THIRUVENGADA PILLAIversusNAVANEETHAMMAL & ANR.

                          [2008] 3 S.C.R. 23


                      THIRUVENGADA PILLAI                            A
                                  V.
                    NAVANEETHAMMAL & ANR.
                   (Civil Appeal No. 290 of 2001)

                        FEBRUARY 19, 2008
                                                                     B
           (R.V. RAVEENDRAN AND P. SATHASIVAM)

          Specific Performance - Suit for specific performance
    of agreement of sale - ·Execution of the deed denied by
    defendant - Trial Court doubting the authenticity of the c
    document on the grounds that attesting witnesses were not
    reliable; the document having been written on two stamp
    papers of different dates; and onus to prove the execution of
    the document was not discharged by plaintiff having failed to
    make reference to fingerprint expert to prove the disputed
    thumb impression- Order reversed by first appellate court, D
I   putting the onus on the defendant - Court comparing the
l   disputed thumb impression and admitted one on its own
    without the aid of expert opinion and concluding the
    impression to be that of the executor- High Court reversing
    the order of first appellate court- On appeal, held: Though E
    the document written on two stamp papers purchased on
    different dates is admissible, on the facts and circumstances
    of the case, its genuineness is doubtful- In view of denial of
    execution by the defendant, onus to prove the same was on
    the plaintiff - Act of the first appellate court in comparing the F
    disputed thumb impression with the admitted one, while the
    impression was not clear, without the aid of expert opinion is
    not proper - Stamp Act, 1899 - s. 54 - Stamp Rules, 1925
    - Evidence Act, 1872 - ss. 45 and 73 - Onus to prove.
         Plaintiff- appellant filed a suit of specific G
    performance. He alleged that predecessor of respondent
    No.2 - defendant (defendant No.1) entered into an
    agreement of sale dated 5.1.1980 with the appellant.
    Appellant issued a notice calling upon defendant No.1
                                  23                                 H
    24      SUPREME COURT REPORTS              (2008] 3 S.C.R.


A to execute the sale deed. The agreement was denied by
  defendant No.1. In order to avoid performance of the
  agreement, defendant No.1 executed a nominal Sale
  deed to respondent No.1 - defendant, a close relative.
  During pendency of the suit, defendant No.1 died and
B was substituted by respondent No.2. Plaintiff examined
  himself, the scribe of the agreement and the attesting
  witness as witnesses. Trial Court dismissed the suit,
  doubting the genuineness of the agreement on the
  grounds that the agreement was written on two stamp
C papers one of 1973 and another of 1-978 and not on
  currently purchased stamp papers; that the two attestors
  to the agreement were close relations· of the plaintiff;
  and that plaintiff failed to discharge his onus to prove
  the execution of the agreement having failed to seek
  reference to fingerprint expert.                               '
D
       First appellate court reversed the finding of trial
  court holding that the attestors of the agreement were
  not related to plaintiffs; that the onus to prove the doubt
  raised regarding the agreement was on the defendants
E as they doubted its genuineness; that there was no
  marked difference between the thumb impression on the
   agreement and that on the sale deed in favour of
   respondent No.1 leading to inference that the agreement
  was executed by defendant No.1; and that execution of
   the agreement on two stamp papers did not invalidate
F the same.
        In second appeal, High Court reversed the
   judgment of first appellate court, holding that the onus
   to prove the negative was wrongly placed on the
G defendants; that the perusal of the agreement stated
 . that the thumb impression was not clear and thus
   conclusion of the first appellate court regarding thumb       -...:
   impression in absence of expert opinion was not correct
   and upheld the finding of trial court.
H        In appeal to this court ·respondent contended
     THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.          25


     interalia that use of old stamp papers would invalidate A
     the agreement, firstly because the stamp papers being
     more than six 111onths old were not valid and thus the
     agreement prepared thereon was also not valid, and
     secondly because it was illegal to use stamp papers
     purchased on different dates.                           B
         Dismissing the appeal, the Court
          HELD: 1.1. The 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 c
     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 D
"'   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 E
     impediment for a stamp paper purchased more than six
     months prior to the proposed date of execution, being
     used for a document. [Para 11] [36-A-D]
          1.2. The Stamp Rules, 1925 applicable to Tamil Nadu,
     do not contain any provision that the stamp papers of F
     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 G
     any instrument, a portion of such instrument shall be
     written on each sheet so used. No other Rule was
~
     brought to the notice of the Court which required. use of
     consecutively numbered stamp papers in the State of
     Tamil Nadu. The Stamp Act is a fiscal enactment intended H
   26       SUPREME COURT REPORTS             [2008] 3 S.C.R.


