Madras High Court
C.Raja vs Paramasivam on 27 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.779 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.06.2025
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
S.A.No.779 of 2008
C.Raja ... Appellant
Versus
1.Paramasivam
2.Murugan
3.Govindaraj
4.Jagadambal
5.Kullammal
6.Kasthuri
7.Virutha
8.Karpagam
9.Anjalatchi
10.Jaya
11.Selvaraj ... Respondents
(Respondents 2, 4 to 11 remained ex parte in
the courts below and hence given up)
Second Appeal had been filed under Section 100 of Code of Civil
Procedure, against the Judgment and Decree of the learned Principal
Subordinate Judge, Tiruvannamalai in A.S.No.35 of 2004, dated 17.01.2006
reversing the Judgment and Decree of the learned Principal District Munsif,
Tiruvannamalai in O.S.No.23 of 2000, dated 26.03.2004.
For Appellant : Mr.S.Kaithamalai Kumaran
For R1 : M/s.V.Srimathi
For R2 to R11 : Given up
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S.A.No.779 of 2008
JUDGMENT
This Second Appeal had been filed to set aside the Judgment and Decree of the learned Principal Subordinate Judge, Tiruvannamalai in A.S.No.35 of 2004, dated 17.01.2006 reversing the Judgment and Decree of the learned Principal District Munsif, Tiruvannamalai in O.S.No.23 of 2000, dated 26.03.2004.
2. The Plaintiff in O.S.No.23 of 2000 before the learned Principal District Munsif, Tiruvannamalai, is the Appellant in the Second Appeal.
3. The suit in O.S.No.23 of 2000 was filed by the Plaintiff against Defendants 1 to 3 for the relief of specific performance of contract for sale on the ground that he had executed a Sale Agreement Deed dated 09.05.1999 with Defendants 1 to 3 for a sum of Rs.30,000/-. On the date of Sale Agreement, Rs.25,000/- was paid and for balance sale consideration, six months time was fixed. When the Plaintiff was ready with the balance of sale consideration and approached the Defendants 1 to 3, they had evaded to receive the balance of sale consideration and to execute the sale deed. Suspecting the bona fides of the Defendants, the Plaintiff made enquiries in the village and he came to know that the Defendants have arranged to sell the property for higher sale 2/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 price to the 4th Defendant. Therefore, he had impleaded the 4th Defendant suspecting that Defendants 1 to 3 agreed to sell. Therefore the Plaintiff filed the suit seeking specific performance of contract for sale based on the Sale Agreement Deed dated 09.05.1999.
4. The averments in the plaint filed by the Plaintiff in brief are as follows:-
4.1. The schedule mentioned property belongs to the Defendants 1 to
3. They offered to sell the suit property to the Plaintiff and the Plaintiff agreed to purchase the same and that the Defendants 1 to 3 entered into an Agreement of Sale on 09.05.1999 for a sale consideration of Rs.30,000/- and received a sum of Rs.25,000/- from the Plaintiff as part payment on the same day. And that, they handed over the possession of the suit property to the Plaintiff. And that, the Plaintiff took possession of the suit property and he is enjoying the same as part performance of the agreement and that the Plaintiff made ready, the balance sale consideration of Rs.5,000/- and he is calling upon the Defendants 1 to 3 to receive the said balance sale consideration and to execute the sale deed in favour of him. But the Defendants 1 to 3 are postponing the same on some pretext or other. And that the Plaintiff is always ready and willing to perform his part of contract. And that the Plaintiff suspected that the 3/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 Plaintiff 1 to 3 would have sold the suit property to the 4 th Defendant for higher price. And that the Plaintiff issued lawyer's notice to all the Defendants whereas the Defendants 1 and 2 refused to receive the notice and the Defendants 3 and 4 evaded to receive the notices. And that there is no breach of contract on the part of the Plaintiff, it is only the Defendants 1 to 3 have committed breach of contract. And that the Plaintiff came to know that during the subsistence of the Sale Agreement, the 4th Defendant had purchased the suit property on 14.10.1999. And hence, the suit is filed.
