T. SURYA RAO, J. ( 1 ) JUDGMENT :the unsuccessful plaintiff has preferred the present appeal against the judgment and decree dated 4-11-1991 in o. S. No. 119 of 1984 passed by the learned additional Chief Judge, City Civil Court, hyderabad. ( 2 ) THE respondent herein is the defendant in the suit. The plaintiff filed the suit seeking the relief of specific performance of the contract of sale dated 10-9-1978. The factual matrix is expedient to be set forth at the outset: ( 3 ) IT is the case of the plaintiff, inter alia, in the plaint that the defendant having agreed to sell the premises bearing municipal No. 21-7-600 together with the appurtenant open land more fully described in the Schedule appended to the plaint executed a sale agreement on 10-9-1978 for a consideration of Rs. 30,000/- and received an amount of Rs. 5,000/- as earnest money and passed a separate receipt of even date. The property covered by the said agreement was subject matter of litigation since 1975 in between the defendant and one malkaiah, inasmuch as the defendant had transferred the said property under a registered sale deed dated 24-4-1971 in favour of the said Malkaiah with a condition of re-conveyance of the same and as the said Malkaiah refused to transfer the property pursuant to the said covenant, and in connection therewith the defendant filed a suit which ultimately ended in the Supreme court. It was agreed, inter alia, in the agreement between the plaintiff and the defendant that the plaintiff should pay the balance of sale consideration of Rs. 25,000/- at the time of execution of the sale deed and the sale deed was to be executed and registered within one month of re-conveyance of the property by the said Malkaiah in favour of the defendant. The plaintiff was then in possession of the suit house as tenant under the said Malkaiah, and, therefore, it was agreed upon not to evict the plaintiff through Court in execution of the decree obtained by the defendant against the said Malkaiah and also to deliver possession of the appurtenant open land by the defendant to the plaintiff after taking possession of the same from the said malkaiah. ( 4 ) THE plaintiff came to know that the defendant will take possession of the house from her while executing the decree in E. P. No. 151 of 1979 against the said Malkaiah. Therefore, the plaintiff filed E. A. No. 189 of 1981 requesting the Court not to evict her in view of the clause in the agreement. However, the said claim petition was dismissed on 26-6-1982 on the premise that the property was not re-conveyed to the defendant and, therefore, the plaintiff s rights could not be worked out. On enquiry made on 29-1-1983, the plaintiff came to know that the defendant obtained re-conveyance deed through Court on 15-10-1982 and the defendant failed to inform the same to the plaintiff so as to enable her to pay the balance sale consideration and to get the sale deed executed. Therefore, the plaintiff got issued a telegram dated 30-1-1983 calling upon the defendant to execute the sale deed and register the same, failing which a suit would be filed. The plaintiff further stated that she was always ready and willing to perform her part of the contract. In confirmation thereof, a notice was sent by post. The defendant having received the said notice failed to respond. Hence, the suit. ( 5 ) THE defendant resisted the suit by filing a written statement alleging inter alia that the alleged agreement of sale dated 10-9-1978 was executed only by way of a security for a sum of Rs. 5,000/-borrowed from the plaintiff by the defendant in connection with the litigation between her and the said Malkaiah. The defendant was in need of finance to contest the suit O. S. No. 1860 of 1975 filed by her for specific performance against the said Malkaiah. The defendant had to approach one Anjaiah for money. The said Anjaiah, who, in fact, had close relations with the plaintiff paid the said amount of Rs. 5,000/-, but not the plaintiff and the alleged consideration of sale as recited in the document was only nominal and sham and the agreement was only to secure the repayment of Rs. 5,000/- and that the agreement was got executed without any intention by both the parties to sell the property. At that time it was agreed that till the repayment of Rs. 5,000/- by the defendant to Anjaiah, the plaintiff should not pay the rent of the premises. 