JUDGMENT 1. This is defendant's appeal, aggrieved by the judgment and decree dated 7.12.1995 in Civil Appeal No.11-A/1994 by First Additional District Judge, Raisen reversing the judgment and decree passed by the Civil Judge Class II, Raisen in Civil Suit No.20-A/1979 dated 25.2.1992. The trial Court dismissed the suit of plaintiff-respondent. 2. This appeal was admitted on 13.2.1996 on the following substantial questions of law: s "(1) Whether in absence of any particulars, as provided under Order VI, rule 4 of the Code of Civil Procedure, in the plaint, the Court below was justified in decreeing the suit of the respondent-plaintiff? (2) Whether in view of the document Ex.D-2, which is an express sale-deed, oral evidence is admissible to show that it was a mortgage deed." 3. Learned counsel for the appellant assailed the judgment and decree passed by the Court below on the grounds: (i) That in absence of particulars of fraud in the pleadings, the appellate Court erred in reversing the judgment and decree passed by the trial Court. (ii) The sale-deed was executed by the plaintiff in favour of the appellant by which property was specifically sold to the appellant. The consideration was paid by the appellant which was accepted by the respondent then the oral evidence in respect of the document that it was a transaction of mortgage and was not outright sale was inadmissible and the Court below erred in considering the oral evidence which was hit under section 92 of the Evidence Act. (iii) It is submitted by the appellant that the judgment and decree passed by the Court below be set aside and that of trial Court be restored. Reliance is placed to the judgment of the apex Court in S. Saktivel v. M. Venugopal Pillai [ (2000)7 SCC 104 ]. 4. Shri A.D. Deoras, learned senior counsel appearing on behalf of the respondent No.1 supported the judgment and decree passed by the Court below and submitted that the appellate Court after appreciating the evidence in the matter has rightly reversed the finding of the trial Court. There is overwhelming evidence that the intention of the plaintiff was to mortgage the property for his necessities. Previously he was disposing the property for a consideration of Rs.30,000/- to Dr. There is overwhelming evidence that the intention of the plaintiff was to mortgage the property for his necessities. Previously he was disposing the property for a consideration of Rs.30,000/- to Dr. S.K. Sharma (PW2) but on persuasion of respondent No.2 who happens to be the cousin of the plaintiff, property was mortgaged with the appellant for a loan amount of Rs.12,000/- only. The property on the date of the transaction was having substantial value and there was no question of sale it for Rs.12,000/-. In fact it was a loan transaction and for the security of the loan, property was mortgaged but by playing fraud on the plaintiff; the appellant and respondent No.2 collusively got the sale-deed executed and the oral evidence in respect of true nature of the transaction in respect of which document was executed is admissible. Reliance is placed to the judgment of the apex Court in Gangabai v. Chhabubai [ AIR 1982 SC 20 ] and R. Janakiraman v. State [ AIR 2006 SC 1106 ], and submitted that this appeal may be dismissed. 5. To appreciate the rival contentions of the parties, it will be appropriate to refer the pleadings of the parties. (a) The suit was filed by Shyamlal whose legal heirs are respondents No.1(a) and (b) on the ground that he was in need of the money and for this purpose he entered into an agreement to sell his house for a consideration of Rs.30,000/- in favour of Dr. S.K. Sharma. An agreement was executed and the earnest money of Rs.2,000/- was received from Dr. S.K. Sharma. An agreement was written by Ratanlal who is son of the maternal uncle of the plaintiff. The plaintiff was having previous transaction with Ratanlal and was having trust on him. Thereafter, Ratanlal advised to the plaintiff that he requires money only Rs.10-12,000/- then he may mortgage the property and after the arrangement of the money, the property will be redeemed. On being advised, the plaintiff had agreed to it. The plaintiff was having previous transaction with Ratanlal and was having trust on him. Thereafter, Ratanlal advised to the plaintiff that he requires money only Rs.10-12,000/- then he may mortgage the property and after the arrangement of the money, the property will be redeemed. On being advised, the plaintiff had agreed to it. Thereafter, defendant No.2 Ratanlal bn;mght the plaintiff to defendant Bhagwan Singh who also consented to give loan and it was agreed that on six rooms of the house, plaintiff shall hand over the vacant possession to Bhagwan Singh and for remaining part of the house in which the tenants are residing and out of annual rent of Rs.3,780/- which at that time, plaintiff was yielding, an amount of Rs.1 ,440/- will be adjusted towards interest on Rs.12,000/- and remaining Rs.2,340/- will be adjusted towards principal amount. It was also agreed that plaintiff as and when desires may pay the remaining amount to the defendant No.1 and the house will be redeemed. On aforesaid oral agreement, defendant Ratanlal refunded Rs.2,000/- of earnest money to Dr. S.K. Sharma and the agreement entered into between plaintiff and Dr. S.K. Sharma was destroyed. Thereafter, on 30.8.1978 a deed in respect of mortgage was executed in favour of defendant Bhagwansingh. That in the month of March 1979 when the plaintiff arranged the fund, he went to the house of defendant and asked him to redeem the house but the defendant denied to redeem the house on the ground