5. The written statement filed by the first Defendant and adopted by the Defendants 2,3, 6 to 10 in brief are as follows:-
5.1. The Defendants never offered to sell the suit property to the Plaintiff and they never entered into written agreement of sale with the Plaintiff and that they never received Rs.25,000/- and never handed over possession of the suit property to the Plaintiff. And that the suit agreement is a forged and fabricated document. It is further stated that the Plaintiff wanted to purchase the suit property at a low price for which the Defendants 1 to 3 were not prepared to sell and the 4th Defendant offered a price of Rs.400/- per cent.
Hence, they sold the properties in favour of the 4th Defendant and that the Plaintiff became inimical and he created a forged document and filed the suit 4/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 on false grounds. And that the Defendants 1 to 3 never received any amount as advance and never agreed to sell the suit property in favour of the Plaintiff. And it is also false to state that the Plaintiff issued a lawyer's notice and the same was refused by the Defendants 1 to 3. And that the Plaintiff is not entitled to any relief since he forged suit agreement and filed the suit on false grounds. Hence, prays for the dismissal of the suit.
6. The written statement filed by the 4th Defendant in brief are as follows:-
6.1. It is admitted that the suit property originally belonged to the Defendants 1 to 3. But it is false to state that they offered to sell the suit property to the Plaintiff and they entered into written Agreement of Sale Deed dated 09.08.1999 with the Plaintiff, that the sale consideration was fixed at Rs.30,000/- and that the Defendants 1 to 3 received Rs.25,000/- and handed over possession of the suit property to the Plaintiff. And that the Defendants 1 to 3 never entered into any Agreement of Sale with the Plaintiff. The suit agreement is forged and fabricated document and that the Defendants 1 to 3 sold the property in his favour under a registered sale deed dated 14.10.1999 and he also took possession of the suit property on the same date and even patta has been granted in his favour and he is also paying kists to the 5/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 Government. It is further averred that the Plaintiff herein wanted to purchase the suit property, the Plaintiff became inimical and he create a forged document and filed the suit on false grounds. And that this Defendant has filed a suit for declaration and for permanent injunction against the Plaintiff in O.S.No.34 of 2000 before the Additional District Munsif Court, Tiruvannamalai, which is still pending. And that there is no merits of bona fides in the suit. Hence, prays for the dismissal of the suit.
7. The Trial Court on the basis of the above said pleading, framed the following issues:-
1. Whether the allegation that this suit is beyond the pecuniary jurisdiction of this Court is correct ?
2. Whether the alleged agreement of sale dated 09-05-1999 is false ?
3. Whether the Plaintiff is in possession and enjoyment of the suit property?
4. Whether the Plaintiff is entitled to the relief of specific performance ?
5. To what relief?
8. During trial, on the side of the Plaintiff, P.W-1 to P.W-4 were examined and Ex.A-1 to Ex.A-6 were marked. On the side of the Defendants, D.W-1 to D.W-3 were examined and Ex.B-1 to Ex.B-10 were marked.
9. After perusing the oral and documentary evidence, the Trial Court was pleased to decree the suit with costs. Aggrieved by the judgment and 6/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 decree of the Trial Court, the Appeal Suit was preferred contenting that the judgment of the Trial Court is contrary to law, weight of evidence. The Trial Court failed to note that there is no sufficient pleadings in the plaint that the Appellant purchased the suit properties with notice and without consideration.
As per the Section 27(b) of Specific Relief Act, the Plaintiff is not entitled to the discretionary relief of specific performance as against the bona fide purchaser for value without notice. The alleged execution of sale agreement is dated 09.05.1999 fall on Sunday, but the scribe gave evidence as if it is a working day. The Trial Court failed to note that discrepancy. The Trial Court wrongly cast the burden on the Appellant to prove the alleged agreement is a forged one. It is for the plaintiff to prove it as a genuine one. The Lower Court had no authority to compare the signature and it was not a conclusive proof. The Trial Court also failed to not that there was no proof for possession and 30 enjoyment of the suit properties by the Plaintiff. The Appellant produces several antecedent title deeds, patta and kist receipts to prove his possession. The Trial Court failed to consider the authority cited by the Appellant namely 1994 TMLJ 44, 1994 TMLJ 59-Supreme Court and Section 27 (b) of the specific Relief Act and ought to have dismissed the suit.