5,000/- and that the agreement was got executed without any intention by both the parties to sell the property. At that time it was agreed that till the repayment of Rs. 5,000/- by the defendant to Anjaiah, the plaintiff should not pay the rent of the premises. When the defendant obtained possession through Court from the legal heirs of malkaiah, Anjaiah instigated the plaintiff to file a claim petition and got the execution stayed. When the defendant obtained the sale deed executed by the Court on 8-10-1992 pursuant to the decree in the suit in o. S. No. 1860 of 1975 and sought to obtain possession of the whole property, the plaintiff who was in possession of only a portion of the property filed the suit and stopped execution with an intention to grab the property, the prevailing value whereof was more than Rs. 50,000/- even by the year 1978. It is the further case of the defendant that the agreement envisages only damages for breach of the agreement and not specific performance and the plaintiff had not approached the Court with clean hands and the suit was hopelessly barred by limitation. Finally it was pleaded that the plaintiff had no financial capacity and she was only a dummy at the instance of Anjaiah. ( 6 ) AT the time of settlement of issues, the following issues were framed by the trial court. 1. Whether the agreement of sale dated 10-9-1978 is executed as a security as pleaded in the written statement?2. Whether the plaintiff can only claim damages and not specific performance?3. Whether the suit is barred by time?4. Whether the plaintiff is entitled for specific performance?5. Whether the plaintiff is entitled for possession?6. To what relief? ( 7 ) DURING the course of trial, two witnesses were examined on the side of the plaintiff namely, the attestor and the husband of the plaintiff and got Exs. AI to AII marked. The defendant examined herself as D. W. I and got Exs. Bl to B3 marked. Considering the evidence, both oral and documentary, and after having heard either side, the learned Additional Chief judge, refused to grant the relief of specific performance and while decreeing the suit directed refund of the amount of Rs. 5,000/- with interest at 6% per annum from the date of the suit agreement till realisation. Bl to B3 marked. Considering the evidence, both oral and documentary, and after having heard either side, the learned Additional Chief judge, refused to grant the relief of specific performance and while decreeing the suit directed refund of the amount of Rs. 5,000/- with interest at 6% per annum from the date of the suit agreement till realisation. The learned Judge, on issues 1, 2 and 4, observed that the suit agreement of sale dated 10-9-1978 was executed by the defendant as security to the repayment of loan amount of Rs. 5,000/ -. Having regard to the circumstances emanating from the contract of sale, the plaintiff was not entitled to the specific performance as prayed for. On issue No. 3, the suit was held to be barred by time. As aforesaid, having regard to other findings, the suit was decreed for damages of Rs. 5,000/ -. Having been aggrieved by the said judgment and decree, the plaintiff/appellant preferred the present appeal. ( 8 ) THE learned Counsel appearing for the appellant contends that the defendant having taken the plea that the suit agreement of sale dated 10-9-1978 was executed as a measure of security for the repayment of rs. 5,000/- and it was not intended to be a contract of sale between the parties inter se, the burden is heavy on the defendant and the defendant failed to discharge the same. The learned Counsel further contends that there were no laches on the part of the plaintiff and she was always ready and willing to pay the balance of sale consideration, as agreed, on the date of execution of the sale deed. The suit was not barred by limitation since the time for performance was set by the parties after obtaining of re-conveyance deed by the defendant from Malkaiah, Finally, the learned Counsel contends that there was any amount of dichotomy in the case of the defendant. ( 9 ) THE learned Counsel for the respondent, on the other hand, contends that attendant circumstances emanating from the transaction would amply support the plea of the defendant and therefore, the trial Court in its well considered judgment rightly held that the suit transaction was a transaction of loan, but not a contract of sale. The learned Counsel further contends that such a plea is not barred under section 92 of the Indian Evidence Act. The learned Counsel further contends that such a plea is not barred under section 92 of the Indian Evidence Act. ( 10 ) HAVING regard to the said contentions, the points that arise for determination in this appeal are: (1) Whether the suit agreement of sale dated 10-9-1978 was executed as a security for repayment of the loan advanced thereunder in a sum of rs. 5,000/- as pleaded? (2) Whether such a plea is barred under section 92 of the Indian Evidence act? (3) Whether the suit is barred by limitation? point No. 1 ( 11 ) THE oral evidence adduced on the point is that of P. Ws. l and 2 qua D. W. 1. P. W. I is the attestor to the suit agreement of sale marked in this case as Ex. A1, the execution whereof confessedly is not in dispute. Ex. A2 is the receipt passed in token of having received the amount of rs. 