that a sale-deed was executed, so there is no question of redemption of the house. On 3.4.1979, plaintiff obtained a certified copy of the deed and became aware that the defendant No.1 with the collusion of defendant No.2 got the sale-deed executed, in place of mortgage while it was not agreed. On the date when the document was executed, valuation of the house was near about Rs.34,000-40,000/-. The defendant by playing fraud and conspiracy in place of mortgage-deed got sale-deed executed. Notice dated 15.4.1979 was served on the defendant. The plaintiff was willing to pay the mortgage amount but the defendant No.1 had not redeemed the house so the suit was filed. (b) Defendant filed a written statement denying the allegations of the plaintiff. It was stated by the appellant that the plaintiff after due understanding executed the sale-deed in favour of appellant. The plaintiff was willing to pay the mortgage amount but the defendant No.1 had not redeemed the house so the suit was filed. (b) Defendant filed a written statement denying the allegations of the plaintiff. It was stated by the appellant that the plaintiff after due understanding executed the sale-deed in favour of appellant. The house was not mortgaged so there was no question of redemption of the house. The valuation of the house was not more than Rs.12,000/-. Defendant Bhagwan Singh after purchase of the house had raised construction of two rooms and one verandah. He was not objected by the plaintiff. Plaintiff became aware after execution of the sale-deed that the house was constructed by encroaching Government land and a case was pending before the Tehsildar in this regard. On these grounds, the suit was contested. 6. The trial Court framed the issues and after recording evidence arrived at a finding that it was a sale transaction, dismissed the suit. Against the judgment and decree passed by the trial Court, plaintiff preferred an appeal. The appellate Court after reconsideration and appreciation of the entire evidence, recorded the following findings: (i) That PW1 Shyamlal in his statement has stated that he initially entered into agreement to sell the house in favour of Dr. S.K. Sharma (PW2) who paid Rs.2,000/- by way of earnest money and remaining amount was payable after 8 days and the sale-deed was to be executed. An agreement was entered between the plaintiff and Dr. S.K. Sharma on which Ratanlal also subscribed his signature as witness. This statement of plaintiff remained unchallenged. Apart from this, Dr. S.K. Sharma (PW2) also supported the contention of the plaintiff that he agreed to purchase the aforesaid house for Rs.30,000/- and Rs.2,000/ was paid as an earnest money. Thereafter, a dispute arose in respect of the removal of the electric fitting and expenses of litigation and on raising this dispute, the plaintiff refunded earnest money to Dr. S.K. Sharma. This fact has been further found proved by the appellate Court by the statements of Kishanlal and Ratanlal PW3 and PW4. The appellate Court found that Dr. S.K. Sharma was willing to purchase the house in performance of the agreement but because of dispute, the plaintiff refunded the earnest money to him. (ii) The appellate Court considered that when Dr. This fact has been further found proved by the appellate Court by the statements of Kishanlal and Ratanlal PW3 and PW4. The appellate Court found that Dr. S.K. Sharma was willing to purchase the house in performance of the agreement but because of dispute, the plaintiff refunded the earnest money to him. (ii) The appellate Court considered that when Dr. S.K. Sharma was willing to purchase this house for Rs.30,000/-, which was settled with him, then there was no question to sell the aforesaid house for meagre consideration of Rs.12,000/- in favour of Bhagwan Singh. The house in question is having 10-11 rooms and on the date of transaction of 4.1.1990 price has been stated to be Rs.70,000/-. Apart from this, three rooms were on rent earning Rs.150, 55 and 125/- per month. Total monthly rent which was yielding at the relevant time was Rs.330/- per month and 3-4 rooms were vacant of which possession was handed over to Bhagwan Singh. Bhagwan Singh after partition of one big room divided it into two rooms. The plaintiff in his statement has stated that this money was required for his business and after selling grains he collected the money and offered to the defendant for the redemption of the house. If there was a transaction of sale then there was no question of offering of the aforesaid money for redemption of the house. PW5 Kayamuddin who is retired overseer and licensed Architect had prepared the map of the house on 4.8.1982 and as per his report Ex.P-6, the house was having value of Rs.53,200/ Considering the aforesaid, the appellate Court found that the house which was having worth of Rs.30,000/- on the date of transaction could not have been sold for Rs.12,000/- and it was a transaction of loan. (iii) The appellate Court also found that the plaintiff is illiterate and is only putting his signatures. The document was not read over to him. The document was typed by the document writer. When it was in the state of typing, he went to bring tea and pan at the instance of Ratanlal. When he went to bring tea and pan, the document paper was just put on the typing machine and when returned back, the document was fully typed. The document was typed by the document writer. When it was in the state of typing, he went to bring tea and pan at the instance of Ratanlal. When he went to bring tea and pan, the document paper was just put on the typing machine and when returned back, the document