JUDGMENT This second appeal is directed against the judgment and decree dated 13-12-1999 in R.A. No. 12 of 1986 passed by the Additional District Judge at Bidar. 2. Appellant is the plaintiff and respondents are the defendants before the Trial Court. In this judgment, for convenience, the parties are referred to their status before the Trial Court. 3. It is the case of the plaintiff that he and defendant 3 are brothers. Defendants 4 to 6 are the children of defendant 3. Plaintiff and defendants 3 to 6 mortgaged the plaint schedule property in favour of one Sadanand Garje in the year 1968. Further, defendants 3 to 6 also mortgaged another property in favour of said Sadanand Garje in the year 1971. The said Sadanand Garje demanded the mortgage money of Rs. 10,000/- as he wanted to purchase another house. Since the plaintiff and defendants 3 to 6 did not had money to repay the mortgage money, they offered to mortgage the schedule property in favour of defendant 2. After negotiations defendant 2 demanded to execute a sale deed for a consideration of Rs. 10,000/- with an assurance that they will not act upon the sale deed and the same will be treated as a mortgage deed. Further towards payment of interest at 2% on the mortgage amount of Rs. 10,000/-, defendant 2 demanded the plaintiff and defendants 3 to 6 to execute a rent deed. The plaintiff and defendants 3 to 6 having no other alternative, agreed to the demand of defendant 2 and executed a registered sale deed in favour of his wife the defendant 1, on 12-11-1971. On the same day, a rent deed was also executed agreeing to pay a sum of Rs. 200/- as rent in lieu of interest on the mortgage amount. Even after the sale deed dated 12-11-1971, the plaintiff continued to be in possession of the schedule property, paid house tax and khatha also continued in his name. After sale transaction on 12-11-1971, the plaintiff also paid regularly the interest and finally a sum of Rs. 8,426/towards discharge of mortgage money under Ex. P. 2. The defendants and 2 instead of discharging the mortgage, got issued a lawyer's notice demanding arrears of rent and also filed an eviction petition in HRC No. 16 of 1975 on the file of the then Munsiff at Bidar. 8,426/towards discharge of mortgage money under Ex. P. 2. The defendants and 2 instead of discharging the mortgage, got issued a lawyer's notice demanding arrears of rent and also filed an eviction petition in HRC No. 16 of 1975 on the file of the then Munsiff at Bidar. Thereafter, the plaintiff filed O.S. No. 39 of 1977 for a declaration to declare that the sale deed dated 12-11-1971 as nominal, sham and not acted upon and also for restraining the defendants 1 and 2 from evicting the plaintiff from the schedule property and from continuing the eviction proceedings in HRC No. 16 of 1975. 4. The defendants 1 and 2 entered appearance before the Trial Court and filed written statement inter alia contending that the sale deed dated 12-11-1971 is true and genuine. The plaintiff instead of paying arrears of rent and vacating the schedule premises, filed O.S. No. 39 of 1977 as a counter blast. It is further denied that the transaction dated 12-11-1971 as mortgage transaction. On these grounds, the defendants 1 and 2 opposed the claim of the plaintiff The other defendants in the suit have not filed written statement. 5. On the basis of the pleadings, the Trial Court framed the following issues for its consideration: "1. Whether plaintiff proves that the sale of the suit house dated 12-11-1971 was nominal and was executed by way of security for the loan amount of Rs. 10,000/- advanced by defendant 2 for the payment of earlier mortgage debt? 2. Does he further prove that the subsequent rent deed executed receiving the monthly rent of Rs. 200/- was also of the same nature executed towards interest? 3. Does he further prove the repayment of subsequent amount of the said debt alleged? 4. If so, is he entitled to declaration? 5. Is he entitled to injunction? 6. What decree or order?" 6. Before the Trial Court the plaintiff examined 5 witnesses as P.Ws. 1 to 5 and got marked Exs. P. 1 to P. 17. The defendants examined 4 witnesses as D.Ws. 1 to 4 and got marked Exs. D. 1 to D. 9. The Trial Court after hearing the arguments on both side and by considering the pleadings, oral and documentary evidence held that the transaction dated 12-11-1971 was not a sale transaction and the parties intended the same as a mortgage transaction. The defendants examined 4 witnesses as D.Ws. 1 to 4 and got marked Exs. D. 1 to D. 9. The Trial Court after hearing the arguments on both side and by considering the pleadings, oral and documentary evidence held that the transaction dated 12-11-1971 was not a sale transaction and the parties intended the same as a mortgage transaction. Consequently, the Trial Court decreed the suit of the plaintiff vide judgment dated 10-3-1986. Aggrieved by this judgment of the Trial Court, defendants 1 and 2 filed an appeal in R.A. No. 12 of 1986 on the file of the lower Appellate Court. After hearing the arguments on both sides, the lower Appellate Court framed the following 4 points for its consideration: 1. Whether the impugned sale deed dated 12-11-1971 in respect of the suit house is a nominal and sham sale deed and was not intended to be acted upon? 2. Whether first defendant has proved that the said sale deed is a true, genuine and absolute sale deed? 3. Whether the plaintiff was entitled to all or any of the reliefs claimed in the plaint? 