Point for consideration:
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1. Whether the suit agreement Ex. A-1 true and valid ?
2. Whether the appeal deserves to be allowed?
10. The learned Principal Subordinate Judge, Tiruvannamalai, by judgment dated 17.01.2006 allowed the Appeal in A.S.No.35 of 2004 filed by the 4th Defendant and set aside the decree granted by the learned Principal District Munsif, Tiruvannamalai in O.S.No.23 of 2000 favouring the Plaintiff.
Therefore, the Plaintiff before the learned Principal District Munsif, Tiruvannamalai, as the 1st Respondent in A.S.No.35 of 2004, had filed this Second Appeal.
11. On 18.06.2008, while admitting this Second Appeal, framed the following substantial questions of law:-
i) Is the Lower Appellate Court justified in holding that the execution of Ex.A-1, Agreement of Sale is not proved, overlooking that D.W-1 and D.W-2 (2nd and 3rd Defendants) admit their signature in Ex.A-1?
ii) Whether Lower Appellate Court is justified in re-
appreciating the oral evidence and right in discarding the evidence of P.W-2 and P.W-3 on the sole ground that they are related to Appellant?
12. The learned Counsel for the Appellant submitted that the Plaintiff before the learned District Munsif, Tiruvannamalai in O.S.No.23 of 2000 is the Appellant in the Second Appeal. The Suit was filed by the Plaintiff based on the sale agreement deed dated 09.05.1999. The extent of property was 1 Acre and 84 Cents and on the date of sale agreement Rs.25,000/- was paid as 8/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 advance amount. The Defendants 1 to 3 are the vendors who executed a sale agreement and received Rs.25,000/-, all of them are from the same family, father and sons and six months period was fixed for balance sale consideration and execution of sale deed. The six months period expires on 08.11.1994, the Suit was filed on 03.01.2000. Prior to the institution of Suit, the Plaintiff had caused legal statutory notice to the Defendants 1 to 3 and they effected notice. The Plaintiff had filed the Suit seeking specific performance of contract.
13. The learned Counsel for the Plaintiff invited the attention of this Court to the averments in the Plaint, written statement and also to the discussion of evidence. It is the contention of the learned Counsel for the Plaintiff that the Suit was instituted and impleaded the purchaser who is the fourth Defendant. Sensing that the Defendants 1 to 3 might have sold the property, Plaintiff verified and found out that the Defendants 1 to 3 sold the property. Therefore, fourth Defendant was also impleaded. Defendants 1 to 3 filed written statements and disputed the claim of the Plaintiff. Issues were framed and trial commenced. During trial, the Plaintiff was examined himself as P.W-1 and attesting witnesses to the sale agreement as well as scribe were examined as P.W-2 to P.W-4. The Defendants 1 to 3 were examined as D.W-1 to D.W-3. The sale agreement was marked as Ex.A-1. The lawyer's notice was 9/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 marked as Ex.A-2. The Registered RPAD Cover to the Defendants 1 to 4 were marked as Ex.A-3 to Ex.A-6. The second and third Defendants were examined as D.W-1 and D.W-2. Purchasers were examined as D.W-3. In support of the claim of the Defendants, Ex.B-1 to Ex.B-8 were marked.
14. The learned Counsel for the Appellant invited the attention of this Court to the discussion of evidence by the learned trial Judge as well as the learned Appellate Court Judge, the learned trial Judge had decreed the Suit. The Defendants 1 to 4 preferred an Appeal. In the Appeal, the learned Principal Sub Judge, Tiruvannamalai as the first Appellate Court, on reassessment of evidence had reversed the finding recorded by the learned District Munsif, Tiruvannamalai as per Judgment dated 17.01.2006. The learned Counsel for the Appellant invited the attention of this Court to the discussion of evidence by the learned first Appellate Court Judge in Paragraph Nos.11 to 16.