5,000/- under Ex. A1. Even the execution of this document is not in dispute. There has been no gainsaying of the passing of the receipt under Ex. A. 2. Therefore, there is nothing to appreciate the oral testimony of p. W. I, the attestor of these two documents. However, the testimony of P. W. I gains significance in view of the plea taken by the defendant that it was he who advanced the loan of Rs. 5,000/- in the name of the plaintiff in view of the connection with the plaintiff and engineered the suit. In the cross-examination, this witness pleaded ignorance about the pending litigation between the defendant and Malkaiah at one stage and at another stage admitted squarely about the knowledge of the pending mortgage on the suit house between the defendant and Malkaiah. Taking a very serious note of the same, the Court below was of the view that this witness had not been coming forward with the truth, oblivious of the fact and that the evidence of this witness was only to prove execution of exs. Al and A2 and there has been no gainsaying of the same. It is the plea of the defendant that there had been unethical connection between the plaintiff and P. W. I and the amount of Rs. 5,000/- was paid by this witness (P. W. I) and obtained Ex. A1 document in the name of the plaintiff. Al and A2 and there has been no gainsaying of the same. It is the plea of the defendant that there had been unethical connection between the plaintiff and P. W. I and the amount of Rs. 5,000/- was paid by this witness (P. W. I) and obtained Ex. A1 document in the name of the plaintiff. Admittedly, there has been no relationship whatsoever in between P. W. I and the plaintiff. It is highly improbable for P. W. I to have obtained Ex. Al in the name of the plaintiff when there was no proximate relationship between them inter se. Except the alleged allegation of unethical connection between P. W. I and the plaintiff, there has been no supporting evidence. A bald suggestion has been made in the cross- examination of this witness that the plaintiff was deserted by her husband and has been living with him which has been flatly denied. The suggestion remained as a suggestion without there being any evidence to substantiate the same. When a grave allegation has been made touching the conduct, dignity and honour of the woman, it is expected of to prove the same by cogent evidence. In the absence of such a proof, the allegation remains to be a bald allegation having no probative value. It has been elicited in the cross-examination of p. W. I that the plaintiff and her husband p. W. 2 used to reside in the house opposite to his house prior to occupying the suit house. Excepting that, nothing has been elicited in the cross-examination of this witness to substantiate the wild allegation of unchastity imputed to the plaintiff. Merely because P. W. I had at one stage expressed ignorance of the existence of litigation between the defendant and one Malkaiah and had at a later stage admitted the existence of a suit, the whole claim of the defendant, by no stretch of imagination, could be stated to have been proved. Such a conduct on the part of P. W. 1, even assuming for a moment is blame worthy, would not lend support to the plea of the defendant, particularly when there was no propinquity of relationship between the plaintiff and p. W. 1 inter se. From the evidence available on record, it could be seen that P. W. I is only an attestor of Exs. Al and A2. From the evidence available on record, it could be seen that P. W. I is only an attestor of Exs. Al and A2. The factum of attestation is not in dispute. For the foregoing reasons, I am of the considered view that the way in which the court below proceeded to appreciate the evidence of P. W. 1 is not correct. ( 12 ) P. W. 2 is the husband of the plaintiff. He deposed that he paid the amount of Rs. 5,000/- on behalf of his wife and exs. Al and A2 were executed by the defendant in the house of an Advocate, by name Sri Bankatlal Mandhani. He further deposed that both the plaintiff and the defendant subscribed their thumb mark and signature respectively, on Ex. Al in his presence. In the cross-examination, the witness stated that he and his wife paid an advance amount of Rs. 5,000/- and that he paid that amount in the presence of his wife and the money belongs to him. A suggestion was put to this witness in the cross-examination, doubting his capacity to pay the advance amount of Rs. 5,000/ -. The witness stated in his evidence that he was getting an income of Rs. 3,000/- per month in the milk business. He further deposed on oath that he has landed property in Moosi River bed, near High Court and he has been raising fodder crops on the said land as cattle feed for his cattle and also for the purpose of sale to others. Thus he has been getting an income of Rs. 15,000/- by such sale. In proof thereof, he filed ex. A9- Book containing land revenue receipts. When he deposed specifically on oath, in the chief-examination about the landed property, there has been no denial of the same, at least by means of a suggestion in the cross-examination. The Court below, doubted the capacity of this witness to pay the amount of Rs. 5,000/- under Exs. Al and A2 and proceeded further that it would lend support to the theory that it was PWl, who advanced the amount, but not the plaintiff. The suggestion put to this witness in the cross-examination, about the extra marital relationship of his wife with p. W. I has been denied. 