V KAMESWARARAO Vs. M HEMALATHAMMARAO

JUDGEMENT

(1.) The 1st plaintiff and the legal representatives of the 2nd are the appellants. The suit was brought to enforce specific performance of an agreement dated 30-8-1949 executed by the 1st defendant for herself and also as the guardian of the defendants 2 and 3, defendants 2 and 3 being the son and daughter respectively of the 1st defendant who is the wife of Venkatadri Apparo not a party to the suit. The plaint states that although the agreement was taken in the name of the 1st plaintiff and the defendants 4 and 5, the second plaintiff and the 6th defendant also were interested in the agreement. The agreement was for the sale of 80 acres of land for a sum of Rs. 3,200.00. It would appear that under a settlement deed executed in her favour by her husband, the 1st defendant became entitled to the properties for life with the remainder being vested in her children.

(2.) The suit was resisted on several grounds but the one which seems to me decisive of the issue of this appeal is whether the agreement Ex. A-1 has been materially altered so as to disentitle the plaintiffs for enforcing any claim based upon it. In view of the fact that I find myself in agreement with the conclusion reached by the lower Court that there is an alteration, that the alteration is material and that it has been brought about without the knowledge of the 1st defendant, presumably by the 1st plaintiff, I do not propose to consider the other contentions which are covered by the numerous issues raised in the trial Court. There is, however, an incidental question to be decided as to whether the plaintiff cannot recover, at any rate, the sum of Rs. 1,000.00 admitted to have been received by the 1st defendant under the agreement.

(3.) I shall first deal with the main issue. Now, a look at Ex. A-1 which, it is admitted, was drawn up by the 1st defendant herself shows that about B line and a quarter of the writing in it has been scored out. At one end of the scored out portion appears the letter. Ma presumably standing For the initial letter in the surname of the 1st defendant and at the other end stands Ha again presumably standing for the initial letter in her name. Both these letters appear to Jiave been over-written and the ink which was used to write these letters is clearly not the same as the ink which had been used for writing the rest of the agreement.No footnote appears in the agreement mentioning the scoring out. Prima facie, therefore, one would start with some sort of suspicion as to whether the scoring out was made by the writer of the agreement. The agreement, it is admitted, was executed at Madras where the 1st defendant resides. At the bottom of it appear the attesting signatures of three persons, the first of whom is one K. Venkatarama Dass described by the parties as a resident of Vijayawada who has not been examined in the case; the next witness is A.K. Bhasyam Iyengar who is a tutor of the defendants 2 and 3 who is examined, as D.W. 5; the third is Mulakala Suranna who, it is stated, is the father of the 2nd plaintiff and who has also not been examined.It may be noticed that while under the attesting signatures of Vcnkatararnadass and D.W. 5. the date 30-8-1949,--which is the date of the instrument-- is inserted, there is no date inserted below the signature of the last of the witnesses and it is clearly in a different ink from the ink used cither in the body of the original or by the other attestors in their signatures. In support of the defence case of the alteration, not only the 1st defendant but the 5th defendant in the case, who is one of the parties to the original agreement has been examined. D.W. 5, as already stated, is the 2nd attestor. On behalf of the plaintiffs, there is only the evidence of P.W. 1.Now, P.W. 1 would have us believe that he was not present at the time when Ex A-1 was drawn up, that it was given to him by the 5th defendant, later and when it was handed over to him, it stood just as it now is with the particular portion scored out. There is however, Ex. B-6 a receipt dated 30-8-1949 the date of the agreement--given by him in which he acknowledges the receipt of this agreement. This would rather indicate that h" received it on the very day of its execution and was presumably in Madras at that time. In any case. It is clear that the evidence of P.W. 1 does not help the plaintiffs. There is no witness on their side who can say that the portion was scored out at the time of execution by or with the consent of the executant. On the other side, as I have already stated, there is the evidence of D.Ws. 1, 2 and 5. I shall now deal with their evidence.