JUDGMENT

Wazir Hasan, J - This is the plaintiffs' appeal from the decree of the Additional Subordinate Judge of Hardoi, elated the 26th March 1924. The suit, out of which this appeal arises, and which has failed in the trial Court, was laid for re-empting a transaction of the 17th of March 1922, on the ground, as stated in paragraph 4 of the plaint, that the parties to that transaction.

having colluded among themselves with a view to defeat the rights of the plaintiffs fictitiously and fraudulently have got the sale-deeds in the shape of possessory mrotgage-deeds.

2. In support of the claim so Set forth the plaintiffs produced evidence to establish the alleged fact that in reality the transaction against which the claim for pre-emption is brought was one of sale and that with a view to effectuate it a draft of the contemplated sale-deed was being, prepared when the agent of the plaintiffs happened to appear at the moment and at the place where it was being prepared. This agent is said to have held out a threat of a claim for pre-emption on behalf of the plaintiffs, in the event of a sale of the property which is the subject-matter of the suit. The defence was that there was no contract of sale between the parties, that the transaction evidenced by the two deeds of the 17th March 1922 was a mortgage transaction, and that it was carried into effect under a contract relating to the same transaction. On the side of the defendants also evidence was produced in support of the position taken in defence. The trial Court has rejected the evidence, which the plaintiffs led in proof of their case, and accepted the evidence adduced on behalf of the defendants with the result that the suit for pre-emption was dismissed as already stated.

3. At the hearing of this appeal the learned advocate for the appellants opened his attack against the judgment of the trial Court by laying stress on certain salient features, as he called them, of the case which we have before us for decision. We will now advert to these features. It appears that on the 17th of March 1922, two deeds were executed by M. Rukmin, one in favour of Dharam Singh, Defendant No. 1 (Exhibit 1) and the other in favour of Umrai Singh and Kaptan Singh Defendants Nos. 2 and 3 (Exhibit 2). The two last mentioned Defendants are the brothers of Dharam Singh. The deed in favour of Dharam Singh is a deed of usufructuary mortgage postponing redemption to a period after 26 years of the property in suit which is a 9 biswas of biswansis zamindari share in village Chandupur Kherai, pargana Shahabad, in the district of Hardoi. The mortgage money is the sum of Rs. 10,000. The second deed in favour of Umrai Singh and Kaptan Singh was executed the same day as the deed in favour of Dharam Singh. This document purports to evidence a transaction of a simple mortgage in respect of the same property which is the subject-matter of the deed in favour o Dharam Singh. The consideration for this transaction is stated to be the sum of Rs. 12,450.

4. It appears that the property in suit was held in possession, under a usufructuary mortgage, by one Bansgopal and another gentleman Kedar Nath. The mortgage money due to these two men was the sum of Rs. 12,450. The object of the deed in favour of Umrai Singh and Kaptan Singh was, as stated in the document itself, to redeem the, mortgage held by Bansgopal and Kedar Nath on payment of Rs. 12,450. It follows that the benefits of the usufructuary mortgage which Dharam Singh took on the 17th of March 1922, were to accrue to him only in the event of the redemption of the mortgage in favour of Bansgopal and Kedar Nath. On the facts, which we have so far stated, it was argued that the two transactions (Exhibits 1 and 2) were merely parts of one transaction between Mt. Rukmin and Dharam Singh and the other two defendants. This may readily be conceded and indeed the learned Counsel on the side of the respondents addressed no arguments to us in opposition to the point of vie