JUDGMENT : S.P. BAHRGAVA, J. 1. This second appeal by the Defendant arises out of a suit for declaration of title and for possession of a house situated in the Mangalwara Ward of Bhopal. The details of the house are given in paragraph 1 of the plaint. The claim of the Plaintiffs was decreed by both the Courts below and hence this appeal. 2. Briefly stated, the facts are that the house in question was sold by Respondent (Defendant No. 2), Moti, in favour of the Appellant on 2-8-1957 for Rs. 185/- by sale deed (Ex. D-1). On the same day, the Appellant executed, in favour of Moti, the vendor, an agreement (Ex. P-9) for the resale of the house to him within three years on repayment of Rs. 185/- along with the arrears of rent and expenses of repairs. It is admitted that the physical possession of the house remained with Moti and was never given to Gaffar. Subsequently, while the agreement of repurchase was still in force, the Plaintiff purchased the house from Moti on 31-3-1949 for Rs. 300/- and only a few days after in the month of April 1949, Moti deposited Rs. 125/- in the Court of the Civil Judge for payment to Sheikh Gaffar The purchaser Smt. Kasturibai obtained permission for repairs of the house in the month of June 1949 (vide Ex. P-5). 3. The Appellant. Sheikh Gaffar, instituted a suit (Civil Suit No. 222 of 1949) against Moti alone without impleading Smt. Kasturibai, alleging that he (Moti) had relinquished his right of repurchase by entering into another contract with him (Sheikh Gaffar) on 11-8-1948 In this suit, Moti obtained a consent decree to the effect that Moti should execute a deed of relinquishment after obtaining from Sheik Gaffar Rs. 42/- it being held that he had already received Rs. 83/ out of the settled consideration of Rs. 125/- for obtaining relinquishments. Possession was not ordered to be given to the Appellant in the decree but in the execution proceedings, the Appellant ultimately dispossessed the Plaintiff. He, therefore, claimed a declaration of title and possession of the house by instituting a suit (C.S. No. 57 of 1957) which was ultimately decreed by the trial Court on 18-8-1958. The first appellate Court affirmed the decree of the trial Court. 4. He, therefore, claimed a declaration of title and possession of the house by instituting a suit (C.S. No. 57 of 1957) which was ultimately decreed by the trial Court on 18-8-1958. The first appellate Court affirmed the decree of the trial Court. 4. On behalf of the Appellant, the following points have been raised for consideration: (1) That the transaction evidenced by the sale-deed, dated 2-8-1947, could not be held to be amounting to a mortgage by virtue of separate agreement of the same date for reconvening the property in favour of the vendor, Moti; (2) That the agreement to re-convey the property in favour of Moti alone was in the circumstances of the case a personal concession to Moti and he was not entitled to transfer this in favour of anyone else; (3) That by the agreement, dated 11-8-1948, which has been recognised in Civil Suit No. 222 of 1949, referred to above, the right of repurchase which was created on 2-8-1947 was wholly destroyed and Respondent No. 1 Smt. Kasturibai was not competent to purchase the property on 11-3-1949 when no subsisting title was left in Moti. 5. The lower Court found that the real nature of the transaction between the parties completed on 2-8-1947 was that of a mortgage and not of sale; that the said mortgage was not redeemed by Moti; that Moti had a right to transfer the property to Defendant No. 1, Smt. Kasturibai; that it was not proved that Smt. Kasturibai had any knowledge of the alleged agreement, dated 11-8-1948, regarding relinquishment by Moti of his light of repurchase that the amount of Rs. 42/- was not paid by Sheikh Gaffar to Moti as decreed in Civil Suit No. 222 of 1949. referred to above, and, therefore, Moti was at liberty to sell the house in suit to Kasturibai; that the decree in C.S. No. 222 of 1949 merely entitled the Appellant to get a necessary deed executed and it was not for possession of the house, and so, Kasturibai was illegally ejected in execution of the said decree. 6. referred to above, and, therefore, Moti was at liberty to sell the house in suit to Kasturibai; that the decree in C.S. No. 222 of 1949 merely entitled the Appellant to get a necessary deed executed and it was not for possession of the house, and so, Kasturibai was illegally ejected in execution of the said decree. 6. Point No. 1 - It was not disputed that the proviso under Section 58(c) of the Transfer of Property Act did not form any part of the Section as it was in force in the Bhopal State But, Shri Razak on be air of the Appellant contended that the provision contained in this proviso incorporates a matter of general principle and, therefore, even without an express provision being made, it would not be possible to maintain that a transaction evidenced by a registered sale deed in terms of an absolute sale-deed and by an unregistered agreement to re-convey the property is a mortgage by conditional sale. On the other hand, it was contended on behalf of the Plaintiff-Respondent that as the proviso under Section 58(c) of the Transfer of Property Act was nos in force in the Bhopal State it was permissible to raise a plea of the transfer being a mortgage, when the transaction was recorded in a sale deed in absolute terms and another deed to re-convey the property. It was urged that was not necessary that the condition of re-conveyance should have been incorporated in the document of sale itself. On behalf of the Plaintiff Respondent, reliance was placed on Chhuttu v. Kayam Khan AIR 1953 Bho 18 it has been herd permissible to raise a plea of transaction amounting to mortgage under these circumstances in the Bhopal State and some other case, decided by the Bhopal Judicial Commissioner's Court, have also been referred to in paragraph 9 of that judgment as taking the same view. 7. For the Appellant, reliance was placed upon Soshil Kumar v. Madan Gopal AIR 1953 Pun 292 in which it has been held: It is true that the Transfer of Property Act does not apply in terms to Delhi