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Limitation For use of Non Judicial Stamp papers-urgent

Page no : 2

Guest (n/a)     17 September 2008

yes

Guest (n/a)     20 September 2008

I have signed a bond with an employer (company). can you please tell me that if I break the bond signed on the "non judicial" stamp paper then what can the company do?

Anil Agrawal (Retired)     10 January 2009

 It is not correct. Six month period is only for claiming refund of unused stamp papers. Their validity never ends.

Sushil Kumar Bhatia (Advocate)     10 January 2009

Dear sreeram,


                        There is No Expiry date of use of stamp paper See SCC 2008(4) page 530 Thiruvengada v/s Navneethmal

Preeti Wadhawan (CS & Legal Manager)     13 January 2009

Hi Sushil,


Thanks for sharing such a valuable information.


Regards,


Preeti

Krishna Singh (Business)     09 February 2009

I have a related question......If a Stamp paper is brought on the 9th of feb 2009 but the agreement date is printed 5th feb 2009, will it be a problem ? will it be valid or non-admissible ?

Vijay Kumar (Advocate)     10 February 2009

The stamp paper is valid; but you will have to convince the court (in case of dispute) how agreement was written on the stamp paper on 5th when it was not purchased at all.

Satish (Lawyer)     13 February 2009

Time of paying stmp duty on any insturment is before or  on the date of execution of the instrument/document as per section 17 and 18 of bombay stamp act or at themost on the next date of execuiton of instrument.   therefore se it will rendered as the said insturment as not properly stamped and not admissible as valid documents in eyes of law not permissiable evidence.

Swami Sadashiva Brahmendra Sar (Nil)     18 April 2009

mr. vijai kumar is right.

I add that it will be treated as  draft agreement was prepared on 5th feb and it was duly stamped on 9th feb.

Ashok Dubey (Service)     06 June 2009

There is no impediment for a stamp paper purchased more than six month prior to the proposed date of execution being used for a document. This was held in RECENTLY DECIDED CASE BY SUPREME COURT OF INDIA Thiruvengada Pillal Vs Navaneethammal & another by Supreme Court of India. CITATION  --- 2008 III APEX DECISION (AD) 617

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     24 September 2009

DEAR ALL,

1.THERE IS NO LIMITATION FOR THE EXECUTION,BUT REFUND OF VALUE IT IS ONLY 6 MONTHS. AS PER SC DECISION CITATION ::SCC 2008(4) page 530 Thiruvengada v/s Navneethmal, MUBAI STAMP ACT SAYS

2.the date of execution of the instrument/document as per section 17 and 18 of bombay stamp act or at themost on the next date of execuiton of instrument.

3.BUT IN AP,ALL REGISTRAR OF STAMPS,SUB REGISTRARS  ALSO FOLLOW 6 MONTHS TIME LIMITATION FOR EXECUTION.

4.FINALLY IT IS CLEAR WHEN EVER DISPUTE ARISES ABOUT DATE ,THE EVIDENCE OF DOCUMENT PLAY IMPORTANT ROLL IN THE COURT ADJUDICATION.

5.HENCE IT IS RECOMMENDED TO USE ONLY LATEST DTD STAMP PAPERS ONLY,TO AVOID ANY LITIGATION.

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     24 September 2009

JINAY QUESTION,

I have signed a bond with an employer (company). can you please tell me that if I break the bond signed on the "non judicial" stamp paper then what can the company do?

U HAVE VIOLATED THE CONTRACT, AT MOST HE CAN SUE FOR THE DAMAGES IN CIVIL COURT UNDER INDIAN CONTRACT ACT 1872,

BUT UR CARIER IS MOST IMPORTANT, IF U HAVE BETTER OPPOTUNITY IT IS UNDER JUSTIFIED GROUNDS THE COMPANY AT MAXIMUM CAN ASK  TOPAY1-3 MONTHS SALARY. HE CANNOT GO ANY CRIMINAL CASE AGNAIST U.BETTER GIVE PROPER REPLY BY UR ADVOCATE IF U RECIVE ANY NOTICE, THATS ALL...

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     24 September 2009

DEAR FORUM MEMBERS,

PLS SHARE THE TEXT OF THE JUDGEMENT ATTACHD

Thiruvengada Pillal Vs Navaneethammal & another by Supreme Court of India. CITATION  --- 2008 III APEX DECISION (AD) 617

 

 

AN IMPORTANT CASE SC CITATION ON VALIDITY OF JUDICIAL STAMP PAPER

THIRUVENGADA V NAVNEETHMAL

 

Writ Petition (civil)  290 of 2001

 

PETITIONER:

Thiruvengada Pillai

 

RESPONDENT:

Navaneethammal & Anr.

