JUDGMENT 1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), the appellants have challenged legality and propriety of the judgment & decree dated 5.11.93 passed by the First Additional District Judge to the Court of the District Judge, Raipur, in Civil Appeal No.76-A/91, reversing the judgment & decree of dismissal of the civil suit dated 5.12.84 passed by the Third Civil Judge Class-II, Raipur, in Civil Suit No.468A/84. 2. Present second appeal was admitted for consideration on 1.7.94 on the following substantial question of law:- "Whether the transaction entered into between the parties, EX.P-1 is a mortgage or a sale outright?" 3. As per claim of respondent No.1 Rahi Bai, Rahi Bai has purchased the suit property bearing khasra No.720 area 1.38 hectare situated at village Tulsi P.H. No. III, district Raipur vide registered sale deed dated 15.4.1976 on payment of consideration of Rs.3000/- and obtained possession, name of respondent No.1 has been mutated vide order dated 16.3.79. The appellants have committed theft of the crop sown by respondent No.1, then respondent No.1 has lodged the F.I.R., she was dispossessed by the appellants in the year 1979. Then suit for possession has been filed on behalf of respondent No.1 on 12.8.80. By filing written statement the present appellants had denied the adverse allegation and have specifically pleaded that appellant No.1 has taken loan for her family on 15.4.76 and has executed one document in the shape of sale deed for security of loan. Respondent No.1 was in possession with the connivance of revenue officer, she was succeeded in mutation of her name and she has also lodged report against the appellants. Appellant No.1 was not competent to alienate the property of minors without permission of the District Judge. During pendency of the suit, respondent No.1 has executed sale deed in favour of Ajit, predecessor-in-title of respondents No.2(i) to 2(vi), therefore, he was impleaded as a party. After providing opportunity of hearing to the parties, the Third Civil Judge Class-II, Raipur has dismissed the suit for possession and held that transaction between the parties was loan transaction. Same was challenged before the lower appellate Court and vide judgment & decree impugned the lower appellate Court has reversed the judgment & decree passed by the Third Civil Judge Class-II and decreed the suit for possession in favour of the respondents. 4. Same was challenged before the lower appellate Court and vide judgment & decree impugned the lower appellate Court has reversed the judgment & decree passed by the Third Civil Judge Class-II and decreed the suit for possession in favour of the respondents. 4. I have heard learned counsel for the parties, perused the impugned judgment & decree, judgment & decree of the trial Court and records of the Courts below. 5. Learned counsel for the appellants vehemently argued that present appellant No.1 Mangtin Bai, mother of other appellants, has taken loan from respondent No.1 Rahi Bai and has executed the document in the shape of sale deed, but same was only for security of loan, it was never intended to act upon the document was sham and nominal. Appellant No.1 was not competent to alienate the property of minor appellants No.2 to 9 without valid permission from the District Judge. By adducing evidence the present appellants have proved the fact and discharged their burden that it was not outright sale but was mortgage. Respondent No.1 has examined herself and as per finding of the trial Court same is unreliable witness. Respondent No.1 has failed to prove the fact that transaction is sale, but by adducing documentary and oral evidence the present appellants have discharged their burden. The appellants have succeeded in proving the fact that transaction was not sale, but for security of loan. Learned counsel further argued that respondent No. 1 has specifically admitted in previous proceeding that she has given loan to appellant No.1 which she has returned and she had not seen the field, was admission of respondent No.1 and was sufficient to discharge the factum of execution of sale deed. 6. Learned counsel placed reliance in the matter of Sara Veeraswami alias Sara Veerraju Vs. Talluri Narayya (deceased) and others AIR (36) 1949 Privy council 32 in which the Privy Counsel has held that finding of a Judge who was having opportunity to see and hear the witness that witness speaks lie is entitled to great weight. 6. Learned counsel placed reliance in the matter of Sara Veeraswami alias Sara Veerraju Vs. Talluri Narayya (deceased) and others AIR (36) 1949 Privy council 32 in which the Privy Counsel has held that finding of a Judge who was having opportunity to see and hear the witness that witness speaks lie is entitled to great weight. Privy Counsel further held that in terms of Sections 91 and 92 of the Evidence Act the parties are entitled to give oral evidence in proof of validation of any document relating to fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party of consideration, or mistake in fact or law, existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property. Learned counsel further placed reliance in the matter of Mandas Vs. Manabai 1972 MPLJ 852 in which the High Court of Madhya Pradesh has held that parties are entitled to give evidence to show that the sale deed was never