was fully typed. Document EX.P-1 was not typed in the presence of the plaintiff nor any draft was prepared but was signed at the instance of Ratanlal. When he asked document writer to read over it then he was intimated that the document was typed as stated by Ratanlal. (iv) On the basis of aforesaid, the appellate Court arrived that the document was not read over to the plaintiff and his signatures were obtained without the document was read over and on the belief. The plaintiff was paid money before going to the Registrar and before the Registrar, he only signed on the document. Before the Sub-Registrar also document was not read over nor it was intimated to him that it was a sale-deed. The appellate Court found that the statement of DW 1 Bhagwan Singh is incorrect and the document was not read over to the plaintiff before the Sub-Registrar nor the amount was paid in front of Sub-Registrar. Apart from this, in the document it has been mentioned that the consideration was already received and was not paid before the Sub-Registrar. Document is not having all the dimensions and measurements which find place in the previous sale-deed EX.D-1 by which plaintiff purchased the house on 25.7.1973 for a consideration of Rs.3,500/-. (v) The appellate Court has also considered the allegation of the defendant that the house was constructed on the Government land and it was encroachment, but was denied in para 12 of the judgment. The appellate Court considered the statement of defendant Ratanlal who happens to be cousin of the plaintiff and appeared on behalf of the defendants, in para 13 of the judgment and after considering the entire statement, his statement has been disbelieved. (vi) The appellate Court after marshalling the entire material and evidence found that in fact there was transaction of loan and the property was mortgaged. (vi) The appellate Court after marshalling the entire material and evidence found that in fact there was transaction of loan and the property was mortgaged. The appellate Court directed that if the plaintiff pays Rs.12,000/- and interest thereon at the rate of 10% per annum from 10.8.1978 till payment which shall not be more than principal sum, defendant Bhagwan Singh shall hand over the vacant possession of the house and shall also execute document of redemption. This be done within a period of 60 days from the date of judgment and decree. It was also directed by the appellate Court and if the defendant affixed any material in the suit house then he will be entitled to remove it but without damaging the house. The sale-deed EX.D-2 was declared as void. These findings are under challenge in this appeal. 7. Now first contention of the appellant whether the evidence adduced in the matter for ascertaining the true nature of transaction may be excluded which is apparently contrary to the document EX.P-1 executed by the respondents in favour of the appellant. Document EX.P-1 is certified copy and document EX.D-2 is original sale-deed produced by the appellant before the trial Court. 8. In this regard, law has been settled by the apex. Court in Gangabai (supra), the apex Court considering the law held thus: "11. The next contention on behalf of the appellant is that subsection (1) of section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been, proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to section 92 says that 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 of failure of consideration, or mistake in fact or law. 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. 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. Tyagaraja Mudaliyar v. Vedathanni [AIR 1936 PC 70]. The trial Court was right in permitting the respondent to lead parol evidence in support of her plea that the sale-deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the Court below in favour of the respondent must be accepted. It is not disputed that if the parol evidence is admissible, the finding of the Court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail" In S. Saktivel (supra), the apex Court held thus: "6. In sum and substance what proviso (4) to section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant-appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean rewriting of Ex. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean rewriting of Ex. A1 and, therefore, no parol evidence is permissible." 9. In S. Saktivel (supra), position was entirely different. In the aforesaid case, the suit property was settled. After death of settler, wife claimed his share under the settlement deed. The share was refused by the defendant. Thereafter, the wife filed a suit for partition. The defendant contended that the deed of settlement stood modified by oral arrangement arrived at whereby the suit property vested exclusively in defendants and the plaintiff was given cash. The apex Court found that in these peculiar circumstances, the deed of settlement cannot be modified by oral agreement and the wife and children in whose favour the deceased settled the property cannot be deprived by aforesaid oral agreement. Apart from this, defendant also tried to canvass the Court that the aforesaid deed of settlement was in fact a Will which plea was not accepted by the apex Court. The aforesaid judgment is not applicable in the facts of the present case. 10. In R. Janakiraman (supra), the apex Court reiterated the law laid down in Gangabai (supra), and followed it in para 11.3 of the judgment. Relying on Gangabai (supra), the apex Court held thus: "11.3 We may next refer to the following observations in Gangabai v. Chhabubai [ (1982)1 SCC 4 ], interpreting section 92: "11. ... 