JUDGMENT : R.K. Dash, J. - Defendants are in appeal against the affirming Judgment in a suit for specific performance of contract and for possession. Gokul Chandra Giri (since dead) and Bhubaneswar Giri, respondent No. 4, herein, were originally the plaintiffs. During pendency of the suit Gokul Chandra Gin having died, his legal representatives who were substituted in his place, are respondents 1 to 3 in the present appeal. For convenience Gokul Chandra Giri and Bhubaneswar Giri are referred to as plaintiffs in the present appeal. 2. Plaintiffs case, in short, is this. The suit land described in schedule 'A' of the plaintiff originally belonged to the plaintiffs which they inherited by way of succession, being sons of Sidheswar Giri, the recorded owner. In the year 1974, they being in need of money approached the defendants for a loan of Rs. 1,200/-. To their such request the defendants agreed on condition of their giving some property as security, for the. loan. It was also agreed to between them that the defendants would return back the security free from all encumbrances if the plaintiffs refunded the loan within a stipulated period. Accordingly plaintiffs executed a sale deed in respect of the suit schedule. A land on 6.11.74 for a sum of Rs. 1,200/- in favour of the defendants and put them in possession thereof. On the same day defendants also executed a plain paper agreement in their favour stating therein that they would reconvey the suit land and deliver possession if they refunded the aforesaid amount including registration expenses within a period of five years. In view of the stipulation contained in the said agreement, the plaintiffs arranged money for repayment and tendered the same on 14.5.79, but the defendants refused to accept on some protext or other. Plaintiffs though were/are always ready and willing to perform their part of the contract, but it was defendants who refused to take back she amount given as loan and registration expenses when offered and reconvey the suit land as agreed to between them and therefore, the plaintiffs finding no other alternative filed the suit claiming the relief as aforesaid. 3. The case of the defendants, on the other hand, is that the deed in question is a sale out and out and not a security for loan. 3. The case of the defendants, on the other hand, is that the deed in question is a sale out and out and not a security for loan. Explaining the circumstances as to how the agreement came into being, they have urged, inter alia, that after execution of the sale deed the plaintiffs refused to hand over she registration receipt unless the vendees - defendants create a document in their favour expressing that they have right to repurchase the suit land. Though the defendants had no intention to reconvey the suit land, but in order to obtain the registration receipt, they executed the so-called agreement as desired by the plaintiffs. 4. The above being the pleadings of the parties, learned trial Court framed as many as seven issues and on appraisal of the evidence adduced by the parties, decided all the issues in favour of the plaintiffs and decreed the suit. On appeal, learned District Judge on reassessment of the evidence agreed with the findings and conclusion of the trial Court and dismissed the appeal. 5. While admitting the appeal, the substantial question of law formulated by the Court is whether the deed in question is a mortgage by conditional sale or a sale out and out. In course of argument, learned counsel for defendants submitted that it was not the case of the plaintiffs in their pleadings that the deed Ext.1 is a mortgage by conditional sale, since the so-called agreement between the parties for retransfer of the land on payment being made does not find mention in the document which is the mandatory requirement of law for construing the document as a mortgage by conditional sale as provided in the proviso to Section 58(c) of the Transfer of Property Act (for short, 'the Act'). Proviso to Section 58(c) of the Act envisages that no transaction shall be deemed to be a mortgage unless any of the conditions enumerated in the said Section is embodied in the document which affects or purports to affect the sale. The said proviso was added by Act 20 of 1929 since there was conflict of decisions on the question whether the conditions contained in a separate deed could be taken into account for ascertaining whether a mortgage was intended by the principal deed. The said proviso was added by Act 20 of 1929 since there was conflict of decisions on the question whether the conditions contained in a separate deed could be taken into account for ascertaining whether a mortgage was intended by the principal deed. This conflict was resolved by inserting the said proviso by way of an amendment that the transaction shall not be deemed to be a mortgage unless the conditions referred to in the clause are embodied in the document which affects or purports to affect the sale. It is well settled, whether a particular transaction is mortgage by conditional sale or sale out and out has to be decided with reference to the terms of the documents. So if the words are clear and unambiguous, then the true legal effect must be given effect to, but if they are not so, then it is permissible for the Court to look into the surrounding circumstances to determine the real intention of the parties. In the present case, it appears that the plaintiffs did not base their claim u/s 58(c) of the Act: Rather their case was that the document; Ext.1 on the face of if though was termed as a sale deed, but it was intended between the parties to operate as a security for loan. In the view of the matter, the question arises as to what was the intention of the parties at the time when the document Ext. I was created. It may be reiterated that it is the case of the plaintiffs that it was agreed to between the parties that if they (plaintiffs) refunded the loan of Rs. 1,200/- (this being the consideration amount as mentioned in the deed),within five years. The vendees, namely, the defendants would execute, a fresh, sale deed in their favour and deliver possession of the land to them. This agreement between them was embodied in a separate document, Ext. 2 simultaneously on the very day the sale deed, Ext.1 was executed and registered. 6. To appreciate as to if the terms of the agreement are admissible in evidence for consideration whether the document, Ext. 1 is a sale out and out or it was intended to serve as security, reference may be made to Sections 91 and 92 of the Evidence Act. 6. To appreciate as to if the terms of the agreement are admissible in evidence for consideration whether the document, Ext. 1 is a sale out and out or it was intended to serve as security, reference may be made to Sections 91 and 92 of the Evidence Act. Section 91 says that when the terms of a contract, grant or any other disposition of property have been reduced to writing., the writing itself should be produced and no other evidence would be admissible in proof thereof. Coming to Section 92, it lays down, that when the terms of a contract., grant or other disposition of the property or any other matter, required by law to be in writing have been proved by filing the document as laid down in Section 91, the parties to the contract or their legal representatives cannot be allowed to lead oral evidence for the purpose of contradicting, varying, adding to, or subtracting from its tern). However there are certain exceptions to this rule as provided in the provisos to the said Section and for the purpose of this case reference, may be made to provisos (1) and (3) which read as follows : "Proviso (1).- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law." "Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved." There were conflicting decisions as to the applicability of the said Provisos and the matter was settled by the Judicial Committee in AIR 1936 70 (Privy Council) . The following principles can be deduced from the aforesaid decision : (i) Oral evidence is admissible to prove that the signature of the executant was forged in disproof of the agreement. (ii) The signed document was not to operate as an agreement until a specified condition was fulfilled. (iii) The document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter. (ii) The signed document was not to operate as an agreement until a specified condition was fulfilled. (iii) The document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter. True it is deducible from the aforesaid pronouncement that oral evidence is admissible to show that the document was never intended to operate according to the terms contained therein. In the present case both the Courts below besides relying upon Ext.2 accepted the oral evidence that it was agreed to between the parties that on the plaintiffs' making payment of Rs. 1,200/- and the registration expenses incurred for registration of Ext. 1 within a period of five years, defendants would reconvey the property. 7. A contention was raised before the first appellate Court that Ext.2 suffers from uncertainty, in as much as it did not specifically indicate as to the exact amount of the registration expenses to be paid along with the principal sum. This contention was repelled by the learned District Judge on the ground that the defendants being parties to the document any omission therein will not enure to their benefit. No other point of law having been raised and it being the concurrent finding of both the Courts below that payment was offered by the plaintiffs within the stipulated time the Judgment and decree passed by the trial Court and confirmed by the appellate Court cannot be disturbed. 8. In the result, the appeal fails and the same is dismissed. Since there is no appearance by the respondents, there shall be no order as to costs. Final Result : Dismissed