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8. Learned counsel appearing for the appellant/first defendant further submitted that the trial Court ought to have rejected the evidence of P.W.2 Kittusamy, who was the attestor to Ex.A-1 sale agreement, who is inimical towards the appellant/first defendant. Only on the basis of the evidence of P.W.2, the trial Court decided that Ex.A-1 is a true and genuine document, which is against law. Learned counsel appearing for the appellant/first defendant further submitted that the trial Court has not properly considered the invocation of Section 73 of the Indian Evidence Act and not compared the signatures. The trial Court is not competent to compare the Left Thumb Impression, since it is irregular and smudgy. To substantiate the same, learned counsel for the appellant/first defendant relied upon various decisions and prayed for dismissing the suit, and allowing the First Appeal .

10. Points (i) and (ii) :

Considering the rival submissions made by either side, admittedly, the suit properties are 1/5 share in the ancestral properties of the appellant/first defendant. The first defendant is having his son Viswanathan and a daughter. So, as per the Hindu Law, both are entitled to share in the properties. Now, the first dispute is that the appellant/first defendant has been totally denying that Ex.A-1 is not executed by him. The appellant/first defendant who was examined as D.W.3, in his evidence, stated that since he was suffering from poor eye sight, he was unable to ascertain as to whether Ex.A-1 contained his signatures and Left Thumb Impression.

16. At this juncture, it is appropriate to consider the oral evidence of P.W.1. When he was in the witness box, a suggestion was posed to him that he himself admitted that on the date of Ex.A-1 sale agreement, he did his business and the amount of Rs.6 lakhs had been paid out of the account of the business and he further stated that the account had been submitted to Income Tax. In his cross-examination, it was stated as follows:

VERNACULAR (TAMIL) PORTION DELETED

17. Even though P.W.1 has clearly sated that the amount had been paid, which has reflected in the accounts, and also in the accounts submitted to the Income Tax Department, no reason has been assigned by the deceased first plaintiff/plaintiffs 2 to 4 (respondents 1 to 3), as to why he has not filed the same before Court to substantiate his claim that he had paid Rs.6 lakhs on the date of Ex.A-1 sale agreement, and to prove the genuineness of Ex.A-1. Even when he was cross-examined on that point, he was not willing to produce the documents. So, it is well settled principle of law that if a person wantonly with-held the vital documents, adverse inference could be drawn against him, as per Illustration (g) to Section 114 of the Indian Evidence Act. As already stated, the appellant/first defendant has raised a plea that he never executed the sale agreement and if at all it contains his signature and the Left Thumb Impression, it could have been fabricated on the signature and the Left Thumb Impression from him by Vaishnavi Yarn Stores, while he was availing the credit facility, in which the deceased first plaintiff and the respondents 1 to 3/plaintiffs 2 to 4's father/ P.W.1's father and K.C.Palanisamy were partners in the said Vaishnavi Yarn Stores. In such circumstances, the burden is heavily upon plaintiffs/P.W.1 to prove that Ex.A-1 is a true and genuine document.

24. So, in the present case, Ex.A-1 sale agreement contains not a clear Left Thumb Impression while comparing the Left Thumb Impression with Ex.B-1 General Power of Attorney, at the time of registration and the Left Thumb impression in Ex.A-1, the characteristics in Ex.A-1 smudged with the ink. In such circumstances, it is the duty of the trial Court to get an opinion of the expert and decide the issue.

25. At this juncture, it is appropriate to consider the argument of the learned counsel for the respondents 1 to 3/plaintiffs 2 to 4 that in his written statement in paragraph 8, the appellant/first defendant stated that he has signed empty Promissory Note, unfilled papers and stamp papers while he was purchasing the Yarn on credit basis and that has been used for the purpose of fabricating the document. In this regard, learned counsel appearing for the appellant/first defendant relied upon the decision of the Apex Court reported in 2010 (8) MLJ 1087 (SC) (Kapil Corepacks Pvt. Ltd. Vs. Shri Harbans Lal), wherein, it was held as follows: