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2025 Supreme(Online)(Mad) 76152

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. Dhanabal, J
C. Duraisamy – Appellant
Versus
K. Kandasamy – Respondent
SA.Nos. 58 & 95 of 2015 | MP.Nos.1 & 1 of 2015 | CMP.No.24780 of 2025

Advocates:
For the Appellants/Petitioners: C.S. Saravanan, V.P. Sengothavel, Indu Priya
For the Respondents: C.R. Prasaran, C.S. Saravanan, V.P. Sengothavel, Indu Priya

In a suit for specific performance where the execution of an agreement is denied, the burden lies on the plaintiff to prove its genuineness. Courts must exercise the power under Section 73 of the Evidence Act to compare disputed signatures when evidence is contradictory and inconclusive.

Headnote:(A) Specific Relief Act, 1963 - Section 19(b) - Evidence Act, 1872 - Sections 73 and 101 - Suit for specific performance - Burden of proof - Initial burden lies upon plaintiff to prove execution of sale agreement when denied by defendant - Subsequent purchaser is not barred under lis pendens if purchase occurred prior to institution of suit - Subsequent purchaser needs to prove bona fide status after which burden shifts to plaintiff to prove collusion - Mere examination of attesting witnesses is insufficient when evidence is contradictory and signatures are disputed.

(B) Evidence - Comparison of signatures - Power of Court under Section 73 of Evidence Act - High Court or Trial Court ought to exercise power to compare disputed signatures with admitted signatures to determine genuineness - Failure to exercise such power when evidence is conflicting amounts to legal error. (Paras 26, 27, 29, 30)

(C) Evidence - Production of documents - Adverse inference - Non-production of agreement by subsequent purchaser after execution of a registered sale deed cannot be fatal if the deed mentions previous agreement - Agreement is superseded by sale deed. (Paras 32, 37)

Facts of the case:
The plaintiff filed a suit for specific performance based on an alleged sale agreement. The owner (defendant) denied the execution of the agreement and the associated promissory note. The owner had subsequently sold the property to a second defendant via a registered sale deed. The Trial Court and First Appellate Court decreed the suit in favor of the plaintiff, rejecting the defense's claims.

Findings of Court:
The court found that the plaintiff's evidence was inconsistent and failed to prove the execution of the sale agreement. The courts below improperly shifted the burden of proof onto the defendants and failed to compare the disputed signatures with admitted ones under Section 73 of the Evidence Act.

Issues: Whether the courts below were correct in relying solely on attesting witnesses to prove the agreement, whether they correctly shifted the burden of proof, and whether the subsequent purchaser was a bona fide purchaser for value without notice.

Ratio Decidendi: The burden of proof for the execution of a sale agreement lies on the plaintiff under Section 101 of the Evidence Act. In cases of disputed signatures and contradictory testimony, the court has a duty to exercise its power under Section 73 to compare signatures. Furthermore, a subsequent purchaser who buys prior to the institution of a suit is not bound by the doctrine of lis pendens and qualifies as a bona fide purchaser if the plaintiff fails to prove prior knowledge or collusion.

Result: Appeals allowed; Suit dismissed.

Table of Content
1. summary of pleadings regarding conflicting agreements and specific performance claim. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. procedural history of trial and first appellate court findings. (Para 7 , 8 , 9 , 10 , 11)
3. admissibility of additional evidence under order 41 rule 27 cpc. (Para 12 , 41)
4. analysis of evidence regarding execution of sale agreement and bona fide purchaser status. (Para 16 , 17 , 18 , 19 , 20)
5. evaluating sufficiency of attesting witness testimony in proving documents. (Para 21 , 22 , 23 , 24 , 25)
6. court's role under section 73 evidence act to compare disputed signatures. (Para 26 , 27 , 28 , 29)
7. application of section 101 evidence act regarding burden of proof on the plaintiff. (Para 30 , 31)
8. bona fide purchaser defense under section 19(b) of the specific relief act. (Para 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40)
9. conclusion setting aside lower court orders; suit dismissed due to lack of proof. (Para 42 , 43)

JUDGMENT

1.These Second Appeals have been preferred as against the common judgment and decree dated 07.12.2023 passed in A.S.Nos.117 of 2011 and 7 of 2012 on the file of the Additional District Judge, Coimbatore confirming the judgment and decree dated 20.04.2011 in OS.No.67 of 2007 on the file of Sub-Court Pollachi.

2. The plaintiff, who is the first respondent in both the second appeals, field the suit for specific performance of contract and the suit was decreed. As against the judgment and decree, the first defendant preferred the first appeal in A.S.No.117 of 2011, who is the appellant herein in S.A.No.95 of 2015 and the second defendant preferred the first appeal in AS.No.7 of 2012, who is the appellant herein in S.A.No.58 of 2015. The said appeals were dismissed by the First Appellate Court. Aggrieved by the judgment and decree, the present appeals have been filed by the defendants.

3. For the sake of convenience and brevity, the parties in these appeals are to be referred as plaintiff and defendants as referred in the original suit.

4. The brief averments in the plaint are as follows:

The first defendant is the owner of the suit property through sale deed dated 17.02.2000. The plaintiff and the first defendant entered into a sale agreement on 07.12.2006. The property’s sale price was fixed at Rs.3,12,000/-. The first defendant had already borrowed money from the plaintiff on 06.01.2004 to the tune of Rs.1,00,000/- and also executed promissory note and agreed to pay the amount with interest at 24%. Thereafter, he did not repay the amount, therefore, interest along with principal would come to Rs.1,72,000/- and on 07.12.2006, the amount was adjusted for the advance of sale price. That apart, a sum of Rs.28,000/- also was paid on the date of the agreement itself.

Therefore, the plaintiff paid Rs.2,00,000/- as advance to the sale consideration and the period of contract was 6 months. Thereafter, the plaintiff sent a telegram on 22.04.2007 followed by a letter on 23.04.2007 fixing the date for registration of sale deed. After receipt of the same, the first defendant failed to comply with the demand. However, the plaintiff was always ready and willing to perform his part of the contract. In the meantime, the defendants 1 and 2 colluded with each other and fabricated an agreement dated 19.01.2006 and also registered a sale deed in the name of the second respondent on 27.04.2007. Therefore, the plaintiff has filed the suit.

5. The brief averments in the written statement filed by the first defendant are as follows:

i) The first defendant never borrowed money and executed promissory note and also not executed the sale agreement as alleged in the plaint. The documents are forged and concocted one and the signatures found in the agreement were also denied by him. The first defendant never agreed to adjust the principal amount and the interest amount in promissory note towards the advance amounnt. The first defendant denied the telegram and the notice allegedly sent by the plaintiff. The

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2025 Supreme(Online)(Mad) 76152

IN THE HIGH COURT OF JUDICATURE AT MADRASP. Dhanabal, JC. Duraisamy – AppellantVersusK. Kandasamy – RespondentSA.Nos. 58 & 95 of 2015 | MP.Nos.1 & 1 of 2015 | CMP.No.24780 of 2025

In a suit for specific performance where the execution of an agreement is denied, the burden lies on the plaintiff to prove its genuineness. Courts must exercise the power under Section 73 of the Evidence Act to compare disputed signatures when evidence is contradictory and inconclusive.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. Dhanabal, J
C. Duraisamy – Appellant
Versus
K. Kandasamy – Respondent
SA.Nos. 58 & 95 of 2015 | MP.Nos.1 & 1 of 2015 | CMP.No.24780 of 2025