S K PANCHAKSHARAM Vs. T V KANNIAH

JUDGEMENT

(1.) The plaintiff having lost in his suit O.S.No. 55 of 1975 on the file of the Sub-Court, Tirupattur, North Arcot has come up by way of this appeal. The suit was for specific performance of the agreement dt. 26-2-1974, Ex. A1 between the plaintiff and the first defendant. The suit properties consisted of several parcels of land. Item No.1, 1 acre 11 cents, item No.2, 1 acre 95 cents, item No.3, 6 cents, item No.4, 61 cents and item No. 5, 58 cents. The consideration for sale was fixed at Rs.42500 of which Rs.2500 was paid as advance on the date of agreement. Four months time was stipulated. It is common case that the fourth defendant was a tenant under the first defendant, the owner of the property, regarding item No.1. The plaintiff claims in his plaint that he was the tenant of items Nos.2 to 5. It may be stated even at this stage that we are not called upon to decide the character of his possession in the suit for specific performance. It is also necessary to state that as regards suit item 1, the mother of the first defendant namely the third defendant has a life estate with the vested remainder in favour of the first defendant. Under Ex. A2 dt. 4-7-1974, the first defendant wrote a letter to the plaintiff calling upon him to complete the sale transactions since he was in urgent need of money which he had to pay to his (D 1's) brother. To this a reply was issued by the plaintiff under Ex. B1, dt. 9-7-1974, wherein it was stated by him that the fourth defendant was in enjoyment of the property and that it looked as if he is not going to vacate the property and, therefore, he had to think about registration. However, it was added that soon after he obtains the necessary funds within a week thereof, he would meet him in person. There was further exchange of letters under Ex. A2 dt.11-7-1975 and Ex. A5 dt. 11-7-1975. Under Ex. B4 dt.15-7-1975 the first defendant and the third defendant jointly executed a sale of the properties in favour of the second defendant for a sum of Rs.45000. Thereupon, under Ex. A6 dt.16-7-1975 a suit notice was issued by the plaintiff to which replies were issued under Exs.A7 and A8 by the contesting defendants namely the first and second defendants. It was under these circumstances, the suit came to be filed as aforesaid for the relief of specific performance.

(2.) In defence, inter alia, it was contended that a material alteration has been made by the plaintiff in the suit agreement regarding, evicting the fourth defendant and executing the sale. The plaintiff was never ready and willing to perform his part of the contract. In any event the second defendant was a bona fide purchaser for value without notice of the suit agreement. On these pleadings the following issues came to be framed -

(3.) Mr. T. R. Rajagopalan, learned counsel for the appellant, urges the following for our consideration. The alterations made in Ex. A1 is not a material alteration at all so as to prejudice the rights of the parties. In support of the said contention, reliance is placed on two rulings of the Supreme Court in Kalianna Gounder v. Palani Gounder, (1970) 2 Mad LJ 19 and Loonkaran Sethia v. Ivan E.John, AIR 1977 SC 336. In so far as there is clear and cogent evidence from PWs 2 to 4 that the conditions to evicting the fourth defendant was there even before the party subscribing signature to Ex. A1, there is no justification for rejecting their evidence. There was not even a plea in the written statement that there was an interpolation. Therefore the finding that there was material alteration cannot be supported.