[Cites 3, Cited by 0]
Madras High Court
Thangam @ Thangammal vs Kandharooban on 28 November, 2025
S.A.No.246 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 18.09.2025
Pronounced on 28.11.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.246 of 2023 and
C.M.P. Nos. 7265 and 7261 of 2023
Thangam @ Thangammal ...Appellant
Vs.
1. Kandharooban
2. Jayapal ...Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 15.10.2022 passed in A.S. No.110 of 2018,
on the file of the Principal Sub Court, Kallakurichi, reversing the
Judgment and decree dated 25.07.2017 passed in O.S.No.704 of 2006, on
the file of the Principal District Munsif Court, Kallakurichi.
Page 1 of 21
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S.A.No.246 of 2023
For Appellant : Mr. G. Balamanikandan
For Respondents : Mr. R. Jayaprakash
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 15.10.2022 passed in A.S. No.110 of 2018, on the file of
the Principal Sub Court, Kallakurichi, reversing the Judgment and decree
dated 25.07.2017 passed in O.S.No.704 of 2006, on the file of the
Principal District Munsif Court, Kallakurichi.
2. The defendant in O.S. No.704/2006 is the appellant herein. The
respondents as plaintiffs filed the above suit for specific performance
based on an agreement dated 15.03.2004.
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3. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
4. The plaintiffs and the defendant entered into an agreement of
sale by way of an unregistered instrument dated 15.03.2004 under which
the defendant agreed to sell the suit property to the plaintiffs for a sum of
Rs.1,00,000/- and received a sum of Rs.90,000/- as advance on the same
date of the agreement. It was agreed that the balance amount of
Rs.10,000/- shall be paid by the plaintiffs to the defendant within a
period of 2½ years from the date of agreement, i.e. on or before
15.09.2006 and that the defendant shall execute the sale deed in favour of
the plaintiffs. As per the agreement of sale, the plaintiffs were always
ready and willing to perform their part of contract by paying the balance
sale consideration of Rs.10,000/-. In spite of several demands, the
defendant failed to come forward to execute the sale deed. Hence the
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plaintiffs issued a legal notice on 05.09.2006 calling upon the defendant
to perform her part of the contract. Though the defendant received the
said notice, she failed to reply. Since the defendant was attempting to
alienate the suit property, the plaintiffs were constrained to file the above
suit for specific performance.
5. The defendant denied that she had executed the suit agreement
dated 15.03.2004 in favour of the plaintiffs and that she had received any
sale consideration in advance as alleged in the plaint. Her further
contention is that the defendant filed a suit against the plaintiffs and 9
others in O.S. No.579/2006 before the District Munsif Court,
Kallakuruchi for the relief of permanent injunction. Aggrieved by this,
the plaintiffs, with ulterior motive, fabricated the suit sale agreement and
has come forward with the present vexatious suit. Hence the suit is liable
to be dismissed.
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6. The trial court, after appreciating the evidence on record
dismissed the suit by a judgment and decree dated 25.07.2017 by holding
that the agreement of sale purforth by the plaintiffs was false and must
have been created. Feeling aggrieved, the plaintiffs appealed before the
Principal Sub Court, Kallakuruchi. The first appellate court allowed the
plaintiffs' appeal by judgment and decree dated 15.10.2022 by holding
that the agreement of sale was proved and decreed the suit granting
specific performance.
7. Assailing the judgment and decree of the first appellate court,
the present second appeal has been preferred by the defendant.
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8. The second appeal has been admitted on the following
substantial questions of law.
i) Whether the judgment and decree made by lower
appellate court based on Exfacie illegal evidence is
sustainable in law?
ii) Whether the impugned decree and judgment of
lower appellate judge is correct when burden of proof lies
on the respondents to prove the genuineness of agreement on
denial of execution of agreement and thumb impression by
the appellant/defendant?
iii) Was not the appreciation of evidence by the first
appellate court ignoring material contradiction and
inconsistencies in the evidence made available especially the
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internal evidence available to discredit the genuineness of
Ex.A1, perverse?
