Madras High Court
A.Nithyanandam vs M.Maylsamy on 26 April, 2022
Author: M.Govindaraj
Bench: M.Govindaraj
SA NO.323 OF 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.323 OF 2016
AND CMP NO.6034 OF 2016
A.Nithyanandam ... Appellant
VS.
1.M.Maylsamy
2.M.Dhanalakshmi ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, 1908, against the judgment and decree dated 23.06.2015 in
A.S.No.65 of 2012 on the file of Principal District Judge's Court,
Coimbatore, reversing the judgment and decree dated 30.03.2012 in
O.S.No.21 of 2011 on the file of Principal Subordinate Judge's Court,
Tirupur.
For Appellant : Mr.C.R.Prasanan
For Respondents : Mr.V.Ananthamurthy
JUDGMENT
Aggrieved over the reversal of the decree for specific performance by the First Appellate Court, the appellant has preferred the above Second Appeal.
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2.For the sake of convenience, the parties are called as per their ranking in the Suit.
3.According to the plaintiff, the defendants are husband and wife. They were desirous of selling the suit property and the plaintiff desired to purchase the same. Both the parties orally negotiated and settled the terms and conditions on 22.11.2007 and this was confirmed by an agreement between them on the same date. The essential terms were:
(i) sale price is Rs.6,00,000/-, (ii) extent 25 cents in S.F.No.255, (iii) Advance Rs.5,00,000/-, (iv) no date was fixed for executing the sale deed. The defendants derived title under sale deed dated 29.05.1998 which is the plaint document No.6. The defendants assured to produce original title deeds along with Encumbrance Certificate for 13 years and sought some time. The advance amount was paid in the presence of the witness and it was acknowledged by the defendants in the agreement itself. While the plaintiff was ready and willing to get the sale deed executed, as per the agreed terms and was waiting for the defendants to produce the original title deeds with Encumbrance Certificate for 13 years and then execute the sale. The defendants sought for time. Hence, the plaintiff issued a notice on 13.06.2008, which the defendants 2/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 received and sent a reply on 03.07.2008 pretending as if there was no agreement and wanted a copy of the agreement. The plaintiff immediately complied with the request of the defendants by way of reply notice dated 10.07.2008 and sent a copy of the agreement. Even though the plaintiff was ready and willing to get the sale deed executed as per the terms of the agreement, from the date of the agreement continuously and also applied for execution of sale deed, the defendants committed breach of contract. The plaintiff got means to purchase and still ready and willing to abide by the terms and conditions of the agreement. He has remitted almost the major portion of price and he sought for specific performance and permanent injunction restraining the defendants from executing any sale in favour of third parties.
4.The defendants denied the averments made in the plaint and in the written statement it was stated that the value of the property is more than Rs.75,00,000/- and payment of court fee is not proper and the suit is not maintainable. For the purpose of meeting agricultural obligations and for family expenses, the defendants approached the plaintiff for loan. The plaintiff advanced a sum of Rs.10,00,000/- which 3/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 the defendants acknowledged the receipt on two original stamp papers of Rs.5,00,000/- each. The xerox copy of the stamp papers were handed over by the plaintiff to the defendants. The plaintiff cause a legal notice dated 13.06.2008 and the defendants were shocked to note that they were called upon to execute the sale deed. Immediately, the defendants sent an interim reply on 03.07.2008 clearly narrating that they were not aware of the sale agreement set out in the legal notice and requested xerox copies of the same for giving a detailed reply. After receipt of a xerox copy of the sale agreement, they came to know that the loan papers taken by the plaintiff was manipulated into one of sale agreement. Immediately, they sent a reply notice clearly narrating all the facts and the also manipulation made by the plaintiff in the loan document. There was no negotiation about any sale of the property on 22.11.2007 and no sale agreement was entered between the parties and it was manipulated by the plaintiff on his own accord. The agreement of sale should be specifically signed by both the parties with clear recitals about the execution of the sale deed, time for execution and conditions of sale. Whereas, this document introduced by the plaintiff does not specify any details and it was a manipulated agreement. There was no assurance to produce the 4/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 original sale deed along with Encumbrance Certificate for 13 years. No advance amount was paid and the amount of Rs.5,00,000/- was borrowed by the defendants as loan and not as advance. Suppressing the reply notice dated 28.07.2008, the Suit came to be filed. The Suit is filed with suppression of material facts and by manipulating the records. There is no cause of action for filing the Suit and therefore, it is liable to be dismissed.
