JUDGMENT : J.J. MUNIR, J. 1. This is a defendant’s appeal arising out of a suit for specific performance of contract. 2. Ramji Lal instituted Suit No. 538 of 1986 in the Court of the Civil Judge (now Civil Judge, Senior Division), Agra against Kashi Ram, seeking a decree for specific performance of agreement to sell dated 06.07.1984 and a further agreement to sell dated 18.06.1985, together with a direction to deliver possession of the property, subject matter of the suit, within time to be stipulated by the Court and in default, to carry out the decree through the agency of Court. A further decree for the award of pendente lite and future mesne profits at the rate of Rs.10,000/- per annum was claimed, apart from costs of the suit. 3. The plaintiff, Ramji Lal, pleaded a case to the effect that the plaintiff and Kashi Ram, the defendant, entered into a bargain for the sale of agricultural Plot No. 306, admeasuring 5 bigha 15 biswa and 15 biswansi owned by the defendant and situate at Village Therai, Pargana Fatehabad, District Agra. The defendant agreed to sell the plot of land aforesaid in the plaintiff’s favour for a total sale consideration of Rs.65,000/-. A registered agreement to sell, according to the plaintiff, was executed by the defendant in the former’s favour on 06.07.1984. The agreement to sell dated 06.07.1984, executed between parties, was presented for registration to the Sub-Registrar, Tehsil Fatehabad, District Agra on 06.07.1984. The aforesaid agreement, which shall hereinafter be referred to as ‘the first suit agreement’, carried all terms between parties, upon which the defendant had covenanted to sell his agricultural land, above described, in favour of the plaintiff. The land, agreed to be sold and above described, shall hereinafter be called ‘the suit property’. 4. Kashi Ram, the sole defendant-appellant died pending this appeal and his heirs and LRs have been brought on record as defendant-appellant Nos. 1/1, 1/2, 1/3 and 1/4 to the appeal. The deceased-defendant, Kashi Ram, now represented by his heirs and LRs as aforesaid, shall hereinafter be referred to as ‘the defendant’. Ramji Lal, the sole plaintiff-respondent shall hereinafter be called ‘the plaintiff’. 5. 1/1, 1/2, 1/3 and 1/4 to the appeal. The deceased-defendant, Kashi Ram, now represented by his heirs and LRs as aforesaid, shall hereinafter be referred to as ‘the defendant’. Ramji Lal, the sole plaintiff-respondent shall hereinafter be called ‘the plaintiff’. 5. It is the plaintiff’s case that the defendant received from him a sum of Rs.60,000/-as part of the agreed sale consideration and covenanted to execute a registered sale deed within one year of the first suit agreement, after securing an income tax certificate under Section 230-A of the Income Tax Act, 1961. The defendant requested extension of the period of time to perform his part of the contract, leading to the execution of another registered agreement on 18.06.1985, which enlarged the period of time for performance of obligations under the first suit agreement by one year i.e. up to 18.06.1986. The registered agreement to sell dated 18.06.1985 shall hereinafter be called ‘the second suit agreement’, and the first and second suit agreements, wherever referred to together, shall be called ‘the suit agreements’. The plaintiff says that he asked the defendant to execute a sale deed as covenanted under the suit agreements, but the defendant evaded discharging his obligation on one pretext or the other. 6. The plaintiff served a registered notice on 29th May, 1986, calling upon the defendant to execute the sale deed on 12.06.1986. The defendant did not turn up at the Sub-Registrar’s office at Tehsil Fatehabad, District Agra on the said date to execute a sale deed in the plaintiff’s favour. Instead, he sent a reply mentioning incorrect facts. The plaintiff pleaded that he had no alternative but to institute the present suit. It is then pleaded by the plaintiff that he has always been ready and willing to perform his part of the contract and is still ready and willing to perform his obligations under the suit agreements. It is also pleaded by the plaintiff that the defendant is liable to pay him damages for the use and occupation of the suit property @ Rs.10,000/-per year, inasmuch as the defendant failed to execute a sale deed as contracted and deliver possession of the suit property to the plaintiff, depriving the latter of beneficial use of the said property, which would yield him income. The plaintiff’s money has remained blocked on account of the breach of contract committed by the defendant. The plaintiff’s money has remained blocked on account of the breach of contract committed by the defendant. It is on these facts that the suit, giving rise to this appeal, was instituted on 10.07.1986. 7. A written statement was filed on behalf of the defendant on 15.05.1992. The plaint allegations were generally denied, though not the factum of execution of the suit agreements. It was pleaded that the suit agreements were not executed with the intention of conveying the suit property to the plaintiff, but as security for the sum of Rs.40,000/- that the defendant borrowed of the plaintiff to pay off his creditor, Gyan Singh, who too held an agreement to sell in his favour executed by the defendant, also for the purpose of securing money lent. In a more detail of his defence, the defendant has pleaded that he had borrowed a sum of Rs.20,000/-from one Saudan Singh son of Sujan Singh on or about the 14th of September, 1979 and executed, by way of collateral security, an agreement to sell dated 14.09.1979, covenanting to transfer the suit property in favour of Saudan Singh for a total sale consideration of Rs.29,000/-. 8. It was the defendant’s case that he could pay a very small sum out of the money borrowed from Saudan Singh until after expiry of two years from the date of loan. Therefore, the defendant borrowed from Gyan Singh son of Betal Singh to pay off Saudan Singh. In order to secure the sum borrowed from Gyan Singh, the defendant executed in his favour a registered agreement to sell dated 23.09.1982, covenanting to convey the suit property for a sum of Rs.45,000/- where the instrument acknowledges the defendant to have received in earnest from Gyan Singh a sum of Rs.40,000/-. This transaction was a financial arrangement to secure the loan that the defendant had taken from Gyan Singh to pay off the previous creditor. It is pleaded by the defendant that Gyan Singh demanded the money that he had lent. In order to pay off Gyan Singh, the defendant borrowed a sum of Rs.40,000/-from the plaintiff, who is the defendant’s elder brother’s son. This was done on 06.07.1984. The defendant paid off Gyan Singh’s debt on 06.07.1984, who executed a registered instrument cancelling the agreement to sell earlier executed by the defendant in his favour. This instrument of cancellation was executed by Gyan Singh on 06.07.1984. This was done on 06.07.1984. The defendant paid off Gyan Singh’s debt on 06.07.1984, who executed a registered instrument cancelling the agreement to sell earlier executed by the defendant in his favour. This instrument of cancellation was executed by Gyan Singh on 06.07.1984. On 06.07.1984, in order to secure the loan of Rs.40,000/-by his nephew (the plaintiff), the defendant entered into the first suit agreement with him, where the suit agreement was intended to be nothing more than a collateral security. It is pleaded that there was no intention ever to sell the suit property by the defendant in the plaintiff’s favour. The purpose of the first suit agreement was to secure repayment of the sum of money borrowed by the defendant to pay off Gyan Singh. 9. The defendant has further pleaded that since he could not repay the loan of Rs.40,000/-to the plaintiff within the covenanted time of one year, he executed another agreement to sell, the second suit agreement, also as collateral security, extending the term by one year. The second suit agreement, as already said, was executed on 18.06.1985. 10. It is the defendant’s further case that at the time of renewal of obligation in terms of the second suit agreement, that is to say, on 18.06.1985, the defendant paid the plaintiff in cash a sum of Rs.15,000/-and 100 maunds of wheat, both of which, according to the defendant, have to be set off against the loan. 11. The defendant says that the antecedent transactions between him and third parties, where agreements were executed in order to secure repayment of loans raised from these parties and then paid off, have to be borne in mind in order to understand the nature of the present transaction. The true nature of the transaction would be better understood when bearing in mind earlier transactions with third parties regarding the suit property serving as a security for the repayment of loans raised, the blood relationship between the parties here is kept in mind. The present transaction embodied in the suit agreements is nothing more than a security for the repayment of money lent by the plaintiff. The suit agreements never did bind the defendant, so far as his obligation to convey the suit property on the terms therein is concerned. The present transaction embodied in the suit agreements is nothing more than a security for the repayment of money lent by the plaintiff. The suit agreements never did bind the defendant, so far as his obligation to convey the suit property on the terms therein is concerned. It is also the defendant’s case that no contractual obligation binds the defendant to convey the suit property to the plaintiff. 