15. It is the submission of the learned Counsel for the Appellant that the learned First Appellate Court Judge had dismissed the Suit on three grounds that the sale agreement was entered into on plain sheet of paper and it was unregistered, unstamped and Defendants 1 to 3 disputed their signatures. 10/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 Also, the learned First Appellate Court Judge had rejected the evidence of P.W-2 and P.W-3 as attesting witnesses claiming that their evidence cannot be relied. It is the contention of the learned Counsel for the Appellant that the finding or the observation of the learned first Appellate Court Judge that the evidence of P.W-2 and P.W-3 cannot be relied is perverse finding. It is the contention of the learned Counsel for the Appellant that P.W-2 and P.W-3 are trustworthy witnesses. Therefore, he seeks to set aside the finding of the learned First Appellate Court Judge and restore the finding of the learned trial Judge. It is the contention of the learned Counsel for the Appellant that even though D.W-1 and D.W-2, Defendants 2 and 3 deposed that the Plaintiff did not heed their request for sale of the property for Rs.500/- per cent. He had only offered Rs.200/- per cent whereas the fourth Defendant offered to purchase the property for Rs.400/-. The third Defendant as D.W-2 had stated in his cross examination that the fourth Defendant had purchased the property by paying Rs.350/- whereas the fourth Defendant as D.W-3 had in his cross- examination admitted that he purchased the property as Rs.200/- per cent. Therefore, the assessment of evidence by the learned First Appellate Court Judge is erroneous and is to be set aside.
16. The learned Counsel for the first Respondent submitted that the 11/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 learned Principal District Munsif, Tiruvannamalai, had not properly appreciated the evidence and had passed a decree in favour of the Plaintiff.
17. It is the contention of the learned Counsel for the first Respondent that as on the date of filing of the suit, the suit property was purchased by Defendant-4. Therefore, the Plaintiff had in the plaint stated that the Purchaser also impleaded Defendant-4, but there is no relief sought against Defendant-4. Instead, the Plaintiff seeks specific relief based on his agreement. The agreement claimed by the Plaintiff is written on plain paper and not on stamp paper. The learned first Appellate Court Judge on re-appreciation of evidence rejected the evidence of the Plaintiff on the ground that P.W-1 to P.W-3 are related to each other.
18. The learned Counsel for the first Respondent invited the attention of this Court to the discussion of re-assessment of evidence by the learned first Appellate Court Judge in paragraph 11 and paragraph 13 of the Appellate Court judgment and submits that on re-assessment of evidence, the learned first Appellate Court Judge had on re-assessment of evidence before Trial Court reversed the finding of the learned Principal District Munsif, Tiruvannamalai, thereby dismissed the suit for specific performance. 12/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 Therefore, she submits that the Second Appeal has no merit and judgment of the learned Principal Sub Judge, Tiruvannamalai in A.S.No.35 of 2004 dated 17.01.2006 is to be confirmed and seeks dismissal of the Second Appeal.
19. Heard the learned Counsel for the Appellant and the learned Counsel for the first Respondent and perused the original records in O.S.No.23 of 2000 and A.S.No.35 of 2004. Also perused the judgment of the learned Principal Subordinate Judge, Tiruvannamalai in A.S.No.35 of 2004, dated 17.01.2006 and the Judgment of the learned Principal District Munsif, Tiruvannamalai in O.S.No.23 of 2000, dated 26.03.2004.
20. For the sake of convenience, the parties are referred to as Plaintiff and Defendants as referred in the suit.
21. On perusal of the judgment of the learned Principal District Munsif, Tiruvannamalai, it is found that the learned Trial Judge had appreciated the evidence of the Plaintiff and the Defendants. It is true that Ex.A-1, Sale Agreement entered into by the Plaintiff and Defendants 1 to 3 was entered on plain sheet of paper.
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22. On perusal of Ex.A-1, it is found that it is on plain sheet of paper, the scribe who had written Ex.B-1 was examined as P.W-4. He had in his evidence stated that generally Sale Agreements are written on stamp paper for value of Rs.10 or above. It is not necessary that sale agreements should be written on stamp paper, it is sufficient, if stamp paper are not available, it can be written on plain sheet of paper and the parties can pay the required amount in the office of the Sub Registrar towards the same. In this case, they had not done so.