A 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
B 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
c 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
0
  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. [Para 12] [36-F-H; 37-A-E]
E
        1.3 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
F 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.
G [Para 13] [37-H; 38-A-B]
       2.1 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
H assistance of any expert, has always been considered
      THIRUVENGADA PILLAI v. NAVANEETHAMMAL &ANR.            27
,•
      to be hazardous and risky. When it is said that there is A
      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 B
      verifying whether the same characteristics are found in
      the disputed finger impression. [Para 15] [40-D-F]
            2.2 The comparison of the two thumb impressions
      cannot be casual or by a mere glance. A finding in the
      judgment that there appeared to be no marked c
      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
j     thumb impression. Where the Court finds that the D
      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 E
      impression is smudgy, vague or very light, the court
      should not hazard a guess by a casual perusal. [Para
      15] [40-F-H; 41-A-B]
...
           2.3 When there is a positive denial by the person
      who is said to have affixed his finger impression and F
      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. Even in cases where G
      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 H
   28       SUPREME COURT REPORTS              [2008) 3 S.C.R.
                                                                 ...
A 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. [Para 15] [41-B-E]
       2.4 In the instant case the first defendant had denied
8 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 and not clear. The document
C 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 th~ first
D defendant and she delivered the possession to the
  second defendant. The title deeds were not delivered to
  plaintiff'. The attesting witnesses were close relativP.s of
  plaintiff and one of them was not examined. The scribe's
  evidence was unsatisfactory. It was also difficult to
E 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
F 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
G have been executed by first defendant, was unsound.
  [Para 16] [41-E-H; 42-A-D]
      3. The first appellate court reversed trial court
  judgment by wrongly placing onus on the defendants.
  Its observation that when the execution of an
H unregistered document put forth by the plaintiff was
THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.             29


denied by the defendants, it was for the defendants to        A
establish that the document was forged or concocted,
is not sound proposition. 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           B
executed an agreement of sale in their 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        C
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 when taken together, rightly create
a doubt about the genuineness of the agreement and            D
dislodge the effect of the evidence of PW 1 to 3. [Para
17} [42 C-H; 43 A-BJ
     The State (Delhi Administration) v. Pali Ram 1979 (2)
SCC 158; 0. Bharathan vs. K. Sudhakaran - 1996 (2) SCC        E
704; Ajit Savant Majagvai v. State of Kamataka 1997 (7) SCC
110 - relied on.
     Murari Lal v. State of Madhya Pradesh - 1980 (1) SCC
704; La/it Popli v. Canara Bank and Ors. 2003 (3) SCC 583 -
relied on and explained.                                      F
     CIVILAPPELLATE JURISDICTION: Civil Appeal No. 290
of 2001.
     From the Judgment and Order dated 17/2/1999 of the High
Court of Judicature at Madras in S.A. No.696/1987.           G
     Sunita Sharma for the Appellant.
    K.K. Mani C.K.R. Lenin Sekar and Mayur R. Shah for the
Respondents.
    The Judgment of the Court was delivered by                H
    30        SUPREME COURT REPORTS                      [2008] 3 S.C.R.


A         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
B       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
c 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
0
  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
E 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
F 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
G 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.
H
            THIRUVENGADA PILLAI v. NAVANEETHAMMAL &ANR.                    31
                       [R.V. RAVEENDRAN, J.)

                  4. During the pendency of the suit first defendant died, and   A
            the third defendant (second respondent herein) was impleaded
            as her legal representative, who adopted the written statement
            of the second def~ndant.
                 Issues and the Judgment
                                                                               8
      J
                   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 cortcocted ? (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         c
            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 a~ Ex. A-1. The
            notice and reply were marked as Ex. A2 and A4. The second
                                                                               D
            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.82 and previous title deed was
            exhibited as Ex. 84. The plaintiff and his witnesses gave E
            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.
                                                                               F
                   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
                                                                               G
            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            H
    32       SUPREME COURT REPORTS                   (2008] 3 S.C.R


A        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
B        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
c        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
         (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
E        to the second defendant who produced them as Ex.83
         and Ex.84.
         (e) In spite of defendants denying the agreement (Ex.A 1),
         the plaintiff failed to discharge his onus to prove that
         execution of the agreement as he did not seek reference
F        to a fingerprint expert to establish that the thumb
         impression on the agreement was that of the first
         defendant.
         The first & second appeals
G        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
H first appellate court in support of its finding :
          THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.                    33
                     [R.V. RAVEENDRAN, J]

               (a) The evidence of PW1 (plaintiff), the scribe (PW2) and        A
               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
               (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.A 1), was different      c
               from the admitted thumb mark of the first defendant in the
               sale deed (Ex.82). They failed to do so.
               (c) There appeared to be no marked difference between
               the finger impression in the agreement of sale (Ex.A 1)
     -~                                                                         D
               and the finger impression in the sale deed in favour of the
               second defendant (Ex.82), 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              E
               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             F
          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
                                                                              G
               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
                                                                              H
        34       SUPREME COURT REPORTS                   [2008) 3 S.C.R.