agreed to be acted upon. If there was a stipulation between the parties that the contract would not be enforced or that it would not be acted upon ab initio, oral evidence in support of such a plea may be given. Leaned counsel also placed reliance in the mater of Smt. Koze and another Vs. Makhan Singh 1973 MPLJ 610 in which the High Court of Madhya Pradesh has held that alleged sale deed executed on behalf of Gond, an illiterate woman having no male member in her family and amount has also not been paid before the Sub-Registrar shows that alleged sale deed has been obtained by playing fraud and undue influence. The High Court of Madhya Pradesh has further held that in case of execution of document by poor and illiterate person, burden to prove conscious and genuine execution lies upon the person in whose favour it has been executed. Learned counsel relied upon the matter of Narayan Bhagwantrao Gosavi Balajiwale Vs. The High Court of Madhya Pradesh has further held that in case of execution of document by poor and illiterate person, burden to prove conscious and genuine execution lies upon the person in whose favour it has been executed. Learned counsel relied upon the matter of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and others AIR 1960 SC 100 in which the Supreme Court has held that the burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. Learned counsel placed reliance in the matter of Panni Lal Vs. Rajinder Singh and another (1993) 4 SCC 38 in which the Supreme Court has held that sale of property of minor by mother during lifetime of father after attestation of sale deed by father is not voidable under Section 8 of the Hindu Minority and Guardianship Act, 1956, but void. In this case, during lifetime of father and taking interest in the affairs of the minor mother has executed sale deed who was not natural guardian, therefore, instead of declaring sale deed voidable in accordance with Section 8 of the Act, 1956, the Supreme Court has held that sale deed was void on the ground that it has not been executed by the natural guardian. Learned counsel further placed reliance in the matter of R. Janakiraman Vs. State represented by Inspector of Police, CBI, SPE, Madras (2006) 1 SCC 697 in which the Supreme Court has held that bar under Section 92 of the Evidence Act is to oral evidence to disprove the terms of a contract, and not to disprove the contract itself. Learned counsel also placed reliance in the mater of Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 in which the Supreme Court has held that first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. Learned counsel also placed reliance in the mater of Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 in which the Supreme Court has held that first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions Put forth, and pressed by the parties for decision of the appellate court. The appellate Court is required to consider the reasoning of the trial Court. Learned counsel relied upon the matter of Karam Kapahi & Ors. Vs. M/s. Lal Chand Public Charitable Trust & Anr. AIR 2010 SC 2077 in which the Supreme Court has held that admission means admission of facts either in pleading or otherwise whether orally or in writing. Learned counsel further relied upon the matter of Bharat Singh and others Vs. Mst. Bhagirathi AIR 1966 SC 405 in which the Supreme Court has held that admission is substantive evidence even though the party is not confronted with the statement. Learned counsel placed reliance in the matter of Avadh Kishore Dass Vs. Ram Gopal and others AIR 1979 SC 861 in which the Supreme Court has held that it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong, but they do raise an estopel and shift the burden of proof on to the person making them or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. Learned counsel further placed reliance in the matter of Kallathil Sreedharan and another Vs. Komath Pandyala Prasanna and another (1996) 6 SCC 218 in which the Supreme Court has held that contract for alienation of minor's share in immovable property by mother without obtaining previous permission of court, is not executable. 7. On the other hand, learned counsel for the respondents opposed the appeal and argued that the plaintiff/respondent No.1 has not filed suit for declaration of title and possession but has simply filed suit for possession after dispossession by the present appellants, therefore, there was no issue for decision that whether sale deed was genuine or not. 7. On the other hand, learned counsel for the respondents opposed the appeal and argued that the plaintiff/respondent No.1 has not filed suit for declaration of title and possession but has simply filed suit for possession after dispossession by the present appellants, therefore, there was no issue for decision that whether sale deed was genuine or not. The present appellants have not filed any suit for declaration that such deed was not sale deed and was mortgage deed. As per pleading and claim of the appellants, alleged sale deed was not outright sale but was mortgage in which the appellants were party to the deed, therefore, it was necessary for them to file civil suit or counter-claim to declare the document not as a sale deed but as a mortgage. Document was not void but was voidable as prayed by the appellants and unless