Lindsay and Sulaiman, JJ.
1. These two appeals are connected and are plaintiff's appeals arising out of two suits for pre-emption based on two separate sale-deeds.
2. On the 1st of December, 1919, two sale-deeds of two separate properties were executed in favour of the same vendee, and on the same date two agreements were executed by the vendee in favour of the vendor promising to re-transfer the properties conveyed for the amounts of the purchase-money if they were paid between the years 1340 and 1345 Fasli. The plaintiffs treated both these transactions as separate transactions and brought the suits for pre-emption of the ground that the property had been sold away.
3. On behalf of the defendants the existence of the alleged custom was denied and it was further pleaded that the custom, even if it existed in the village, would not apply to such a transaction. Both the courts below have held that the custom of pre-emption exists in the village, but that, the transactions in question being only mortgages by conditional sale, they were not liable to pre-emption.
4. The existence of the custom has not been challenged in appeal. The only point, therefore, which we have to consider is, whether the courts below were right in holding that these two sets of transactions were in reality mortgages by conditional sale and not out-and-out sale transactions. It is to be noted that the two sets of documents were executed on one and the same date and were presented for registration at the same time. It is also noteworthy that the agreements contain in clear terms recitals that the sale-deeds were executed subject to the condition that the property would be re-conveyed if the purchase monies were paid within the years 1340 and 1345 Fasli, that is to say, the recitals in the deeds of agreement themselves show that the transactions were not separate transactions but formed part and parcel of the same transaction. The properties were, therefore, transferred to the vendee subject to the condition that they would have to be re-conveyed if the amounts were paid within a certain time fixed. The transactions, therefore, clearly come within the definition of a mortgage by conditional sale as given in Section 58, Clause (c) of the Transfer of Property Act.
5. The circumstances of the case as well as the cross-references are such that the courts below have drawn the presumption that the transactions were really mortgages. We have had the documents read to us and we are satisfied that there is really no ground for differing from the view taken by the courts below. The result is that these appeals fail and are dismissed with costs.