Section 92 of the Evidence Act bars the admissibility of evidence that contradicts, varies, adds to, or subtracts from the terms of a written document.

Bhagwati J,

1. The main argument which appealed to the learned Judge below was that having regard to the nature and circumstances of the case, it was not open to the plaintiff under Section 92, Evidence Act to lead any evidence to show shut the sale-deeds which were executed by the plaintiff in favour of Ramnath and Rampratap as above were really mortgages and that therefore he was entitled to redeem the same. The applicability of Section 92, Evidence Act has also been the subject of an elaborate argument addressed by Mr. R.B. Kotwal, who appears for the plaintiff before us. Before we proceed to discuss the applicability of Section 92, Evidence Act, we think that even though it may appear to be quite elementary, we should set out the terms of Section 92 which would fall to be construed by us in this appeal:

"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 skill be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or substracting 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, . . ."

It was urged before us that even though these documents were ostensibly executed as sale-deeds, the real agreement between the parties was that they were to be treated as deeds of mortgage and the plaintiff was to be allowed to redeem these mortgages on his paying to Ramnath and Rampratap the amounts found due by him to them on the accounts of the respective mortgages being made up by and between the parties. It was further urged that the conduct of the parties in the matter of the conveyances, reconveyances and the dealings with the several parcels of the properties comprised in S. Nos. 106, 108, 111 and 112 at Monje Kaggod and the several parcels of land which had been carved out of the properties contained in Schedules C and D to the plaint, as also the transfer of these Bijapur lands in the name of defendant 4 only in the Revenue Records after the partition of 15-7-1929, supported the plaintiff in his case that these documents which he executed in favour of Ramnath and Rampratap were not sales but really mortgages. In the plaint itself, the plaintiff had stated that these documents had been executed by him on the understanding that the sale-deeds should be treated as securities for the amounts advanced. This was the evidence which was sought to be adduced under Section 92, Evidence Act in order to support the plaintiffs contention that the sale-deeds executed by him in favour of Ramnath and Rampratap were really mortgages.

2. When the terms of Section 92, Evidence Act were pointed out as debarring the plaintiff from proving anything of this type as between himself and defendants 1 to 4, it was urged that what was sought to be done was not to lead evidence of any oral agreement or a statement as between the parties to such instrument or their representatives in interest for the purpose of contradicting or varying its terms, Ramnath and Rampratap no doubt were parties to these documents of sale, but defendants 1 to 4 were not such parties and that therefore there was no ban under Section 92, Evidence Act operating against such evidence being led on behalf of the plaintiff. The documents had been executed between the plaintiff on the one hand and Ramnath and Rampratap on the other in the several years, 1907, 1909, 1919 and 1923. There was a partition between the members of the defendants joint family in the year 1929, under the terms of which these properties had been transferred to defendants l to 4 and they had acquired absolute interest therein under the terms of the deed of partition executed, by and between the parties on