Judgment :- (Appeal under Section 100 CPC against the decree in AS No.270 of 1987 dated 05-10-1992 on the file of the Court of I Additional Chief Judge, City Civil Court, Secunderabad preferred against the decree in OS No.2777 of 1979 dated 31-08-1997 on the file of the court of I Assistant Judge, City Civil Court, Secunderabad). Common Judgment: (B. Seshasayana Reddy) These two Second Appeals are listed before us on a reference being made by learned single Judge for an authoritative pronouncement on the questions formulated, which are extracted hereunder: 1) Whether in the facts and circumstances of the case, especially, the documentary evidence placed before the Court, relating to the obtaining of delivery by rent control proceedings, whether Ex.A2 = Ex.B.10 to be treated as out and out sale or a mortgage by conditional sale or an anomalous mortgage and whether the transaction would be governed by Section 58[c] or 58[g] of the Transfer of Property Act, 1882? 2) Whether extraneous evidence can be let in to explain the nature of transaction in the light of the clear recitals made in Ex.A1 = Ex.B.10 in the facts and circumstances of the case? 2. Background facts of the case leading to filing of these two Second Appeals, in brief, are: Smt. Muttamalla Narasamma, wife of Lingaiah, was the owner of premises bearing Nos.6-4-61 and 6-4-62 situated at Bholakpur, Secunderabad. She executed a sale deed dated 26.03.1969 in favour of Yerram Narayana, who died and survived by Yerram Krishna Rao. According to Muttamalla Narasamma, she borrowed Rs.1,000/-from late Yerram Narayana and executed a sale deed as a security for the loan. She claims to be in possession of the property despite executing a sale deed in favour of Yerram Narayana. According to her, she has been paying interest at the rate of Rs.25/-per month on the amount lent by Yerram Narayana. When the wife and son of late Yerram Narayana threatened to dispossess her from the suit house, she expressed her willingness to repay the loan amount and requested them to redeem the mortgage. It is also her case that late Yerram Narayana acknowledged the interest received by him in a notebook maintained by her. After the death of Yerram Narayana, his son Yerram Krishna Rao received the interest on the principal amount of Rs.1,000/- and acknowledged in a notebook maintained by her. It is also her case that late Yerram Narayana acknowledged the interest received by him in a notebook maintained by her. After the death of Yerram Narayana, his son Yerram Krishna Rao received the interest on the principal amount of Rs.1,000/- and acknowledged in a notebook maintained by her. Since few days prior to the filing of the suit, Yerram Krishna Rao refused to acknowledge the receipt of interest. That late Yerram Narayana was doing money lending business and was obtaining sale deeds as a security for repayment of the amounts and after repayment of the amounts, he used to reconvey the same. Since Yerram Krishna Rao refused to receive the principal amount of Rs.1,000/- with interest thereon and redeem the property, she filed the suit being O.S.No.2777 of 1979 on the file of I Assistant Judge, City Civil Court, Secunderabad, for redemption. The reliefs sought for in the said suit read as hereunder: a) To pass a preliminary decree for redemption under Order 34 Rule 7 C.P.C.; b) To declare the amount payable by plaintiff to defendant under the mortgage together with interest from the date of suit till final payment. c) To fix a date for redemption for payment of loan amount by plaintiff to the defendant. d) To direct the defendant to reconvey at the cost of the plaintiff free from encumbrances and deliver the documents of title belonging to the plaintiff, on payment of amount declared to be due. e) To award costs of the suit, and f) To pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. 