12. It is the further case of the defendant that in the year 1984, the price of agricultural land, where the suit property is situate, was not less than Rs.30,000-35,000/-per bigha. Therefore, the worth of the suit property would be a sum of Rs.1,75,000/-to Rs.2,00,000/- which the defendant could not be expected to part with for a trifling. The defendant has further pleaded that except the suit property, he has no other agricultural holding. In case, the suit property goes out of his hands, it would cause him extreme hardship as the defendant has no other source of income, but the one that he derives out of exploitation of the said property. If a decree for specific performance is passed, it would cause the defendant unforeseeable hardship and, therefore, the discretion under Section 20 of the Specific Relief Act ought not to be exercised in the plaintiff’s favour. The defendant’s liability to pay damages for use and occupation @ Rs.10,000/-per year or at any other rate was denied. 13. On the pleadings of parties, the following issues were struck on 24.01.1995: “(1) Whether the defendant executed the agreement for sale on 06.07.1984 in favour of the plaintiff? (2) Whether the agreement for sale dated 06.07.1984 was extended through agreement dated 18.06.1985? (3) Whether the plaintiff was always ready and willing to perform his part of agreement? (4) Whether the defendant is liable to pay the damages of Rs.10,000/-per year as alleged in Paragraph No. 7 of the plaint? (5) Whether the plaintiff paid Rs.6433-20 againstthe recovery of the loan due from the defendant, as alleged in Paragraph No. 4 of the replication, 48-Ga? (6) Whether the alleged agreement to sell was a loan transaction as alleged in the W.S.? (7) To what relief the plaintiff is entitled for?” 14. (5) Whether the plaintiff paid Rs.6433-20 againstthe recovery of the loan due from the defendant, as alleged in Paragraph No. 4 of the replication, 48-Ga? (6) Whether the alleged agreement to sell was a loan transaction as alleged in the W.S.? (7) To what relief the plaintiff is entitled for?” 14. An additional issue, numbered as Issue No. 8, was framed on 20.10.1997, which reads: “(8) Whether the defendant paid Rs.15,000/-in cash and 100 maunds wheat at the time of renewal on 18.06.1985 to the plaintiff?” Note: The issues, set forth hereinabove, have been reproduced from the order-sheet of the Trial Court. The issues framed by the Trial Court are in the English language. The two Courts below in the judgments have done a Hindi rendition of the issues framed while writing their judgments, which bear some inconsequential differences. 15. The plaintiff filed in his documentary evidence the first suit agreement, Paper No. 22-Ka, the second suit agreement, Paper No. 21-Ka, the application for attendance before the Sub-Registrar, Paper No. 23-Ga, a copy of the notice, Paper No. 24-Ga and the reply notice, Paper No. 25-Ga. The plaintiff examined in support of his case himself as PW-1, Shiv Swaroop as PW-2 and Het Singh as PW-3. 16. The defendant filed in support of his case documentary evidence, being a copy of the agreement to sell executed in favour of Saudan Singh, Paper No. 29-Ga, agreement to sell in favour of Gyan Singh dated 23.09.1982, Paper No. 30-Ga and the instrument of cancellation executed by Gyan Singh in favour of Kashi Ram dated 06.07.1984, Paper No. 90-Ga. In support of his case, the defendant examined himself as DW-1, Chhitariya as DW-2 and Bhimsen as DW-3. 17. The Trial Court, upon trial of the suit, decided Issue Nos.1, 2 and 6 together, answering Issue Nos.1 and 2 in favour of the plaintiff and Issue No. 6 against the defendant. Issue No. 3 was answered in favour of the plaintiff and against the defendant. Issue No. 4 was answered against the plaintiff. Issue No. 5 was declined to be decided by the Trial Court holding that it did not arise upon pleadings of parties and the defendant had no opportunity to answer it. It had been framed on the basis of a miscellaneous application. Issue No. 4 was answered against the plaintiff. Issue No. 5 was declined to be decided by the Trial Court holding that it did not arise upon pleadings of parties and the defendant had no opportunity to answer it. It had been framed on the basis of a miscellaneous application. Issue No. 7 was answered for the plaintiff and against the defendant holding the plaintiff entitled to relief of specific performance. Issue No. 8 was decided against the defendant. 18. The Trial Court, by its judgment and decree dated 29.07.1985, decreed the suit for the relief of specific performance, but dismissed it for mesne profits. 19. The defendant appealed the decree to the District Judge, Agra, where it was registered as Civil Appeal No. 294 of 1998. The appeal upon assignment came up for determination before the 8th Additional District Judge, Agra on 10.08.1999. The Lower Appellate Court dismissed the appeal with costs and affirmed the Trial Court’s decree. 20. Aggrieved, this appeal has been preferred by the defendant. 21. The appeal was admitted to hearing on 04.05.2001 on the following substantial question of law: Whether the courts below have erred in law in not considering the agreements to sell dated 14.9.1979 and 23.9.1972 (sic 23.09.1982) executed by Kashi Ram and as such the finding on the question as to whether the transaction was a loan recorded by the courts below is vitiated? 22. When the appeal came up for hearing before this Court on 22.09.2021, the first substantial question of law was rephrased, whereas a second question was added. The appeal was, therefore, heard on the following two substantial questions of law, the first being merely a rephrasing of the question formulated on 04.05.2001: (1) Whether the suit agreement subject matter of action, in substance, embodies a transaction that is a loan with the agreement serving as security? (2) Whether it is imperative for the Court to express reasons why discretion to grant specific performance under Section 20 of the Specific Relief Act, 1963 has been exercised? 23. Heard Mr. P.C. Jain, learned Counsel for the defendant and Mr. Kunal Shah, learned Counsel for the plaintiff. 24. Advancing his submissions on the first substantial question of law, Mr. (2) Whether it is imperative for the Court to express reasons why discretion to grant specific performance under Section 20 of the Specific Relief Act, 1963 has been exercised? 23. Heard Mr. P.C. Jain, learned Counsel for the defendant and Mr. Kunal Shah, learned Counsel for the plaintiff. 24. Advancing his submissions on the first substantial question of law, Mr. P.C. Jain, learned Counsel for the defendant has invited the attention of this Court to certain circumstances, which according to him lead to the inevitable conclusion that the suit agreements were executed for the purpose of security and not oblige the defendant to execute a sale deed in the plaintiff’s favour as per ostensible terms. Highlighting these circumstances, it is pointed out by Mr. Jain that the two earlier agreements to sell, the first in favour of Saudan Singh, and the second, in favour of Gyan Singh, both of which were mutually cancelled upon repayment of the earnest, show that the defendant had immediately, before the execution of the suit agreements, borrowed money from two other men and secured its repayment by executing an agreement to sell with regard to the suit property. Mr. Jain submits that the two earlier transactions show the inclination or the mind of the defendant, which was about borrowing money, creating a security on the suit property by way of an agreement to sell, but never the animus to transfer it. 25. According to Mr. Jain, dovetailed into the above circumstance is the fact that the day the first suit agreement was executed in the plaintiff’s favour, to wit, 06.07.1984, an instrument of cancellation was executed between the defendant and the previous lender, Gyan Singh, discharging the agreement to sell in the latter’s favour upon receipt of the money lent. It is also stressed by the learned Counsel for the defendant that there is an identity in figure of the part of the sale consideration, said to be received before the Sub-Registrar in the first suit agreement, and that mentioned in the instrument of cancellation executed the same day by Gyan Singh. Both instruments mention a sum of Rs.40,000/-as the consideration. Both instruments mention a sum of Rs.40,000/-as the consideration. It is urged by the learned Counsel for the defendant on the foot of the fact that a sum of Rs.40,000/-received by the defendant from the plaintiff, shown as part of the Rs.60,000/-earnest before the Sub-Registrar, was utilized to pay off the previous creditor, Gyan Singh, in order to secure discharge of the agreement in the latter’s favour, that the suit agreements must be regarded as transactions to secure the repayment of the loan. 26. It is also pointed out by Mr. Jain that both documents were scribed by the same man, Shiv Swaroop, who has been examined as PW-2, to prove execution of both the documents. It is particularly emphasized that DW-2, Chhitariya is a common marginal witness to the first suit agreement and the instrument of cancellation. He has said in his testimony that the first suit agreement was executed to serve as security for the loan advanced by the plaintiff to the defendant and not to create any obligation to sell the suit property. It is also emphasized that the plaintiff, while testifying as PW-1 in the witness-box, did not deny the previous agreements to sell executed by the defendant in favour of third parties and their cancellation, but said that he did not know anything about these transactions. 