    A        considerable doubt as to whether it was truly and validly
             executed.

             (ii) A perusal of the agreement (Ex.A 1) showed that the
             thumb impression was very pale and not clear. The first
             appellate court could not, by a casual comparison of the
    B        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.82). In
             the absence of an expert's opinion that the thumb
    c        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
    D
             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
~   E        forged.
             (iv) The attesting witnesses to the agreement of sale were
             close relatives of plaintiff. Their evidence was not
             trustworthy.
    F        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
    G 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
    H a finding of fact, was not open to interference in second appeal.
               THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.                  35
                          [RV RAVEENDRAN, J.)

              It was next contended that the execution of the agreement of         A
              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          s
              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            c
              different dates. The Appellant therefore submitted that the sale
              agreement was duly proved.

                    9. On the contentions urged, the following questions arise
              for consideration :
                                                                                   D
       .•          (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                E
                   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?         F ·
~··




                   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               G
              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         H
    36        SUPREME COURT REPORTS                  (2008] 3 S.C.R. ·


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
B 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
c 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
0
  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
E 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,
F 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
G 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
H
           THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.                 37
      /               [RV. RAVEENDRAN, J.]

          are used to make up the amount of duty chargeable in respect A
          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 B
          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              c
          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
                                                                            D
          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 E
          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 F
          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
                                                                              G
          possible inferences is that the plaintiff not being able to secure
          an anti-dated stamp paper for creating the agreement (bearing
).c
          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
                                                                              H
    38       SUPREME COURT REPORTS                  [2008] 3 S.C.R.


A 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
B 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)
c       14. Section 45 of the Indian Evidence Act, 1872 relates to
  'opinion of experts'. It provides inter a/ia 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
0
  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
E the subject matter of several decisions of this Court.
          14.1) In The State (Delhi Administration) v. Pali Ram
    [1'979 (2) sec 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
F   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
G        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
H        take upon himself the task of comparing the admitted
      THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR                   39
,,.              [RV RAVEENDRAN, J]

           writing with the disputed one to find out whether the two     A
           agree with each other; and the prudent course is to obtain
           the opinion and assistance of an expert."
            The caution was reiterated in 0. Bharathan vs. K.
      Sudhakaran -1996 (2) SCC 704. Again in Ajit Savant Majagvai
      v. State of Karnataka [1997 (7) sec 11 OJ referring to section B
      73 of th.e 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       c
           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 D
           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 E
           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       F
      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
                                                                          G
           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
                                                                          H
    40        SUPREME COURT REPORTS                    [2008] 3 S.C.R.             .
                                                                                   )




                                                                            '
A        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
B        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
c        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 La/it
D Popli 11. 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
E   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 tne characteristics of the
F   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                      .....
G   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
H   the court is in a position to identify the characteristics of finger
             THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.                    41
J    _,,,.              [RV RAVEENDRAN, J.]
             prints, the court may record a finding on comparison, even in         A
             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 Murali/a/
             (supra) and La/it Popli (supra) should not be construed as laying
       )     a proposition that the court is bound to compare the disputed         B
             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             c
             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,
                                                                                   D
             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.                                  E

                   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 F
             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
                                                                                G
             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
                                                                                H
    42         SUPREME COURT REPORTS                     [2008] 3 S.C.R.


A 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
B 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
c interfering with the finding of the first appellate court that the
                                                                             •
  Ex.A 1 was executed by first defendant.
          Re : Point No.(iii)
           1·7. The trial court had analyzed the evidence properly and
    had dismissed the suit by giving cogent reasons. The first
0
    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.
E   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.
F   In this case plaintiffs came to court alleging that the first
    defendant had executed an agreement of sale in their 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.
G   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,
H   when taken together, rightly create a doubt about the
    THIRUVENGADA PILLAI v. NAVANEETHAMMAL & ANR.                43
               [RV. RAVEENDRAN, J.]

    genuineness of the agreement and dislodge the effect of the       A
    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.
                                                                      B


    K.K.T.                                     Appeal dismissed.