3. Smt. Samala Earamma filed a suit being O.S.No.540 of 1980 on the file of I Assistant Judge, City Civil Court, Secunderabad, alleging inter alia that she purchased the suit schedule house under an agreement of sale dated 28.05.1979 from Yerram Krishna Rao. The suit schedule house is adjacent to the house owned by her. She was put in possession of the house bearing No.6-4-61 on 28.05.1979. According to her, her vendor promised to deliver possession of the house bearing No.6-4-62 after the disposal of C.C.No.90 of 1979 on the file of X Metropolitan Magistrate, City Criminal Courts, Secunderabad. While so, Smt. Muttamalla Narasamma trespassed into the house on 18.7.1979 and occupied it. She filed a police complaint. According to her, her vendor promised to deliver possession of the house bearing No.6-4-62 after the disposal of C.C.No.90 of 1979 on the file of X Metropolitan Magistrate, City Criminal Courts, Secunderabad. While so, Smt. Muttamalla Narasamma trespassed into the house on 18.7.1979 and occupied it. She filed a police complaint. There being no action on her complaint, she filed a criminal complaint under Section 200 Cr.P.C. on the file of X Metropolitan Magistrate, City Criminal Courts, Secunderabad, on 15.09.1979 and the learned Metropolitan Magistrate took the case on file as C.C.No.1759 of 1979. The defendants in O.S.No.540 of 1980 are Yerram Krishna Rao and Smt. Muttamalla Narasamma. For the sake of clarity, we mention here that Smt. Muttamalla Narasamma is the plaintiff and Yerram Krishna Rao is the 1st defendant in O.S.No.2777 of 1979. Subsequently, Samala Earamma, who is the plaintiff in O.S.No.540 of 1980, came to be impleaded as 2nd defendant in O.S.No.2777 of 1979 as per orders in I.A.No.491 of 1981, dated 30.06.1981. The trial Court framed the following issues for trial. The issues framed in O.S.No.2777 of 1979 are: 1) Is the suit document dated 26.03.1979 mortgage deed by the plaintiff in favour of defendant’s father? 2) Is the defendant not the owner of house under the documents dated 26.03.1969 executed by the plaintiff? 3) Is the plaintiff entitled to redemption of the mortgage claim in the suit? 4) To what relief? The issues framed in O.S.No.540 of 1980 are: 1) Whether the plaintiff (D-2) is entitled for possession of the suit schedule mentioned property? 2) Whether the plaintiff (D-2) is entitled for specific performance as prayed for? 3) To what relief? Both the suits came to be clubbed and evidence came to be recorded in O.S.No.2777 of 1979. For the sake of convenience, Smt. Muttamalla Narasamma, hereinafter referred to as the plaintiff, and whereas Yerram Krishna Rao and Samala Earamma as the defendants 1 and 2 respectively. On behalf of the plaintiff, she examined 4 witnesses and marked 25 documents and whereas the defendants examined 3 witnesses and marked 19 documents. The trial Court, on appreciation of the evidence brought on record and on hearing the counsel for the parties, came to the conclusion that the sale deed dated 26.03.1969 was executed as security for the loan availed by the plaintiff in favour of late Yerram Narayana. The trial Court, on appreciation of the evidence brought on record and on hearing the counsel for the parties, came to the conclusion that the sale deed dated 26.03.1969 was executed as security for the loan availed by the plaintiff in favour of late Yerram Narayana. For better understanding, we may refer the relevant portion of the finding recorded by the trial Court and it is thus: “The defendant has alleged that as the plaintiff failed to pay the rent he filed R.C.No.391 of 1977 on the file of the Rent Controller, Secunderabad. The Rent Controller has allowed the petition. He filed Execution Petition and the plaintiff has been evicted by the bailiff and the vacant possession of the house has been handed over to D.1. The copies connected documents are marked as Ex.B.1 to B.9. The entire proceedings were based on Ex.B.19. Genuinity of Ex.B.19 is doubtful. Further, it is alleged that the defendant No.1 was put in possession. Thereafter, D.1 was offered to sell the suit house and D.2 has agreed to purchase the suit house for a consideration of Rs.10,000/- and D.2 paid a sum of Rs.8,000/- as advance and part payment of sale consideration and an agreement was executed. The agreement is Ex.B.11. D.1 has stated that the possession of the suit house has been handed over to D.2. Thereafter the plaintiff has broke open the suit house and illegally has occupied the house. The plaintiff, her son and another have faced trial in criminal case wherein they were acquitted. It is further alleged that in Crl.R.Petition the plaintiff and others have been convicted and sentenced to pay a fine of Rs.300/-. The certified copy of the judgment in C.C.62/80 is marked as Ex.A.9. Deposition of D.2 in C.C.62 of 1980 is Ex.A.12 respectively. The deposition of Renuka W/o. Shankar, Ethirajulu P.W.5, Govindaiah, the