 

DATE OF JUDGMENT: 19/02/2008

 

BENCH:

R. V. Raveendran & P.Sathasivam

 

JUDGMENT:

J U D G M E N T

 

 

R. V. RAVEENDRAN, J.

 

 

                This appeal by special leave is by the plaintiff in a suit for specific

performance - OS No.290/1980 on the file of District Munsiff, Tindivanam.

 

Pleadings

 

 

2.            In the plaint, the plaintiff (appellant) alleged that the first defendant

(Adilakshmi) agreed to sell the suit schedule property to him under an

agreement of sale dated 5.1.1980 for a consideration of Rs.3,000/-, and

received Rs.2,000/- as advance. She agreed to execute a sale deed by

receiving the balance consideration of Rs.1,000/- within three months.

Possession of the suit property was delivered to him, under the said

agreement. He issued a notice dated 14.2.1980 calling upon the first

defendant to receive the balance price and execute the sale deed. The first

defendant sent a reply denying the agreement. To avoid performing the

agreement of sale, the first defendant executed a nominal sale deed in regard

to the suit property in favour of the second defendant (first respondent

herein), who was her close relative. The said sale was neither valid nor

binding on him. On the said averments, he sought specific performance of

the agreement of sale, against the defendant, alleging that he was ready and

willing to perform his part of the contract.

 

 

3.            The defendants denied the allegation that the first defendant had

executed an agreement of sale dated 5.1.1980 in favour of the plaintiff or

that she had delivered possession of the suit property to him. They

contended that plaintiff had concocted and forged the document with the

help of his henchmen to defraud the defendants. They claimed that the first

defendant had executed a valid sale deed dated 11.2.1980 in favour of the

second defendant and had delivered possession of the suit property to her;

and that the second defendant had put up a hut in the schedule property and

was actually residing therein. The second defendant raised an additional

contention that she was a bona fide purchaser for value and therefore, the

sale in her favour was valid.

 

4.            During the pendency of the suit first defendant died, and the third

defendant (second respondent herein) was impleaded as her legal

representative, who adopted the written statement of the second defendant.

 

Issues and the Judgment

 

5.            On the said pleadings, three issues were framed by the trial court : (i)

whether the agreement put forth by the plaintiff was true or concocted ? (ii)

whether the second defendant had purchased the suit property for valid

consideration ? and (iii) whether the plaintiff was entitled to the relief of

specific performance ? The plaintiff examined himself as PW-1 and the

scribe of the agreement (Ramaswami Pillai) as PW-2 and an attesting

witness to the sale agreement (Venkatesha Pillai) as PW-3. The agreement

of sale was exhibited as Ex. A-1. The notice and reply were marked as Ex.

A2 and A4. The second defendant, (purchaser of the site), gave evidence as

DW-1 and the third defendant, who was also a witness to the sale deed dated

11.2.1980,  was examined as DW-2. The sale deed dated 11.2.1980 executed

by first defendant in favour of second defendant was marked as Ex.B2 and

previous title deed was exhibited as Ex. B4. The plaintiff and his witnesses

gave evidence that the sale agreement was duly executed by first defendant

in favour of plaintiff. The defendants gave evidence about the sale in favour

of second defendant and denied execution of any agreement of sale in favour

of plaintiff. 

 

6.            The trial court after appreciating the evidence, dismissed the suit  by

judgment and decree dated 28.2.1984. It held that the agreement of sale put

forth by plaintiff was false and must have been created after the sale on

11.2.1980 in favour of second defendant, by using some old stamp papers in

his possession. The said finding was based on the following facts and

circumstances :

(a)          The sale agreement (A-1) was not executed on currently purchased

stamp paper, but was written on two stamp papers, one purchased on

25.8.1973 in the name of Thiruvengadam and another  purchased on

7.8.1978 in the name of Thiruvengadam Pillai.

 

(b)          The two attestors to the agreement were close relatives of plaintiff.

One of them was Kannan, brother of the plaintiff and he was not

examined. The other was Venkatesa Pillai, uncle of plaintiff examined as

PW3. The scribe (PW-2) was a caste-man of plaintiff. Their evidence was

not trustworthy.

