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7. Aggrieved over the same, the plaintiff has filed an appeal before the Principal District Court, Villupuram and the Appellate Court, after hearing both parties has held that, the defendant is not entitled to lead parole evidence against the recitals in the agreement for sale and the defendant has also failed to probabilise his case that the transaction has taken place is only a loan transaction thereby, dismissed the claim of the defendant and allowed the appeal and consequently, decreed the suit for specific performance.

10. Per Contra, the learned counsel appearing for the respondent/plaintiff invited my attention to the findings of the Lower Appellate Court, more particularly, the defence of the defendant that, he has obtained loan for the purpose of meeting out educational expenses, whereas, there was no evidence placed on record to show that the amount https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) was received for meeting out the educational expenses. He has also submitted that there is no evidence placed on record to show that the defendant has regularly paid interest for loan transaction and the evidence of D.W.2 is also not believable since there was already dispute regarding the sale of land between the defendant No.2 and the plaintiff. He has also contended that the parole evidence could not be lead in this case against the contention of the written argument Ex.A1-agreement of sale.

11. I have considered the submissions made on both sides and also perused the records.

12. The major question is to be decided by this Court is whether the parties herein are entitled to lead parole evidence in contradiction of recitals in Ex.A1 - Agreement for sale.

13. Section 92 - Exclusion of evidence of oral agreement as follows:

Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) existing facts.

14. The Scope of Proviso (1) of Section 92, was considered by Apex Court in Gangabai Smt Vs. Chhabubai Smt (AIR 1982 SC 20) and in para 11 held as follows: “the next contention on behalf of the appellant is that sub-s.(1) of s.92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the 1183 terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s.(1) of S.92 declares that when the terms of any 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, https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) varying, adding to, or subtracting from, its terms And the first proviso to S.92 says that 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 contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-S.(1) of S.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. 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 https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/06/2025 11:38:56 am ) recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole 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. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail”.