The main legal point established in the judgment is that oral evidence is admissible to show the true character of a document and that Section 92 of the Evidence Act does not preclude a party from demonstrating that a writing is not a genuine contract but a fictitious or colorable device.

1. This is defendant's second appeal filed under Section 100 of the Code of Civil Procedure (for short 'the C.P.C.') against the judgment and decree dated 16.02.1996 passed by the 2nd Additional District Judge, Bilaspur in Civil Appeal No.1-A/1994 reversing the judgment and decree dated 22.11.1993 passed by the 5th Civil Judge Class-II, Bilaspur in Civil Suit No. 46-A/90.

2. Brief facts necessary for disposal of this appeal are as under :

(i) The appellant/defendant No. 1 is brother-in-law (Jija) of Rameshwar Prasad. The suit land i.e. agricultural land, area 10.80 acres situated in Bhimpuri, P. H. No.52 was ancestral property of deceased Rameshwar Prasad. Present respondents No. 1 to 4 are his legal representatives, who have been substituted during pendency of the suit, on his death.

(ii) Rameshwar Prasad, the original plaintiff filed a suit for declaration and permanent injunction. In substance, the case of the plaintiff is that the alleged transaction of sale dated 13.05.1971 (Ex.D.1) was not that of sale but the sale deed has been executed by the plaintiff in favour of the appellant as a collateral security of loan of Rs. 1,000/- taken by him from the appellant on interest at the rate of 2% per month. It was agreed between the parties that on repayment of loan with interest the sale deed would be cancelled/returned to the plaintiff by the appellant; it was nominal and fictitious transaction; the possession of the suit property was never handed over to the appellant; valuation of the suit property at the time of alleged sale deed was Rs. 20,000/-; the plaintiff has repaid the loan amount taken by him; it is only in 1980-81 when the appellant illegally got mutated his name over the suit land with the help of revenue inspector, therefore, the plaintiff was forced to file the instant suit.

(iii) The claim was denied by the appellant. The trial Court framed issues. Parties led evidence.

(iv) During the pendency of the appeal, the appellant also died and his legal representatives were brought on record.

(v) The trial Court dismissed the suit The first appeal preferred by the respondents (plaintiffs) was allowed and the plaintiffs' suit was decreed. Hence, this second appeal.

3. This Court, vide order dated 17.09.1996, admitted the appeal on the following substantial question of law:

"Whether on the facts and in the circumstances of the case the first appellate court was justified in holding that the sale deed was sham and bogus, was not to be acted upon and was executed as a collateral security?"

4. Shri H.B. Agrawal, learned Senior Advocate with Smt. Meera Jaiswal for the appellant in substance submit: once admittedly the sale deed has been executed by the plaintiff, the relief available to the plaintiff was asking for reconveyance by filing a suit for redemption of mortgage by pleading and proving that there was a specific amount of loan, which was paid with interest agreed on and there was refusal on the part of the defendants to making re-conveyance as agreed. But he cannot ask for relief of declaration of sale deed as void and not binding upon him. It was further contended that in the absence of agreement to re-sale, oral evidence under Section 92 of the Indian Evidence Act is barred and suit itself was not maintainable.

5. Per contra, Shri Sanjay K. Agrawal with Shri Sourabh Sharma, learned counsel for the respondents supported the judgment and decree impugned and submitted the plaintiffs' case is not to the effect that the transaction was a mortgage or that it was a sale with a condition of repurchase. The plaintiffs' case is that the transaction is fictitious and nominal and the sale deed was executed as a collateral security of loan amount taken by the original plaintiff. Therefore, the oral evidence is admissible to show the nature and character of the transaction. The first appellate Court, on proper re-appreciation of the entire material placed on record, has rightly decreed the plaintiffs' suit and the instant appeal