plaintiff PW.6, who handed over the vacant possession of the suit house and S. Manohar Rao, PW.7, the S.I. of Police are marked as Ex.A13 to A.16 respectively. The result of the Criminal Case against the plaintiff and two others ended in acquittal. It is alleged that the defendants filed a criminal revision petition in the High Court and the plaintiff and others have been convicted and sentenced to pay a fine of Rs.300/-. The result of the Criminal Case against the plaintiff and two others ended in acquittal. It is alleged that the defendants filed a criminal revision petition in the High Court and the plaintiff and others have been convicted and sentenced to pay a fine of Rs.300/-. The defendants did not file the certified copy of the order or judgment of the High Court to prove that the plaintiff and others were convicted and fine amount was imposed. The plaintiff has filed the copy of the judgment in Criminal Revision Case No.577/87 and Criminal Revision Petition No.568/81, which was filed by D.2 against the judgment in C.C.No.62/80 Ex.A.9. The said revision has been dismissed on 10.2.83. The copy of the judgment is marked as Ex.A23. The allegation of the defendants that the plaintiff and others were convicted and sentenced to pay fine by the High Court has no basis. Considering the above facts and circumstances under which Ex.B.10 was executed hold that Ex.B10 was not executed with an intention to create an absolute sale deed but it was executed with an intention of mortgage deed and it is only a mortgage deed. Therefore, I decide this issue in favour of the plaintiff and against the defendants.” With the above observation the trial Court proceeded to decree the suit being O.S.No.2777 of 1979 filed by Smt. Muttamalla Narasamma while dismissing the suit O.S.No.540 of 1980 filed by Smt. Samala Earamma, by judgment and decree dated 31.08.1987. 4. Yerram Krishna Rao and Smt. Samala Earamma filed A.S.No.270 of 1987 assailing the judgment and decree dated 31.08.1987 passed in O.S.No.2777 of 1979 and whereas, Smt. Samala Earamma filed A.S.No.272 of 1987 on the file of the Additional Chief Judge, City Civil Court, Secunderabad, assailing the judgment and decree dated 31.08.1987 passed in O.S.No.540 of 1980. Pending the appeals, Smt. Samala Earamma, one of the appellants in A.S.No.272 of 1987, died and her legal representatives came on record as appellants 3 and 4. The learned Additional Chief Judge, CCC, Secunderabad, heard both the appeals together and formulated the following points for consideration: 1. 1. Whether the suit transaction is an out right sale as contended by the defendant No.1 and D-2 or it is only a mortgage as contended by the plaintiff? 2. 2. Whether defendant No.2 is entitled for the specific performance and possession as prayed for in her suit-O.S.No.540 of 1980? 1. Whether the suit transaction is an out right sale as contended by the defendant No.1 and D-2 or it is only a mortgage as contended by the plaintiff? 2. 2. Whether defendant No.2 is entitled for the specific performance and possession as prayed for in her suit-O.S.No.540 of 1980? The lower appellate Court, on re-appreciation of the material brought on record and on hearing the counsel for the parties, came to the conclusion that the document dated 26.03.1969 is only a mortgage deed and not a sale deed. For better appreciation, we may refer the relevant portion of the finding recorded by the lower appellate court on the document dated 26.03.1969 and it reads as hereunder: “In all these circumstances, I come to the conclusion that the suit transaction is only a loan transaction and the execution of Ex.B.10 and also Ex.B.19, if any, by the plaintiff is only for the purpose of creating mortgage in respect of loan obtained by her from the father of the first defendant and that she continues in possession of the same in her own right as owner thereof and the first defendant is only a mortgage in respect of the suit premises. Thus, the first defendant does not get any ownership rights by virtue of Ex.B10 and Ex.B.19 in favour of defendant No.1 and the plaintiff has got a right to redeem the mortgage by repaying the amount under it with interest. Thus, I find that the suit transaction is not an out right sale deed but only a mortgage deed and the plaintiff is entitled to redeem the mortgage as prayed for by her. Accordingly, I find the point in favour of the plaintiff and against the defendants in O.S.No.2777 of 1979.” With the above observation, the lower appellate Court proceeded to dismiss the appeals by a common judgment dated 05.10.1992. Hence, these two Second Appeals. 