27. The next circumstance, to which Mr. Jain has called attention of this Court, is the fact that out of the agreed sale consideration of Rs.65,000/- the first suit agreement acknowledges payment of Rs.60,000/-on 06.07.1984, leaving a residue of Rs.5000/-. The reason indicated for eschewing an immediate sale is the necessity of obtaining permission from the Income Tax Authorities under Section 230-A of the Income Tax Act, which according to the provisions of that statute is not required in case of sale of agricultural land. It is also emphasized that the other reason that some time was required to arrange for the balance of Rs.5000/-is highly improbable. These circumstances, according to Mr. Jain, show that there was no real transaction of sale in the contemplation of parties. The extension of time by one year in terms of the second suit agreement does not mention anything by way of consideration. 28. These circumstances, according to Mr. Jain, show that there was no real transaction of sale in the contemplation of parties. The extension of time by one year in terms of the second suit agreement does not mention anything by way of consideration. 28. The attention of the Court has also been drawn by the learned Counsel for the defendant to the testimony of DW-2, Chhitariya and DW-3, Bhimsen, where they say that Rs.15,000/- besides 100 maunds of wheat were given by the defendant to the plaintiff at the time of execution of the second suit agreement. Learned Counsel has also pointed out that the plaintiff in his testimony in Paragraph No. 8 of his cross-examination has spoken of the prior loans taken by the defendant saying that he did not know about the earlier transactions. About PW-3, it is said by the learned Counsel that this witness has been relied upon by the Lower Appellate Court as the star witness to accept the plaintiff’s case, whose testimony has been accepted over other witnesses. About this witness, it is pointed out that he has said that he did not know about the previous agreements with Saudan Singh and Gyan Singh, and also did not know if an instrument of cancellation was executed the same day as the first suit agreement, written by the same scribe, Shiv Swaroop Gupta. 29. It is also emphasized by the learned Counsel for the defendant that in response to the plaintiff’s notice, calling upon the defendant to execute a sale deed, the defendant specifically denied that the first suit agreement was executed to create any obligation for sale of the suit property and said that it was meant to serve as security for the loan advanced. The plaintiff never disputed this reply by further correspondence. According to the defendant, in Paragraph No. 5 of the plaint, the assertion in the defendant’s reply, given in answer to the plaintiff’s notice, were not specifically traversed, except terming the defendant’s reply as false. Similarly, in Paragraph No. 7 of his examination-in-chief, the plaintiff did not deny the allegations about the transaction being a loan, but said that the defendant gave an incorrect reply to his notice. 30. Similarly, in Paragraph No. 7 of his examination-in-chief, the plaintiff did not deny the allegations about the transaction being a loan, but said that the defendant gave an incorrect reply to his notice. 30. The judgment of the Lower Appellate Court has been criticized with regard to the substantial question involved on the basis that the Lower Appellate Court accepted the testimony of Het Singh, PW-3 about the fact that the suit agreements embody a transaction for sale of the suit property and not one to secure a loan. This witness’s testimony has also been accepted about the fact that the intention was to retain the suit property within the family and save it from being lost to a stranger in auction. The learned Counsel for the defendant has criticized the above finding as manifestly illegal, because according to him the Courts below did not consider or record any reason to disbelieve the testimony of DW-2 and DW-3, both of whom categorically say that the transaction was one to secure the loan. The findings of the Courts below on this score have also been criticized by the learned Counsel for the defendant on basis that at the time when the suit agreements were executed, it is nobody’s case that the land was under any kind of distress or the peril of auction. It is urged by the learned Counsel for the defendant that evidence extrinsic to the contract can be looked into, when the true character of the document is questioned. In support of the said submission, Mr. Jain has relied upon the decisions of the Supreme Court in Gangabai vs. Chhabubai, (1982) 1 SCC 4 , Vimal Chand Ghevarchand Jain and Others vs. Ramakant Eknath Jadoo, (2009) 5 SCC 713 and Placido Francisco Pinto vs. Jose Francisco Pinto, 2021 SCC Online SC 842. 31. Mr. Kunal Shah, learned Counsel appearing on behalf of the plaintiff submits that in principle, though there may be cases where on the circumstances obtaining an inference about the nature of an agreement to sell may be drawn that it embodies a transaction of a character different than the one ostensible, but for that kind of an inference, there must be telltale facts supported by extrinsic evidence of an irresistible character that dispels the apparent tenor of the contract. Learned Counsel for the plaintiff has taken the Court through the pleadings and evidence of parties, both oral and documentary, besides findings of the Courts below to show that there are indeed no circumstances, so glaring, proving the real nature of the transaction as one different from that embodied in the suit agreements. In support of the principle that in order to show that the contract embodied in an agreement to sell, is different from what it ostensibly is, circumstances must be very glaring and supported by extrinsic evidence of an irresistible character, Mr. Shah has placed reliance upon the decision of the Supreme Court in Gurdial Singh and Others vs. Raj Kumar Aneja and Others, (2002) 2 SCC 445 and Madhukar Nivrutti Jagtap and Others vs. Pramilabai Chandulal Parandekar (Dead) through LRs. and Others, (2020) 15 SCC 731 . He submits that in this case the defendant’s pleadings and evidence are sketchy, contradictory and vague. It is not one of those cases where this Court need look behind the agreement as a case of exception to Sections 91 and 92 of the Indian Evidence Act, 1872 [for short ‘the Evidence Act’] in order to find out the real nature of the transaction that the parties intended to enter into. It is with reference to the pleadings and evidence of parties, to which allusion would be made during the course of this judgment, that Mr. Shah submits that there is no such perversity as may necessitate this Court to disturb the concurrent findings of fact recorded by the two Courts below, going by the apparent tenor of the suit agreements. 32. This Court has considered the submissions advanced by learned Counsel for both sides on Substantial Question of Law (1). As a rule, a solemn contract regarding sale of immovable property reduced to writing and registered, the execution and contents whereof are not in dispute, is to be construed according to its apparent tenor. Parole evidence of parties, different from the written terms of the contract, is against the rule of exclusion of oral by documentary evidence. The exceptions to the rule are detailed in the six provisos to Section 92 of the Evidence Act, besides Sections 95, 96, 97, 98, 99 and 100 of the last mentioned Act. 33. Parole evidence of parties, different from the written terms of the contract, is against the rule of exclusion of oral by documentary evidence. The exceptions to the rule are detailed in the six provisos to Section 92 of the Evidence Act, besides Sections 95, 96, 97, 98, 99 and 100 of the last mentioned Act. 33. The question whether the true character of a document, expressing a different intention from what it ostensibly says, can be looked into by the Court in terms of parole evidence given about it, has been the subject matter of frequent judicial attention. It is a judicially approved principle that the bar imposed by Section 92 of the Evidence Act would not apply if a party does not rely upon the terms of a document, but says that something different from the ostensible terms was intended by parties. In this connection, reference may be made to the decision of the Supreme Court in Gangabai (supra). The facts in Gangabai, in order to appreciate the true import of the principle, are very relevant and these can be best recapitulated in the words of their Lordships. In Paragraph No. 2 of the report in Gangabai, the facts are described thus: “2. The respondent filed a suit in the Court of the Second Joint Civil Judge, Amravati alleging that the house situated near Sarafa Bazaar in Amravati had been purchased by her in 1950 for Rs. 4000 and thereafter improvements had been effected by her to the property. Being in need of money, she entered into an