 

(c)           Though the agreement of sale recited that the possession of the suit

property was delivered to plaintiff, no such possession was delivered. On

the other hand, the second defendant was put in possession on execution

of the sale deed and she put up a thatched hut in the schedule property and

was in actual physical possession. This falsified the agreement.

 

(d)          If really there was an agreement of sale, in the normal course, the

plaintiff would have obtained the title deeds from the first defendant. But

the earlier title deeds were not delivered to him. On the other hand, they

were delivered to the second defendant who produced them as Ex.B3 and

Ex.B4.

 

(e)          In spite of defendants denying the agreement (Ex.A1), the  

plaintiff failed to discharge his onus to prove that execution of the

agreement as he did not seek reference to a fingerprint expert to establish

that the thumb impression on the agreement was that of the first defendant.

 

The first & second appeals

 

6.            Feeling aggrieved, the plaintiff filed an appeal before the Sub-Court,

Tindivanam. The first appellate court allowed the plaintiff's appeal by

judgment dated 12.1.1987, held that the agreement of sale was proved and

decreed the suit granting specific performance. The following reasons were

given by the first appellant court in support of its finding :

(a)          The evidence of PW1 (plaintiff), the scribe (PW2) and the attestor

(PW3) proved the due execution of the agreement by the first defendant. As

the scribe (PW2) was not related to plaintiff and as PW3 was not a close

relative of plaintiff, their evidence could not have been rejected.

 

(b)          The burden of proving that the agreement of sale was concocted and

forged was on the defendants and they ought to have taken steps to have the

document examined by a Finger Print expert, to establish that the disputed

thumb mark in the agreement of sale (Ex.A1), was different from the

admitted thumb mark of the first defendant in the sale deed (Ex.B2). They

failed to do so.

 

(c)           There appeared to be no marked difference between the finger

impression in the agreement of sale (Ex.A1) and the finger impression in the

sale deed in favour of the second defendant (Ex.B2), on a perusal of the said

two documents. Therefore, it could be inferred that first defendant had

executed the agreement.

 

(d)          Execution of the agreement of sale on two stamp papers purchased on

different dates, did not invalidate the agreement. 

               

8.            Being aggrieved, the second defendant filed a second appeal. The

High Court allowed the second appeal and dismissed the suit, by judgment

dated 17.2.1999. The High Court while restoring the decision of the trial

court held that the agreement of sale was not genuine for the following

reasons:

 

(i)            The first appellate court had placed the onus wrongly on the

defendants to prove the negative. As the first defendant denied execution of

the agreement, the burden of establishing the execution of document, was on

the plaintiff. The plaintiff had failed to establish by acceptable evidence that

Ex. A-1 was a true and valid agreement of sale. The evidence, examined as a

whole, threw considerable doubt as to whether it was truly and validly

executed.

 

(ii)           A perusal of the agreement (Ex.A1) showed that the thumb

impression was very pale and not clear. The first appellate court could not,

by a casual comparison of the disputed thumb impression in the agreement

with the admitted thumb impression in the sale deed, record a finding that

there were no marked differences in the thumb impressions in the two

documents (Ex.A1 and Ex.B2). In the absence of an expert's opinion that the

thumb impression on the agreement of the sale was that of the first

defendant, the first appellate court ought not to have concluded that the

agreement of sale was executed by the first defendant.

 

(iii)          In the normal course, an agreement would be executed on stamp

papers purchased immediately prior to the execution of the agreement. The

fact that the agreement was written on two stamp papers bearing the dates

25.8.1973 and 7.8.1978 purchased in two different names showed that it was

not genuine, but was anti-dated and forged.

 

(iv)         The attesting witnesses to the agreement of sale were close relatives

of plaintiff. Their evidence was not trustworthy.

 

Points for consideration

 

8.            The said judgment of the High Court is challenged in this appeal by

special leave. The appellant contended that having regard to the provisions

of Evidence Act, 1872, there was nothing improper in the first appellate

court comparing the disputed thumb impression in Ex. A-1 with the admitted

thumb impression of first defendant in Ex. B-2; and the finding of the first

appellate court on such comparison, that there were no marked differences

between the two thumb impressions, being a finding of fact, was not open to

interference in second appeal. It was next contended that the execution of the

agreement of sale was duly proved by the evidence of plaintiff (PW1), the

scribe (PW-2) and one of the attesting witnesses (PW3). It was pointed out 

there was no evidence to rebut the evidence of PW1, PW2 and PW3

regarding due execution as first defendant died without giving evidence, and

as the defendants did not seek reference to a finger print expert to prove that

the thumb impression on the agreement of sale was not that of first

defendant. It was submitted that an agreement cannot be doubted or

invalidated merely on account of the fact that the two stamp papers used for

the agreement were purchased on different dates. The Appellant therefore

submitted that the sale agreement was duly proved.

