The burden of proof in cases where the execution of a document is denied rests on the plaintiff to prove both the fact of execution and the advance of consideration. The mere admission of the thumb impression or signature does not shift the burden from the plaintiff, and the burden of proof may shift during the pendency of the litigation depending upon the nature of the evidence given by either side.

SANKARASUBBAN, J.:- This appeal is filed against the judgment and decree in O.S. No. 175 of 1990 on the file of the Sub-Court, Tirur. The suit was filed for specific performance of an agreement to sell the plaint schedule property. The agreement is produced as Ext. A6. According to the plaintiff, Ext. A6 was executed by defendants 1 and 2 for the sale of the plaint schedule property for a total consideration of Rupees 85,000/-, out of which, Rs. 70,000/- had been paid on the day on which Ext. A6 was executed. The balance amount was agreed

to be paid within one month and the sale deed executed.

2. According to the plaintiff, the plaintiff is a person, who is employed in Gulf Countries. The suit was filed by the power of attorney holder of the plaintiff. The balance amount was paid to the defendants. But they refused to accept the amount and also execute the sale deed. Ext. A1 notice was issued to the defendants to which they replied stating that they did not execute the document. On the other hand, according to them, they had borrowed Rs. 15,000/- from the plaintiff when he last came from abroad. They promised to repay the amount within two years. Since this was not paid within two years, the plaintiff wanted the document of title of the defendants and also he got one signed stamp paper and one signed blank paper as security for the repayment of the amount. The plaintiff had fabricated the documents for sale. The defendants had not executed the document.

3. The lower Court raised relevant issues in this case and held that there is no satisfactory evidence to prove the execution of the agreement and the passing of the consideration. On the basis of the above, the Court held that the defendants was not entitled to specific performance and granted a decree for Rs. 15,000/- in favour of the plaintiffs from the defendants. It is against the above judgment and decree refusing to grant specific performance that the present appeal has been filed by the plaintiff. The defendants filed Cross Objection against the judgment granting Rs. 15,000/- in favour of the plaintiff.

4. When the matter came before a learned single Judge of this Court, the learned single Judge referred the matter to a Division Bench doubting the correctness of the decision of Kalliath, J. in Ahamad v. Gangadharan, (1990) 1 Ker LT 456. In that case, Kalliath, J. held that where there is a denial of the execution of the document the plaintiff has got the obligation to discharge the burden of proof. How and in what manner that burden of proof can be discharged is a question depending upon the facts of each case. The Court is bound to take note of the circumstance that it is not normal human conduct to give signed papers with other people, particularly to persons who cannot have any occasion to get such signed papers. It is more unusual to give signed blank stamp papers with other persons. In such a circumstance if the defendant pleads that he has left a signed blank stamp paper with the plaintiff he has got a duty to explain satisfactorily before the Court what prompted him to do such an act, which is not a normal human conduct. Consequently, if any person wants to rely on an exceptional circumstance, if he wants to show what in some particular instance the ordinary rules was brought abrogated surely he must prove it and thus the burden shifts on him. The learned Judge relied on the decision of the Nagpur High Court, reported in Dalchand Mulchand v. Hasanbi, W/o Ali Razakhan, AIR 1938 Nag 152.

5. When the matter came before us, learned counsel for the parties agreed that the decision of Kalliath, J. reported in Ahamad v. Gangadharan, (1990) 1 Ker LT 456, referred to supra has not considered another decision of Justice Varadaraja Iyengar in Seithammarakkath Mammad v. Keyammatath Mammad, 1957 Ker LT 328 : (AIR 1957 Ker 63). It was further submitted that Kalliath, J. himself had taken a different view in the decision reported in Santha v. Rajappan Pillai, 1986 Ker LT 12