23. On perusal of Ex.A-1, it is found that it is on plain sheet of paper. The learned Principal District Munsif, Tiruvannamalai, had on appreciation of evidence rejected the claim of Defendants 1 to 3 that it is a forged document. Further, she had observed that the Defendants had not filed any Petition to refer Ex.A-1 to handwriting expert. Therefore, based on their evidence, the learned Principal District Munsif, Tiruvannamalai, had decreed the suit.
24. On re-appreciation of the evidence, the learned Principal Subordinate Judge, Tiruvannamalai, in A.S.No.35 of 2004 had rejected the evidence of P.W-2 and P.W-3 claiming that they are relatives of the Plaintiff and arrived at a conclusion that decision arrived by the learned Principal 14/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 District Munsif, Tiruvannamalai, is by picking holes in the evidence of the Defendants thereby setting aside the decree granted by the learned Principal District Munsif, Tiruvannamalai in favour of the Plaintiff. That part of the observation by the learned Principal Subordinate Judge, Tiruvannamalai, is found erroneous.
25. It is to be noted that as per Section 101 of the Indian Evidence Act, the Plaintiff who knocks at the door of the Court seeking relief is duty bound to prove his or her case by letting in evidence to prove their claim. Accordingly, the Plaintiff in this case was able to mark document under Ex.A- 1 and examine witnesses to prove his case. P.W-1 is the Plaintiff and P.W-2 and P.W-3 are his relatives. P.W-4 is the scribe. They had deposed the evidence supporting the claim of the Plaintiff. They were subjected to cross- examination by the Defendants. They had withstood cross-examination. Therefore, the preponderance of probability was in favour of the Plaintiff.
26. It is the specific case of Defendants 1 to 3 in the written statement, that the Sale Agreement claimed by the Plaintiff is not genuine. It is forged document. When the Defendants in the written statement claimed that the Sale Agreement is forged or not genuine. They had to prove their case as 15/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 per Sections 102 and 103 of the Indian Evidence Act.
27. It is the specific case of the Defendants that signatures found in the Sale Agreement dated 09.05.1999 is not that of the Defendants 1 to 3 and they have not received any amount from the Plaintiff and they have not handed over possession to the Plaintiff. When Defendants 1 to 3 claimed that they have not signed Ex.A-1 it gives an intention that it is a forged document. Therefore, they are duty bound to prove their claim that the signatures on Ex.A-1 is disputed by them. They are duty bound to subject Ex.A-1 for handwriting expert to compare their signatures. They had not filed any Petition to subject Ex.A-1 to handwriting expert. The learned Principal District Munsif, Tiruvannamalai, had compared the signatures found in Ex.A-1 with the signatures of the Defendants in the written statement filed by them and in the deposition sheet signed by the Defendants 2 and 3 as D.W-1 and D.W-2 and on that basis, she had arrived at a conclusion that the Defendants even though disputed their signatures in the cross-examination without confronted with Ex.A-1 they admitted their signatures. That part of the evidence is accepted by the learned Principal District Munsif, Tiruvannamalai. Therefore, she is within her discretion to arrive at a proper conclusion on appreciation of evidence.
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28. The party who denies the signatures in the document Ex.A-1 had not taken steps to compare the signatures in the document for handwriting expert, by filing any Petition. Therefore, the Court can draw adverse inference still when the party is in the witness box when he was confronted regarding the signatures found in Ex.A-1 in the cross-examination by the learned Counsel for the Plaintiff. Defendants 2 and 3 who are available on the date of the trial before the learned Principal District Munsif, Tiruvannamalai, had admitted in the witness box that signatures in Ex.A-1 are their admitted signatures. There ends the matter. Therefore, the burden is on the Defendants to dispute the signatures. To prove the disputed signatures and to prove the claim of forgery, the burden of proof rests on the Defendants 2 and 3 as D.W-1 and D.W-2. They did not discharge the burden cast upon them under Sections 102 and 103 of the Indian Evidence Act. On the other hand, they had admitted in their cross-examination that signature in Ex.A-1, it is their own signatures. Therefore, the admission is the best evidence as per the rules governing appreciation of evidence. The finding of the learned Principal District Munsif, Tiruvannamalai, by drawing adverse inference against the Defendants by taking the admission of Defendants 2 and 3 as D.W-1 and D.W-2 in the witness box as D.W-1 and D.W-2 and thereby granting a decree cannot be 17/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 found erroneous.
