Appeal No 1360 1966
Appeal from the judgment and decree dated January 19 1962 of the Madras High Court in Appeal No 351 of 1958
MC Chagla MK Ramamurthi section Sethuratnam J Ramamurthy and Vineet Kumar for the appellant
VV Nair for the respondent
456 The Judgment of the Court was delivered by Shah J
Palani Gounder and his son TP Sengottaiah hereinafter collectively called the defendants own Survey No 765 B in Kugallur village
Kalianna Gounder hereinafter called the plaintiff agreed on July 4 1956 to purchase from the defendants that land for Rs 12000
A memorandum reciting that Rs 2000 were paid as advance by the plaintiff to the defendants was executed by the plaintiff and the defendants
The memorandum was written by one Ramamurthy Iyer and the signatures thereon were attested by one Kaliyanna Gounder
On July 7 1956 the defendants informed the plaintiff by a letter that only a sum of Rs 350 was paid by the plaintiff to the defendants and not Rs 2000 as recited in the memorandum and since the balance of Rs 1650 which was promised to be paid within three days was not paid the agreed stood cancelled
The plaintiff on receipt of the letter instituted an action in the Civil Court for a decree for specific performance of the agreement and deposited in Court Rs 10000 which according to him was the balance of the purchase price due by him
The defendants filed their written statement contending inter alia that they were in urgent need of money and they had agreed to sell the land to the plaintiff but the plaintiff paid only Rs 350 on July 4 1956 and obtained possession of the memorandum on a representation that he will pay the balance of Rs 1650 within three days and since the amount was not paid the agreement was cancelled and that in any event the agreement having been altered in material particulars after it was executed by adding the words Clear the debt
s and execute the sale deed free from encumbrance the suit was not maintainable
The Court of First Instance upheld the plaintiff s claim and decreed the suit for specific performance of the agreement
In appeal to the High Court of Madras the decree was reversed
The High Court held that the plaintiff paid Rs 350 only on July 4 1956 and on a representation that he will pay the balance of Rs 1650 payable as advance obtained possession of the agreement of sale and the plaintiff not having paid the amount payable by him the suit for specific performance of the agreement was maintainable
The High Court also held that the agreement was altered in material particulars by adding the covenant relating to clearance of encumbrance after the memorandam was executed With certificate granted by the High Court this appeal is preferred by the plaintiff
Two questions fall to be determined in this appeal 1 whether the plaintiff paid Rs 350 only as contended by the defendants 457 on July 4 1956 and obtained possession of the agreement on a false representation and 2 whether the memorandum was altered in material paticulars after execution and was on that account discharged  The plaintiff in his statement before the Court asserted that he paid the full amount of Rs 2000 on July 4 1956 to the defendants
He was supported by his witness Ramamurthy Iyef the writer of the document
On the side of the defendants there is the evidence of TP Sengottaiah who asserted that only Rs 350 were paid at the time of the execution of the memorandum and when the balance was demanded the plaintiff promised to pay the same within three days
He also stated that the amount was not paid within three days as promised and on that account the agreement was cancelled
His testimony was supported by the attesting witness
The learned Trial Judge accepted the testimony of the plaintiff and his witness Ramamurthy Iyer
The High Court was of the view that the testimony of TP Sengottiah and the attesting witness should be preferred
In our judgment the dispute may be resolved by considering the conflicting testimony of the witnesses in the light of broad probabilities
The memorandum expressly recites that the defendants have received Rs 2000 as advance and within sixty days from today the plaintiff should pay the balance of the sale price and execute the sale deed
Failing that besides losing the advance amount nothing is binding as per the agreement
The memorandum containing a recital that Rs 2000 were received by the defendants as advance was delivered to the plaintiff
The plaintiff is an illiterate agriculturist whereas the defendants are educated people and the second defendant was at the material time President of the Local Panchayat
The case of the defendants that they relied upon the bare word of the plaintiff that he will pay the balance of Rs 1650 within three days and on that representation they parted with the memorandum is in our judgment unreliable
There was no relation between the plaintiff and the defendants which placed the former in a position of trust or confidence