agreement with the appellant for a loan of Rs. 2000 and it was decided that simultaneously she should execute a nominal document of sale and a rent note. These documents were executed on January 7, 1953. She alleged that the documents were never intended to be acted upon, and that the rent paid by her represented in fact interest at 18 per cent on the loan. She continued in possession of the house property throughout and, it is said, carried on repairs from time to time. It was stated that the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent. She continued in possession of the house property throughout and, it is said, carried on repairs from time to time. It was stated that the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent. As two suits had resulted in decrees, she considered it necessary to file the present suit for a declaration that she was, and continued to be, owner of the house property. In defence, the appellant maintained that the sale deed represented a genuine transaction, and ownership of the house property had passed to the appellant. It was pleaded that the decrees passed by the Court of Small Causes operated as res-judicata barring the respondent from pleading that the sale deed was merely a nominal transaction. Reliance was also placed on Section 92 of the Indian Evidence Act.” 34. The principle, about a party who does not rely on a written document, but says that the intention of the transaction embodied therein was entirely different from the express words, is free to show that different intention, by parole or extrinsic evidence, was enunciated by their Lordships of the Supreme Court in Gangabai thus: “11........It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties [Tyagaraja Mudaliyar vs. Vedathanni, AIR 1936 PC 70 : 1936 All. L.J. 136 : 40 Cal WN 353]. The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon.......” 35. The principle was acknowledged on established authority in Vimal Chand Ghevarchand Jain (supra) by the following remarks of their Lordships in Paragraph No. 31 of the report: “31. Indisputably when the true character of a document is questioned, extrinsic evidence by way of oral evidence is admissible. [See R. Janakiraman vs. State, (2006) 1 SCC 697 : (2006) 1 SCC (Cri) 442, Roop Kumar vs. Mohan Thedani, (2003) 6 SCC 595 , SBI vs. Mula Sahakari Sakhar Karkhana Ltd. (2006) 6 SCC 293 ]. We would, therefore, proceed on the premise that it was open to the respondent to adduce oral evidence in regard to the nature of the document........” 36. The same principle was enunciated by the Supreme Court in Gurdial Singh (supra), where the lease deed, subject matter of statutory proceedings for eviction under the East Punjab Urban Rent Restriction Act, 1949, was claimed by parties in occupation of the premises, to be in fact not a lease, but a different transaction, never intended to be acted upon by parties. On the issue whether the occupants, who being not parties to the lease deed between the owner and one Goyal, the lessee, but sub-lessees from Goyal, were entitled to show the true character of the lease contrary to its apparent tenor, it was held by the Supreme Court: “11. It is true that in spite of the availability of a registered deed of lease executed between the owners and Goyal, the occupants are not debarred from taking a plea that the transaction between the owners and Goyal was not what it apparently appears to be just by reading of the lease deed. It is true that in spite of the availability of a registered deed of lease executed between the owners and Goyal, the occupants are not debarred from taking a plea that the transaction between the owners and Goyal was not what it apparently appears to be just by reading of the lease deed. The occupants, by raising a plea which they have taken in the written statements, are not proposing to put in issue and let in oral evidence of the terms of the lease deed. They are also not raising a plea or adducing oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the lease deed. They are not parties to the lease deed. Therefore, Sections 91 and 92 of the Evidence Act, 1872 are not attracted. The occupants are impeaching the outward validity of the lease deed by submitting that what has been described on paper is not the real intention of the parties to do; the lease deed and the transaction spelled out by it was a sham or fictitious transaction not intended to be acted upon, rather intended to overcome or avoid the effect of the rent control legislation. It is permissible to take such a plea and adduce evidence to substantiate the same. The plea can be taken though the onus would lay on the shoulders of the party taking such a plea. To discharge the onus, direct evidence may or may not be available and it would be permissible to draw an inference from tell tale circumstances. However, the inference to be drawn from the circumstances should be an irresistible one and not merely a matter of conjectures and surmises.” (Emphasis by Court) 37. The most elaborate exposition of the rule regarding exclusion of oral by documentary evidence and in what circumstances the bar would not attach, is to be found in Roop Kumar vs. Mohan Thedani, (2003) 6 SCC 595 where it has been observed: “Rule 17. It is likewise a general and most inflexible that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men’s rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence, p. 648.) 18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing. 19. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document with limitation imposed by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91. 20. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 the application of which is confined to only bilateral documents. [See: Bai Hira Devi vs. Official Assignee of Bombay, AIR 1958 SC 448 ]. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 the application of which is confined to only bilateral documents. [See: Bai Hira Devi vs. Official Assignee of Bombay, AIR 1958 SC 448 ]. Both these provisions are based on “best-evidence rule.” In Bacon’s Maxim Regulation 23, Lord Bacon said “The law will not couple and mingle matters of speciality, which is of the higher account, with matter of averment which is of inferior account in law.” 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. 21. The grounds of exclusion of extrinsic evidence are: (i) to admit inferior evidence when law requires superior would amount to nullifying the law and (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. 22. This Court in Gangabai vs. Chhabubai, (1982) 1 SCC 4 : AIR 1982 SC 20 and Ishwar Dass Jain vs. Sohan Lal, (2000) 1 SCC 434 : AIR 2000 SC 426 with reference to Section 92(1) 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. 23. the But the question is whether on the facts of present case, the reasons given by the defendant-appellant in his evidence for claiming the agreement as sham document can be accepted.” 38. Following Roop Kumar (supra), it was held in Placido Francisco Pinto (supra): “27. A perusal of the above judgment would show that the oral evidence of a written agreement is excluded except when it is sought to be alleged the document as a sham transaction. 28. Following Roop Kumar (supra), it was held in Placido Francisco Pinto (supra): “27. A perusal of the above judgment would show that the oral evidence of a written agreement is excluded except when it is sought to be alleged the document as a sham transaction. 28. It is beyond dispute that a sale deed is required to be registered i.e. a document required by law to be reduced to the form of a document. Therefore, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding or subtracting from its terms. The proviso (1) of Section 92 of the Evidence Act on which reliance was placed is a proof of such fact which would invalidate any document such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Section 92 of the Evidence Act reads as under: “92. Exclusion of evidence or oral agreement - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1) - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.” 29. The respondents were free to prove fraud in execution of the sale deed. However, factually, the respondents have not alleged any fraud in their suit or in the written statement in the suit filed by appellant No. 1. The feigned ignorance about the nature of document cannot be said to be an instance of fraud. In the absence of any plea or proof of fraud, respondent No. 1 is bound by the written document on which he admitted his signatures and of his wife. The feigned ignorance about the nature of document cannot be said to be an instance of fraud. In the absence of any plea or proof of fraud, respondent No. 1 is bound by the written document on which he admitted his signatures and of his wife. There is no oral evidence which could prove fraud, intimidation, illegality or failure of consideration to permit the respondents to lead oral evidence to dispute the sale deed dated 14.9.1970. Therefore, the judgments referred to by Mr. Mehta are of no help to support his arguments. Thus, the findings recorded by the First Appellate Court as affirmed by the High Court are clearly erroneous in law and are, thus, set aside.” 