 

9.            On the contentions urged, the following questions arise for

consideration :

 

(i)            Whether the agreement of sale executed on two stamp papers

purchased on different dates and more than six months prior to date of

execution is not valid?

 

(ii)           Whether the first appellate court was justified in comparing the

disputed thumb impression with the admitted thumb impression and

recording a finding about the authenticity of the thumb impression, without

the benefit of any opinion of an expert?

 

(iii)          Whether the High Court erred in reversing the judgment of the first

appellate court in second appeal?

 

 

Re : Question (i)

 

11.          The Trial Court and the High Court have doubted the genuineness of

the agreement dated 5.1.1980 because it was written on two stamp papers

purchased on 25.8.1973 and 7.8.1978. The learned counsel for first

respondent submitted that apart from raising a doubt about the authenticity

of the document, the use of such old stamp papers invalidated the agreement

itself for two reasons. Firstly, it was illegal to use stamp papers purchased on

different dates for execution of a document. Secondly, as the stamp papers

used in the agreement of sale were more than six months old, they were not

valid stamp papers and consequently, the agreement prepared on such

'expired' papers was also not valid. We will deal with the second contention

first. The Indian Stamp Act, 1899 nowhere prescribes any expiry date for

use of a stamp paper. Section 54 merely provides that a person possessing a

stamp paper for which he has no immediate use (which is not spoiled or

rendered unfit or useless), can seek refund of the value thereof by

surrendering such stamp paper to the Collector provided it was purchased

within the period of six months next preceding the date on which it was so

surrendered. The stipulation of the period of six months prescribed in section

54 is only for the purpose of seeking refund of the value of the unused stamp

paper, and not for use of the stamp paper. Section 54 does not require the

person who has purchased a stamp paper, to use it within six months.

Therefore, there is no impediment for a stamp paper purchased more than six

months prior to the proposed date of execution, being used for a document.       

 

12.          The Stamp Rules in many States provide that when a person wants to

purchase stamp papers of a specified value and a single stamp paper of such 

value is not available, the stamp vendor can supply appropriate number of

stamp papers required to make up the specified value; and that when more

than one stamp paper is issued in regard to a single transaction, the stamp

vendor is required to give consecutive numbers. In some States, the rules

further require an endorsement by the stamp vendor on the stamp paper

certifying that a single sheet of required value was not available and

therefore more than one sheet (specifying the number of sheets) have been

issued to make up the requisite stamp value. But the Indian Stamp Rules,

1925 applicable to Tamil Nadu, do not contain any provision that the stamp

papers of required value should be purchased together from the same vendor

with consecutive serial numbers. The Rules merely provide that where two

or more sheets of paper on which stamps are engraved or embossed are used

to make up the amount of duty chargeable in respect of any instrument, a

portion of such instrument shall be written on each sheet so used. No other

Rule was brought to our notice which required use of consecutively

numbered stamp papers in the State of Tamil Nadu. The Stamp Act is a

fiscal enactment intended to secure revenue for the State. In the absence of

any Rule requiring consecutively numbered stamp papers purchased on the

same day, being used for an instrument which is not intended to be

registered, a document cannot be termed as invalid merely because it is

written on two stamp papers purchased by the same person on different

dates. Even assuming that use of such stamp papers is an irregularity, the

court can only deem the document to be not properly stamped, but cannot,

only on that ground, hold the document to be invalid.  Even if an agreement

is not executed on requisite stamp paper, it is admissible in evidence on

payment of duty and penalty under section 35 or 37 of the Indian Stamp Act,

1899. If an agreement executed on a plain paper could be admitted in

evidence by paying duty and penalty, there is no reason why an agreement

executed on two stamp papers, even assuming that they were defective,

cannot be accepted on payment of duty and penalty. But admissibility of a

document into evidence and proof of genuineness of such document are

different issues.