or at least to the area in which the suit property is situate but the principles of that Act are generally applied. For the Appellant, reliance was placed upon Soshil Kumar v. Madan Gopal AIR 1953 Pun 292 in which it has been held: It is true that the Transfer of Property Act does not apply in terms to Delhi or at least to the area in which the suit property is situate but the principles of that Act are generally applied. Further, the sale deed undoubtedly required registration under Section 17, Registration Act, and if it was sought to modify the terms of the sale deed by later agreement, the document embodying those terms would also require registration; of course, it was possible for Biri Mal or his sons to rely upon the unregistered agreement of 10-1-1942 as what it purported to be an agreement to sell which of itself did not require registration but they are not attempting to do this, and the five-year period in which they Could see for its enforcement expired before the present suit was filed. The transaction therefore, in my opinion, must be taken to he an absolute sale by Biri Mal to Madan Gopal. It is significant to note that in the instant case, this plea was not taken that the agreement to re-convey the property being an unregistered document could not affect the terms of the sale need which was executed on the same date. Prior to the addition of the proviso to 58 (c) of the Section, a mortgage by condition of sale was usually made by two documents; one being a sale deed and the other containing the condition of re-conveyance. Where the deeds in form were absolute transfers but it was alleged that they were really intended to be only mortgages, Section 92 of the Act was held to be no bar to the admission of evidence to show what was the true nature of the transaction. (See Maung Kyin v. Ma. Shwe La ILR 45 Cal 320). It fact, on this plea being advanced that the real nature of the transaction was that of a mortgage, cases were required to be examined by applying the various tests which have been laid down in cases for determining the question. (See Maung Kyin v. Ma. Shwe La ILR 45 Cal 320). It fact, on this plea being advanced that the real nature of the transaction was that of a mortgage, cases were required to be examined by applying the various tests which have been laid down in cases for determining the question. This test was applied as to whether the sale was subject to the agreement for re-conveyance or was absolutely independent of it- In other words, whether the two documents were part and parcel of the same transaction or were independent of each other. In Some cases, the test applied was as to whether possession was delivered to the purchaser or whether the vendor retained some hold on the property. In some cases, the test applied was as to whether the agreement of re-conveyance gave the vendor a power to get the property re-conveyed to him as of right on repayment of the purchase money or it was a mere matter of grace These and some other tests which have been laid down in various decided cases have been discussed in Mitra's Transfer of Property Act (11th Edi.) at p.p. 416 to 420 under the heading previous law transaction contained in the two documents.' 8. In Ramdhandas v. Ramkisondas AIR 1946 P.C. 178 their Lordships observed as under: It is an inviolable rule that in considering the question whether a transaction is a sale or a mortgage the Court must find the substance behind the form But where the oral evidence is unreliable and contradictory the Court cannot safely depart from the written evidence of the documents. In Md. Ibrahim v. Sugrabi AIR 1955 Nag 272 the facts were hat the Plaintiff had brought his suit to enforce a right of redemption in respect of what he said was a mortgage. The document incorporated an absolute conveyance of property and said further that possession of the property was delivered on the same day. It contained a provision to the effect that if the Plaintiff paid the sum of Rs. 1300/- by named date, the Defendant would be required to accept the amount and return the house. It was held that the transaction amounted to a mortgage and that the suit for redemption was properly laid. It contained a provision to the effect that if the Plaintiff paid the sum of Rs. 1300/- by named date, the Defendant would be required to accept the amount and return the house. It was held that the transaction amounted to a mortgage and that the suit for redemption was properly laid. It was also held: that in view of the ambiguity which evidently existed the Court could look to the surrounding circumstances to determine the true nature of the document and the meaning of the words in relation to existing facts, and that the transaction amounted to a mortgage and that the suit for redemption was properly laid. The principle deducible from the above discussion in the decided cases is that before the enactment of the proviso in Section 58(c) of the Transfer of Property Act, it was permissible to show that a transaction amounted to a mortgage though a document of sale in absolute terms was executed and another document for getting the property re-conveyed was written. It would further be seen that Soshil Kumar v. Madan Gopal (supra) his no application in the instant case as it was not sought to modify the terms of the sale deed by the latter agreement. It has been expressly held in that case that it was possible for the vendor and his sons to rely upon the unregistered agreement as it purported to be an agreement to sell which of itself did not require registration. 