JUDGMENT

Maung Ba, J - The appellants brought a suit for the recovery of a piece of land valued at Rs. 2,000 on payment of Rs. 400, alleging an oral agreement tore-sell. They admit having executed the registered deed, Ex. 1, dated the 19th of April 1915. The document on the face of it, is an outright sale without reserving any right. The plaintiffs-appellants, however, wished to allege that there was an oral agreement on the part of the vendees to re-sell the property to them at any time. The. learned Additional District Judge held that oral evidence of such agreement was inadmissible. He cited a number of rulings. However, he apparently did not fully understand the difference between a case where the agreement tore-sell was a distinct transaction, independent of the outright sale, and a case-where the agreement to re-sell formed part and parcel of the original transaction constituting the whole a mortgage by conditional sale.

2. It is now urged that, taking the document by itself the transaction was a sale pure and simple, and that the alleged agreement to re-sell formed a distinct transaction. But, unfortunately, the plaint and the evidence of the second plaintiff-appellant do not bear out this contention. Both in the original plaint and in the amended one, the following description of the transaction' has been given. That description reads as follows:

That although the 'document was written in the form of a deed of sale it was intended by the parties prior to the execution of the document and there was an express agreement, constituting a condition precedent to execution of the deed that the land would be returned by the said Ma Nan Kai to the plaintiff on payment of a sum of Rs. 400 to herself or her heirs and legal representatives.

3. Here in my view what was intended to convey by this description was that the transaction was a sale only in form but not in reality and that the transaction intended was a mortgage by conditional sale. This construction is supported by the evidence of the second plaintiff-appellant, Maung Po Leik. The first plaintiff-appellant, Ma Nan Shein, is the mother, who is old and has not given evidence.

4. In the very first sentence of his deposition he said:

I mortgaged the suit land to Ma Nan Kai for Rs. 400 about ten years ago.

5. In the next sentence he said:

The mortgaged bond was executed in Bassein.

6. He admitted that at that time the property was worth about Rs. 1,000. His own witness Maung Nyo (P. W. 1) states that he went to Po Leik to get buffalo hire; that Po Leik then told him to wait till he could mortgage the land; that Po Leik and himself walked round the land and inspected it; and that he purposed that Po Leik should sell it to him for Rs. 1,000, when Po Leik replied that he wanted to mortgage the land and not to sell it. It is needless to consider the rest of the evidence. It is clear from the plaint as well as from the evidence of this interested party that the intention was to create a mortgage by conditional sale. That being so, the alleged agreement to re-sell, being part and parcel of the transaction, cannot be proved.

7. At first sight the rulings may appear conflicting, but they can be reconciled. In the case of an outright sale, by registered deed, an independent contract to re-sell either oral or by unregistered deed can be proved, but, where the con-tract is not an independent transaction, but forms part and parcel of the original transaction and together constitutes a mortgage, such contract cannot be proved.

8. The ruling in the case of Ma Hnin U v. Osman Gani [1912] 5 Bur. L.T. 99, of the late Chief Court of Lower Burma, is quite correct. There it was held:

A document purporting to be one of sale, though it is accompanied by a contract reserving to the vendor a right of re-purchase, is not on that account to be construed as if it were a mortgage. The test to apply is whether the relation of debtor and creditor subsists between the parties. If the relation does not exist then the t