1. This is a plaintiff's appeal arising out of a suit for pre-emption. On the 7th December 1905 Muhammad Amin and Musammat Shakira Bibi executed a deed of transfer in favour of one Lala Gur Dayal for a sum of Rs. 700. Under this document a two-annas semindari share of the lady and eight-pies semindari share of Muhammad Amin were transferred. On the same date a deed of agreement was executed by Lala Gur Dayal, the transferee, which recited that he had entered into a contract with Muhammad Amin, one of the two vendors, to the effect that in case a sum of Rs. 300 were paid by him within thirty years he would be entitled to get possession of his eight-pies share and if a further sum of Rs. 750 were paid he would get back possession of the two-annas share of Musammat Shakira Bibi also.
2. In 1919 the present defendant-vendee obtained a sale-deed of a certain share in the same village from a number of other co-sharers. The present plaintiff instituted a suit to pre-empt this sale-deed but while this suit was pending the defendant-vendee, namely, Abdul Ghaffar, obtained a document purporting to be a deed of gift from the said Muhammad Amin. On the strength of this deed he pleaded that he had become a co-sharer in the village and that, therefore, the suit for pre-emption1 was liable to be dismissed as against him. We have not been able to see the judgment which was pronounced in that case but we know this that that suit, on some ground or other, was actually decreed.
3. The plaintiff after that decree brought a second suit for pre-emption to recover the property covered by this ostensible deed of gift on the allegation that it really was a sale transaction.
4. The Courts below have found that a custom of pre-emption exists in favour of the plaintiff but have dismissed the suit on the ground that although the sale was for consideration, nevertheless it was not liable to pre-emption as the interest which it purported to pass could not be pre-empted.
5. The main question which arises in this appeal is whether the interest, if any, acquired by the vendee is capable of being pre-empted. The answer to the question depends on the further question whether the two documents of the 7th December 1905 taken together form one transaction of a mortgage by conditional sale or whether they represent two distinct and separate transactions, namely, one of a deed of sale by Muhammad Amin and Musammat Shakira Bibi and another a mere agreement by the vendee in favour of one of the vendors only. Both the Courts below have held that the transaction is not one of mortgage by conditional sale. We agree with the view taken by them. It is true that both these documents were executed on one and the same date which may create a suspicion in ones mind that they formed one transaction, but the Courts below have pointed out that it is not shown that the property which was transferred on that date was worth more than Rs. 700 which represented, the sale consideration, and have also pointed out that the agreement' was with one of the vendors only, namely, Muhammad Amin, and in his favour only. No right to recover back the property was given to Musammat Shakira Bibi or her heirs. This is a very significant feature ot the transaction. It is quite inconsistent with the transaction being merely a mortgage by conditional sale for in that case both Muhammad , Amin and Musammat. Shakira Bibi would have been entitled to redeem, if not the whole, at least their shares of the properties. We, therefore, think that the view taken by the Courts 'below on this point is correct.
6. This being so, no interest in the immoveable property has passed to the defendant-vendee under the document. There was a mere option of re-purchase arising out of the contract between Muhammad Amin and Lala Gur Dayal, which cannot be said to be immoveable property. Whether the vendee has or has not acquired any right to exercise this option we are of opinion that that right cannot be pre-empted. The suit accordingly must fail. The result is that the appeal is dismissed with costs.