5,000/- under Exs. Al and A2 and proceeded further that it would lend support to the theory that it was PWl, who advanced the amount, but not the plaintiff. The suggestion put to this witness in the cross-examination, about the extra marital relationship of his wife with p. W. I has been denied. The Court below doubted the testimony of this witness on the sole premise that had he been present, he would have attested Exs. Al and A2. I am afraid, I cannot concur with the said conclusions of the learned Judge. One cannot forget that P. W. 2 is the husband of the plaintiff and when the transaction was getting done by him on behalf of his wife, as claimed by him, it was not expected of him to attest the document. He was very much interested in the transaction. When p. W. I attested the document, there was no need for P. W. 2 to attest the same. Therefore, it cannot, in my considered view, validity constitute a ground for rejecting the testimony of this witness. There have been no inherent improbabilities in the testimony of this witness. On the other hand, it is quite probable that when the witness - P. W. 2 deposed on oath, that he and his wife had been living in a rented house and that they wanted to purchase the suit house under ex. A1, the fact that P. W. 2 and his wife-the plaintiff who are the tenants in the suit house have been inducted duly by Sri malkaiah and continued to be so, even after ex. Al - sale agreement, would probabalise the version of P. W. 2. Well, there was nothing extraordinary for a tenant who has been residing in a house for quite a long time in having prepared to purchase the same so as to secure a permanent abode for him and for the family. This innate circumstance emanating from the record would probablise the version of the plaintiff. Thus, the oral testimony of P. Ws. 1 and 2 would amply support the case of the plaintiff. It may be reiterated here that when there has been no gainsaying of execution of exs. Al and A2 and passing of the consideration thereunder, the theory, thus, propounded by the plaintiff has been probablised by the circumstances inherent in the records and emanating therefrom. 1 and 2 would amply support the case of the plaintiff. It may be reiterated here that when there has been no gainsaying of execution of exs. Al and A2 and passing of the consideration thereunder, the theory, thus, propounded by the plaintiff has been probablised by the circumstances inherent in the records and emanating therefrom. Having regard to this clear oral evidence of P. Ws. l and 2 on the side of the plaintiff, the burden is heavily cast upon the defendant who has sought to propound the theory of loan transaction. Except the ipsi dixit of d. W. 1, the defendant herself, there has been no supporting evidence whatsoever, either oral or documentary. The Court below sought to rely upon certain inherent circumstances emanating from the record in support of the theory propounded by the defendant. Much emphasis was laid in support of the non-examination of the plaintiff by the Court below. In the ordinary course, the plaintiff who filed the suit is expected to come into the witness box, so as to speak on oath. Non-examination of the party in support of his or her claim would entail drawing of an adverse inference. But, in my considered view, it is only an abstract proposition of law in the realm of appreciation of evidence. It all depends upon the circumstances of a given case. It is only with reference to the context in the case, such a presumption has to be drawn. There must be reasons for such non- examination and in the absence of which, it is legitimate to draw such an adverse inference. Well, in the given set of facts, it is explainable as to why the party has not chosen to examine himself or herself, instead chosen to examine another, who is acquainted with the facts. In such circumstances, non-examination loses significance and it is not legitimate to draw such an adverse inference. Well, in the given set of facts, it is explainable as to why the party has not chosen to examine himself or herself, instead chosen to examine another, who is acquainted with the facts. In such circumstances, non-examination loses significance and it is not legitimate to draw such an