1. This is a defendant-vendee's appeal arising out of a suit for pre-emption. On the 26th November 1942, one Bashir Mohammad Khan executed a gale deed in respect of the property in dispute in favour of the appellant. A separate document was executed along with this sale deed on the same date by which the vendee agreed to return the property to the vendor if the sale consideration was repaid to him within a period of three years. No suit was instituted to pre-empt this sale deed dated the 26th November 1942. On 6th November 1943, there took place another transaction. It was brought about by means of a document executed on that date by which the rights of the vendor to get back the property were also conveyed to the vendee. The present suit has been filed to pre-empt the transaction dated 6th November 1943, on the allegation that it is this transaction which constitutes the sale of the property by Bashir Mohammad Khan in favour of the appellant. In order to substantiate this contention, it became necessary for the plaintiff to allege that the transaction dated 26th November 1942, was not a transaction of sale but only a transaction of mortgage. The lower appellate Court has held that the transaction of 26th November 1942, was only a transaction of mortgage and not transaction of sale and therefore the transaction dated 6th November 1943, was a sale of the equity of redemption, that is to say, it was a sale of the proprietary rights in the property in dispute. It is no doubt true that it is open to a pre-emptor to show the real nature of the transaction and be is not bound by the apparent form in which the transaction takes place. The reason for this is that Section 92, Evidence Act does not stand in the way of a person who is not a party to the document. This, however, does not enable a pre-emptor to override the provisions of a statute and to insist that a transaction is what it cannot be according to law. The lower appellate Court has held that the transaction dated 26th November 1942, was in effect a mortgage, although it was given the garb of a sale. The attention of the learned Judge was directed to Section 58, T. P. Act as it stands after its amendment in 1929. The learned Judge thought that in spite of the amendment brought about in the year 1929 it was open to a Court to discover the intention of the parties and to hold whether a transaction was a sale or a mortgage according to its finding about the intention of the parties. He has relied upon a decision of this Court in Munshi Bishan Lal v. Banwari Lal : AIR1939All713 . That was a converse case. It was held in that case that the mere fact that the transaction of sale and the agreement to re-convey were embodied in one and the same document would not necessarily make the document a mortgage and that it was open to the parties to show that in spite of the agreement for the re-conveyance having been embodied in the same document, the transaction was one of sale and not one of mortgage. This could undoubtedly be done because this would not be violating any provision of any statute. Where the transfer of the property and the agreement to re-convey it are evidenced by the same document, it may be a sale or it may be a mortgage according to the intention of the parties. The learned Judge has thought that this analogy applies also to a case where the transfer and the agreement to re-convey are evidenced by separate documents. The learned Judge of the lower appellate Court was clearly in error in this view. There is an express prohibition contained in Section 58, T. P. Act which reads as follows:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
2. The transaction dated the 26th November 1942, could not amount to a mortgage even though the parties might have intended it to be a mortgage. The law takes effect in spite of the intention of the parties. The transaction dated 26th November. 1942 was, therefore, a sale out and out. That being the position, no equity of redemption remained with the vendor to be transferred subsequently. The transaction dated 6th November 1943, was therefore not a transaction by which the equity of redemption in the property in dispute was transferred to the appellant. All that he could purchase by means of that document was the right of the vendor to re-purchase the property. The transaction dated 6th November 1943, was thus, not pre-emptible.
3. For the reasons stated above, I allow this appeal, set aside the decree of the lower appellate Court and order that the suit, in so far as it prays for possession by pre-emption be, dismissed with proportionate costs in all the Courts.
4. Leave to appeal under the Letters Patent is refused.