10. In R. Janakiraman (supra), the apex Court reiterated the law laid down in Gangabai (supra), and followed it in para 11.3 of the judgment. Relying on Gangabai (supra), the apex Court held thus: "11.3 We may next refer to the following observations in Gangabai v. Chhabubai [ (1982)1 SCC 4 ], interpreting section 92: "11. ... Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, sub-section (1) of section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or substracting from, its terms. And the first proviso to section 92 says that 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. 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. 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. 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. 11. Similar is the position here. The appellate Court after appreciation of the evidence of PW2 Shyamlal found that in fact respondent agreed to sell the property in favour of Dr. S.K. Sharma for a consideration of Rs.30,000/-. This evidence has been duly corroborated by the statement of PW2 Dr. S.K. Sharma who is an independent person. The appellate Court after due appreciation of the evidence in para 10 has found his statement of worth credence and relied on him. Ratanlal is person who played a vital role in the matter initially when the transaction was finalized in favour of Dr. S.K. Sharma and he persuaded the plaintiff to mortgage the property in favour of the defendant. At his behest, previous transaction with Dr. S.K. Sharma was cancelled and earnest money was refunded by the plaintiff. Thereafter, same property for a meagre consideration of Rs.12,000/- was allegedly alienated by the document EX.D-2 in favour of the appellant. Aforesaid glaring facts show that in fact a fraud was played on the plaintiff and the property which was agreed to be sold for a consideration of Rs.30,000/- was in fact mortgaged and not sold in favour of the appellant. Apart from this, another fact is that the property was yielding a rent at the rate of Rs.330/- per month and total rent per annum was Rs.3,960/-, meaning thereby that about one third of the value of the sale-deed was the annual earning of the house. How a prudent man would alienate the aforesaid property for a meagre consideration of Rs.12,000/- Though learned counsel for appellant tried to convince this Court that in fact the property which was agreed to be sold in favour of Dr. How a prudent man would alienate the aforesaid property for a meagre consideration of Rs.12,000/- Though learned counsel for appellant tried to convince this Court that in fact the property which was agreed to be sold in favour of Dr. S.K. Sharma was whole property and only part of the property was sold to the appellant. But this new contention agitated before this Court cannot be appreciated as there is no foundation in this regard before the Court below. 12. The appellant contended that an improvement was made in the disputed property by constructing a room, but the appellate Court found that the aforesaid contention is not correct and one room was divided by constructing a wall into two rooms. This will not be treated as addition in the property and in fact the appellant has utilized the property as per his convenience. In this case the conduct of the plaintiff also to be noted. Impugned document was executed on 30.8.1978 thereafter on refusal to accept the mortgaged money, a notice was sent to the appellant on 15.4.1979. Thereafter, on 2.5.1979, the suit was filed. Aforesaid facts show that within a period of eight months, respondents took action in the matter and it is not a matter of long delay on the part of the respondent but he acted promptly and diligently in the matter. 13. It is submitted by the appellant that initially the property was purchased for a consideration of Rs.3,500/- and part of property was sold for Rs.12,000/- in favour to the appellant. Though aforesaid factual position is disputed. By EX.D-1 entire property was purchased in the year 1973 for a consideration of Rs.3,500/- and on 30.8.1978 part of the property was allegedly sold to the appellant. But as stated here above same property was agreed to be sold in favour of Dr. S.K. Sharma who is an independent person then there was no question to sell the same property in favour of the appellant for a consideration which is only 40% of the price which was settled with Dr. S.K. Sharma. These circumstances disclose that a fraud was played on the plaintiff and in fact the transaction was not which was entered in the document EX.D-2 and in fact at the persuasion of Ratanlal, defendant No.2 who happens to be cousin of the plaintiff the property was mortgaged with the appellant. S.K. Sharma. These circumstances disclose that a fraud was played on the plaintiff and in fact the transaction was not which was entered in the document EX.D-2 and in fact at the persuasion of Ratanlal, defendant No.2 who happens to be cousin of the plaintiff the property was mortgaged with the appellant. The appellate Court after considering the entire evidence has rightly recorded the aforesaid finding. The appellate Court has allowed interest at the rate of Rs.10% per annum on the principal sum to the appellant which would duly compensate him. Though he also remained in possession of the property and reaped the fruit of the income of the property. 14. In view of he aforesaid, the appellate Court has rightly set aside the judgment and decree passed by the trial Court and decreed the suit of plaintiff-respondent. In the impugned judgment and decree, there is no fault, this appeal is without merit and is dismissed with costs.