5. These two Second Appeals listed before the learned Single Judge of this Court. The learned Single Judge admitted the appeals on the following substantial question of law: “Whether having regard to the provision of Section 58[c] of the Transfer of Property Act, the transaction in question can be considered to be a mortgage by conditional sale.” 2. 6. 5. These two Second Appeals listed before the learned Single Judge of this Court. The learned Single Judge admitted the appeals on the following substantial question of law: “Whether having regard to the provision of Section 58[c] of the Transfer of Property Act, the transaction in question can be considered to be a mortgage by conditional sale.” 2. 6. Learned Single Judge, after referring the proposition of law laid down in Simrathmull v. Nanjalingiah AIR 1963 S.C. 1182 ; B. Ramachandrayya v. J. Narayana 1979 (1) APLJ 463 , Bishwanath Prasad Singh v. Rajendra Prasad (2006) 4 SCC 432; Mushir Mohammed Khan v. Sajeda Bano (2000) 3 SCC 536 ; Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal AIR 1992 S.C. 1236 ; Bhaskar v. Shrinarayan AIR 1960 S.C. 301 ; Syed Rasool v. Mohd. Moulana AIR 1977 Karnataka 173; Ramdip Sharma v. Baldeo Singh AIR 1977 Patna 234; Sukumar Bysack v. S.K. Banerjee AIR 1972 Calcutta 207; Mania v. Dy. Director, Consolidation AIR 1971 Allahabad 151; Mutyalu v. Veerayya AIR 1946 Madras 452; Hari Singh v. Umrao Singh AIR 1979 Allahabad 65, formulated the points as stated supra for adjudication and referred the matter to the Division Bench for authoritative pronouncement. Hence, these appeals are listed before us. 7. Pending the appeals, Smt. Muttamalla Narasamma (1st respondent/plaintiff) died and her son Muttamalla Krishna came on record as 2nd respondent in S.A.No.507 of 1996 as per orders dated 04.07.2007 passed in CMP No.2906 of 2006. 2. 8. Heard Sri E. Manohar, learned senior counsel appearing for the appellants and Sri K. Mallikharjuna Rao, learned counsel appearing for the respondents. 3. 9. Sri E. Manohar, learned senior counsel appearing for the appellants submits that the covenants of Ex.B.10 sale deed are very clear to the effect that the 1st respondent intended to convey the property covered thereunder as an out right sale. He further submits that the contents of the document do not give any scope for ambiguity with regard to the nature of transaction and thus, any amount of oral evidence contradicting the terms of Ex. B10 sale deed is impermissible. He would also submit that Ex.14 rent deed supports the contents of Ex.B10 sale deed as the 1st respondent undertook to pay the rent of Rs.25/- per month and thereby recognized the transfer of ownership of the property to late Yerram Narayana. B10 sale deed is impermissible. He would also submit that Ex.14 rent deed supports the contents of Ex.B10 sale deed as the 1st respondent undertook to pay the rent of Rs.25/- per month and thereby recognized the transfer of ownership of the property to late Yerram Narayana. Learned Senior counsel by referring the plaint averments contends that the 1st respondent/plaintiff having taken the plea that Ex.B10 document is mortgage by conditional sale cannot be permitted to plead that the suit document Ex.B.10 is an anomalous mortgage. It is also contended by the learned senior counsel that Section 92 of the Evidence Act prohibits to adduce any evidence with regard to the intention of the parties when the contents of the documents do not give any scope for ambiguity. Learned Senior counsel drew our attention to Section 58[c] of the Transfer of Property Act, 1882, and also placed reliance on the following decisions: 1) Chunchun Jha Vs. Ebadat Ali ( AIR 1954 S.C. 345 ) 2) Simrathmull vs. Nanjalingiah (1 supra) 3) Tamboli Ramanlal Motilal Vs. Ghanchi Chimanlal Keshavlal (5 supra) 4) Mushir Mohammed Khan Vs. Sajeda Bano (4 supra) 5) Rama Devi Vs. Dilip Singh (2008) 7 Supreme Court Cases 105 6) Bishwanath Prasad Singh Vs. Rajendra Prasad (3 supra) 7) B. Ramachandrayya Vs. J. Narayana (2 Supra) 10. In Chunchun Jha’s case (13 supra), the Supreme Court held that where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. Much emphasis has