JUDGMENT A.N. Verma, J. - This is a plaintiffs first appeal. It arises out of suit for specific performance of a contract for reconveyance of two houses, details whereof are specified in the plaint. The court below has dismissed the suit. 2. The suit was filed with the allegations that the plaintiffs were in need of money. They wanted to raise the money upon the security of their houses. They approached the defendants for this purpose, who agreed to advance a loan of Rs. 20,000/- to the plaintiffs with an interest of 1.25% per mensem which works out to Rs 250- per month. The defendants wanted security for the repayment of this loan. It was consequently agreed between the parties that the following documents shall be executed by the plaintiff in favour of the defendant: one, a sale deed transferring the houses in suit in favour of defendants for a consideration of Rs. 20,000/- and, the other a deed of reconveyance whereunder the defendants would undertake to reconvey the property to the plaintiffs for a sum of Rs. 20.000/- plus the amount of rent which shall have become due from the plaintiffs tinder the third document, namely, a rent note, whereunder, the plaintiffs would be liable to pay Rs. 250/- per month to the defendants as rent for the two houses. The plaintiff was, however, to continue in occupation of the houses. Pursuant to this arrangement, these three documents were simultaneously executed on 1-2-1965. The three documents together constituted, in truth and substance, a mortgage by conditional sale irrespective of what might have been recited in those documents. Within less than four years, the plaintiff called upon the defendant by means of written notices to execute the deed of reconveyance in favour of the plaintiffs in terms of the agreement referred to above. The defendant, however, refused to execute the deed of reconveyance. The plaintiff offered to pay to the defendant the entire sums of money which he had to pay for the reconveyance of the property, but the defendant without any justification refused to reconvey the property, and. therefore, the suit. 3. The defence of the defendants , respondents was that the transaction between the parties was an out and out sale and not a mortgage by conditional sale. therefore, the suit. 3. The defence of the defendants , respondents was that the transaction between the parties was an out and out sale and not a mortgage by conditional sale. In the agreement for reconveyance, however, there was a term that if the plaintiff happened to fall in arrears of rent for more than six months the deed of reconveyance would be deemed to have been cancelled. The plaintiffs were in arrears of rent for more than six months. They had therefore, forfeited the right to claim reconveyance of the property. It was denied that the three transactions were intended to constitute -a mortgage by conditional sale. 4. On the pleadings of the parties, the trial Court framed various issues. On the issue whether the three transactions constituted a mortgage by conditional sale, the court below held that they did not amount to mortgage by a conditional sale both upon the plain terms of these documents as well as in view of the proviso to S. 58(c), Transfer of Property Act. The court below rejected the plaintiffs oral evidence which was adduced to show that the real intention behind execution of these three documents was not to transfer the property outright in favour of the defendants but was to secure the repayment of the loan by mortgaging the houses in question on the ground that such evidence could not be admitted in view of the prohibition contained in Sections 91 and 92, Evidence Act. The court below has also rejected the plea of the plaintiffs to the effect that clause in the agreement for reconveyance whereby the plaintiffs were to be precluded from claiming reconveyance if they fell in arrears of rent for more than six months, was penal in nature, and that the court should, therefore, relieve the plaintiffs from the effect of the breach of such clause. The learned Judge trying the suit followed a decision of the Supreme Court in the case of K. Simrathmull v. Nanjalingiah Gowder, ( AIR 1963 SC 1182 ) the facts of which were identical with the facts of the case in hand. The net result was that the suit of the plaintiff-appellant was dismissed. 5. Aggrieved by the decision of the Court below, the plaintiff has filed this appeal. 6. The net result was that the suit of the plaintiff-appellant was dismissed. 5. Aggrieved by the decision of the Court below, the plaintiff has filed this appeal. 6. Learned counsel first contended that the Court below committed an error of law in holding that the oral evidence of the plaintiffs adduced to establish that the true intention behind the parties executing the three documents was not what appeared on the face of these documents, but something different therefrom, and was inadmissible because of the bar of Sections 91 and 92, Evidence Act. It was submitted that where the very existence of the contract evidenced by a document purporting to have been executed by the parties thereto is being questioned, the bar of S. 91, Evidence Act, cannot possibly have any application. 7. Having heard learned counsel for the parties, I do not consider it necessary to go into the aforesaid question as there is a shorter answer to the plea of the plaintiffs. The clear case of the plaintiffs as pleaded was that the three transactions together constituted a mortgage by conditional sale. Proviso to S. 58(c), Transfer of Property Act, lays down that where the mortgagor ostensibly holds the property mortgaged on various conditions enumerated therein, the transaction cannot be deemed to be a mortgage by conditional sale unless the condition for reconveyance is embodied in the document which effects or purports to effect the sale. In the present case, the condition for reconveyance is not embodied in she sale deed itself. The condition occurs in a separate document. Consequently, upon the plain terms of S. 58(c) of the Act, the transaction in question could not be regarded as mortgage by conditional sale. 8. Furthermore, the three documents are identical in terms and effect with the documents which were the subject matter of consideration in the case of K. Simrathmull v. Nanjalingiah Gowder, (AIR 1963 S C 1182) (Supra) by the Supreme Court and on an interpretation of those documents their Lordships held that though the sale deed of reconveyance and the rent-note were part of the same transaction the transaction could not be regarded as a mortgage by conditional sale. Those documents were executed in circumstances substantially identical with those obtaining here. The court below has followed this decision, in my view, rightly. 9. Those documents were executed in circumstances substantially identical with those obtaining here. The court below has followed this decision, in my view, rightly. 