P.K. Balasubraraanyan, J. 1. The defendant is the, appellant io this Second Appeal. The suit was filed by the plaintiff-respondent for a declaration that a sale deed executed by the plaintiff in favour of the defendant in respect of the plaint schedule property was only executed by the plaintiff as security for the amount borrowed and that it does not create any title in the defendant and that the property had always been in the possession of the plaintiff and the consequential relief pf a perpetual injunction restraining the defendant from entering on the property on the strength of the said sale deed. The sale deed was executed by the plaintiff to the defendant on 6.1.1976. The suit for the declaration and injunction as above was filed on 28.8.1984. The suit was decreed by the trial court and the said decree was confimed by the lower appellate court. The defendant challenges the decrees thus passed.
2. In the Memorandum of Second Appeal the appellant sought to raise the following substantial questions of law:-
low. Holding that Ss. 91 and 92 of the Evidence Act did not disable the plaintiff from showing that the transaction Ext. A1 was not intended to be a sale deed, the trial court proceeded to decree the suit. The trial court did not consider the effect of the case set up by the plaintiff that there was an independent agreement for re-conveyance of the property by the defendant. It also did not consider the effect of the absence of any relief in the plaint for specific performance of the agreement to reconvey. It also did not understand the legal effect of the clear recitals in Ext. A1 Sale deed that possession was being transferred to the defendant on the date of the transaction and the admission in the plaint that the income from the property was being taken by the defendant after the execution of the sale deed. Holding that the suit for declaration is not barred by limitation even though the suit was not filed within three years of the date of Ext. A1 transaction, the trial court decreed the suit. This approach of the trial court and the conclusion of the trial court was confirmed by the lower appellate court again without properly ad verting to the relevant aspects arising for decision, the case actually set up by the plaintiff arid the nature of the reliefs claimed in the plaint. The plea of limitation was also overruled. But the lower appellate court proceeded to grant a decree to the defendant to recover a sum of Rs. 2000 from the plaintiff charged on the property on the basis that even going by the plaint the plaintiff was bound to repay the sum of Rs.2000. It appears to me that neither of the courts below has properly adverted to the case set up in the plaint and the nature of the reliefs claimed in the plaint and the effect of the recitals in the document and the pleadings in the plaint while deciding the claim of the plaintiff for relief. In my view the questions formulated in the Memorandum of Second Appeal on which notice was issued by this Court clearly arise for decision in this Second Appeal with particular reference to the absence of a plea for specific performance of the agreement for re-conveyance set up in the plaint.
7. Ext. A1 is clearly a sale in terms of S. 54 of the Transfer of Property Act. The recitals show a conveyance of property for a price paid. Thus the definition of sale is clearly satisfied. Ext. A1 also shows that possession was transferred to the transferee on the date of the transaction. It also contains the usual covenant for title and quite enjoyment. It also contains an assurance by the transferor of the non-existence of encumbrance over the property. Coupled with this is the admission in the plaint that the income from the property was being taken by the plaintiff.subsequent to the transaction Ext..A1. In my view these elements clearly establish that the transaction Ext. A1 is a sale and nothing but a sale. Even assuming that the plaintiff has the right to show that notwithstanding the fact that Ext. Al is a sale it was intended only to be a security in view of the proviso to S. 92 of the Indian Evidence Act, this is a clear case where clear evidence was needed on the side of the plaintiff to establish that fact. We cannot also forget the case set up in the plaint that the agreement was that on the sum of Rs. 2000 being repaid, the property would be re-conveyed to the plaintiff by the defendant. What one can understand on a reasonable reading of the plaint is that what the plaintiff has set up is a case of an agreement for re-conveyance by the defendant to the plaintiff. The very plea in my view implies that there is an admission that the title to the property has been conveyed to the defendant by the transaction Ext. A1. Otherwise there would be no question of the defendant having agreed to execute a re-conveyance on receipt of the money which allegedly the plaintiff bad borrowed. The fact that an agreement for re-conveyance is set up by the plaintiff itself reinforces the fact that title under Ext A1 had been conveyed to the defendant.
8. The plaintiff has sought the relief of declaration and injunction. Both are discretionary reliefs. The failure of the plaintiff to seek die relief of specific performance of the agreement to re-convey after setting up an agreement for re-conveyance in the plaint cannot also be overlooked in the circumstances. The suit was not filed within three years of Ext. A1 but was filed after 8 years of the transaction. Whether the relief of declaration was within time within the meaning of the applicatory Article of the Limitation Act was also an aspect which had to be carefully considered while deciding whether discretion of the Court should be exercised to grant the relief sought for by the plaintiff in the plaint
9. I shall first consider the contention that the suit as framed is not maintainable which is framed as one of the substantial questions of law arising for decision in this Second Appeal. On a reading of the plaint it is clear that what the plaintiff has set up in a case of an agreement to reconvey the property on his paying a sum of Rs. 2000 recited as consideration for the sale in Ext. A1. In the context of the plea raised by him what the plaintiff had to sue for is for specific performance of the agreement to reconvey. If the plaintiff has a case that no time for execution of the reconveyance was fixed in the agreement, he could have pronounced the theory of demand and refusal to bring the suit within time. Clearly time was of the essence of the contract in an agreement for reconveyance. Having specifically pleaded that the defendant insisted on a sale deed being executed and a sale deed was executed and having set up a parol agreement outside the sale transaction to the effect that the defendant had agreed to recovey the property to the plaintiff on payment to him of the amount due, the plaintiff was bound to include a prayer for the relief of specific performance in the plaint. In the absence of such a prayer for specific performance, clearly the suit as framed is not maintainable.