been laid in para.6 of the judgment, which reads as hereunder: “The first is that the intention of the parties is the determining factor. But there is nothing special about that in this class of cases and here, as in every other cases where a document has to be construed, the intention must be gathered, in the first place, from the document itself. But there is nothing special about that in this class of cases and here, as in every other cases where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was though or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. As Lord Cranworth said in –“Alderson V. White’, (1858) 44 E.R. 924 at p.928 (B) -------- “The rule of law on this subject is one dictated by commonsense; ‘prima facie’ and absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not Cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase….In every such case the question is, what, upon a fair construction, is the meaning of the instruments”? Their Lordships of the Privy Council applied this rule to India in ------‘Bhagwan Sahai V. “Bhagwan Din, 17 Ind App.98 at p.102 (P.C) and in ----‘Jhanda Singh v. Wahid-ud-din’ (AIR 1916 P.C. 49 at p.54 (D)”. 1. 11. In Simrathmull’s case (1 supra), the Supreme Court held that the sale deed, the deed of reconveyance and the rent note were parts of the same transaction and that the transaction was not one of mortgage by conditional sale. 2. 12. In Mushir Mohammed Khan’s case (4 supra) the Supreme Court held that when more than one document executed almost contemporaneously all the documents should be read together to ascertain true nature of the transaction. Much emphasis has been laid by the learned senior counsel on paras.14 and 15 of the said judgment and they read as hereunder: “14. Applying the principles laid down above, the two documents read together would not constitute a ‘mortgage’ as the condition of re-purchase is not contained in the same documents by which the property was sold. Much emphasis has been laid by the learned senior counsel on paras.14 and 15 of the said judgment and they read as hereunder: “14. Applying the principles laid down above, the two documents read together would not constitute a ‘mortgage’ as the condition of re-purchase is not contained in the same documents by which the property was sold. Proviso to Clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a “mortgage by conditional sale”. 15. The High Court, after recording a finding that the transaction cannot be treated as a “mortgage by conditional sale”, in view of the proviso to Clause (c)of Section 58 proceeded to consider the circumstances of the case and came to the conclusion that although the transaction was not a “mortgage by conditional sale”, it would definitely be usufructuary mortgage. The High Court was of the opinion that all the ingredients which go to constitute a usufructuary mortgage were present in the instant case inasmuch as the property was given away to the defendant for a price which was less than its original price or the market value on the date on which the sale was executed in favour of the defendant. The High Court also found that possession of the property in question was symbolically delivered to the defendant and the plaintiff also executed a rent note in favour of the defendant promising to pay rent in respect of the premises in question to the defendant every month”. 1. 13. In Bishwanath Prasad Singh’s case (3 supra), Section 58[c] of the Transfer of Property Act, 1882, fell for consideration. After extracting section 58[c], the supreme court held that a bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. A sale with a condition of retransfer is not mortgage. It is not a partial transfer. By reason of such a transfer all rights have been transferred reserving only a personal right to the seller, and such a personal right would be lost, unless the same is exercised within the stipulated time. 2. 14. A sale with a condition of retransfer is not mortgage. It is not a partial transfer. By reason of such a transfer all rights have been transferred reserving only a personal right to the seller, and such a personal right would be lost, unless the same is exercised within the stipulated time. 2. 14. In Rama Devi’s case (14 supra), the Supreme Court referred the proposition of law laid down in Chunchun Jha’ s case (1 supra) with approval. 3. 