 

13.          If a person wants to create or a back-dated agreement, the first hurdle

he faces is the non-availability of stamp paper of such old date. Therefore

tampering of the date of issue and seal affixed by the stamp vendor, as also

the entries made by the stamp vendor, are quite common in a forged

document. When the agreement is dated 5.1.1980, and the stamp papers used

are purchased in the years 1973 and 1978, one of the possible inferences is

that the plaintiff not being able to secure an anti-dated stamp paper for

creating the agreement (bearing a date prior to the date of sale in favour of

second defendant), made use of some old stamp papers that were available

with him, to fabricate the document. The fact that very old stamp papers of

different dates have been used, may certainly be a circumstance that can be

used as a piece of evidence to cast doubt on the authenticity of the

agreement. But that cannot be a clinching evidence. There is also a

possibility that a lay man unfamiliar with legal provisions relating to stamps,

may bona fide think that he could use the old unused stamp papers lying

with him for preparation of the document and accordingly use the old stamp

papers. 

 

Re : Point No.(ii)

 

14.          Section 45 of the Indian Evidence Act, 1872 relates to 'opinion of

experts'. It provides inter alia that when the court has to form an opinion as

to identity of handwriting or finger impressions, the opinion upon that point

of persons specially skilled in questions as to identity or handwriting or

finger impressions are relevant facts. Section 73 provides that in order to

ascertain whether a finger impression is that of the person by whom it

purports to have been made, any finger impression admitted to have been

made by that person, may be compared with the one which is to be proved.

These provisions have been the subject matter of several decisions of this

Court.

 

14.1)      In The State (Delhi Administration) v. Pali Ram [1979 (2) SCC 158]

this Court held that a court does not exceed its power under section 73 if it

compares the disputed writing with the admitted writing of the party so as to

reach its own conclusion. But this Court cautioned :

"Although there is no legal bar to the Judge using his own eyes to compare

the disputed writing with the admitted writing, even without the aid of the

evidence of any handwriting expert, the Judge should, as a matter of

prudence and caution, hesitate to base his finding with regard to the

identity of a handwriting which forms the sheet-anchor of the prosecution

case against a person accused of an offence, solely on comparison made

by himself. It is therefore, not advisable that a Judge should take upon

himself the task of comparing the admitted writing with the disputed one

to find out whether the two agree with each other; and the prudent course

is to obtain the opinion and assistance of an expert."

 

The caution was reiterated in O. Bharathan vs. K. Sudhakaran  1996 (2)

SCC 704. Again in Ajit Savant Majagvai v. State of Karnataka [1997 (7)

SCC 110] referring to section 73 of the Evidence Act, this Court held :

"The section does not specify by whom the comparison shall be made.

However, looking to the other provisions of the Act, it is clear that such

comparison may either be made by a handwriting expert under Section 45

or by anyone familiar with the handwriting of the person concerned as

provided by Section 47 or by the Court itself.

 

As a matter of extreme caution and judicial sobriety, the Court should not

normally take upon itself the responsibility of comparing the disputed

signature with that of the admitted signature or handwriting and in the

event of the slightest doubt, leave the matter to the wisdom of experts. But

this does not mean that the Court has not the power to compare the dispute

signature with the admitted signature as this power is clearly available

under Section 73 of the Act."

 

14.2)      In Murari Lal v. State of Madhya Pradesh - 1980 (1) SCC 704, this

Court indicated the circumstances in which the Court may itself compare

disputed and admitted writings, thus :

"The argument that the court should not venture to compare writings itself,

as it would thereby assume to itself the role of an expert is entirely without

force. Section 73 of the Evidence Act expressly enables the court to

compare disputed writings with admitted or proved writings to ascertain

whether a writing is that of the person by whom it purports to have been

written. If it is hazardous to do so, as sometimes said, we are afraid it is

one of the hazards to which judge and litigant must expose themselves

whenever it becomes necessary. There may be cases where both sides call

experts and the voices of science are heard. There may be cases where

neither side calls an expert, being ill able to afford him. In all such cases, it

becomes the plain duty of the court to compare the writings and come to

its own conclusions. The duty cannot be avoided by recourse to the

statement that the court is no expert. Where there are expert opinions, they

will aid the court. Where there is none, the court will have to seek

guidance from some authoritative textbook and the court's own experience

and knowledge. But discharge it must, its plain duty, with or without

expert, with or without other evidence."

 

 

The decision in Murari Lal (supra) was followed in Lalit Popli v. Canara

Bank & Ors. [2003 (3) SCC 583].

 

15.          While there is no doubt that court can compare the disputed

handwriting/signature/finger impression with the admitted handwriting/

signature/finger impression, such comparison by court without the assistance

of any expert, has always been considered to be hazardous and risky. When

it is said that there is no bar to a court to compare the disputed finger

impression with the admitted finger impression, it goes without saying that it

can record an opinion or finding on such comparison, only after an analysis

of the characteristics  of the admitted finger impression and after verifying

whether the same characteristics are found in the disputed finger impression.

