Plaintiff Must Prove Execution of Sale Agreement Under Section 67, Not Just Mark It as Exhibit: Calcutta High Court

“Mere Marking of a Document is Not Proof of Its Execution”—  In a significant ruling Calcutta High Court (Port Blair Bench), presided by Justice Bivas Pattanayak, dismissed two second appeals in the matter of Smti. K. Meena Kumari versus Smti. Koyye Mahanlyamma, affirming the First Appellate Court’s decision to remand a suit for specific performance for fresh trial. The Court held that the Trial Court gravely erred in decreeing the suit based on unproven documents, including an alleged agreement for sale dated 14.12.1990 and a power of attorney allegedly executed on 04.12.1990, which were under serious challenge as forged and fabricated.

Observing that the documents central to the plaintiff’s claim lacked proper evidentiary support and that key legal issues, including fraud, sham transaction, and counterclaims, were not adjudicated by the Trial Court, the High Court found no fault in the Appellate Court’s exercise of power under Order XLI Rule 23A CPC.

The Court noted, “When the very foundation of the suit is challenged as forged, fabricated and fraudulent, the trial cannot proceed on presumptions and assumptions.”

“The Signature Must Be Proved—Not Merely Marked”

Justice Bivas Pattanayak held that while the agreement for sale was marked as Exhibit 2, the mere marking of a document does not mean its execution stands proved. The Court explained, “Section 67 of the Indian Evidence Act mandates that where the execution of a document is denied, the burden lies on the person asserting it to prove the signature or handwriting of the executant. That burden was never discharged.”

Rejecting the plaintiff’s argument that the document did not require attestation under Section 68, the Court clarified, “It is not the applicability of Section 68 that’s in issue—it is the complete failure to satisfy Section 67. No witness to the agreement was examined, no handwriting expert was brought, and no one acquainted with the defendant’s signature was called. In fact, the plaintiff herself admitted the signature of the defendant was missing from the agreement for sale.”

Referring to the landmark judgment in Thiruvengadam Pillai v. Navaneethambal, the Court reaffirmed, “The burden of proving an agreement lies squarely on the plaintiff, and it must be discharged through cogent and admissible evidence.”

“Court Cannot Close Its Eyes to a Potentially Fraudulent Transaction Between Father and Daughter”

The High Court took particular note of the relationship between the plaintiff and the alleged power of attorney holder—her father. The Court said, “The suit is based on an agreement for sale purportedly signed by the defendant’s power of attorney, who happens to be the plaintiff’s own father. The very same person filed an application under Order XII Rule 6 CPC seeking a decree on admission, posing as if he was representing the defendant.”

Such circumstances, the Court said, “should have immediately alerted the Trial Court to exercise greater caution and frame specific issues regarding whether the transaction was genuine, or a sham devised to grab property behind the back of the actual owner.”

The First Appellate Court had rightly noted, “This is not a case of mere technical irregularity—this is a classic case calling for retrial where serious allegations of fraud, forgery, and misuse of process are squarely in play.”

“Trial Court Ignored Counterclaims and Failed to Frame Material Issues”

The defendant had filed a counterclaim, seeking a declaration that the agreement and power of attorney were forged, and also sought eviction of the plaintiff on the ground that her possession was merely permissive. However, the plaintiff failed to file any written statement in response to the counterclaim. The Trial Court, shockingly, neither framed appropriate issues regarding the alleged forgery, nor returned any findings on key issues including whether the plaintiff was liable to vacate the property.

Justice Pattanayak held, “The Trial Court failed to even address the counterclaim or decide whether the plaintiff’s possession was permissive in nature. When foundational issues are left untouched, a remand becomes not just justified, but necessary.”

“Power of Attorney Executed Before the Stamp Paper Was Even Purchased—A Glaring Infirmity”

The High Court highlighted a striking factual discrepancy. While the plaintiff claimed that the power of attorney was executed on 4th December 1990, the non-judicial stamp paper used for it was dated 13th December 1990.

The Court raised a rhetorical but damning question: “How can a document be executed before the very paper it was written on existed?”

This discrepancy, combined with the absence of signature of the alleged attorney (plaintiff’s father) on the power of attorney, led the Court to conclude that serious questions regarding authenticity were ignored by the Trial Court.

“Pleadings Were Sufficient to Raise Fraud—No Vague Allegations”

On the question of whether the defendant’s counterclaim alleging fraud and forgery was vague and in violation of Order VI Rule 4 CPC, the Court emphatically ruled that it was not.

Justice Pattanayak held, “The defendant specifically alleged that the documents relied upon by the plaintiff were forged and fabricated. These are direct allegations. When forgery is alleged, it goes to the very root of fraud.”

Quoting the Supreme Court’s observation in Shanti Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari, the Court reiterated, “Pleadings of fraud must be precise, but that does not mean prolix or verbose. The object is to give notice of the case, and here, the plaintiff had ample notice.”

“No Right to Ignore Counterclaim—Plaintiff Cannot Remain Silent and Expect Relief”

Justice Pattanayak observed that Order VIII Rule 6A and 6C CPC clearly allow counterclaims, and the plaintiff had not sought exclusion of the same under the prescribed procedure. Nor had she responded to the counterclaim by filing a written statement.

“Her silence amounts to deemed admission,” the Court remarked, “and yet, the Trial Court failed to consider this legal implication altogether.”

Trial Court Must Now Conduct De Novo Trial on All Issues, Including Fraud, Forgery, and Nature of Possession

Affirming the open remand ordered by the First Appellate Court, the High Court directed the Trial Court to conduct a fresh trial, frame all necessary issues including the two additional ones—whether the transaction was a sham, and whether fraud was committed, and return a reasoned and speaking judgment uninfluenced by any prior observations.

“The dispute is pending for over 13 years,” the Court noted, “and the Trial Court must now decide the suit expeditiously, without granting unnecessary adjournments.”

Date of Decision: 23rd December 2025