29. The observations of by the learned Principal Subordinate Judge, Tiruvannamalai, that Ex.A-1 is not written on stamp paper and it is not a registered document is accepted and unregistered document particularly Sale Agreement Deed has lost evidentiary value but it is not mandatory at the relevant point of time during the trial in this case. The document was executed on 09.05.1999, on which date there is no rule that Sale Agreement to be registered. Subsequently, the Registration Act was amended in 2001 (Act 48 of 2001) whereby it is stated that “documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of he Registration and Other Related Laws (Amendment) Act, 2001. If such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of said Section 53A of the Transfer of Property Act.”
30. The observations of the learned Principal Subordinate Judge, Tiruvannamalai, that Ex.A-1 is not written on stamp paper and it is not a registered document is accepted and unregistered document particularly Sale 18/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 Agreement Deed has lost evidentiary value but it is not mandatory in suit for specific performance of contract for sale under the proviso of Section 49 of the Registration Act,1908. The observation made by the learned Subordinate Judge, Tiruvannamalai, that the Sale Agreement is not on stamp paper is admitted, at the same time, an unstamped paper cannot be marked regarding transactions of valuable property, penalty has to be imposed. By inadvertance, the learned Principal District Munsif, Tiruvannamalai, failed to impose penalty on the document under Ex.A-1. She had decreed the suit of the Plaintiff ignoring the fact that as per the plaint averments though Defendants 1 to 3 are expected to sell the property to Plaintiff as per Ex.A-1, they are suspected to have sold the property to the fourth Defendant for higher sale price. The 4 th Defendant was impleaded as a party. The 4th Defendant has let in evidence as D.W-3. He had filed written statement claiming that he purchased the property for Rs.200/- per cent whereas Defendants 1 to 3 handed over the property for sale by Rs.350/- which was not amenable to the Plaintiff. The 1 st Defendant is the father. Defendants 2 and 3 are the sons of the 1st Defendant. The 1st Defendant has filed written statement which was adopted by Defendants 2 and
3. Pending suit, 1st Defendant died. Therefore, the legal heirs of the 1st Defendant, who are not parties to Ex.A-1, Salem Agreement, were impleaded as Defendants 5 to 12.
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31. In the written statement, it is clearly stated that they sold the property to the 4th Defendant, they are not confronted to sell property to the Plaintiff or received any amount from the Plaintiff. If at all there is a Sale Agreement, the signatures of Defendants 1 to 3 in the Sale Agreement is not true. The possession of the property was not handed over to the Plaintiff. The written statement of the 1st Defendant is clear when the trial commenced the 2nd Defendant had examined himself as D.W-1 and the 3rd Defendant examined himself as D.W-2. The 2nd Defendant as D.W-1 had admitted the signature of his father in Ex.A-1, Sale Agreement Deed. Even otherwise, the learned Judge had observed that the signature of the 1st Defendant in the written statement and Ex.A-1 is the same to the naked eye and the 2nd Defendant as D.W-1 in the witness box had admitted the signature in Ex.A-1. Defendants 1 to 3 had not taken any steps to compare the signature in Ex.A-1 which they disputed in Ex.A-1 to the handwriting expert. That was also observed by the learned Trial Judge and therefore, the learned Principal District Munsif, Tiruvannamalai, has observed and answered issue No.2 in favour of the Plaintiff and rejected the claim of the Defendants in the written statement. Though it is a forged signature, the finding of the learned Principal District Munsif, Tiruvannamalai, regarding the Sale Agreement dated 09.05.1999, Ex.A-1 is answered in favour 20/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 of the Plaintiff.