4. Whether the impugned judgment and decree call for interference in this appeal? 7. The lower Appellate Court on re-appreciation of the entire material on record held that there is a bar under Section 92 of the Indian Evidence Act, 1872 for the plaintiff to adduce parallel evidence contrary to the contents of a registered sale deed dated 12-11-1971. The lower Appellate Court further held that parties to the sale deed have acted upon it. It is further held that the plaintiff is not entitled for relief claimed in the suit. Accordingly, the lower Appellate Court under the impugned judgment dated 13-12-1999 allowed the appeal, set aside the judgment of the Trial Court and dismissed the suit of the plaintiff. Hence this second appeal by the plaintiff. 8. This Court vide order dated 23-3-2000 admitted the appeal and framed the following substantial question of law: "In view of the divergent findings, whether Ex. D. 1 is hit by Section 92 of the Indian Evidence Act?" 9. Heard arguments on both sides and perused the entire appeal papers. 10. It is necessary at this stage to notice the scope of Section 92 of the Indian Evidence Act as held by the Supreme Court. D. 1 is hit by Section 92 of the Indian Evidence Act?" 9. Heard arguments on both sides and perused the entire appeal papers. 10. It is necessary at this stage to notice the scope of Section 92 of the Indian Evidence Act as held by the Supreme Court. The Supreme Court in the case of Smt. Gangabai v Smt. Chhabubai1 explained the scope of Section 92 of the Indian Evidence Act as under: "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". 11. Again the Supreme Court in the case of R. Janakiraman v State represented by Inspector of Police, CBI, SPE, Madras', held as under: "Under the Indian Evidence Act, 1872, Section 92 is supplementary to Section 91 and corollary to the rule contained in Section 91. 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". 12. Keeping the law laid down by the Apex Court referred to supra, it is necessary to examine the fact situation in the instant case. On the other hand, Section 91 may apply to strangers also". 12. Keeping the law laid down by the Apex Court referred to supra, it is necessary to examine the fact situation in the instant case. Both in the pleadings and in the evidence, the plaintiff admitted the execution of a registered sale deed on 12-11-1971 as per Ex. D. 1 in favour of defendant 1. But the plaintiff contends that the sale deed-Ex. D. 1 is nominal, sham and not acted upon. It is further contended that the intention between the parties is to create a mortgage in the transaction dated 12-11-1971 and not a true and real sale deed. It is relevant to extract the first prayer in the plaint and the same reads as under: "to be declared that the sale deed bearing document No. 2109/71-72, dated 12-11-1971 in respect of the house No. 2-5-9 of Pansal Taleem, Bidar executed by the plaintiff and the defendants 3 to 6 is nominal, sham and not to be acted upon". 13. In view of the law declared by the Supreme Court in the decisions referred to above, the plaintiff is entitled to adduce oral evidence to show that the transaction in a particular document/set of documents is sham, fictitious, nominal or not intended to be acted upon. Further the facts in Gangabai's case are identical to the facts in the instant case. In Gangabai's case, the plaintiff executed a nominal sale deed and a rent note and they were never intended to be acted upon and rent paid by her was in fact interest on the loan. The plaintiff further contended that she continued to be in possession of the house property throughout and carried on repairs from time to time. The plaintiff further stated that the defendants made an attempt to enforce the document as a sale deed by filing a suit for recovery of rent. Therefore, the plaintiff filed a suit against the defendants to declare the sale transaction as nominal, sham and not intended to be acted upon. On the basis of these facts, the Supreme Court held that oral evidence is admissible to show that the document executed was never intended to operate as an agreement, but some other agreement altogether not recorded in the document was entered into between the parties. On the basis of these facts, the Supreme Court held that oral evidence is admissible to show that the document executed was never intended to operate as an agreement, but some other agreement altogether not recorded in the document was entered into between the parties. Therefore the Trial Court rightly held that plaintiff is entitled to adduce oral evidence to establish that the sale transaction dated 12-11-1971 as nominal, sham and not intended to be acted upon. The lower Appellate Court committed an error in holding that there is a bar under Section 92 of the Indian Evidence Act for the plaintiff to lead oral evidence contrary to unambiguous and clear sale deed-Ex. D. 1. 