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2025 Supreme(Online)(Mad) 70123
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mrs.Justice K. GOVINDARAJAN THILAKAVADI
THANGAM @ THANGAMMAL – Appellant
Versus
KANDHAROOBAN – Respondent
S.A.No.246 of 2023 | C.M.P. Nos. 7265 and 7261 of 2023
For the Appellants/Petitioners: G. Balamanikandan
For the Respondents: R. Jayaprakash
In a suit for specific performance, when execution of the agreement is denied, the burden lies on the plaintiff to prove its genuineness, not on the defendant to prove forgery.
Headnote:(A) Specific Performance - Burden of Proof - Execution of Document - When execution of an agreement is denied by the defendant, the burden lies on the plaintiff who propounds the document to prove its genuineness, and not on the defendant to prove the negative fact of forgery - The first appellate court erred in placing the onus on the defendant to establish that the document was forged or concocted - Evidence Act, 1872 - Sections 101 and 102 (principles of burden of proof) - Doctrine of unclean hands - Suppression of material facts by plaintiff - Stamp paper irregularities - Thumb impression expert opinion unfit for comparison - Circumstantial evidence creating doubt about genuineness. (Paras 12, 12.1)
(B) Second Appeal - Scope - Interference when first appellate court’s appreciation of evidence is perverse and based on wrong legal proposition - High Court can set aside decree if lower appellate court misplaces burden of proof. (Para 13)
Facts of the case:
The plaintiffs filed a suit for specific performance of an alleged agreement of sale dated 15.03.2004, claiming that the defendant agreed to sell suit property for Rs.1,00,000/- and received Rs.90,000/- as advance, with balance payable within 2½ years. The defendant denied execution, thumb impression, and receipt of any consideration. She had also filed a prior suit for permanent injunction against the plaintiffs. The trial court dismissed the suit, holding the agreement false. The first appellate court reversed, decreeing specific performance, placing the burden on the defendant to prove forgery. The defendant appealed.
Findings of Court:
The High Court held that the first appellate court wrongly placed the onus on the defendant to prove the negative fact of forgery. The propounder (plaintiff) must prove execution. The plaintiffs failed to discharge this burden due to several suspicious circumstances: the stamp paper was dated after the alleged execution, stood in a third party’s name, the plaintiffs suppressed the earlier suit, the thumb impression was found unfit for comparison by an expert, and there was no explanation for the delayed payment of balance. These circumstances collectively dislodged the evidentiary value of the plaintiffs’ witnesses. The High Court set aside the first appellate judgment and reinstated the trial court’s dismissal.
Issues: 1. Whether the first appellate court erred in placing the burden of proof on the defendant to prove that the agreement was forged? 2. Whether the plaintiffs failed to prove the genuineness and execution of the agreement of sale? 3. Whether the appreciation of evidence by the first appellate court was perverse?
Ratio Decidendi: The party who propounds a document must prove its execution; when the defendant denies execution, the burden does not shift to the defendant to prove forgery. The first appellate court’s reversal based on a wrong placement of onus is unsustainable. Additionally, multiple suspicious circumstances (stamp paper anomaly, suppression of prior suit, unfit thumb impression) create reasonable doubt about the agreement’s genuineness, and the plaintiffs failed to rebut that doubt. Result : Second Appeal allowed. The decree and judgment of the first appellate court are set aside, and the suit in O.S.No.704/2006 stands dismissed. No order as to costs.
JUDGMENT
In this Second Appeal, challenge is made to the decree and judgment dated 15.10.2022 passed in A.S. No.110 of 2018, on the file of the Principal Sub Court, Kallakurichi, reversing the Judgment and decree dated 25.07.2017 passed in O.S.No.704 of 2006, on the file of the Principal District Munsif Court, Kallakurichi.
2. The defendant in O.S. No.704/2006 is the appellant herein. The respondents as plaintiffs filed the above suit for specific performance based on an agreement dated 15.03.2004.
3. For the sake of convenience, the parties are referred to as per their ranking in the trial court.
4. The plaintiffs and the defendant entered into an agreement of sale by way of an unregistered instrument dated 15.03.2004 under which the defendant agreed to sell the suit property to the plaintiffs for a sum of Rs.1,00,000/- and received a sum of Rs.90,000/- as advance on the same date of the agreement. It was agreed that the balance amount of Rs.10,000/- shall be paid by the plaintiffs to the defendant within a period of 2½ years from the date of agreement, i.e. on or before 15.09.2006 and that the defendant shall execute the sale deed in favour of the plaintiffs. As per the agreement of sale, the plaintiffs were always ready and willing to perform their part of contract by paying the balance sale consideration of Rs.10,000/-. In spite of several demands, the defendant failed to come forward to execute the sale deed. Hence the plaintiffs issued a legal notice on 05.09.2006 calling upon the defendant to perform her part of the contract. Though the defendant received the said notice, she failed to reply. Since the defendant was attempting to alienate the suit property, the plaintiffs were constrained to file the above suit for specific performance.
5. The defendant denied that she had executed the suit agreement dated 15.03.2004 in favour of the plaintiffs and that she had received any sale consideration in advance as alleged in the plaint. Her further contention is that the defendant filed a suit against the plaintiffs and 9 others in O.S. No.579/2006 before the District Munsif Court, Kallakuruchi for the relief of permanent injunction. Aggrieved by this, the plaintiffs, with ulterior motive, fabricated the suit sale agreement and has come forward with the present vexatious suit. Hence the suit is liable to be dismissed.
6. The trial court, after appreciating the evidence on record dismissed the suit by a judgment and decree dated 25.07.2017 by holding that the agreement of sale purforth by the plaintiffs was false and must have been created. Feeling aggrieved, the plaintiffs appealed before the Principal Sub Court, Kallakuruchi. The first appellate court allowed the plaintiffs' appeal by judgment and decree dated 15.10.2022 by holding that the agreement of sale was proved and decreed the suit granting specific performance.
7. Assailing the judgment and decree of the first appellate court, the present second appeal has been preferred by the defendant.
8. The second appeal has been admitted on the following substantial questions of law.
i) Whether the judgment and decree made by lower appellate court based on Exfacie illegal evidence is sustainable in law?
ii) Whether the impugned decree and judgment of lower appellate judge is correct when burden of proof lies on the respondents to prove the genuineness of agreement on denial of execution of agreement and thumb impression by the appellant/defendant?
iii) Was not the appreciation of evidence by the first appellate court ignoring material contradiction and inconsistencies in the evidence made available especially the internal evidence available to discredit the genuineness of Ex.A1, perverse?
9. The learned counsel appearing for the appellant submits that the trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendant. His further contention is that the appellant/defendant file