15. In B. Ramachandrayya’s case (2 supra), learned single Judge of this Court held that if the sale and agreement to repurchase are embodied in separate documents, then, the transaction cannot be a mortgage. It is, immaterial whether the documents are contemporaneously executed or not, and the Plaintiff is debarred from proving that the transaction was in the nature of a mortgage. But, if the condition of repurchase is embodied in the document that effects or purports to effect the sale, then, it is a matter for construction and the Courts are permitted to examine the intention of the parties, whether it is a mortgage or sale and while examining the intention of the parties, the Courts can take into consideration the surrounding circumstances under which the document was brought into existence. It is further held that where a transaction is covered by a sale deed and also an agreement to reconvey, time is the essence of the contract and the repurchase of the property should be made within the period stipulated in the reconveyance deed. .16. Sri. K. Mallikharjuna Rao, Learned counsel appearing for the respondents submits that Section 92 of the Evidence Act is not applicable to the facts of the case and therefore, it is not a bar for the 1st respondent/plaintiff to adduce oral evidence with regard to the intention of the parties to the document. Learned counsel by referring the evidence brought on record and contents of the sale deed, which has been exhibited as Ex.B.10 as well as Ex.A-2, contends that the transaction comes within the ambit of Section 58[g] of the Transfer of Property Act, 1882, i.e. analogous mortgage. Learned counsel by referring the evidence brought on record and contents of the sale deed, which has been exhibited as Ex.B.10 as well as Ex.A-2, contends that the transaction comes within the ambit of Section 58[g] of the Transfer of Property Act, 1882, i.e. analogous mortgage. By referring Section 92 of the Evidence Act, learned counsel submits that the ban imposed with regard to adducing oral evidence is only on a party who seeks to rely on it and it does not prevent the party who does not rely on the document from adducing evidence with regard to the intention of the parties to the document or the circumstances in which the document came to be executed. Learned counsel took us to the ocular testimony adduced on behalf of the parties to show that Late Yerram Narayana on earlier occasion re-conveyed the suit property under a registered sale deed, certified copy of which has been exhibited as Ex.A24, on repayment of loan. Learned counsel refers Ex.A25, which is the certified copy of the sale deed executed by the husband of the 1st respondent/plaintiff viz., Lingaiah on 19.11.1964 and thereafter re-conveyance deed executed by Yerram Narayana in favour of Lingaiah, certified copy of which has been exhibited as Ex.A24. Learned counsel also refers Exs.A17 to A21, which are the copies of the sale deeds obtained by Yerram Narayana. The properties covered thereunder came to be re-conveyed to the executants after discharging the loans. By referring the evidence, oral and documentary, learned counsel contends that intention of the parties to Ex.B10 sale deed was to treat it as a mortgage and not an out right sale. That the trial Court as well as the lower appellate Court considered the material brought on record in right perspective and came to the conclusion that Ex.B.10 is a mortgage and not an out right sale. He would also contend that since the finding recorded by the trial Court as confirmed by the lower appellate Court is based on appreciation of evidence brought on record, the said finding is not required to be disturbed in the Second Appeal. In a way the learned counsel appearing for the respondents submits that the finding of fact recorded by the trial Court as confirmed by the lower appellate Court cannot be interfered in the Second Appeal. 4. 17. In a way the learned counsel appearing for the respondents submits that the finding of fact recorded by the trial Court as confirmed by the lower appellate Court cannot be interfered in the Second Appeal. 4. 17. Learned counsel appearing for the respondents placed reliance on the decisions of Supreme Court in Bhaskar V. Shrinarayan ( AIR 1960 SC 301 ), Krishnabai v. A.T. Nimbalkar ( AIR 1979 SC 1880 ), Gangabai V. Chhabubai ( AIR 1982 SC 20 ), Gurdial Singh V. Raj Kumar Aneja ( AIR 2002 SC 1003 ), Roop Kumar V. Mohan Thedani ( AIR 2003 SC 2418 ), R. Janakiraman V. State ( AIR 2006 SC 1106 ) and the decision of Calcutta High Court in Sukumar Bysack V. S.K. Banerjee (AIR 1972 CALCUTTA 207). 