adverse inference. In the instant case, it is obvious from the evidence of p. W. 2, who is the husband of the plaintiff that he paid the consideration in the presence of his wife from out of his income over the land and milk business and he wanted to purchase the house as permanent abode, in the name of his wife, having resided therein as tenant quite a long time and more particularly, that he is acquainted with the facts and looking after the litigation on behalf of his wife. Having regard to the same, the non-examination of the plaintiff, who is obviously an illiterate, having affixed her thumb impression on Ex. A1, would lose significance and matters little. The lower court made much ado about nothing and the circumstances, in my considered view, do not warrant such an adverse inference to be drawn out pf the non-examination of an illiterate plaintiff. ( 13 ) APROPOS the circumstances emanating from the suit document Ex. Al, the Court below was of the view that the covenant under Ex. Al that the defendant should pay the taxes payable on the property till the time of execution of the sale deed was peculiar and strange. If really the parties intended to act upon Ex. A1, the plaintiff could have obtained transfer of the decree through O. S. No. 1860 of 1975, passed in favour of the defendant against malkaiah. It was not explained by the plaintiff as to what made her not to pay the balance of consideration of Rs. 25,000/- and in the wake of the pendency of litigation between the defendant and Malkaiah, it was not possible to believe that the plaintiff prepared to purchase the property. These circumstances, according to the Court below, as discussed by me supra, would lend support to the theory propounded by the defendant. It has been so specifically recited in Ex. 25,000/- and in the wake of the pendency of litigation between the defendant and Malkaiah, it was not possible to believe that the plaintiff prepared to purchase the property. These circumstances, according to the Court below, as discussed by me supra, would lend support to the theory propounded by the defendant. It has been so specifically recited in Ex. Al, that the balance of the sale consideration should be paid at the time of execution and registration of the sale deed, which sale deed should be executed only after having obtained the necessary reconveyance deed by the defendant from the mortgagee, the aforesaid Malkaiah. In the wake of a specific recital of which there has been no gainsaying of the document, it is not legitimately expected of from the court to proceed on some surmises and conjectures that such a clause is curious and strange. The clause is certainly not unconscionable, and is legitimate to be incorporated in the document when there has been a pending litigation by then. There is nothing extraordinary in my considered view, when the parties prepared to purchase the same regardless of the fact of a pending litigation. Perhaps that is the reason why, having agreed to purchase the property for a consideration of Rs. 30,000/-, an advance amount of Rs. 5,000/- was paid. This innate circumstance would not make the transaction suspect. There is every reason in having incorporated a condition in Ex. Al that the taxes should be paid by the defendant till such time the sale deed is executed in favour of the plaintiff. Agreement of sale will not confer title over the property, is the settled legal position. Well, when the property is not transferred by means of a regular conveyance deed in favour of the plaintiff, the plaintiff being not the owner thereof, is not legitimately expected to pay the taxes for the same, which, in the ordinary course, is expected of from the owner thereof, I see no strangeness in the condition incorporated in Ex. Al, in regard thereto. When the parties themselves have agreed for such condition and set their hands in proof thereof, it is not for the court to express curiosity or surprise. Al, in regard thereto. When the parties themselves have agreed for such condition and set their hands in proof thereof, it is not for the court to express curiosity or surprise. If the transaction is alleged to be an unconscionable one, having regard to the position of the parties vis-a-vis each other, I can understand in making an attempt to appreciate such a clause in the context of that plea. But that has not been the case here. Because of the pendency of the litigation, it is not legitimate to consider such circumstance alone than what has been agreed expressly by the parties in the shape of a written contract, that it has never been intended to be acted upon. The Court is also expected to see the conduct of both the parties. Admittedly, the plaintiff and P. W. 2 - her husband having been residing in the suit house as tenants thereof, they were allowed to continue therein. In furtherance of or in part performance