39. In V. Anantha Raju and Another vs. T.M. Narasimhan, AIR 2021 SC 5342 the question again fell for consideration before a three Judge Bench of their Lordships of the Supreme Court, where the principles about the permissibility of showing by parole evidence that the written contract was a sham, and what was intended by parties, was something completely different, were enunciated thus: “23. This Court has further held that Sections 91 and 92 of the Evidence Act would apply only when the document on the face of it contains or appears to contain all the terms of the contract. It has been held that after the document has been produced to prove its terms under Section 91, the provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. It has been held that 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. It has been held that when parties deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they in tended 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. 24. Though referring to Gangabai w/o Rambilas Gilda (Smt.) v. Chhabubai w/o Pukharajji Gandhi (Smt.) and Ishwar Dass Jain (Dead) through LRs. vs. Sohan Lal (Dead) by LRs. 24. Though referring to Gangabai w/o Rambilas Gilda (Smt.) v. Chhabubai w/o Pukharajji Gandhi (Smt.) and Ishwar Dass Jain (Dead) through LRs. vs. Sohan Lal (Dead) by LRs. it has been held that it is permissible for a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document, it would be necessary to lead oral evidence 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 be teen the parties. 25. It could thus be seen that once the plaintiffs had specifically contended that the terms of the 1992 SC5356 Deed were amended/ modified by the 1995 Deed, and the defendants admitted about the execution of the said document, i.e. the 1995 Deed, if it was the case of the defendants that the terms mentioned in the 1995 Deed were inadvertent or a mistake in fact, then the burden to prove the same shifted upon the defendants. In view of Section 92 of the Evidence Act, any evidence with regard to oral agreement for the purpose of contradicting, varying, adding to, or subtracting from the terms of the written contract, would be excluded unless the case falls within any of the provisos provided in Section 92. The defendants have attempted to bring their case within the first proviso to Section 92 of the Evidence Act, by contending that mentioning of 25% share to each of the plaintiffs in the profits and losses of the partnership firm was a mistake in fact.” 40. Another three Judge Bench of their Lordships of the Supreme Court in Mangala Waman Karandikar vs. Prakash Damodar Ranade, (2021) 6 SCC 139 which was rendered slightly earlier in point of time than V. Anantha Raju (supra), there is a far more strict statement of the principle regarding exclusion of oral by documentary evidence. In Mangala Waman Karandikar (supra), the question arose in the context of an agreement to transfer a running business of stationery by the appellant to the respondent for conducting business alone on receipt by the appellant of a royalty of Rs.90/-per month. In Mangala Waman Karandikar (supra), the question arose in the context of an agreement to transfer a running business of stationery by the appellant to the respondent for conducting business alone on receipt by the appellant of a royalty of Rs.90/-per month. The agreement did not show that the person to whom the business was entrusted under the agreement to run, would be its lessee, because the appellant herself was a lessee in the premises and obliged to pay rent to the landlord by the express terms of the agreement. Later on, when the appellant asked the contractee to restore the business to her, the respondent took a stand that the contract was a rent agreement and not one to simply run the business. It was in the context of the aforesaid facts that in Mangala Waman Karandikar, it was held: “15. It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on Proviso (6) of Section 92. 16. If the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of Proviso (6) beyond the main section itself. Such interpretation, provided by the High Court violates basic tenets of legal interpretation. [Rohitash Kumar vs. Om Prakash Sharma, (2013) 11 SCC 451 : (2013) 3 SCC (L&S) 368] Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section. 17. In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of “Karandikar Brothers” by paying royalties of Rs. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section. 17. In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of “Karandikar Brothers” by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions. 18. On consideration of the matter, the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the licence was created for continuation of existing business, rather than licence/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to courts substituting the bargain by the parties. The counsel for the respondent has emphasised much on the receipt of payment, which mentions the term “rent received.” However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eye of the law.” 41. On principle, the prohibition on admitting parole evidence, where parties have entered into a solemn and written deed or contract, is the rule. About the exceptions, a close look at authority demonstrates that the conservative view is to permit oral evidence to be admitted contrary to the terms of a written deed, agreement or document, in case one or the other exceptions, mentioned in the six provisos to Section 92 of the Evidence Act is attracted, or one of the exceptions in Sections 93, 95, 96, 97, 98, 99 and 100 of the Act last mentioned. In a case, where the statutory exceptions to the rule in Section 92 do not apply, there is this judicially evolved principle operating in a very narrow field and subject to very exacting standards of burden on the party, seeking to introduce oral evidence, which applies in those cases alone, where a party does not seek to plead anything contradicting, varying, adding to or subtracting from the terms of the written document, but show that the parties in fact intended to enter into a transaction, very different from what is ostensible. Therefore, this exception, judicially recognized, applies to cases, where the party, intending to lead oral evidence, does not rely on the document, but says that it is sham, and that the intention of parties was entirely different than the recitals. 42. A reading of the principle in Mangala Waman Karandikar, and, also somewhat in Placido Francisco Pinto shows that the Court has leaned in favour of a strict approach to admit oral evidence, where parties have a written deed or contract governing their rights with exceptions only being those enumerated in the provisos to Section 92 of the Evidence or Sections 93, 95, 96, 97, 98, 99 and 100. But, it is equally true that the holding in Placido Francisco Pinto also acknowledges the principle that oral evidence, contrary to a written agreement, may be led in those cases, where the document is claimed by one party to be sham and what the parties contracted really being entirely different. At this stage, it is necessary to notice the standards by which a person, who refuses to rely on a written record of the transaction or contract between him and the other party and says that what was contracted was entirely different, must prove that fact. In this connection, reference must be made to Gurdial Singh, where it is said that the inference of a different intention than the written contract “from the circumstances should be an irresistible one and not merely a matter of conjectures and surmises” to borrow the words of their Lordships. 43. In this connection, reference must be made to Gurdial Singh, where it is said that the inference of a different intention than the written contract “from the circumstances should be an irresistible one and not merely a matter of conjectures and surmises” to borrow the words of their Lordships. 43. In the present case, the chief circumstance put forth by the defendant to reverse the concurrent opinion of the two Courts below is that there were two antecedent transactions by the defendant, where he entered into agreements with third parties and then got them cancelled paying off the vendee his earnest by borrowing from another man, in whose favour also an agreement to sell was executed. The last man, from whom the defendant raised a loan to pay off the earlier price contractee, was his nephew, the plaintiff. The defendant has attempted to show that this series of transactions entered into by the defendant with third parties, in each case contracting to sell the suit property, would show that on each occasion, the contract was no more than a security for the loan; and, the suit agreements are no different. A look at the terms of the suit agreements on their own do not suggest that these were meant to be anything different from what is ostensible. The case of the defendant being that the suit agreements were sham and, in fact, no more than a security to ensure repayment of the loan, circumstances directly bearing on the said fact in issue and some parole evidence explaining those circumstances, would be decisive. 