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TMI Blog2008 (2) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower 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 conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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