14. The reasoning of the lower Appellate Court is not only contrary to the facts of the case but also to the law laid down by the Apex Court in the decisions referred to above. It is not the case of the plaintiff that there is ambiguity in the terms of the sale deed-Ex. D. 1 and therefore, he wants to adduce oral evidence. On the other hand, it is the case of the plaintiff that the transaction in the sale deed-Ex. D. 1 is nominal, sham and not intended to be acted upon and as such, he is entitled to adduce oral evidence under Section 92 of the Indian Evidence Act. Therefore, the finding of the lower Appellate Court that there is a bar under Section 92 of the Indian Evidence Act for the plaintiff to lead evidence is liable to be set aside. Accordingly, the substantial question of law framed by this Court is answered. 15. The Trial Court on appreciation of pleadings oral and documentary evidence held that the sale deed dated 12-11-1971 is nominal and not acted upon. The reasoning of the Trial Court is as under: "In the year 1966 the schedule property was mortgaged for a sum of Rs. 8,000/- then it is improbable for the plaintiff to sell the schedule property in the year 1971 for a sum of Rs. 10,000/-. The schedule property was worth about Rs. 50,000/- in the year 1971 and same should not have been sold for a small sum of Rs. 10,000/-. The say of the plaintiff that he is agreed to pay Rs. 200/per month as rent in lieu of interest at 2% on the principal amount of Rs. 10,000/-. The schedule property was worth about Rs. 50,000/- in the year 1971 and same should not have been sold for a small sum of Rs. 10,000/-. The say of the plaintiff that he is agreed to pay Rs. 200/per month as rent in lieu of interest at 2% on the principal amount of Rs. 10,000/- co-inside and tallies. Even after mortgage in the year 1971 the plaintiff continued in possession of the schedule property, the Municipal entries also continued in his name and went on paying taxes. On the other hand if the sale deed Ex. D. 1 is true, genuine and real then defendant 1 ought to have got transferred the katha in her name and ought to have paid the taxes. The witness examined by defendant as D.W. 2 admits that he has received a sum of Rs. 8,486/- from the plaintiff towards the amount due to the defendant 2 under Ex. P. 2. The defendants have not pleaded nor placed any evidence to show that this payment under Ex. P. 2 was for any other transactions other than the suit transaction. Plaintiff and his family consisting of six daughters are residing in the plaint schedule property and that is the only house available for them. If that is so, then the plaintiff could not have sold under Ex. D. 1 for a sum of Rs. 10,000/- to discharge the earlier mortgage of Rs. 8,000/-. If really plaintiff has sold the house then there was no need for him to repair the plaint schedule house and to let out different portions to other tenants". 16. On the above reasoning the Trial Court held that the sale deed Ex. D. 1 is nominal and not acted upon. The lower Appellate Court while reversing the finding of the Trial Court is having an obligation to consider the reasoning of the Trial Court and by assigning reasons can differ with the findings of the Trial Court. But in the instant case the lower Appellate Court has not considered the reasoning given by the Trial Court and without assigning any reason reversed the finding of the Trial Court. This approach of the lower Appellate Court is bad in law. 17. The plaintiff in his pleadings and evidence admits that the transactions dated 12-11-1971 under Ex. But in the instant case the lower Appellate Court has not considered the reasoning given by the Trial Court and without assigning any reason reversed the finding of the Trial Court. This approach of the lower Appellate Court is bad in law. 17. The plaintiff in his pleadings and evidence admits that the transactions dated 12-11-1971 under Ex. D. 1 was not a sale transaction and that the same was security for repayment of mortgage debt of Rs. 10,000/-. If that is so then the defendant 1 is entitled to work out her remedy in accordance with law against the plaintiff and defendants 3 to 6. 18. For the reasons stated above, the following order: The appeal is hereby allowed. The impugned judgment and decree of lower Appellate Court dated 13-12-1999 in RA. No. 12 of 1986 passed by Additional District Judge, Bidar is hereby set aside. The judgment and decree of the Trial Court in O.S. No. 39 of 1977, dated 10-3-1986 passed by the Additional Civil Judge, Bidar is hereby restored. Ordered accordingly.