5. 18. In Bhaskar’s case, the Supreme Court held that in a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. .19. In Krishnabai’s case, the Supreme Court held that S.92 prohibits only the varying of terms of the documents and the memoranda or recitals of facts, bereft of dispositive terms, particularly when the correctness of the whole or any part of the recital is in question. It is further held that when there is a dispute with regard to the true character of a writing, evidence dehorse the document can be laid to show that the writing was not the real nature of the transaction, but was only an illustration, fictitious and colourable decisive which clogged something else and the apparent state of affairs was not the real state of affairs. 6. 20. In Gangabai’s case, the Supreme Court held 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. 6. 20. In Gangabai’s case, the Supreme Court held 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 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, nor recorded in the document was entered into between the parties. 7. 21. In Gurdial Singh’s case, the Supreme Court held that S.91 and 92 of the Indian Evidence Act would not come in the way of third parties to adduce oral evidence to prove that the document in sham or fictitious and the transaction therein was never intended to be acted upon. 8. 22. In Roop Kumar’s case, the Supreme Court held that S.91 and 92 of the Evidence Act in effect supplement to each other. S.91 would be inoperative without the aid of S.92 and similarly S.92 would be without the aid of S.91. The two sections, however, differ in some material particulars. S.91 applies to all documents, whether they purport to dispose of rights or not, whereas S.92 applies to documents which can be described as dispositive. S.91 applies to documents which are both bilateral and unilateral, unlike S.92 the application of which is confined to only to bilateral documents. Both these provisions are based on “best evidence rule”. It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. Both these provisions are based on “best evidence rule”. It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. Much emphasis has been laid by learned counsel on paras 21 and 22 of the judgment, which read as under: “21. The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing. It is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory. 1. 22. This Court ……… held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that 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.” 2. 23. InP. Janakiraman’s case, the Supreme Court held that the bar under Section 91 would arise only when the document is relied upon, but at the same time its terms are sought to be varied and contradicted. The Supreme Court after referring its decisions in various cases culled out the principles regarding S.92 of the Evidence Act and they are: i) Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91. ii) The rule contained in Section 92 will apply only to the parties to the instrument or their successors in interest. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, Section 91 may apply to strangers also. Strangers to the contract (which would include the prosecution in a criminal proceeding) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, Section 91 may apply to strangers also. iii) The bar under Section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different. 1. 24. The Calcutta High Court in Sukumar’s case, held that Sections 91 and 92 do not preclude the defendants from showing by evidence that though the document was executed in the form of an agreement for sale of land, the real nature of transaction was a loan for which the document was a security. 2. 25. In responding to the contentions advanced by learned counsel appearing for the respondents, learned Senior Counsel appearing for the appellants submits that the proposition of law laid down in Gangabai’s case is not applicable to the facts and circumstances of this case. 26. Ex.B10 is the sale deed allegedly executed by R1-plaintiff in favour of Y. Narayana who is father of appellant No.1. There is no ambiguity with regard to the terms of the sale deed. It is the plea of R1-plaintiff that she executed Ex.B.10 sale deed as a security for the loan availed by her from Y. Narayana. The question for consideration is – whether Ex.B.10 sale deed is executed by R1/plaintiff as a security for the loan availed by her from Y. Narayana. 