5.The Trial Court framed appropriate issues and held that the execution of the sale agreement is proved and the case of the defendants is not acceptable and the defendants are estopped by their conduct and that the defendants have failed to prove that the property worth more than Rs.75,00,000/- by suitable documentary evidence and hence, granted the relief of specific performance in favour of the plaintiff. On appeal, the First Appellate Court found that there are material alterations in the sale agreement which is visible to the naked eye and the agreement lacks the details of validity and the details of the property. Hence, the sale agreement is bad for material alterations and bereft of material details and hence, the plaintiff is not entitled to specific relief. 5/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016
6.Aggrieved over the same, the present Second Appeal has been preferred by the plaintiff and the same was admitted on 05.04.2016 on the following substantial questions of law:-
"(a)Whether in law the lower Appellate Court erred in reversing the well considered finding of the trial Court that Ex.A1 is proved by the appellant/plaintiff?
(b)Whether in law the finding of the lower Appellate Court that the genuineness of Ex.A1 could be doubted, after comparison of Ex.B1 and Ex.A1 by looking at through the naked eye without leaving that question to be decided?
(c)Whether in law the lower Appellate Court erred in overbooking that on failure of the defendants to discharge their onus of proving their case of borrowal, the plaintiff is entitled to a decree of specific performance as held in 2003 Mad 305?"
7.The learned counsel appearing for the plaintiff/appellant would vehemently contend that the plaintiff has proved the agreement beyond doubt. It is agreed by the defendants that they have affixed their 6/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 signatures and also admitted receipt of the money. Even though no time is specified in the agreement, the plaintiff has approached the Court within 9 ½ months from the date of agreement. Hence, the discretion shall not be denied to the plaintiff. The plaintiff had no unfair advantage and he sent a xerox copy of the sale agreement to the defendants, the moment it was asked by them. On the other hand, the defendants failed to prove that the document is a loan agreement. The conduct of the plaintiff throughout proves that he was ready and willing, whereas the defendants have taken a stand that they did not know the plaintiff at all and never seen him before. No allegation of manipulation was given in the reply notice. The xerox copies marked as Exs.B1 and B2 by the defendants are manipulated and the reply notice given pursuant to the same is an after thought. The stamp papers were purchased by the defendants and the matter was typed by the defendants and the signatures in Ex.A1 as well as Exs.B1 and B2 are different. The conduct of the defendants in denying the execution in the presence of witnesses, the statement about the payment of interest, admission of Ex.A1 as true copy of Ex.B1 and failure to prove that the value of the property is more than Rs.75,00,000/- will prove that the defendants have paid all funds and the plaintiff is 7/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 automatically entitled to a decree of specific performance.
8.The learned counsel appearing for the plaintiff/appellant would also contend that the First Appellate Court has failed to render its finding while reversing the well considered judgment of the Trial Court. The First Appellate Court has also exceeded its jurisdiction by comparing the documents and deciding on its genuineness without sending it for expert opinion is also bad.
9.In support of his contention, the learned counsel for the plaintiff/appellant would rely on the following judgments:-
(i) Division Bench judgment of this Court in M.RAMALINGAM VS. V.SUBRAMANYAM [AIR 2003 MADRAS 305].