it is declared at the option of the appellants, void document is enforceable under the Jaw. No separate agreement has been executed to show that deed was a mortgage or for security for loan or was not to be acted upon. Learned counsel further argued that mother has executed deed for the benefits of minors which has been pleaded and admitted by the appellants in their pleading that on account of famine appellant No.1 has executed sale deed for their children which was permissible under Section 8 of the Act, 1956. Even otherwise document executed by the natural guardian without permission of the Court is voidable at the instance of minors. Minors have not filed any suit challenging the sale deed against their mother. Learned counsel further argued that voidable transactions are required to be avoided. 8. Learned counsel placed reliance in the matter of Ranganayakamma and another Vs. K.S. Prakash (dead) by LRs. And others (2008) 15 SCC 673 in which the Supreme Court has held that voidable transactions are required to be avoided. 9. Respondent No.1 has filed suit for possession after dispossession. As per Para 9 of the plaint, she has been dispossessed on 17.11.79 and has flied civil suit on 12.8.80 after lapse of six months, therefore, it was not the suit under Section 6 of the Specific Relief Act. Even as per plaint allegation she has purchased the suit property from the present appellants. Virtually suit for possession was based on title. Even as per plaint allegation she has purchased the suit property from the present appellants. Virtually suit for possession was based on title. The appellants have specifically denied the title of respondent No.1 and have specifically pleaded that appellant No.1 has not sold the land to respondent No.1, she has taken loan on account of famine for her family, but respondent No.1 has succeeded in getting the document in the shape of sale deed which was only for security of loan. The trial Court has also framed Issue No.1 that whether the present appellants/defendants have sold the land to respondent No.1 on 15.4.76. 10. Both the parties have led evidence to prove and disprove the aforesaid Issue No.1. As per Ex.P/2, respondent No.1 had filed application for mutation before the revenue court where the appellants have objected that it was not outright sale but was loan transaction. After order of mutation name of respondent No.1 has been corrected in revenue record vide Exs.P/3 and P/ 4. The appellants have taken defence before the revenue Court that it was not sale but was mortgage. Ex.P/6 further reveals that in the year 1982-83 the respondents were in possession. Initial burden to prove the fact that sale deed Ex.P/1 was outright sale was on respondent No.1. The appellants have specifically pleaded and claimed that it was not outright sale but was mortgage. In order to disprove her burden, respondent No.1 has examined herself and has deposed that she has purchased the property vide Ex.P/1 and has paid consideration of Rs.3000/-. She has further admitted in Para 3 of her evidence that she has cultivated the land for 2-3 years, thereafter the appellants quarrelled and objected. As per Para 6 of her evidence, for the aforesaid two years she has cultivated the land through co-plaintiff/original respondent No.2 Ajit whom she has sold the land subsequently. She has denied in Para 8 of her cross-examination that she was never in possession of the suit property. As per her evidence she is resident of Tikrapara, Raipur and not village Tulsi. As per Para 9 of her evidence, she was not having barn and house at village Tulsi. She has denied the suggestion in Para 10 that she used to give loan after getting document in her favour in the shape of sale deed. As per her evidence she is resident of Tikrapara, Raipur and not village Tulsi. As per Para 9 of her evidence, she was not having barn and house at village Tulsi. She has denied the suggestion in Para 10 that she used to give loan after getting document in her favour in the shape of sale deed. She has also denied the suggestion in Para II that she has given loan to Adhari who has executed sale deed in her favour, but thereafter she has returned the land after receiving loan amount. She has also denied the suggestion that earlier she has given loan to appellant No.1 which she had returned, thereafter she has executed sale deed Ex.D/2. She has denied her previous statement as Ex.D/3. Co-plaintiff Ajit (PW-2) has deposed that he has purchased the land from respondent No.1 after payment of consideration of Rs.4000/-. As per his evidence he was not present at the time of transaction. The appellants have examined Dhelu (DW 1) and Sakharam (DW-2) (attesting witnesses of alleged sale deed Ex.P/l), who have deposed that it was not sale but was loan transaction. In Para 5 Dhelu (DW-1) has deposed that respondent No.1 was informed him that it was loan transaction. 