JUDGMENT P. DEVADASS, J. 1. The unsuccessful defendant in O.S. No. 71 of 2006, before the learned District Munsif, Madurai, and in A.S. No. 122 of 2008, before the learned Sub Judge, Madurai, has directed this second appeal. 2. The suit in O.S. No. 71 of 2006 is based on Ex.A1 mortgage bond. The respondent/ plaintiff sought for recovery of the principal together with interest, totally Rs. 90,750/-. Before the institution of the suit, there were exchange of notices, replies and rejoinders between the parties. 3. Appellant/defendant took up the stand that there was proposal for sale of his property. Ex.A7 (Ex.B1) sale agreement, dated 07.10.2004 has been executed by the appellant/ defendant agreeing to convey his property for Rs. 3,50,000/- and adjusted the advance amount of Rs. 75,000/- towards the amount payable by him to the plaintiff under Ex.A1. Thus, discharge of Ex.A1 through Ex.A7 has been pleaded. 4. The Trial Court framed necessary issues and tried the suit. The respondent/plaintiff examined himself as P.W.1 and marked Exs.A1 to A7. The appellant/defendant examined himself as D.W.1 and marked Ex.B1 a xerox copy of Ex.A7. 5. The Trial Court, considering the evidence, concluded that the transaction under Exs.A1 and transaction under Ex.A7 are different and thus decreed the suit. 6. The appellant/defendant took up the matter in appeal in A.S. No. 122 of 2008, to the Sub Court, Madurai, wherein virtually mere re-doing as in the Trial Court was done and ultimately the appeal was dismissed. 7. Now, the appellant/defendant directed this Second Appeal. 8. At the time of admission of the second appeal, the following substantial questions of law are formulated:- 1. Whether the Judgments and decree of the Courts below are vitiated for non-consideration of materials, evidence and principles of law? 2. Whether the mortgage has been extinguished in view of the sale agreement Ex.A7, is correct? 3. Is it correct to hold that the plaintiff is a mortgagee to maintain the suit for recovery of money on the basis of mortgage when admittedly he forego his right under Ex.A7 the sale agreement with same property? 4. Whether there is an estoppel by conduct and by which the plaintiff has lost the character of mortgage and hence without considering the same, the decree passed by the Courts below is unsustainable in law? 5. 4. Whether there is an estoppel by conduct and by which the plaintiff has lost the character of mortgage and hence without considering the same, the decree passed by the Courts below is unsustainable in law? 5. Whether there is a merger and by which the mortgagee became the agreement vendee by the subsequent agreement with mortgagor for same properties and hence the judgment is illegal? 9. According to the learned counsel for the appellant/defendant, actually D.W.1 had denied that Ex.A1 and Ex.A7 are different transactions. But, the Trial Court as well as the First Appellate Court have misread his evidence. Already there were continuous contacts between the respondent/plaintiff and the appellant/defendant. The respondent/plaintiff was interested in purchasing the mortgaged property. Actually, the debt under Ex.A1 has been adjusted as advance to the sale agreement Ex.A7. Now, taking advantage of the absence of this in Ex.A7, respondent/plaintiff wants further money for Ex.A1. 10. The learned counsel for the appellant further contended that in view of the said adjustment for Ex.A7, the respondent/plaintiff is estopped from asking money with reference to Ex.A1 and thus he is estopped from asking the amount by his conduct. 11. On the other hand, the learned counsel for the respondent/plaintiff would read the evidence of D.W.1 and submit that D.W.1 knows the truth of the matter, namely, Ex.A1 has not been discharged, that is how reprobated it in his evidence. In his evidence, he blown hot and cold at the same time. 12. The learned counsel for the appellant would urge that the transaction under Exs.A1 and Ex.A7 are separate, one is a money matter and the other one is a property matter. With regard to Ex.A7, a separate suit in O.S. No. 107 of 2008 has also been filed by the respondent/plaintiff and it is pending. Therefore, the principle of extinguishment of debt, doctrine of estoppel and merger of mortgage are not applicable to the present case. 13. In reply, the learned counsel for the appellant/defendant would submit that by the mere filing of the suit for specific performance in O.S. No. 107 of 2008 it cannot be taken that the plea made by the plaintiff in the present suit stood accepted. 14. I have anxiously considered the rival submissions, perused the records and also the impugned Judgments of the Court below. 