3. 27. Sri. E. Manohar, learned Senior Counsel appearing for the appellants submits that in view of the terms of the registered sale deed (Ex.B.10), R1-plaintiff cannot be permitted to adduce any evidence contrary to the terms therein. 3. 27. Sri. E. Manohar, learned Senior Counsel appearing for the appellants submits that in view of the terms of the registered sale deed (Ex.B.10), R1-plaintiff cannot be permitted to adduce any evidence contrary to the terms therein. We do not see any substance in his contention in view of the decision of the Supreme Court in Gangabai’s case, wherein it has been held that S.92(1) is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon between the parties and the document is a sham. Indeed the proposition of law laid down in Gangabai’s case has been cited by the Supreme Court in Roop Kumar’s case with approval. The relevant portion of the judgment in Roop Kumar’s case has already been extracted supra. Therefore, we do not see any substance in the contention of the learned Senior Counsel that R1plaintiff cannot be permitted to adduce oral evidence to prove the nature of the document which has been exhibited as B.10. 4. 28. It is the consistent case of R1/plaintiff that she executed Ex.B.10 sale deed as a security for the loan availed from father of appellant No.1. She got herself examined as P.W.1 besides examining three witnesses as P.Ws.2, 3 and 4. P.W.1 categorically stated that on an earlier occasion her husband borrowed Rs.1,000/- from father of appellant No.1 and in respect of the said transaction her husband executed a registered sale deed dated 19.11.1964 and on repayment of the loan, the father of the appellant No.1 executed a re-conveyance deed dated 1.10.1996. Ex.B.25 is the registered sale deed executed by the husband of the 1st plaintiff and Ex.A24 is the sale deed executed by father of appellant No.1 in favour of R1-plaintiff. Exs.A24 and 25 gave ample testimony that father of the appellant No.1 was lending money and obtaining registered sale deed as security for the loan amount. Ex.A19 to A22 are some of the sale deeds obtained by father of 1st plaintiff at the time of lending money. Had it been the case of the appellant No.1 that his father purchased the properties covered under Exs.A17 to A21, Purchaser must have been in possession of the properties covered therein. The appellant No.1 while being examined as a witness stated that by the time his father died he had no immovable properties. Had it been the case of the appellant No.1 that his father purchased the properties covered under Exs.A17 to A21, Purchaser must have been in possession of the properties covered therein. The appellant No.1 while being examined as a witness stated that by the time his father died he had no immovable properties. P.W.4 testifies that he obtained loan of Rs.500/- from Y. Narayana, father of the appellant No.1 and executed a sale deed as a security for the loan. He further testifies that on clearing the loan, the properties came to be reconveyed to him under a registered sale deed. Ex.A22 is the reconveyance deed executed by Y. Narayana as GPA of S. Rajewswari. The evidence brought on record, both ocular and documentary, on behalf of R1-plaintiff is crystal clear that R1plaintiff executed Ex.B.10 sale deed as security for the loan availed by her from Y. Narayana. The trial Court as well as the lower appellate Court considered the evidence brought on record in right perspective and found that Ex.B.10 sale deed was executed by R1-plaintiff as a security for the loan availed from Y. Narayana. 5. 29. Accordingly, the points framed for consideration in the appeals are answered as follows: 6. 30. Ex.B.10 sale deed is executed by R1-plaintiff as security for the loan availed by her from Y. Narayana, father of the appellant No.1/D1. Neither S.91 nor 92 disable 1st respondent/plaintiff to adduce oral evidence to explain the transaction covered under Ex.B.10 sale deed. 7. 31. In view of the above findings, both the appeals are liable to be dismissed and accordingly they are hereby dismissed with costs.