9. Thus, in either of the matter, the conclusion, of the court below that the three transactions did not constitute a mortgage by conditional sale seems correct and is hereby affirmed. 10. The next submission and this was the main submission of the learned counsel for the appellant was that the clause in the deed of reconveyance that in the event of the plaintiffs remaining in arrears of rent for more' than six months, the deed of reconveyance shall stand cancelled, is penal in character, and the court should in equity ought to relieve the plaintiff from the effect of the breach thereof. I cannot agree. Before, I proceed to deal with the submission I may add that the learned counsel for the plaintiff did not dispute the fact that the plaintiffs were in fact in arrears of rent for more than six months. 11. Now I find that the above submission also stands concluded by the decision of the Supreme Court in the case of K. Simrathmull v. Nanjalingiah Gowder, (AIR 1963 S C 1182), (supra). In that case, their Lordships of the Supreme Court were considering a similar argument advanced on behalf of the plaintiff of that case. Their Lordships observed at page 1184 of the report as follows :- "It is true that equity relieves against penalties when the intention of the penalty is to secure payment of a sum of money of attainment of some other object, and when the event upon which the penalty is made payable and be adequately compensated by payment of interest or otherwise. Thus relief is granted in equity against the penalty in a money bond, and also against penal sums made payable on breach of bonds, covenants and agreements for payment of money by instalments or for doing or omitting to do a particular act...... "But there is a well recognised exception to this rule which is enunciated in Halsubry's Laws of England III Edition Vol. 14 page 622 Article 1147. "But there is a well recognised exception to this rule which is enunciated in Halsubry's Laws of England III Edition Vol. 14 page 622 Article 1147. Paragraph 1151 is as follows :- "Where under a contract, conveyance of will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or at a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not relieve against a breach of the terms." The Federal Court in Shanmugam Pillai v. Annalakhshmi Ammal, AIR 1950 F C 38, held by a majority of three to two that where under an agreement an option to a vendor is reserved for purchasing the property sold by him the option is in the nature of a concession or privilege and may be exercised on strict fulfilment of the conditions on the fulfilment of which it is made exercisable. If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. Refusal to enforce the terms specifically for failure to abide by the conditions does not amount to enforcement of a penalty and the Court has no power to afford relief against the forfeiture arising as a result of breach of such a condition. A majority of the Judges of the Court in that case followed the principle set out in Davis v. Thomas (1831) 39 E R 195. We accept the view of the majority enunciated in Shanmugam Pillai's case, AIR 1950 F C 38." The aforesaid observations put the controversy raised beyond the pale of doubt. The Court cannot relieve the plaintiff from the effect of the breach. The decision of the Supreme Court provides a complete answer to the submission of the learned counsel for the plaintiff appellant. 12. Learned counsel, however, attempted to argue that in the aforesaid case, their Lordships of the Supreme Court did not consider the effect of S. 74, Contract Act. The decision of the Supreme Court provides a complete answer to the submission of the learned counsel for the plaintiff appellant. 12. Learned counsel, however, attempted to argue that in the aforesaid case, their Lordships of the Supreme Court did not consider the effect of S. 74, Contract Act. It was submitted that in a later decision of the Supreme Court in the case of Fateh Chand v. Balkishan Dass (AIR 1963 S C 1405) their Lordships of the Supreme Court considered the effect of S. 74, Contract Act and extended the principle enunciated above even to cases arising out of the breach of the contract for sale of an immovable property. Learned Counsel submitted that this Court should follow the decision of the Supreme Court in the case of Fateh Chand v. Balkishan Dass (Supra) rather than the decision in the case of K. Simrathmull v. Nanjalingiah Gowdei (AIR 1963 S C 1182) (Supra). 13. Learned Counsel for the defendant respondent on the other hand submitted that the clause was not a penal clause. It was not a stipulation by way of penalty. On the contrary, the plaintiff had already transferred the property absolutely in favour of the defendant under a sale deed and under the deed of reconveyance, the defendants had merely conferred upon the plaintiffs an advantage or privilege which he was free to avail of provided he did not commit any breach of the condition. The submission raised by the learned counsel for the defendant requires serious consideration and it cannot be rejected out of hand. However, it does not seem necessary to go deeper into the question as in my opinion, the facts of the present case are indistinguishable from the facts of the case of K. Simrathmull v. Nanjalingiah Gowder, (AIR 1963 S C 1182), (Supra). I have examined the decision of the Supreme Court in the case of Fateh Chand v. Balkishan Dass (Supra) and I find that the' controversy involved there is different from the issue at hand. I have examined the decision of the Supreme Court in the case of Fateh Chand v. Balkishan Dass (Supra) and I find that the' controversy involved there is different from the issue at hand. Their Lordships of the Supreme Court in the case of Fateh Chand v. Balkishan Dass, (AIR 1963 S C 1405) Suprat, observed that S. 74, Contract Act, is not necessarily limited only to cases where the aggrieved party is seeking to receive write amount on breach of contract, but that is available also in cases where upon breach of the contract, an amount received under the contract is sought to be forfeited. This controversy is materially different from the problem with which I am concerned. I would, therefore, follow the decision of their Lordships of the Supreme Court in the case of K. Simrathmull v. Nanjalingiah Gowder (Supra) which is directly applicable to the facts of the present case. 14. The result of the aforesaid discussion, therefore, is that the conclusion of the court below that the plaintiffs cannot be relieved from the effect of the breach of the aforesaid clause in the deed of conveyance is correct and is fully supported by the decision of the Supreme Court. 15. No other point was urged in support of this appeal. 16. In the result, the appeal fails and is dismissed. There will be no order as to costs.