"10. What the defendant contended before the lower Court and equally here also is that it was only a loan transaction; that the sale agreement was only manipulated and brought about to hold a threat upon the 8/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 defendant to secure the due repayment of Rs. 40,000/- lent by the plaintiff; and that it was never intended to be acted upon. When the defendant came with a plea stating that the intention of the parties was only to treat the same as a loan transaction, and it was never intended to be acted upon, which is inconsistent with the terms of the document, a duty is cast upon the defendant to strictly prove that it was a different transaction all together, and what was recorded in the document was intended to be of no consequence whatsoever. No doubt, the defendant who came with such a plea, can well adduce evidence to show that Ex.A1 agreement though executed by him, was never intended to be operated as an agreement for sale, but only a loan transaction, which was not recorded in the document. After careful consideration of the available materials, the Court may hasten to say that the appellants have miserably failed to prove that it was a loan transaction, and the agreement was never intended to be acted upon."
(ii) Judgment of the Hon'ble Supreme Court in ALOKA 9/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 BOSE VS. PARMATMA DEVI AND OTHERS [ 2009 (2) SCC 582] "18.In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale. "
(iii) Judgment of this Court in T.G.PONGIANNAN VS.
K.M.NATARAJAN [2009 (6) CTC 301] "27. It is axiomatic that ratio decidendi of a case alone would act as a binding precedent. In the judgment cited supra, this Court rejected the prayer of specific performance on the ground that the plaintiff committed 10/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 virtually fraud on the Court. As such, the said judgment cited on the side of the defendants is not applicable to the facts and circumstances of this case. Wherefore it is pellucidly and palpably, glaringly and plainly clear that the defendants, on whom the burden of proof lies to prove that Ex.A1 is not actually an agreement to sell, but it was only a document intended to be a security for repayment of loan transaction, did not discharge their burden.
28. The learned counsel for the defendants would submit that the trial Court did not look into the factum of readiness and willingness on the part of the plaintiff to perform his part of the contract and the first appellate Court also did not apply its mind on that aspect. Obviously, the first appellate Court thought fit to set side the judgment of the lower Court on the ground that the very Ex.A1 itself was not intended to be an agreement to sell."
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(iv) Judgment of this Court in SILUVAI RAJAN @ M.S.RAJAN VS. GLORY STELLA BAI AND ANOTHER [2014 (1) CTC 467] "39. The learned counsel appearing for the first respondent / plaintiff has relied on an another recent decision of the Hon'ble Supreme Court in Civil Appeal No.6197 of 2000, dated 17.12.2005 wherein the Hon'ble Supreme Court has framed points for consideration as to whether an agreement of sale (Ext.2) executed only by the vendor, and not by the purchaser, is valid? and after discussing various earlier decisions and it has finally held in para 7, as follows:-
"7.Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter- offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone 12/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale".
(v) Division Bench judgment of this Court in B.NEMI CHAND JAIN AND ANOTHER VS. G.RAVINDRAN AND OTHERS [2010 (2) CTC 751] "41. In P.S.Ranakrishna Reddy vs. M.K.Bhagyalakshmi and another {2007 (10) SCC 231}, an identical contention was raised that the transaction was a loan transaction and not an Agreement of Sale. But the said contention was rejected by the Supreme Court on the ground that the document in question was described as an Agreement of Sale; that the Agreement disclosed negotiations between the parties and that no part of the Agreement contained an indication that it was not intended to be acted upon. Therefore in paragraph-13, the Court reiterated the well settled 13/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 principle that a document must be read in its entirety and that the intention of the parties must be gathered from the document itself. The Court further held that a default clause contained in the document would not make it a contract of loan. The decision squarely applies to the case on hand.