9. The learned counsel appearing for the appellant submits that the trial
court had analysed the evidence properly and had dismissed the suit by
giving cogent reasons. The first appellate court reversed it by wrongly
placing onus on the defendant. His further contention is that the
appellant/defendant filed a suit in O.S. No.579/2006 on the file of the
Principal District Munsif Court, Kallakuruchi, against the plaintiffs and 9
others for the relief of permanent injunction for the same schedule of
property. The plaintiffs, by suppressing the above facts, filed the present
suit for specific performance. The respondents/plaintiffs have
approached the court with unclean hands and therefore, they are not
entitled for any relief. His further submission is that the date of seal
found in the stamp paper is 23.08.2004, but the agreement of sale found
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to be executed on 15.03.2004. This would go to show that the suit
agreement was forged one. Moreover, the evidence of P.W.1 and P.W.2
would create a doubt about the genuineness of the agreement. Further,
the stamp paper of the alleged agreement of sale stands in the name of
third party and there was no explanation on the side of the plaintiffs for
the same. The appellant/defendant denies execution of sale agreement and
the thumb impression in the agreement. While so, the burden of proof is
on the plaintiffs to take steps to prove their case. Whereas, the
appellant/defendant alone filed an application for sending the thumb
impression for expert's opinion. However, the expert opined that the
thumb impressions were unfit for comparison. Moreover, the name of the
defendant is wrongly mentioned in the sale agreement. The learned
counsel further submits that when the execution of an unregistered
document put forth by the plaintiffs is denied by the defendant, it is for
the plaintiffs to establish that the document is a genuine one. But the first
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appellate court erroneously observed that it is for the defendant to
establish the factum of forgery, which is not a sound proposition. The
first appellate court lost sight of the fact that the party who propounds the
document will have to prove it. In the present case, the plaintiffs came to
court alleging that the defendant had executed an agreement of sale in
their favour. The defendant having denied it, the burden was on the
plaintiffs to prove that the defendant had executed the agreement and it is
not for the defendant to prove the negative. From the above facts and
circumstances of the case, the first appellate court ought to have
dismissed the suit filed by the plaintiffs. Hence, he prays or setting aside
the judgment and decree dated 15.10.2022 passed by the first appellate
court in A.S. No.110 of 2018. In support of his contentions, he relied on
the judgment of the Hon'ble Supreme Court in the case of
Thiruvengadam Pillai vs. Navaneethammal and another reported in
(2008) 4 SCC 530 in which it has been held as follows:
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19. The trial court had analysed 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 the plaintiff came
to court alleging that the first defendant had executed an
agreement of sale in his favour. The first defendant having denied
it, the burden was on the plaintiff to prove that the first defendant
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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 the 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 PWs 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.
10. On the other hand, the learned counsel appearing for the
respondents/plaintiffs submits that the trial court wrongly appreciated the
evidence on record and failed to uphold the evidenciary value of Ex.A1 to
Ex.A4. The trial court erred in dismissing the suit by observing that the
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suit agreement is a fabricated document. Whereas, the first appellate court
on appreciation of oral and documentary evidence adduced on both sides
found that the suit agreement is a genuine one and granted the decree of
specific performance in favour of the plaintiffs. The learned counsel
further submits that since the defendant has set up a case that the
agreement of sale was a forged document and had denied its execution
and also passing of any consideration, the burden is on the defendant to
substantiate that the suit agreement is a fabricated document. He would
further contend that to assert that when forgery and mis representation are
alleged by the defendant, the burden of proof lies upon the defendant to
substantiate such documents. In the present case, the defendant
contended that the agreement of sale dated 15.03.2004 was a forged and
fraudulent document. The burden is on the defendant to provide credible
evidence to support her allegations. Thus, he would submit that when a
party alleges fraud, the onus is on that party to prove the allegation and
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the burden does not shift to the party relying on the document to prove its
validity beyond its face value. In support of his contention, he relied on
the judgment of the Hon'ble Supreme Court inthe case of Shyam Kumar
Inani vs. Vinod Agrawal and others reproted in (2025) 3 SCC 286.
11. Heard on both sides. Records perused.
12. The first appellate court allowed the plaintiffs' appeal by its
judgment dated 15.10.2022, holding that the agreement of sale was
proved and decreed the suit, granting specific performance. The
following reasons were given by the first appellate court in support of its
findings:
a) The evidence of P.W.1 and P.W.2 (plaintiffs), and the attestor
(P.W.3) proved the due execution of the agreement by the defendant.