11. Appellant No.1 Mangtin has examined herself and has deposed that it was loan transaction. She has further deposed that earlier she has taken loan from respondent No.1 and has executed sale deed, same was retuned vide Ex.D/2 after payment of loan. Adhari (DW-4) has deposed that he has taken loan from Rahi Bai and has executed sale deed and after returning the loan she has again executed sale deed in his devour. These witnesses have not filed previous sale deeds executed by them in favour of Rahi Bai. Respondent No.1 has not disputed the execution of sale deed Ex.D/2 by her in favour of appellant No.1 Mangtin. As per Ex.D/2, in order to pay loan, respondent No.1 has executed sale deed of some land in favour of appellant Mangtin on 11.2.75, but as per Ex.P/l deed in question appellant No.1 Mangtin Bai has executed sale deed in favour of respondent No.1 Rahi Bai on 15.4.76, within one year and three months and sold her land for payment of loan. When respondent No. l has sold the land on 11.2.75 for payment of loan, then it does not appear to be natural that within one year and three months she would be in a position to pUII.i1ase the land and alleged seller Mangtin would be indebted to the extent that she would be compelled to sale the land for payment of loan. 12. As admitted by respondent No.1 that she is not resident of village Tulsi, she was not having barn and house at village Tulsi, although she has denied her previous statement in criminal proceeding Ex.D/3. But it reveals in Ex.D/3 that she has admitted that there was loan transaction of Rs.3,000/- which Mangtin had paid. 13. As per pleading and claim of the appellants, transaction was not sale but was loan, as held by the Supreme Court in the matter of Ranganayakamma (2008) 15 SCC 673 (supra), document was voidable and not void and is required to be avoided at the instance of the parties, but the present appellants have not filed any suit for declaration of such deed Ex.P1 not as a sale but as a mortgage. 14. As held by the Supreme Court in the matter of Bharat Singh AIR 1966 SC 405 (supra), previous statement without confronted can be considered, although same is not conclusive in nature. In the present case, Ex.D/3 previous statement of respondent No.1 reveals that previously she has given loan to appellant No.1, but in her present evidence she has denied Ex.D/2 and Ex.P/l further supports the claim of the appellants that respondent No.1 used to give loan on the basic of document in the shape of sale deed. 15. As per Exs.P/2 and P/6, the present appellants have objected the transactions since its inception. In these circumstances, heavy burden was upon respondent No.1 to prove that transaction was outright sale, but in order to prove the aforesaid fact, virtually respondent No.1 has not examined any witness except herself. Her evidence is full of contradictions, even she has denied her previous statement Ex.D/3, inter alia, the appellants have examined attesting witnesses of document EX.P/1. Dhelu (DW-l) (attesting witness) has specifically deposed that he was informed by respondent No.1 that it was loan transaction. 16. Appellant No.1 has put her thumb impression over EX.P/1. Her evidence is full of contradictions, even she has denied her previous statement Ex.D/3, inter alia, the appellants have examined attesting witnesses of document EX.P/1. Dhelu (DW-l) (attesting witness) has specifically deposed that he was informed by respondent No.1 that it was loan transaction. 16. Appellant No.1 has put her thumb impression over EX.P/1. As held by the Supreme Court in the matters of Narayan Bhagwantrao Gosavi Balajiwale AIR 1960 SC 100 (supra), in case of document executed by an illiterate person, conscious execution of the document by such person is upon the person who asserted. The Supreme Court has further held that after leading the evidence by both the parties question of burden of proof becomes academic. 17. In the present case, both the parties have led evidence. Appellant No.1 is illiterate woman; therefore, burden to prove conscious execution by her was upon respondent No.1. Respondent No.1 has admitted in Ex.D/3 that she has given loan to appellant No.1, which is sufficient admission on behalf of respondent No.1 and as held by the Supreme Court in the matters of Avadh Kishore Dass AIR 1979 SC 861, Karam Kapahi AIR 2010 SC 2077, Bharat Singh AIR 1966 SC 405 (supra), onus shifted upon respondent No.1 to prove the fact that it was not loan transaction. 18. While dealing with the question of exclusion of oral evidence to disprove the terms of contract the Supreme Court in the matter of R. Janakiraman (2006) 1 SCC 697 (supra) has held that Section 92 of the Evidence Act creates bar to adduce oral evidence to disprove the terms of the contract but not to disprove the contract itself. Para 24 of the said judgment reads as under:- "24. We may cull out the principles relating to section 92 of the Evidence Act, thus: (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. (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. (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. Applying the aforesaid principles, it is clear that the bar with Section 92 will apply to a proceeding inter parties to a document and not to a criminal proceeding, where the prosecution is trying to prove that a particular document or set of documents are fictitious documents created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon." 19. As held by the Privy Counsel in the matter of Sara Veeraswami alias Sara Veerraju AIR (36) 1949 Privy council 32(supra), the oral agreement as to reconveyance deed not contradict, vary or subtract from the terms of the sale-deed within the meaning of Section 92 of the Evidence Act, therefore, oral evidence is not excluded. In the present case, the appellants have not adduced oral evidence to prove the terms of Ex.P/1, but have adduced oral evidence to disprove the contract itself which is permissible under the law. 20. In the present case, the appellants have not adduced oral evidence to prove the terms of Ex.P/1, but have adduced oral evidence to disprove the contract itself which is permissible under the law. 20. As held by the High Court of Madhya Pradesh in the matter of Mandas 1972 MPLJ 852 (supra), the present appellants were also entitled to adduce evidence to show that sale deed was nominal and not to be acted upon and as held by the High Court of Madhya Pradesh in the mater of Smt. Koze 1973 MPLJ 610 (supra), the present appellants are entitled to adduce evidence to disprove the contract itself. 