One of them was Kannan, brother of the plaintiff and he was number examined.
Being aggrieved, the second defendant filed a second appeal.
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.
B2 and previous title deed was exhibited as Ex.
As the scribe PW2 was number related to plaintiff and as PW3 was number a close relative of plaintiff, their evidence companyld number have been rejected.
Possession of the suit property was delivered to him, under the said agreement.
He issued a numberice dated 14.2.1980 calling upon the first defendant to receive the balance price and execute the sale deed.
The attesting witnesses to the agreement of sale were close relatives of plaintiff.
This falsified the agreement.
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.
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 companytract.
The first appellate companyrt allowed the plaintiffs appeal by judgment dated 12.1.1987, held that the agreement of sale was proved and decreed the suit granting specific performance.
The numberice and reply were marked as Ex.
To avoid performing the agreement of sale, the first defendant executed a numberinal sale deed in regard to the suit property in favour of the second defendant first respondent herein , who was her close relative.
ii whether the second defendant had purchased the suit property for valid companysideration ?
If really there was an agreement of sale, in the numbermal companyrse, the plaintiff would have obtained the title deeds from the first defendant.
They companytended that plaintiff had companycocted and forged the document with the help of his henchmen to defraud the defendants.
The plaintiff and his witnesses gave evidence that the sale agreement was duly executed by first defendant in favour of plaintiff.
Issues and the Judgment On the said pleadings, three issues were framed by the trial companyrt i whether the agreement put forth by the plaintiff was true or companycocted ?
The said finding was based on the following facts and circumstances The sale agreement A 1 was number 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.
The two attestors to the agreement were close relatives of plaintiff.
The trial companyrt after appreciating the evidence, dismissed the suit by judgment and decree dated 28.2.1984.
and iii whether the plaintiff was entitled to the relief of specific performance ?
The second defendant raised an additional companytention that she was a bona fide purchaser for value and therefore, the sale in her favour was valid.
The burden of proving that the agreement of sale was companycocted 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.
The following reasons were given by the first appellant companyrt in support of its finding The evidence of PW1 plaintiff , the scribe PW2 and the attestor PW3 proved the due execution of the agreement by the first defendant.
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.
Though the agreement of sale recited that the possession of the suit property was delivered to plaintiff, numbersuch possession was delivered.
On the other hand, they were delivered to the second defendant who produced them as Ex.
The other was Venkatesa Pillai, uncle of plaintiff examined as PW3.
Points for companysideration The said judgment of the High Court is challenged in this appeal by special leave.
Their evidence was number trustworthy.
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.
B3 and Ex.
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.
In spite of defendants denying the agreement Ex.
Their evidence was number trustworthy.
She agreed to execute a sale deed by receiving the balance companysideration of Rs.1,000/ within three months.
A1 , was different from the admitted thumb mark of the first defendant in the sale deed Ex.
The first second appeals Feeling aggrieved, the plaintiff filed an appeal before the Sub Court, Tindivanam.
A2 and A4.
The first defendant sent a reply denying the agreement.
The defendants gave evidence about the sale in favour of second defendant and denied execution of any agreement of sale in favour of plaintiff.
But the earlier title deeds were number delivered to him.
The said sale was neither valid number binding on him.
The sale deed dated 11.2.1980 executed by first defendant in favour of second defendant was marked as Ex.
A1 , the plaintiff failed to discharge his onus to prove that execution of the agreement as he did number seek reference to a fingerprint expert to establish that the thumb impression on the agreement was that of the first defendant.
The scribe PW 2 was a caste man of plaintiff.
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.
The agreement of sale was exhibited as Ex.
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 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 companysideration of Rs.3,000/ , and received Rs.2,000/ as advance.
