Judge, I allow this appeal. I set aide the decree of the Lower Appellate Court, and I restore the decree of the Court of First Instance dismissing the plaintiff’s claim. Defendants are entitled to their costs in all three Courts.