44. Of course, the Court in opining on the issue whether in fact the suit agreements are a sham and meant to serve as security, cannot undertake a wholesome review of the evidence, and answer it as an open issue in the manner of a Court of first appeal or the Trial Judge. This Court can examine the circumstances and the parole evidence explaining them to reach a different conclusion from the Courts below, if the conclusions of those Courts are perverse; not otherwise. The circumstance that there were two other similar transactions earlier done by the defendant, where the agreements were got cancelled, may give rise to a possibility of the suit agreements being collateral securities of the same kind, but that is only a possibility; not a surety. The circumstance that there were two other similar transactions earlier done by the defendant, where the agreements were got cancelled, may give rise to a possibility of the suit agreements being collateral securities of the same kind, but that is only a possibility; not a surety. It is equally possible that the suit agreements embody a transaction of intended sale according to apparent tenor. 45. The other circumstance, that has been brought to this Court’s notice, is the fact that the instrument of cancellation of the earlier registered agreement in favour of Gyan Singh was executed on 06.07.1984, that is to say, the same day as the first suit agreement was executed in the plaintiff’s favour. It is urged that this circumstance suggests that the defendant did nothing more than borrow from the plaintiff to pay off Gyan Singh and secure release of the suit property. It is, particularly, emphasized that the defendant borrowed from the plaintiff, because the plaintiff is related to him by blood, and with two earlier episodes of lenders asking back their money on strict schedule, the defendant opted for the more comfortable option of borrowing from his nephew. This, in the opinion of this Court, is again not a decisive circumstance. 46. The equally weighty alternative to look at this state of facts is that the defendant was in need of money, and wanted the best possible price for his land. He entered into two transactions for lesser sums of money and got rid of his obligations under those transactions by paying off the earlier vendees. No doubt, the fact that the earlier vendees accepted the defendant’s proposal to cancel the agreements executed in their favour, does seem to suggest that those transactions were indeed loans. But, it equally suggests that after the second transaction, the defendant did not have resources generated of his own labour or means to pay off Gyan Singh. He had to depend on raising money through a transaction agreeing to sell the suit property. It is, therefore, very likely that after he could not pay off Gyan Singh, he bargained with his nephew for a higher price to sell him the suit property, pay off Gyan Singh and save some money for himself. 47. He had to depend on raising money through a transaction agreeing to sell the suit property. It is, therefore, very likely that after he could not pay off Gyan Singh, he bargained with his nephew for a higher price to sell him the suit property, pay off Gyan Singh and save some money for himself. 47. The added advantage was, as the Lower Appellate Court thought, that agreeing to sell the suit property to the plaintiff, the defendant would have the psychological satisfaction about his land not going into alien hands, but retained in his bloodline. The latter view of the matter has been accepted by the Lower Appellate Court to hold that the transaction was a sale and not a mere security for the loan, in terms of the following remarks: ^^10- i{kdkjksa ds mijksDr rdksZ ij fopkj foe'kZ ij fopkj.k djus ls Li"V gksrk gS fd vihykFkhZ@Áfroknh }kjk fookfnr bdjkjukek _.k i= ugha Fkk cfYd mlus viuh tehu dks cspus ds fy;s vuqca/k foØ;&i= jkethyky ds i{k esa fu"ikfnr fd;k Fkk D;ksafd Loa;a dk Jhjke ds HkkbZ us tks jkethyky ds Hkh pkpk gS fd Li"V :i ls fuosnu fd;k gS fd ;g i= _.k&i= ugha Fkk cfYd ?kj dh tehu ?kj esa gh jg tk;s blfy;s fookfnr tehu dks uhykeh ls cpkus ds fy;s jkethyky us bl tehu dks [kjhnus dk ÁLrko is'k fd;k vkSj rn~uqlkj 65]000@& :i;s esa ;g tehu dk lkSnk djds vuqca/k foØ;&i= rS;kj fd;k x;kA** 48. The other feature of the matter is that the plaintiff had pleaded a specific case in Paragraph Nos.1 and 2 of the plaint that he paid in earnest for the suit agreements a sum of Rs.60,000/-out of the contracted sale consideration of Rs.65,000/-. The defendant in Paragraph No. 2 of the written statement denied receipt of Rs.60,000/-and in Paragraph No. 11, the defendant has averred that a sum of Rs.40,000/- was required to be paid to Gyan Singh, and that, it was this sum of money (Rs.40,000/-) that was borrowed by the defendant (from the plaintiff). Paragraph Nos.2 and 11 of the written statement filed by the defendant read: “2. That the allegations contained in para no. 2 of the plaint are false and they are denied. Paragraph Nos.2 and 11 of the written statement filed by the defendant read: “2. That the allegations contained in para no. 2 of the plaint are false and they are denied. The defendant did not agree to execute any sale deed in favour of the plaintiff nor did the defendant receive Rs.60,000/-as falsely alleged in this paragraph nay the defendant agree to produce income tax certificate. 11. That, however, on 6-7-1984 the aforesaid GyanSingh demanded his money which was borrowed by the defendant from him and as such Sri Gyan Singh was paid Rs.40000/-before the Sub Registrar in consideration where he executed an agreement of cancellation in respect of the agreement of sale in his favour executed by the defendant. This was done on 6-7-1984. The aforesaid money of Rs.40,000/ which was paid to Gyan Singh was, in fact, borrowed from the plaintiff who is the real elder brother’s son of the defendant and on the same day as a collateral security the defendant executed an agreement to sell (though there was no intention to sell or convey any land) in favour of the plaintiff showing therein receipt of Rs.40,000/-before the Sub Registrar, Fatehabad. The amount aforesaid borrowed by the defendant from the plaintiff and paid to said Sri Gyan Singh in the manner aforesaid.” 49. Likewise, in Paragraph No. 5 of the reply notice dated 09.06.1986, Paper No. 25-Ga, filed by the defendant, sent to answer the plaintiff’s notice dated 29.05.1986, it is stated that the money borrowed by the defendant from the plaintiff was a sum of Rs.40,000/-. Thus, the plaintiff’s case since time that he sent a notice to the defendant to execute a sale deed, and the time, when he instituted the suit is consistent. It is that, that a sum of Rs.65,000/-was settled as sale consideration between parties, of which Rs.60,000/-were paid in earnest, leaving a balance of Rs.5000/-to be paid at the time of execution of the sale deed. 50. The defendant’s case up to the stage of his pleadings is that he borrowed the sum of Rs.40,000/-; nothing more. According to him, this was the sum of money required to pay off Gyan Singh and he received nothing more. 50. The defendant’s case up to the stage of his pleadings is that he borrowed the sum of Rs.40,000/-; nothing more. According to him, this was the sum of money required to pay off Gyan Singh and he received nothing more. The defendant while testifying in the witness-box in his examination-in-chief has deposed as follows: ^^3- eSaus Kku flag ls 40]000@& :i;s fy;s Fks vkSj crkSj tekur bdjkjukek fy[kk FkkA fQj jkethyky ls 60]000@& :i;s ysdj lu~ 1984 esa Kku flag dks ns fn;sA** 51. In his cross-examination, the defendant testifying as DW1 has said: ^^4- eSaus jkethyky ls 60]000@& :i;k dtkZ fy;k FkkA mlesa ls 20]000@& :i;s jkethyky us jftLVªh bdjkjukek ls ifgys o 40]000@& jftLVªh bdjkjukek ds le; fn;s FksA** 52. The defendant’s case that he borrowed a sum of Rs.40,000/-and nothing more of the plaintiff to pay off Gyan Singh, is consistent in his reply to the plaintiff’s notice to perform the contract and in his written statement as well. But, in his testimony, it is equally consistent that he borrowed a sum of Rs.60,000/-of the plaintiff, out of which he paid Gyan Singh Rs.40,000/- that he owed the latter. It has to be borne in mind that the party, who pleads contrary to the apparent tenor of a deed or contract in writing, saying that something else was intended, different from the ostensible terms, bears the very heavy burden of proving the fact by unimpeachable and consistent evidence of sterling quality. The fact, therefore, that the defendant has pleaded a case that is just about borrowing a sum of Rs.40,000/- and in his evidence, has accepted the plaintiff’s case of him taking from the plaintiff a sum of Rs.60,000/- which albeit the defendant says was a loan, commensurates with the plaintiff’s case ex facie that he paid the defendant a sum of Rs.60,000/-as earnest, leaving a balance of Rs.5000/-to be paid at the time of execution of the sale deed. The figures in money that changed hands, as alleged by the plaintiff, have been acknowledged by the defendant, contrary to his pleaded case. It is true that the character of the payment is differently described by parties with the defendant calling the sum of Rs.60,000/- a loan by the plaintiff, whereas the plaintiff calls it earnest out of the agreed sale consideration of Rs.65,000/-. 53. It is true that the character of the payment is differently described by parties with the defendant calling the sum of Rs.60,000/- a loan by the plaintiff, whereas the plaintiff calls it earnest out of the agreed sale consideration of Rs.65,000/-. 