of the contract of sale, they used to pay the rent to the mortgagee, by name Malkaiah and it is in evidence. So, soon after the transaction under Ex. A1, they stopped paying the rent to the said malkaiah. It is legitimate under the circumstances to consider that in view of ex. Al transaction, they stopped paying the rent to the defendant. As otherwise, in the ordinary course, the plaintiff is expected to pay the rent, either to Malkaiah who inducted them into the house as tenants or to the defendant who obtained a decree for specific performance of re-conveyance against the said Malkaiah. Non-payment of rent by the plaintiff over the suit property to the defendant would go certainly in support of the case of the plaintiff, but not in the case of the defendant. Had the transaction under Ex. Al been understood to be a transaction of loan, the tenant who has been in occupation of the property, which is subject-matter of the transaction, either would have continued to pay the rents or the parties would have agreed to allow the rents to go in liquidation of rent payable over the land. There has been no whisper, whatsoever, about the payment of rents or payment of interest towards the advance amount of Rs. 5,000/ -. There has been no whisper, whatsoever, about the payment of rents or payment of interest towards the advance amount of Rs. 5,000/ -. In the absence of such an understanding between the parties, in my considered view, there can be no legitimate basis for the theory propounded by the defendant in this case. ( 14 ) IN a civil case, it is now well settled, the Court is expected to weigh the probabilities and apply the test of preponderance of probabilities. However, the court below proceeded to weigh certain circumstances in its view as inherent or attendant from the transaction only in the point of view of the defendant, without seeking to make an attempt to weigh the probabilities emanating from the record. Such an attempt on the part of the Court below is absolutely wrong. For the foregoing reasons and in view of the fact that there has been no supporting evidence whatsoever, on the side of the defendant, except the ipsi dixit of D. W. 1, by no stretch of the imagination it can be stated legitimately that the burden which has been heavily cast upon the defendant has been discharged in this case by the defendant. The inescapable conclusion, under the circumstances, would certainly be in favour of execution of Ex. Al - suit contract of sale, as understood by the parties as a contract of sale, but not a transaction of loan as propounded by the defendant. ( 15 ) APROPOS the point of limitation, as can be seen from Clause (4) of Ex. Al, the parties agreed to have the sale transaction after obtaining the re-conveyance deed by the defendant from the mortgagee, by name Malkaiah and particularly within one month after such execution of re-conveyance deed. Obviously, therefore, a time has been set for performance of the contract by means of a covenant in the agreement of sale - Ex. A1. As per Article 54 of the indian Limitation Act, the limitation begins to run only from that date, if there is any date set for performance of the contract. Admittedly, in this case, re-conveyance deed was executed by the Court in favour of the defendant in execution of the decree obtained by her in O. S. No. 1860 of 1975 and E. P. No. 151 of 1979, on 8-10-1982. As per the condition of the agreement - Ex. Admittedly, in this case, re-conveyance deed was executed by the Court in favour of the defendant in execution of the decree obtained by her in O. S. No. 1860 of 1975 and E. P. No. 151 of 1979, on 8-10-1982. As per the condition of the agreement - Ex. Al, one month thereafter, the party is expected to perform his/her part of the contract. The time begins to run therefore, from 8-11-1982 onwards and the suit having been filed in this case on 7-2-1983 is well within the time. The finding to the contra given by the Court below is absolutely wrong. ( 16 ) AS regards the relief of specific performance, no laches whatsoever, have been imputed to the plaintiff. The plaintiff is expected to pay the balance of sale consideration only at the time of execution of the sale deed and registration thereof. It is the plaintiff, who got a notice issued first by means of telegram and as confirmation thereof by means of a registered letter under certificate of posting. It is in evidence that the plaintiff filed a claim petition when the defendant sought to take delivery of the suit property in execution of the decree obtained by her against the said malkaiah and his legal heirs. Dismissal of the claim petition of the plaintiff is of no consequence, particularly when the Court dismissed the claim petition on the ground that the time is not ripe, either in the point of view of the plaintiff or in the point of view of the defendant. Inasmuch