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b) The burden of proving that the agreement of sale was concocted
and forged was on the defendant. She failed to do so.
Being aggrieved, the defendant filed this Second Appeal. The questions to
be answered in this Second Appeal is:
a) Whether the first appellate court is right in placing the onus
on the defendant to prove the negative?
b) As the defendant denied the execution of the agreement, the
burden of establishing the execution of document was on the
plaintiffs?
c) Whether the plaintiffs failed to establish by acceptable
evidence that the suit agreement was true and valid?
The evidence, examined as a whole, threw considerable doubt as to
whether it was truly and validly executed. The trial court has doubted the
genuineness of the suit agreement on the ground that the plaintiffs failed
to establish the execution of sale agreement by acceptable evidence.
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12.1. In this case, the defendant has denied having put her finger
impression on the suit agreement. As rightly pointed out by the trial court,
the plaintiffs must prove the execution of the sale agreement when the
defendant denies it. 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 defendant. Its
observation that when the execution of a document put forth by the
plaintiffs was denied by the defendant, it was for the defendant 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 defendant
alleged that the agreement was forged, it was for her 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, the agreement of sale is in
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favour of the plaintiffs. The defendant having denied it, the burden was
on the plaintiffs to prove that the defendant had executed the agreement
and not on the defendant to prove the negative. No doubt, the plaintiffs
attempted to discharge their burden by examining themselves and also
one of the attesting witness. But, the various circumstances stated by the
trial court, when taken together, rightly create a doubt about the
genuineness of the agreement and dislodge the effect of the evidence of
P.W.1 to P.W.3. The respondents / plaintiffs have relied upon the
judgment in Shyam Kumar Inani vs. Vinod Agrawal and others
reported in (2025) 3 SCC 286 to assert that when fraud and
misrepresentation are alleged by the defendant, the burden of proof lies
upon them to substantiate such claims. No doubt, when a party alleges
fraud, the onus is on that party to prove the allegation. In the present case,
the defendant has taken steps to send the thumb impression for expert
opinion. But, the expert opined that it is unfit for comparison for certain
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reasons. Hence, the defendant has discharged the burden of proof to
substantiate that the suit agreement is a forged document. The plaintiffs
have not taken any steps to compare the thumb impression found in the
suit agreement. Moreover, there is no explanation on the side of the
plaintiffs for purchasing the stamp paper in the name of third party and
for postponing the execution of the sale deed for 2½ years after tendering
a substantial amount. Furthermore, the defendant has also filed a suit in
O.S. No.579/2006 against the plaintiffs and others for the relief of
permanent injunction in respect of the suit property. This fact was
suppressed by the plaintiffs. When a plaintiff is alleged to have
suppressed the above facts, it refers to a legal defence strategy used by
the opposing party known generally as the doctrine of unclean hands or a
similar principle like fraud on the Court. This allegation implies that the
plaintiffs have acted in bad faith by deliberately concealing material
information that, if disclosed, would harm their own case or undermine
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the Court's ability to render a fair judgment. The above circumstances
create a doubt about the genuineness of the agreement. Therefore, the
decision of the first appellate court reversing the judgment and decree of
the trial court, warrants interference.
13. In the light of the aforementioned discussion, the impugned
decree and judgment dated 15.10.2022 passed in A.S. No.110 of 2018,
on the file of the Principal Sub Court, Kallakurichi, is set aside. The
Second Appeal is allowed, and the suit of the plaintiffs in O.S.No.704 of
2006, on the file of the Principal District Munsif Court, Kallakurichi
stands dismissed. There is no order as to costs. Consequently connected
miscellaneous petitions are closed.
2811.2025
Index: Yes/No
Internet: Yes/No
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Speaking/Non-Speaking order
bga
To
1. The Principal Sub Judge, Kallakurichi
2. The Principal District Munsif Court, Kallakurichi
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
S.A.No.246 of 2023 and
C.M.P. Nos. 7265 and 7261 of 2023
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28.11.2025
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