15. 14. I have anxiously considered the rival submissions, perused the records and also the impugned Judgments of the Court below. 15. Admittedly, under Ex.A1, dated 22.10.2002, the appellant/defendant has mortgaged his property for Rs. 60,000/-. The respondent/plaintiff levied the suit for the recovery of principal and interest. However, the appellant/defendant would submit that by the subsequent conduct between the parties, namely, execution of Ex.A7 sale agreement, dated 07.10.2004, under which the appellant/defendant agreed to sell the property itself, to the respondent/plaintiff and towards the advance money of Rs. 75,000/- the mortgage debt under Ex.A1 has been adjusted. Thus, Ex.A1 debt has been discharged/extinguished. 16. Ex.A1 culminated by way of loan transaction. It is out and out a loan transaction and the repayment is secured by a mortgage bond. It is a written instrument. Subsequently, on 07.10.2004, between the same parties, Ex.A7 sale agreement was entered into. It is a contract for sale of immovable property. Such an agreement would contain all the terms and conditions such as total consideration, payment of advance money, if any, whether time is essence of the contract and when possession is to be handed over etc. 17. Passing of part of sale consideration under sale agreement also called advance money is a part payment. Necessarily, it should be embodied in such sale agreement or sometime it may be by a subsequent written agreement. 18. Now, the dispute is with regard to Ex.A7. If the mortgage debt under Ex.A1 is considered as advance money for Ex.A7, then the respondent/plaintiff should be out of Court. 19. Terms and conditions of the written instrument always should be in express words. Sometimes, it may be by conduct of the parties. In such circumstances, the party must plead and prove it by relevant evidence. The plea of discharge of Ex.A1 through Ex.A7 has been made in the written statement by the appellant/defendant himself. The onus is very heavy when especially there is no express words to that effect in Ex.A7. 20. Plaintiff has proved Ex.A1 mortgage bond. Execution of Ex.A7 has been admitted by both. Admittedly, there is no express words in Ex.A7 that Ex.A1 debt shall be treated as advance money for Ex.A7 sale agreement. 21. The onus is very heavy when especially there is no express words to that effect in Ex.A7. 20. Plaintiff has proved Ex.A1 mortgage bond. Execution of Ex.A7 has been admitted by both. Admittedly, there is no express words in Ex.A7 that Ex.A1 debt shall be treated as advance money for Ex.A7 sale agreement. 21. In this case, when D.W.1 was cross-examined by the respondent/plaintiff, to the effect that the transaction under Ex.A1 is totally different from Ex.A7 sale agreement transaction, appellant/defendant candidly admitted that both are different and there is no connection between Exs.A1 and A7. Subsequently, he denies this. This is one aspect of the matter. 22. As stated already, the burden is very heavy on the part of the appellant/defendant. He should have let in some more acceptable evidence. Except, his denial, there is no convincing evidence from the appellant/defendant's side. On the whole, when Ex.A1 mortgage bond has been executed for the receipt of the money and it was also a registered document, dated 22.10.2002, when subsequently the very mortgage money is to be treated as advance money for Ex.A7 sale agreement, dated 07.10.2004, and the debt is discharged, in all fairness and commonsense appellant/defendant would have, if really it is true, incorporated it as a term in Ex.A7, and inclusion of such a term would enure to the benefit of the appellant/defendant. However, it has not been done. It was made known only by way of his written statement. In such circumstances, the plea of discharge is unacceptable. 23. Further, for the application of doctrine of estoppel by conduct and the doctrine of merger also required evidence is not available on the part of the appellant/defendant is not available. In such circumstances, the substantial questions of law are answered as against the appellant/defendant. 24. In the result, the second appeal fails as devoid of merits and it is dismissed. The Judgment and Decree, dated 13.07.2009, passed in A.S. No. 122 of 2008, by the learned I Additional Subordinate Judge, Madurai, confirming the Judgment and Decree, dated 05.01.2007, passed in O.S. No. 71 of 2006, by the learned District Munsif, Madurai, are sustained. Consequently, connected miscellaneous petition is closed. However, in the facts and circumstances, parties are directed to bear their own costs.