If the defendants were willing to execute an agreement with the recital that the amount of Rs 2000 was received though in fact it was not so received they would have insisted upon making an endorsement at the foot of the agreement that only Rs 350 were paid and the plaintiff had obtained extension of time for payment of the balance within three days
In any event they would have when they parted with the memorandum insisted upon some writing from the plaintiff that he had paid only Rs 350 and not Rs 2000 as recited in the memorandum
458 The High Court was of the view that the plaintiff was unable to show that he could procure a sum of Rs 2000 for payment as advance to the defendants and that there was no independent evidence regarding the actual payment of Rs 2000
But the burden of proving in the circumstances of the case that Rs 2000 were not paid lay heavily upon the defendants
Again there is strong evidence to indicate that the plaintiff had at his disposal a substantial amount on which he could have drawn
On July 14 1956 exactly ten days after t he date on which the agreement was entered into the plaintiff deposited in Court a sum of Rs 10000 in the action for specific performance commenced by him
If the case of the plaintiff depended merely upon his oral testimony for payment of Rs 2000 absence of independent evidence evidencing payment may have some value as supporting the case of the defendants
But when there was an express recital in the agreement that a sum of Rs 2000 was paid by the plaintiff and it was received by the defendants it was not necessary for the plaintiff to lead evidence as to the source from which he obtained the money
The High Court observed that the plaintiff did not reply to the notice dated July 7 1956
But it was the plaintiff s case that he received the notice on July 14 1956 and on the same day he instituted the suit
Failure to reply to the notice cannot therefore be a circumstance of any value in the present case
It was also observed by the High Court that there was no particular reason for the defendants to resile from the terms of the agreement within three days of its execution and set up a false plea and that in such cases evidence is given to prove that it was a temptation of a better offer that induced the party to resile from the agreement
The plaintiff did state in his evidence that his pangalis who were inimical to him had made an offer of Rs 16000 for the property and because of that offer the defendants resiled from the agreement
In the view of the High Court this part of the case of the plaintiff could not be believed because it was not expressly pleaded in the plaint
But the plaintiff did plead in paragraph 6 of the plaint the defendants had with the evil influence and instigation of Karuppa Gounden Pongia Goundar and Appachi Gounder of the place who are now planning to have the suit properties for themselves are now evading to rescind the contract
This in our judgment is a sufficient plea if it was necessary to plead it in support of the case which the plaintiff sought to make out
The High Court discarded the testimony of Ramamurthy Iyer on the view that he was inimical to the defendants
We have been taken through his evidence and we see no justification for hold 459 ing that his testimony could not be believed
If Ramamurthy Iyer was an enemy of the defendants it is very unlikely that they would permit him to write out an important document at their residence
The broad probabilities of the case strongly support his testimony
Having carefully considered the evidence we are of the view that the story of the defendants that only Rs 350 were paid to them on July 4 1956 and not Rs 2000 as recited in the memorandum is untrue and has been put up as an excuse for resiling from the agreement
The second plea that there was an alteration in the memorandum in material particulars cannot also be sustained
The original document is not before us but from the cross examination of the writer and the plaintiff s witnesses and also from the testimony of TP Sengottiah and his witnesses it does not appear that the words Clear the debts and execute the sale deed free from encumbrance were written in a cramped style
This sentence occurs immediately before the Schedule of property sold and after the first three paragraphs of the convenants of the memorandum
There was no reason for the writer to leave any space which could be availed of to add this sentence after the document was executed
There is no denial that the sentence has been written by Ramamurthy
It is true that the High Court has observed that the ink in which the sentence was written appeared to be slightly different in shade from the rest of the document
But Ramamurthy Iyer has deposed that it was not true that the portion in the agreement relating to the encumbrance was written subsequent to the agreement in collusion with the plaintiff
He explained that the ink in his fountain pen was exhausted when he wrote with one pen and he wrote the portion after reading the document with another fountain pen and since the portion was written in a hurry the ink may have differed
According to him he did not notice any difference in ink
