Head Note : Indian Stamp Act,
1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54
merely provide 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. The stamp papers do not have any expiry period. 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.
SUPREME
COURT OF INDIA
CASE NO.: Writ Petition (civil)
290 of 2001
PETITIONER: Thiruvengada Pillai
RESPONDENT: Navaneethammal &
Anr.
DATE OF JUDGMENT: 19/02/2008
BENCH: R. V. Raveendran &
P.Sathasivam
J U D G M E N T : R. V.
RAVEENDRAN, J.
1.
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
7.
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
9.
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.
10.
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 \026 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.