The comparison of the two thumb impressions cannot be casual or by a mere

glance. Further, a finding in the judgment that there appeared to be no

marked differences between the admitted thumb impression and disputed

thumb impression, without anything more, cannot be accepted as a valid

finding that the disputed signature is of the person who has put the admitted

thumb impression. Where the Court finds that the disputed finger impression

and admitted thumb impression are clear and where the court is in a position

to identify the characteristics of finger prints, the court may record a finding

on comparison, even in the absence of an expert's opinion. But where the

disputed thumb impression is smudgy, vague or very light, the court should

not hazard a guess by a casual perusal. The decision in Muralilal (supra) and

Lalit Popli (supra) should not be construed as laying a proposition that the

court is bound to compare the disputed and admitted finger impressions and

record a finding thereon, irrespective of the condition of the disputed finger

impression. When there is a positive denial by the person who is said to have

affixed his finger impression and where the finger impression in the disputed

document is vague or smudgy or not clear, making it difficult for

comparison, the court should hesitate to venture a decision based on its own

comparison of the disputed and admitted finger impressions. Further even in

cases where the court is constrained to take up such comparison, it should

make a thorough study, if necessary with the assistance of counsel, to

ascertain the characteristics, similarities and dissimilarities. Necessarily, the

judgment should contain the reasons for any conclusion based on

comparison of the thumb impression, if it chooses to record a finding

thereon. The court should avoid reaching conclusions based on a mere

casual or routine glance or perusal.

 

16.          In this case the first defendant had denied having put her finger

impression on Ex. A-1. She died during the pendency of the suit before her

turn came for giving evidence. The High Court having examined the

document has clearly recorded the finding that the thumb mark in Ex. A-1

was pale (that is light) and not clear. The document though dated 1980, was

executed on two stamp papers which were purchased in 1973 and 1978.

Contrary to the recital in the agreement that possession had been delivered to

the plaintiff, the possession was not in fact delivered to plaintiff, but

continued with the first defendant and she delivered the possession to the

second defendant. The title deeds were not delivered to plaintiff. The

attesting witnesses were close relatives of plaintiff and one of them was not

examined. The scribe's evidence was unsatisfactory. It was also difficult to

believe that the first defendant, an illiterate old woman from a village, would

enter into an agreement of sale on 5.1.1980 with plaintiff, and even when he

is ready to complete the sale, sell the property to someone else hardly a

month thereafter, on 11.2.1980. In this background, the finding by the first

appellant court, recorded without the benefit of any expert opinion, merely

on a casual perusal, that there appeared to be no marked differences between

the two thumb impressions, and therefore Ex. A-1 (sale agreement) must

have been executed by first defendant, was unsound. The High Court was

justified in interfering with the finding of the first appellate court that the

Ex.A1 was executed by first defendant.

 

Re : Point No.(iii)

 

17.          The trial court had analyzed the evidence properly and had dismissed

the suit by giving cogent reasons. The first appellate court reversed it by

wrongly placing onus on the defendants. Its observation that when the

execution of an unregistered document put forth by the plaintiff was denied

by the defendants, it was for the defendants to establish that the document

was forged or concocted, is not sound proposition. The first appellate court

proceeded on the basis that it is for the party who asserts something to prove

that thing; and as the defendants alleged that the agreement was forged, it

was for them to prove it. But the first appellate court lost sight of the fact

that the party who propounds the document will have to prove it. In this case

plaintiffs came to court alleging that the first defendant had executed an

agreement of sale in favour. The first defendant having denied it, the burden

was on the plaintiff to prove that the first defendant had executed the

agreement and not on the first defendant to prove the negative. The issues

also placed the burden on the plaintiff to prove the document to be true. No

doubt, the plaintiff attempted to discharge his burden by examining himself

as also scribe and one of the attesting witnesses. But the various

circumstances enumerated by the trial court and High Court referred to

earlier, when taken together, rightly create a doubt about the genuineness of

the agreement and dislodge the effect of the evidence of  PW 1 to 3. We are

therefore of the view that the decision of the High Court, reversing the

decision of the first appellate court, does not call for interference.

 

18.          We, therefore, find no merit in this appeal and the same is accordingly

dismissed. Parties to bear their respective costs.


Sachin Bhatia (Advocate)     13 October 2009

It may be varies from state to state


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