Pollock, J—On the 14th October 1935 the defendant Samsher Khan, who is the appellant in this Court, executed a document (Exhibit P-2) in favour of Champalal, the predecessor in title of the plaintiffs-respondents, by which he purported to sell outright to Champalal certain fields for Rs. 3,200. On the following day Samsher Khan executed a kabuliyat (Exhibit P-3) in favour of Champalal by which he agreed to take these fields for eight years on an annual rent of Rs. 145, and Champalal executed an agreement (Exhibit D-1) in favour of Samsher Khan by which he agreed to reconvey the fields to Samsher Khan if Samsher Khan paid within eight years Rs. 3,200, the consideration for the sale, and Rs. 1,160 representing eight years' rent. All three documents were registered simultaneously on the 15th October. The question in dispute is whether the transaction was a mortgage by conditional sale, as defined in section 58 (c) of the Transfer of Property Act, or whether it was, as it appears to be on the face of it, an out and out sale, and the sole point argued before us was whether the question is concluded by the proviso to section 58 (c).

2. That proviso runs as follows :

Provided that n