9. Some of the important tests discussed above to show that the real nature of the transaction was that of a mortgage and not of sale are fully satisfied in the instant case and that is the concurrent finding of both the Courts below which is binding in this appeal. It is significant that the possession of the house was left with the vendor. The agreement to re-convey the property was made on the same day. It appears that both the documents were part of the same transaction, A fairly long period of three years was allowed for redemption and re-conveyance. In these circumstances, I have no hesitation to hold that the transaction amounted to a mortgage. The agreement to re-convey the property was made on the same day. It appears that both the documents were part of the same transaction, A fairly long period of three years was allowed for redemption and re-conveyance. In these circumstances, I have no hesitation to hold that the transaction amounted to a mortgage. Further, even if it be held that agreement of re-conveyance was an independent transaction, I would presently show that so far as this case is concerned, the final conclusion remains unaltered because action to get the property reconvened was taken by Smt. Kasturibai who was the assignee of the rights of Moti within the prescribed time. 10. Point No. 2:- As regards this contention, it would be important to state at the outset that I have already held the transaction to be amounting to mortgage. Therefore, this contention loose much of its significance. But, even then I propose to examine the arguments advanced by Shri Razak, learned Counsel for the Appellant. Relying on the authority of Pt. Krishna Chandra v. Pt. Ram gulam 1958 JLJ 130 he has contended that in this case, Moti had merely an agreement of re-conveyance in his favour. This agreement amounted to a concession to him and this concession from its very nature was not transferable. It would be pertinent to note that in the Division Bench case, referred to by Shri Razak, these observations have been made in the context of this fact that in such cases, the contract must be performed within the stipulated period because there is no mutuality between the parties. It is stated that the vendor is given a concession to purchase the property within a specified period if he pays the necessary amount but there is no corresponding right in the vendee. In the present case, there is no dispute between the parties with regard to the time being of the essence of contract. The objection was not advanced in the written statement in the manner that it has been agitated before me. There is no plea in the written statement that the agreement of re-conveyance made in favour of Moti was not transferable. As a matter of fact, on this short ground itself, the objection can be thrown out. But, in my view, on merits also the objection is devoid of all substance. There is no plea in the written statement that the agreement of re-conveyance made in favour of Moti was not transferable. As a matter of fact, on this short ground itself, the objection can be thrown out. But, in my view, on merits also the objection is devoid of all substance. In Sakalaguna v. Munuswami AIR 1928 P.C. 174 the facts were that by a deed of sale, a person sold a village to another on behalf of himself and as guardian of his minor son. On the same day, the parties executed what was called a "counterpart document" by which it was provided that the vendee should re-convey the said village to the vendor after a period of 30 years from that date upon his paying to the vendee the amount of consideration paid by him. The 'counterpart document' did not contain the name of the son. After the death of the vendor, his son sold the village to the Plaintiff and the deed contained not only a conveyance of the village but also assignment of the tight of the son to the benefit of the 'counterpart document'. It was held that the said 'counterpart document' was a completed contract, that it must be deemed as executed in favour of both father and son, and that the benefit of the contract could be assigned. In the deed of re-conveyance of 2-8-1937, there is nothing to prevent Moti from assigning the benefit to which he was entitled under the contract of re-conveyance. I, therefore, do not agree with the Appellant that the agreement to re-convey merely constituted a personal concession to Moti which could not be transferred to anyone else. 11. Point No. 3;- As regards this contention, in the first place, it is important to note that both the Courts below have held that the Plaintiff, Smt. Kasturibai, had no notice at all of the alleged agreement, dated 11-8-1948. This is a finding of fact which is binding in this second appeal. Further, on examining the document (Ex. D-5), I find that this document was registered in the month of June 1950 but its body, it purports to have been executed on 11-8-1948. It is obvious that the document was not registered within four months of its execution. This is a finding of fact which is binding in this second appeal. Further, on examining the document (Ex. D-5), I find that this document was registered in the month of June 1950 but its body, it purports to have been executed on 11-8-1948. It is obvious that the document was not registered within four months of its execution. I, therefore, do not believe the story of there being any agreement on 11-8-1948 If such an agreement had been really made, there is no reason why the registration of that document would have been delayed up to the month of June 1950. It is also clear that Civil Suit No. 222 of 1949 was instituted some months after the house having been purchased by Smt. Kasturibai She was not impleaded in the suit. The decree obtained in that suit is not, therefore, binding on her. It is also deal that the decree, passed in favour of the Appellant was conditional and he failed to pay the amount of Rs. 42/to Moti, In the absence of this payment, it cannot be inferred that Moti relinquished the rights in terms of the compromise decree It is significant that there was no decree passed for ejectment of Moti in the said suit and still Smt. Kasturibai was ejected. The ejectment of Kasturibai was, therefore, illegal. I fully agree with the conclusions arrived at by the lower Courts on this point. 12. No other point was pressed before me. 13. The result is that the appeal fails and is dismissed with costs. The judgment and decree of the first appellate Court is affirmed. Counsel's fee in this Court Rs. 30/-, if certified. As Respondent No. 2, Moti, remained absent in this Court, there is no question of his costs being allowed. Costs of the lower Courts would be received and paid according to the decree of the lower appellate Court.