as the reconveyance deed has not been executed in favour of the defendant, no title has been vested in favour of the plaintiff under a contract of sale. The fact remains that there has been an attempt on the part of the plaintiff in making a claim, apprehending that the defendant would dispossess her forcibly, conveniently seeking to execute the decree obtained against the said Malkaiah. This feeble attempt on the part of the plaintiff would certainly support her case. It is at this stage I have to consider the stand taken by the defendant while resisting the claim petition filed by the plaintiff. At the earliest point of time, she is expected to come forward with her version and belatedness would certainly go in support of the theory of an after-thought. It is at this stage I have to consider the stand taken by the defendant while resisting the claim petition filed by the plaintiff. At the earliest point of time, she is expected to come forward with her version and belatedness would certainly go in support of the theory of an after-thought. The defendant is legitimately expected of taking a plea while resisting the claim petition filed by the plaintiff that the transaction under ex. Al was never expected to be a transaction of contract of sale and what was understood by the parties was only a transaction of security for the loan. Having failed to take such a plea at the earliest possible opportunity, the defendant now cannot be heard to say at a subsequent stage by filing a written statement in the suit that the parties never intended to act on Ex. Al and it was only a nominal and sham document. Having filed Exs. Bl and B2 certified copies of the claim petition and the order passed thereon by the Court, the defendant failed to file the counter filed by her in the claim petition, while resisting the same. At any rate, it is not her case that she has taken such a plea at that point of time itself. Well, when no laches can be attributed squarely to the plaintiff and when it is her specific case that she is always ready and willing to perform her part of the contract and pursuant thereto got a notice issued, at the first instance, calling upon the defendant to come and execute the sale deed, ignoring the same on the only consideration that the value of the property is inflated subsequently, and therefore, the defendant would be put to a disadvantage if the relief of specific performance is decreed would equally put the plaintiff in a disadvantageous position. It is the relative hardship that has to be considered, but not on one-side. Excepting the bald plea that the value of the property under Ex. Al would be rs. 50,000/-, but not Rs. 30,000/-, there has been no attempt whatsoever, on the part of the defendant by adducing evidence aliunde in proof of the value of the property, either at the time of execution of Ex. Al or at the time when the plaintiff sought for the relief of specific performance in the suit. Al would be rs. 50,000/-, but not Rs. 30,000/-, there has been no attempt whatsoever, on the part of the defendant by adducing evidence aliunde in proof of the value of the property, either at the time of execution of Ex. Al or at the time when the plaintiff sought for the relief of specific performance in the suit. Therefore, that cannot be a legitimate circumstance to refuse the relief of specific performance, when the plaintiff is otherwise entitled. ( 17 ) COMING back to the legal bar under Section 92 of the Indian Evidence act, having regard to the plea taken by the defendant in the written statement inter alia, that the transaction under Ex. A1 was never intended to be acted upon and it was only a nominal and sham transaction, in view of the specific provisions of Section 92 of the Evidence Act, particularly the first proviso thereunder, the defendant is not precluded from adducing evidence in support of such a plea, which by no stretch of imagination, can be said to have varied or altered or subtracted the terms of the written contract. The learned Counsel for the respondent has rightly sought to place reliance on the judgment of the apex court in Gangabai v. Chhabubai, AIR 1982 sc 20 . The apex Court held in paragraph no. 11 thus:". . . . . . . . . . . . . . . IT is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties. "therefore, the plea of the defendant is not barred under Section 92 of the Indian evidence Act. ( 18 ) IN view of my conclusions on point nos. 1 and 2 and for the reason mentioned in support thereof hereinabove, the impugned judgment and decree cannot be sustained in law and are liable to be set aside. ( 19 ) IN the result, the appeal is allowed and the judgment and decree passed by the learned Additional Chief Judge, City Civil court, Hyderabad, in OS No. 119 of 1984 are hereby set aside and the suit OS No. l19 of 1984, in sequel thereto stands allowed with costs.