21. As further submitted by learned counsel for the appellants that sale deed has been executed by appellant No.1 without obtaining permission from the District Judge under Section 8 of the Hindu Minority and Guardianship Act, 1956, therefore, as held by the Supreme Court in the matter of Panni Lal (1993) 4 SCC 100 (supra), alleged contract/sale deed without obtaining permission from the District Judge by mother was not only voidable but void. In this case, at the time of contract mother was not natural guardian, therefore, the Supreme Court has held that sale deed executed by the person who was not natural guardian of the minor was void and not voidable, but in the present case, mother was natural guardian after death of father of the minors. As per written statement, appellant No.1 has executed deed when her family was suffering from famine which shows that it was for the benefit and welfare of the minors, therefore, alleged contract was not void but was voidable and minors have not filed any suit for declaration of such deed as void. Therefore, facts of the case of Panni Lal (1993) 4 SCC 38 (supra) are distinguishable to that of the present case. 22. In the matter of Kallathil Sreedharan (1996) 6 SCC 218 (supra), the Supreme Court has denied the claim of specific performance on the ground that specific performance is discretionary relief and can be denied in appropriate cases. Therefore, facts of the case of Kallathil Sreedharan (1996) 6 SCC 218 (supra) are distinguishable to that of the present case. 23. 22. In the matter of Kallathil Sreedharan (1996) 6 SCC 218 (supra), the Supreme Court has denied the claim of specific performance on the ground that specific performance is discretionary relief and can be denied in appropriate cases. Therefore, facts of the case of Kallathil Sreedharan (1996) 6 SCC 218 (supra) are distinguishable to that of the present case. 23. As held by the Supreme Court in the matter of Santosh Hazari (2001) 3 SCC 179 (supra), first appellate Court was under obligation to consider all disputes claiming submission of the parties because first appellate Court is final Court and second appeal may be admitted only on substantial question of law. First appellate Court is required to consider the issue and evidence and decide the case. There must be independent judgment of first appellate Court. 24. In the present case, while decreeing the suit the lower appellate Court has committed illegality by shifting the burden to prove the fact that contract was mortgage and not a sale upon the appellants. In order to obtain decree of possession on the basis of title, burden to prove title and that too she has acquired the title by sale deed Ex.P/1 and Ex.P/1 was outright sale was upon respondent No.1, not upon the appellants. The lower appellate Court was under obligation to consider the submissions and evidence and decide the case, but it has failed to discharge its duty. Burden to prove the fact that Ex.P/1 was outright sale and not mortgage was upon respondent No.1. Respondent No.1 was not resident of village Tulsi, she is not having any barn and house at village Tulsi. The appellants have objected the genuineness of sale deed since its inception. In the year 1975 appellant No.1 was competent to purchase the land and respondent No.1 was indebted as Ex.D/2, but within one year as Ex.P/1 respondent No.1 became competent to purchase the land and appellant No.1 became indebted. The appellants have explained that Ex.D/2 was reconveyance deed after payment of loan and Ex.P/l is loan transaction, not outright sale. These circumstances and facts are sufficient to discharge the fact that it was outright sale and are sufficient to prove the fact that it was mortgage. 25. Consequently, substantial question of law formulated for the decision of this appeal is decided that it was a mortgage and not a sale outright. These circumstances and facts are sufficient to discharge the fact that it was outright sale and are sufficient to prove the fact that it was mortgage. 25. Consequently, substantial question of law formulated for the decision of this appeal is decided that it was a mortgage and not a sale outright. On the basis of finding on substantial question of law, the appeal deserves to be allowed and is hereby allowed. Judgment & decree of the First Additional District Judge, Raipur in Civil Appeal No.76-A/9l dated 5.11.93 are hereby set aside and judgment & decree of the trial Court are hereby restored. 26. Parties shall bear their own cost. 27. Advocate fees as per schedule. 28. Decree be drawn accordingly. Appeal Allowed.