There is no reason to disbelieve the testimony of Ramamurthy Iyer
Even if it be assumed that the sentence regarding encumbrance was written after the deed was executed it will not invalidate the deed
The second defendant and his witnesses have admitted that there was no discussion at the time of the writing and execution of the agreement about the encumbrances upon the land
There is not even evidence that there were any encumbrances subsisting on the land
Ordinarily when property is agreed to be sold for a price it would be the duty of the vendor to clear it of all the encumbrances before executing the sale deed
The alteration if any cannot therefore be regarded as material
As observed in 460 Halsbury s Laws of England Vol 11 3rd Edn article 599 at 368 A material alteration is one which varies the rights liabilities or legal position of the parties as ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressedor reduces to certainty some provision which was origInally unascertained and as such void or may otherwise prejudice the party bound by the deed as originally executed
The effect of making such an alteration without the consent of the party bound is exactly the same as that of canceling the deed
 It is also stated in article 604 at pp
370 and 371 An alteration made in a deed after its execution in some particular which is not material does not in any way affect the validity of the deed an alteration is not material which does not vary the legal effect of the deed in its original state but merely expresses that which was implied by law in the deed as originally written or which carries out the intention of the parties already apparent on the face of the deed provided that the alteration does not otherwise prejudice the party liable thereunder
 This rule has been applied by the Privy Council in Nathu Lal and Ors
vs Mussamat Gomti Kuar and Others1
The Judicial Committee observed in that case at p 331 A deed is nothing more than an instrument or agreement under seal and the principle of those cases is that any alteration in a material part of any instrument or agreement avoids it because it thereby ceases to be the same instrument The Judicial Committee observed at p 333 A material alteration has been defined in the rule as one which varies the rights liabilities or legal position of the parties ascertained by the deed etc and after applying that test they held that the alteration in that case was not material in the sense of altering the rights liabilities or legal position of the parties or the legal effect of the document
1 LR 67 IA318
461 Since the defendants were liable to clear the encumbrances if any subsisting on the land before executing the sale deed assuming that the covenant was incorporated after the execution of the deed it cannot be regarded as a material alteration on that account for it does not alter the rights or liabilities of the parties or the legal effect of the instrument
The appeal is therefore allowed and the decree passed by the High Court is set aside and the decree of the Trial Court is restored with costs in this Court and in the High Court
RKPS Appeal allowed


Summary:
The appellant agreed on July 4 1956 to purchase certain lands from the respondents for Rs 12000
A memorandum reciting that Rs 2000 were paid as advance by the appellant to the respondents was executed by both parties
Three days later the respondents informed the plaintiff by a letter that only a sum of Rs 350 was paid by the appellant and not Rs 2000 as recited in the memorandum and since the balance of Rs 1650 which was promised to be paid within three days was not paid the agreement stood cancelled
The appellant thereafter immediately instituted a suit for a decree for specific performance of the agreement and deposited in court a sum of Rs 10000 on account of the balance purchase price due from him
In their written statement the respondents claimed that Rs 1650 out of Rs 2000 not having been so paid the agreement was cancelled and that in any event the agreement having been altered in material particulars after its
execution by the addition of the words clear the debts and execute the sale deed free from encumbrances the suit was not maintainable
The Trial Court upheld the appellant s claim and decreed the suit
The High Court in appeal reversed the decree
On appeal to this Court HELD  Allowing the appeal i On the evidence and in view of the express recital in the agreement that a sum of Rs 2000 was paid by the appellant and received by the respondents the respondents story that only Rs 350 was in fact paid was untrue and had been put up as an excuse for resigning from the agreement
ii Even assuming that the words in question were introduced in the memorandum after its execution since the respondents were liable to clear any encumbrances subsisting on the land before executing the sale deed cannot be regarded as a material alteration for it did not alter the rights or liabilities of the parties or the legal effect of the instrument 463 A Nathu Lal and Ors
vs Mussamat Gomti Kuar and Others LR 67 IA 318 referred to