32. Though it is true and valid document, ignoring the fact that it is not on a stamped paper. That part alone is erroneous. The transaction between the Plaintiff and Defendants 1 to 3 had been found to be true. Ex.A-1 is found to be true. There was payment of advance money, there was execution of the Sale Agreement Deed. The learned Principal District Munsif, Tiruvannamalai, could have imposed penalty on Ex.A-1 to make it admissible in evidence. That is the only error in the finding of the learned Principal District Munsif, Tiruvannamalai. If the document under Ex.A-1 is not on stamp paper, it has to be impounded and penalty to be imposed for appropriate amount of Rs.25,000/- regarding transaction involving immovable property which is more than value of Rs.100/- stamp duty has to be imposed by impounding document. That was not done. Otherwise, the finding is found reasonable, well reasoned judgment.
33. In the appeal, the learned Principal Subordinate Judge, Tiruvannamalai, rejecting the finding of the learned Trial Judge on the ground that picking holes in the evidence of the Defendants cannot be acceptable and rejecting the evidence of Plaintiff Witness 2 and 3 as relatives of the Plaintiff 21/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 cannot be accepted. P.W-2 and P.W-3 are attesting witnesses who actually happen to be an acquaintance of the Plaintiff. The attesting witness need not be a third party on person who is an acquaintance person who involves with the transaction alone will be taken along with him for attesting a document so that in cases in future when any dispute arise, the person has to support him. Merely because the witness happens to be an acquaintance or a relative, who depose as P.W-2, who is the uncle of the Plaintiff and P.W-3 is the acquaintance, the learned Principal Subordinate Judge, Tiruvannamalai, had rejected the evidence of P.W-2 and P.W-3 as they are relatives to P.W-1, the Plaintiff. Only in criminal trials, there is a rule of safety that the evidence of the interested witnesses cannot be taken for granted. It has to be approached with caution by the learned Trial Judge since it involves the freedom of the individual, the Accused who is likely to be convicted and undergo imprisonment. Therefore, the rule of safety in analysing evidence in criminal cases where evidence of relatives, particularly, relatives are approached with suspicion. That is not the case in civil dispute. Here, it is not a criminal case, it is a civil case regarding execution of the Sale Agreement and the evidence of the Plaintiff side was cogent. The Plaintiff had even examined the scribe who had executed, who had written down the Sale Agreement Deed. Just because there was no licence for him or he had not mentioned in the document with 22/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 regard to licence number under Ex.A-1 cannot be a ground to reject his evidence. The Plaintiff had discharged the burden cast upon him under Section 101 of the Indian Evidence Act by letting in evidence and proved his contention before the learned Principal District Munsif, Tiruvannamalai. When the burden shift on the 1st Defendant who had filed the written statement and signed the written statement was not available as he died. Therefore, his sons, Defendants 2 and 3 had examined themselves as D.W-1 and D.W-2 respectively. D.W-1 when confronted with the document under Ex.A-1 and written statement as well as Vakalat signed by Defendants 1 to 3 he admitted the signature in Ex.A-1. Therefore the burden cast upon the Defendants who had disputed the signatures to prove their contention that it is a fraudulent deed. They had not taken steps to challenge Ex.A-1 by referring it to handwriting expert and filing document containing admitted signatures of Defendants 1 to 3. The learned Judge had drawn adverse inference from the conduct of the Defendants. Therefore, the finding of the learned Principal Subordinate Judge, Tiruvannamalai, that the learned Principal District Munsif, Tiruvannamalai, granted decree by picking holes in the evidence of the Defendants cannot be sustained and it is erroneous judgment.
34. The other ground for rejecting the evidence is Ex.A-1 is not on 23/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 stamped paper. That can be considered. The next ground is that the Plaintiff had not sought any relief against the 4th Defendant in the plaint. There is evidence during trial that the 4th Defendant purchaser of the property and the sale deed of the 4th Defendant was marked as Ex.B-1 dated 14.10.1999. When the documentary evidence had been marked regarding the sale, the grant of decree for specific performance of sale by the learned Principal District Munsif, Tiruvannamalai, in favour of the Plaintiff is found unacceptable and erroneous. There cannot be two sale deeds for the same property one by the owner of the property to the purchaser, the 4th Defendant. The second sale deed by the Court or through the Court from the same Defendants to the Plaintiff.
