The main legal point established in the judgment is the application of Mahomedan law principles to determine whether a conveyance is a sale or a gift, and the scope of appeal against an order of remand under Order 41, Rule 23.

1. This is an appeal against an order of remand passed under Order 41, Rule 23, Civil P.C., in A.S. 180 of 1926.

2. The defendants are the appellants and the plaintiff the respondent before us. The suit was brought by the plaintiff, mortgagee, to enforce a covenant of preemption in his favour in a mortgage-deed, dated 10th September 1923 (Ex. A), executed by defendant 1. Under that covenant, the mortgagor, defendant, agreed that in the event of his deciding to sell the mortgaged properties within the period fixed in the mortgage bond for the payment of the mortgage debt, he should offer them for sale at the then market price, in the first instance, to the plaintiff. The plaintiffs case is that in breach of the said covenant defendant 1 sold the mortgaged properties to his wife, defendant 2, for Rs. 700 by a registered sale-deed, Ex II, dated 5th November 1923. The plaintiff says that defendant took the sale-deed with notice of his right of pre-emption, and that he is therefore entitled to. enforce that right against her also. Plaintiff prays for the execution by the defendants of a sale-deed in his favour of the properties in respect of which he has a right of pre-emption under the mortgage-deed, Ex. A, subject to his paying such amount as may be ascertained by the Court to be payable by him as the market value of the property after giving credit for the mortgage money due to him from defendant 1.

3. The defendants contested the suit alleging that there was no agreement to sell the property to him, and even if there was, it was not enforceable, not being supported by consideration. They further pleaded that the conveyance by defendant 1, to his wife defendant 2, was not a sale as it was executed only in consideration of the mahar of Rs. 700 due to her and that the plaintiffs suit was also not maintainable as there was no tender of the price by him. Defendant 2 further pleaded that she is a bona fide purchaser of the property without knowledge of the agreement in plaintiffs favour.

4. The District Munsif found-in plaintiffs favour that under the mortgage-deed he had a valid covenant for pre-emption in respect of the mortgaged properties if the mortgagor wanted to sell those properties within the period fixed for redemption of the mortgage. As regards the conveyance executed by defendant 1 in defendant 2s favour, he held that it was made in consideration of Rs. 700, being the mahar debt due to her, and that the conveyance made for such a consideration was according to Mahomedan law not a sale but a gift for consideration which is styled " hiba-bil-iwaz," and as defendant 1 had not sold the property, the plaintiff had no cause of action for the suit and on that ground he dismissed the suit. The District Munsif did not consider it necessary to give a finding on the question raised in issue 4 whether defendant 2 took the conveyance in her favour with knowledge of defendant 1s agreement with the plaintiff. In appeal by the plaintiff against the said decree, the learned Subordinate Judge not only upheld all the findings of the District Munsif, which were in plaintiffs favour, but also held that the conveyance to defendant 2 was a sale and not a gift and that therefore the plaintiff would have a right to enforce his right of preemption against her if she had purchased with knowledge of that agreement. As that question had not been decided by the District Munsif, being in his view unnecessary for the disposal of the case, the learned Subordinate Judge set aside the District Munsifs decree and remanded the suit for a fresh disposal after trying the remaining issues in the case.

5. The appeal before us has been preferred by the defendants against the said order of remand. In support of the appeal the learned vakil for the appellants wants to contend before us not only that the finding of the learned Subordinate Judge as to the nature of Ex. II on which he ordered the remand is erroneous, but also, that the other findings of the Subor