53. On these state of pleadings and evidence, together with the circumstances, mindful of our limitations, in treading into the forbidden territory of an open and plenary evaluation of evidence, we think that we cannot disagree with the Courts below, who have not accepted the defendant’s parole evidence contrary to the apparent tenor of the suit agreements. In order that this Court may take a view of evidence of any kind, different from the Courts of fact in the exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908 [for short ‘the Code’] it is imperative that the Courts of fact should have drawn perverse conclusions, or conclusions, which no reasonable person can arrive at, given the state of evidence. We do not think that, that is the case here. The Courts below have refused to accept the defendant’s parole evidence contrary to the suit agreements and their apparent tenor in order to accept the defendant’s case that the suit agreements were not documents of their ostensible character, but merely collateral security to safeguard the plaintiff’s loan. There is no reason for this Court to find for the defendant and hold the transaction embodied in the suit agreements as one creating a security; not an agreement to sell. 54. In the considered opinion of this Court, for all the reasons indicated hereinabove, Substantial Question (1) must be answered in the negative. 55. This Court now proceeds to answer Substantial Question of Law (2). Mr Jain has submitted that the plaintiff carries on business in the city. He has referred to the plaintiff’s cross-examination, where it is admitted that he resides in Loha Mandi, 15 to 30 km away. He has no agricultural land. His agricultural holding was sold off by his father 20 years back. PW-3, who is the plaintiff’s uncle and the defendant’s brother, has testified that he had sold his agricultural land 26 years back. It is also pointed out that in Paragraph No. 17 of the written statement, the defendant has pleaded his hardship saying that he has no other source of livelihood, except the suit property. PW-3, who is the plaintiff’s uncle and the defendant’s brother, has testified that he had sold his agricultural land 26 years back. It is also pointed out that in Paragraph No. 17 of the written statement, the defendant has pleaded his hardship saying that he has no other source of livelihood, except the suit property. It is emphasized that the plaintiff in his replication, Paper No. 48-Ga, has not denied or disputed the defendant’s plea that he has nothing, besides the suit property for a source of livelihood. It is argued by Mr. Jain that there is no discussion by the Trial Court as to why discretion has been exercised in favour of granting specific performance. It is next submitted on behalf of the defendant that Ground Nos. 16, 17 and 18 in the appeal before the Lower Appellate Court raised an issue of hardship being occasioned to the defendant, if specific performance were granted, but the Lower Appellate Court while it did record the submission in Paragraph No. 9 of the judgment, never discussed what hardship would follow to the defendant. It is also emphasized that no reasons for the exercise of discretion to grant specific performance has been recorded by the Lower Appellate Court, as well. 56. Mr. Jain submits that it is imperative for the Courts of fact to have returned findings why specific performance was being granted, and in the absence of those findings, the decree impugned cannot be sustained. 57. Mr. Kunal Shah has disputed the submissions advanced by Mr. Jain. He submits that what is necessary is that the Court should have exercised discretion to grant specific performance on settled parameters and not arbitrarily. It is not always mandatory to record specific and elaborate reasons why the Court has chosen to grant specific performance. It is emphasized that non-denial of Paragraph No. 17 of the written statement, where the defendant has pleaded hardship if the suit property goes out of his hands, is in no way an admission by non-traverse. 58. Upon hearing learned Counsel for the parties and perusing the record, this Court finds that so far as non-denial of the hardship alleged by the defendant in Paragraph No. 17 of the written statement is concerned, there is no basis to that case. 58. Upon hearing learned Counsel for the parties and perusing the record, this Court finds that so far as non-denial of the hardship alleged by the defendant in Paragraph No. 17 of the written statement is concerned, there is no basis to that case. About the replication by the plaintiff, that is on record, it must be said that it is not part of the pleadings at all. A perusal of the order-sheet of the Trial Court shows that by the order dated 01.01.1993, taking on record the plaintiff’s replication, Paper No. 48-Ga, all that is said is that the replication be laid before the Court on the date fixed. The order-sheet does not show that on any subsequent date, leave was granted by the Trial Court under Order VIII Rule 9 of the Code, permitting presentation of the replication by the plaintiff. The direction of the Court dated 01.01.1993, when the replication was filed that it be put up on the date fixed with no further orders, does not constitute leave under Rule 9 of Order VIII of the Code. A replication is not a part of pleadings unless the Court grants leave to present it, subject to such terms as it considers fit. That has not happened here. 59. Since, we are satisfied on a perusal of record that there is no leave by the Court to file a replication, a non-traverse by the plaintiff of Paragraph No. 17 of the written statement regarding hardship pleaded by the defendant, is of no consequence. Since this is a case, where owing to absence of leave to file the replication, Paper No. 48-Ga, it is just not to be read as part of pleadings, the question is if the plaintiff’s failure to obtain leave and traverse the defendant’s plea in Paragraph No. 17 of the written statement about hardship, constitutes an admission on the plaintiff’s part. The law is that non-denial by the plaintiff of a plea raised in the written statement cannot lead to an inference of admission by him. In this regard, reference may be made to the decision of the Supreme Court in K. Laxmanan vs. Thekkayil Padmini and Others, (2009) 1 SCC 354 where it is held: “29. The law is that non-denial by the plaintiff of a plea raised in the written statement cannot lead to an inference of admission by him. In this regard, reference may be made to the decision of the Supreme Court in K. Laxmanan vs. Thekkayil Padmini and Others, (2009) 1 SCC 354 where it is held: “29. Pleadings as we understand under the Code of Civil Procedure (for short “the Code”) and as is defined under the provision of Rule 1, Order 6 of the Code consist only of a plaint and a written statement. The respondent-plaintiff could have filed a replication in respect to the plea raised in the written statement, which if allowed by the court would have become the part of the pleadings, but mere non-filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement. The specific objection in the form of denial was raised in the affidavits filed in respect of the injunction applications which were accepted on record by the trial court and moreover the acceptance on record of the said affidavit was neither challenged nor questioned by the present appellant.” 60. In view of the aforesaid legal position, there is no force in Mr. Jain’s submission that Paper No. 48-Ga, which, though a replication, no doubt, but not admitted to record with the Court’s leave, constitutes admission of the defendant’s case pleaded in Paragraph No. 17 of the written statement by non-traverse. 61. So far as the necessity of recording reasons by the Court for the purpose of granting specific performance is concerned, this Court is of opinion that it is desirable to give reasons, but not imperative so long as it is evident to any superior Court hearing an appeal that the discretion to grant specific performance is based on relevant considerations borne out from the record. The absence of reasons would not vitiate the decree. The broad consensus of judicial authority is about principles, on the foot of which the Court must exercise its discretion to grant specific performance or the alternate relief of refund of the earnest; or award damages, if relief in that behalf is sought and a case made out. 62. The absence of reasons would not vitiate the decree. The broad consensus of judicial authority is about principles, on the foot of which the Court must exercise its discretion to grant specific performance or the alternate relief of refund of the earnest; or award damages, if relief in that behalf is sought and a case made out. 62. One of the factors to be taken into consideration while granting relief of specific performance is the part performed by the plaintiff in relation to the whole, by time the action comes up for trial. Here two Courts of fact below have found that out of the total sale consideration settled, that is to say, the sum of Rs.65,000/- a sum of Rs.60,000/-was paid by the plaintiff until time when the suit agreements were executed. Therefore, the plaintiff has performed almost the whole of his obligation under the suit agreements. The sale consideration received by the defendant until execution of the suit agreements is 92% of the consideration settled. In this regard, reference may be made to a decision of this Court in Rajendra Singh vs. Chandra Pal, 2016 (7) ADJ 564 where it was held: “11. In present case the readiness and willingness to perform his part of the contract, as required for the grant of relief of specific performance, is proved fact. Not only the lower Courts had given such finding in favour of plaintiff-appellant, but also this fact is explicitly clear and evident from the fact that out of total agreed sale consideration of Rs. 80,000/- the plaintiff-appellant had already paid Rs. 77,000/-which is 96.25 % of the sale consideration. This amount of sale consideration was used and usurped by defendant-respondent who had also been enjoying the possession of disputed property. 