35. In the absence of Defendants 1 to 3 executing the Sale Deed as per the direction the Court, the Court has to execute the Sale Deed which causes future legal complications. Therefore, the learned Judge ought to have granted the alternate relief, refund of the amount Rs.25,000/- to the Plaintiff from the date of the Sale Agreement dated 09.05.1999 with interest @ 12% per annum from the date of Ex.A-1 till the date of the judgment and @ 6% per annum from the date of decree till the date of realization. Instead, the learned Judge had decreed the suit ignoring the fact that Defendants 1 to 3 had already executed sale deed in favour of the 4th Defendant and the sale deed having 24/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 been marked as Ex.B-1 in favour of the 4th Defendant. The learned Judge had not set aside the sale deed by moulding the relief on conclusion of the trial. If the Sale Deed is executed by Defendants 1 to 3 had been set aside then the Court granting a decree is justified.
36. The decree granted by the learned Principal District Munsif, Tiruvannamalai, on specific performance of contract with the wordings “suit is decreed as prayed for with costs” causes legal complications based on the judgment of the learned Trial Judge. Therefore, the learned Principal Subordinate Judge, Tiruvannamalai, instead of dismissing the suit, the learned Principal Subordinate Judge, ought to have modified the relief on re- appreciation of evidence. The learned Principal Subordinate Judge, had rejected the evidence of the Plaintiff and thereby dismissed the suit itself found erroneous.
37. In the light of the above discussion from paragraphs 21 to 36, the Substantial Question of Law-1 is answered in favour of the Plaintiff and against the Defendants. The Lower Appellate Court is not justified in holding execution of Agreement of Sale under Ex.A-1 is not proved, overlooking that D.W-1 and D.W-2 (Defendants 2 and 3) admitted their signatures in Ex.A-1. 25/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 Admission is the best evidence regarding disputed signatures.
38. In the light of the above discussion from paragraphs 21 to 36, the Substantial Question of Law-2 is answered in favour of the Plaintiff and against the Defendants. The Lower Appellate Court is not justified in re- appreciating oral evidence and discarding the evidence of P.W-2 and P.W-3 on the sole ground that they are related to the Appellant (Plaintiff) and not right in discarding the evidence of P.W-2 and P.W-3 on the sole ground that they are related to the Appellant (Plaintiff).
In the result, this Second Appeal is allowed with costs throughout. The judgment of the learned Principal District Munsif, Tiruvannamalai is restored and at the same time, the decree granted by the learned Principal District Munsif, Tiruvannamalai for specific performance of contract for sale based on the Sale Agreement dated 09.05.1999 is moulded in such a way that already the suit property had been sold before the execution of Trial Court as per Sale Deed dated 14.10.1999 under Ex.B-1. Since Ex.A-1 was on unstamped paper, before marking the document, it should have been impounded and penalty should have been imposed. It was not done, this Court directs the learned Principal District Munsif, Tiruvannamalai, to impose 26/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 penalty as per rule on Ex.A-1 before Plaintiff seeks relief by filing E.P. From Plaintiff. Penalty to be imposed on Rs.25,000/- under Ex.A-1 on the Plaintiff. Therefore, instead of granting decree for specific performance of contract, in the light of the judgment of the learned Principal Subordinate Judge, Tiruvannamalai, the relief is moulded thereby alternate relief of refund of advance amount of Rs.25,000/- paid by the Plaintiff on 09.05.1999 is ordered to be refunded with interest at the rate of 12% per annum from the date of Agreement of Sale dated 09.05.1999 till the date filing of the suit in O.S.No.23 of 2000 i.e., 03.01.2000, and with interest at the rate of 9% per annum from 03.01.2000 till the date of the judgment and with interest at the rate of 6% per annum from the date of judgment, till the date of realization.
27.06.2025 cda Index : Yes/No Speaking/Non-speaking order Neutral Citation : Yes/No 27/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm ) S.A.No.779 of 2008 SATHI KUMAR SUKUMARA KURUP, J., cda To
1.The Principal Sub Court, Tiruvannamalai.
2.The Principal District Munsif Court, Tiruvannamalai.
3.The Section Officer, VR Section, High Court, Chennai.
Pre-Delivery Judgment made in S.A.No.779 of 2008 27.06.2025 28/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/09/2025 08:44:56 pm )