10. There is also another aspect It is one thing to say that a person who has executed a sale deed in favour of another is not precluded from showing by virtue of the proviso to S. 92 of the Indian Evidence Act that the transaction was not intended to be acted upon or from proving a collateral agreement independent of the written transaction. But, it is quite another thing to say mat a person is not entitled to seek a declaration that a sale deed executed by him in favour of another is not a sale deed but is only a deed of security. The decision of the Privy Council Tyagaraja v. Vedathanni (AIR 1936 PC 70) and that of the Supreme Court in Gangabai v.
Chhabubai (AIR 1982 SC 20 ) relied on by the courts below cannot have any application to a case of the present nature where the declaration sought for is one relating to the transaction reduced to writing and regarding the effect of that transaction. The plea by the plaintiff that there was a parol agreement independent of the transaction for re-conveyance of the property could certainly have been admissible in the tight of the proviso to S. 92 of the Indian Evidence Act. The decision of the Supreme Court was a case where what was attempted to be done was to show that the transaction was not intended to be acted upon. In our case what is pjeaded in the plaint is that the defendant had agreed to reconvey the property on receiving the amount stated as consideration in the sale deed but without following it up with a prayer for specific performance of that agreement. The present case found by the courts below is clearly a case to vary the terms of the document and as observed by the Supreme Court in the decision referred to by the courts below the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement of statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. I am therefore of the view that the suit as framed is not maintainable and the case now found by the courts below cannot be permitted to be established.
11. Coming to the question whether the plaintiff is entitled to a declaration prayed for framed as substantial question of law B. I must hold that there is no legal evidence in this case on the basis of which the declaration as sought for can be granted even assuming that a suit for obtaining such a declaration is maintainable. There is only the interested oral evidence of the plaintiff as PW1 in support of his case. On going through the evidence of the defendant as DW11 do not see any admission of such a nature that would enable the court to grant a decree to the plaintiff on the footing that the sale deed Ext. A1 was intended only to be a security. We cannot forget the fact that not only that Ext. A1 recites that possession has passed to the transferee but even the plaint admits that the income from the property is being taken by the transferee. The provision regarding the reservation of the right to take the income from one coconut palm until that coconut palm whithers away also clearly indicates transfer of possession in favour of the defendant. In such a situation it has to be held that no case has been made out by the plaintiff for the declaration even assuming that a suit for declaration like the one filed by the plaintiff is maintainable. Since substantial question of law B overlaps substantial question of law A, I do not think it necessary to discuss further the question whether the declaration can be granted as sought for. I have already held that a suit for a declaration of this nature is not maintainable. Substantial question of law D is also covered by the discussion on the above two questions and hence it need not be answered separately. Substantial question of law C is whether the suit is barred by limitation. Obviously the suit is governed by Art. 58 of the Limitation Act. The starting point of limitation is when the right to sue first accrues and the period prescribed is three years from that date. Here the right to sue for declaration first accrued on the date of the transaction namely 6.1.1976 and the suit is filed about eight years after the date of the transaction. The suit is therefore clearly barred by limitation. It may be noted that the lower appellate court got over the plea of limitation by pointing out that the plaintiff has set up an oral agreement independent of the sale deed and therefore the time will start to run only when that oral agreement was refused to be performed by the defendant. I must notice that the cause of action that would arise then would be a cause of action for filing a suit for specific performance of the agreement to recovery. That will not give the plaintiff a fresh cause of action for seeking a relief of declaration that the sale deed executed by him as early as on 6.1.1976 is not in fact a sale deed but is only intended to be a security. The lower appellate court in my view was therefore substantially in error in holding that the oral agreement set up by the plaintiff would have any effect on the relief of declaration sought for by the plaintiff the suit in that behalf being governed by Art. 58 of the Limitation Act. I have already indicated that thecircumstances relied on by the lower appellate court to accept the oral agreement set up by the plaintiff is also totally insufficient to find any such oral agreement. Whatever that be, in view of my conclusion that the setting up of the oral agreement cannot have any effect on the question of limitation relating to the suit for declaration governed by Art., 58 of the Limitation Act and that the right to sue first accrued when the document was executed, I am clearly of the view that the suit is barred by limitation. Substantial question of law C is also therefore answered in favour of the defendant.
12. Substantial question of law E is also linked with substantial question of law D, A and B. It does not therefore appear to the necessary to answer the same separately. But it has to be held in view of the conclusion recorded earlier that the courts below did act on inadmissible material to grant the plaintiff a decree.
13. Substantial question of law F framed relates to the appreciation of the evidence in the case. There is justification in the contention that the courts below have indulged in conjectures and surmises to uphold the case of the plaintiff. To that extent there is merit in this question sought to be raised. But in view of my conclusion that the suit is not maintainable and that the suit is barred by limitation and that the plaintiff is not entitled to relief in the suit, no further answer to substantial question of law F is needed.
I therefore allow this Second Appeal and reversing the judgments and decrees of the Courts below dismiss the suit filed by the plaintiff. The defendant would be entitled lo his costs in all the Courts.