12. Thus almost slightly less than total consideration was utilized and enjoyed by the defendant-respondent, who had not only been enjoying the property in question, but had already been acting in bad faith and mala-fide manner when he had been taking false defences of alleged loan and refund of amount etc. which were found incorrect and false by the two lower Courts. He had been repeatedly telling lie, and misusing process of Court by giving false evidences. 13. Section 20 (2) of the Specific Relief Act had provided certain conditions, as quoted above, in which Court may properly exercise discretion not to decree specific performance. which were found incorrect and false by the two lower Courts. He had been repeatedly telling lie, and misusing process of Court by giving false evidences. 13. Section 20 (2) of the Specific Relief Act had provided certain conditions, as quoted above, in which Court may properly exercise discretion not to decree specific performance. Considering those conditions in light of present case it is found that (a) the terms of the contract or the conduct of the parties at the time of entering into the contract was not such could give the plaintiff an unfair advantage over the defendant, because the plaintiff had already received more than 96% of sale consideration, and it would be the defendant whould get unfair advantage over plaintiff-appellant if no relief of specific performance is granted; (b) in present matter there appeared nothing which the defendant-respondent could not foresee, and instead of defendant it would be the plaintiff-appellant who would suffer hardship by non-performance who had paid almost nearly whole the price of property, and when in present age of boom of property prices would get meager amount of actual price of said land, even if the money is refunded with interest and (c) the defendant- respondent, after receiving of almost more than 96% of sale consideration, had not entered into the contract under any circumstances which makes it inequitable to enforce specific performance.” 63. I had occasion to consider this issue in Mahendra Singh vs. Ramesh Singh, 2020 (10) ADJ 93 where out of the settled consideration of Rs.50,000/- the defendant had received a sum of Rs.45,000/- at the time of execution of the contract. In Mahendra Singh (supra), I held: “70. Once this Court is assured that the Lower Appellate Court has rightly concluded that the defendant has received a sum of Rs. 45,000/- out of the total sale consideration of Rs. 50,000/- agreed, the scales for the exercise of discretion in favour of specific performance are decisively tipped. The fact that the defendant has received a sum of Rs. 45,000/-for one part, excludes any doubt about the defendant being inequitably dealt with by the plaintiff on account of his illiteracy etc. 45,000/- out of the total sale consideration of Rs. 50,000/- agreed, the scales for the exercise of discretion in favour of specific performance are decisively tipped. The fact that the defendant has received a sum of Rs. 45,000/-for one part, excludes any doubt about the defendant being inequitably dealt with by the plaintiff on account of his illiteracy etc. At the same time, the fact that the defendant has received a sum, that accounts for ninety percent of the sale consideration, places the plaintiff in a position where he has done substantial acts in performance of his part of the contract. Nothing remains to be done on the plaintiff’s part, except payment of the balance of Rs. 5000/- and meeting the expenses of execution and registration of the conveyance. The doing of all substantial acts in performance of the plaintiff’s part of the contract is a relevant consideration, under sub-section (3) of Section 20 of the Specific Relief Act.” 64. Since specific performance is an equitable relief, the discretion to grant it also depends in good measure on the conduct of parties. So far as the plaintiff is concerned, it is evident in this case that he not only entered into the first suit agreement, but before time under it came to an end, got the second suit agreement executed extending obligations between parties for a further period of one year. There is also evidence to show that he got a notice issued to the defendant to come forth and execute the sale deed specifying a date to appear before the Sub-Registrar. On the date indicated in the notice dated 29.05.1986, the plaintiff remained present before the Sub-Registrar on 12.06.1986, but the defendant did not appear, a fact regarding which the two Courts below are unanimous. This conduct of the plaintiff in chasing the defendant to execute a sale deed is relevant, which the Courts below have taken into consideration while exercising their discretion in granting specific performance. 65. There is an added feature about the conduct of parties. The defendant in Paragraph Nos.2 and 11 of the written statement has denied the plaintiff’s case that he received a sum of Rs.60,000/-in earnest from the plaintiff, but Rs.40,000/-alone, about which it is pleaded that it was a sum of money borrowed to pay off Gyan Singh. 65. There is an added feature about the conduct of parties. The defendant in Paragraph Nos.2 and 11 of the written statement has denied the plaintiff’s case that he received a sum of Rs.60,000/-in earnest from the plaintiff, but Rs.40,000/-alone, about which it is pleaded that it was a sum of money borrowed to pay off Gyan Singh. However, in his examination-in-chief, the defendant has acknowledged the fact that he borrowed a sum of Rs.60,000/-from the plaintiff, of which he needed Rs.40,000/-to pay off Gyan Singh. In his cross-examination, he has acknowledged the fact again that he borrowed a sum of Rs.60,000/-from the plaintiff, of which Rs.20,000/-were paid before execution of the first suit agreement and Rs.40,000/-at the time of registration of the said agreement. Though, the defendant has described in his testimony the nature of the transaction as a loan, but has acknowledged the fact that he received a sum of Rs.60,000/-from the plaintiff, Rs.20,000/-before the registration of the first suit agreement and Rs.40,000/-at the time of its registration. This is in stark contrast to his stand in Paragraph Nos. 2 and 11 of the written statement, where he says that he borrowed a sum of Rs.40,000/-from the plaintiff and not Rs.60,000/-. The nature of the transaction has been opined by the Courts below not to be a loan, which has been approved by this Court while answering Substantial Question of Law (1); but that is not relevant for the purpose of the present question. 66. What bears on the question here is the fact that the conduct of the defendant has not been fair in dealing with the plaintiff and before the Court as well. He deliberately came up with a case in his pleadings that he had borrowed a sum of Rs.40,000/-alone, denying the plaintiff’s case that he had paid the defendant a sum of Rs.60,000/-. Later, in his testimony, the defendant accepted the fact that he had received from the plaintiff a sum of Rs.60,000/-until time when he executed the first suit agreement. This too is conduct relevant because it shows that the defendant had been trying to evade his obligations under the contract by misquoting the sum of money that he had received from the plaintiff relative to the transaction. This too is conduct relevant because it shows that the defendant had been trying to evade his obligations under the contract by misquoting the sum of money that he had received from the plaintiff relative to the transaction. A reading of the impugned judgments clearly show all these facts have weighed with the Courts below in granting specific performance, though they might not have scripted their reasons for the exercise of that discretion. As already said, it may always be desirable for the Court to give reasons why specific performance was granted because the exercise of discretion is subject to scrutiny by the Appellate Court, but it is not imperative. It is not imperative to give reasons, howsoever desirable, for the cause that if from the evidence considered by the Courts below and on record, the relevant factors to exercise discretion the way it is done by the Court are there, holding the decree to be vitiated on the ground alone that reasons have not been mentioned, would be more of a formality than anything substantial. 67. Substantial Question of Law (2) is therefore, answered in the negative. 68. No other point was pressed. 69. This appeal fails and is dismissed with costs throughout. The sum of money deposited with the Trial Court by the defendant in compliance with the interim order dated 04.05.2001 shall be paid to the plaintiff forthwith, together with the accrued interest paid by the Bank, where it is invested. 70. Let a decree be drawn up, accordingly.