10.On the other hand, the learned counsel for the respondents/defendants would rely on the following judgments:
(i) Judgment of this Court in N.H.M.YAKOOB AND OTHERS VS. M.KRISHNAN AND OTHERS [1991 (II) MLJ 249] "Ultimately it was held on the facts of that case that the alterations were not material and that the deed of release could be relied on for the purpose of the redemption action. In Kali-anna Gounder v. Palani Gounder, the interpolation was "clear the debts and execute the sale deed free from encumbrance." That undoubtedly is a statutory duty cast upon every vendor under S. 55 of the Transfer of Property Act. Therefore, 14/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 their Lordships of the Supreme Court held that it cannot be regarded as a material alteration. But, there is a great difference between the above quoted case and this case where even before executing the sale deed, by introducing the said clause, the possessory title was conveyed to the plaintiffs so as to enable him to acquire part performance under S. 55(1)(f) of the T. P. Act and prevent the defendants from claiming any right to possession over the suit property. In the above quoted case, it was observed as follows:
"As observed in Halsbury's Laws of England, Vol. 11, 3rd Edn., Art. 599 at 368 :
"A material alterations 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 expressed, or reduces to certainly some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.15/34
https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 The effect of making such an alteration, without the consent of the party bound is exactly the same as that of cancelling the deed."
In the above quoted case, while referring to the decision of the Privy Council in Nathu Lal case has observed as follows:
"This rule has been applied by the Privy Council in Nathu Lal v. Mussamat Gomti Kuar (LR67 IA 318). The Judicial Committee observed in that case at page 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 page 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 affer applying that test they held that the alteration in that case was not maferial in the sense of altering the rights, 16/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 liabilities or legal position of the parties or the legal effect of the document."
In Loon Karan Sethia v. Ivan E. John, :
"Question No. 5 : Before proceeding to determine this question, it would be well to advert to the legal position bearing on the matter. As aptly stated in paragraph 1378 of Volume 12 of Halsburry's Laws of England (Fourth Edition)." If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration any obligation, covenant, or promise thereby undertaken or made.
A material alteration, according to this authoritative work, 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 expressed, or 17/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 reduces to certainty some provision which was originally unascertained and as such void, or which 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 cancelling the deed."
In S. K. Panchaksharam v. T. V. Kanniah , a Division Bench of this court, after considering the earlier three decisions held :
"Held that the plaintiff had made interpolations in the agreement which amounted to material alterations. By reason of the fact that he had come forward with a false case and unclean hands, he had denied himself the equitable relief of specific performance."
The interpolation in the agreement in the above quoted case is about evicting owner Perumal and thereafter executing the sale deed. As per the original agreement, the understanding between the parties was that after the completion of the sale, the first defendant was willing to deliver possession to the plaintiff and by 18/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 virtue of the interpolation the first defendant had to evict the fourth defendant Perumal, after which event alone the sale can be concluded. The Division Bench in the circumstances held that "they have not the slighest hesitation in holding that the interpolation is a material alteration acting to the prejudice of the first defendant and therefore the plaintiff cannot enforce his right on the suit agreement Ex. A-1." The said decision is in all fours applicable to the facts of this case, as the interpolation in this case is a material alteration acting to the prejudice of the defendants, in the sense, by introducing that clause the plaintiff claimed part performance u/S. 53-A of the Transfer of property Act. Since we have held that the interpolation is a material alteration and that the plaintiff cannot enforce his right under the suit agreement, we have no hesitation in upholding the finding of the Subordinate Judge in this regard. For all these reasons, we conclude that there is no merit in the appeal and it is liable to be dismissed."
(ii) Judgment of this Court in FAROOQUE DADABHOY VS. DR.USHA S. BHAT [2014 (4) CTC 290] 19/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 "30. It is trite that remedy of specific performance is purely an equitable remedy. The plaintiff in such a suit must come to the Court with clean hands. Entire facts of the case have to be pleaded without any kind of reservation. There should be no attempt on the part of the plaintiff to conceal or suppress material facts. Similarly, there should not be any kind of attempt to mislead the Court. Whether it is favourable or unfavorable, the plaintiff must disclose the entire details of the transaction. The conduct of the plaintiff should be trustworthy. The course of conduct adopted by the plaintiff should be fair. Any suppression of material particulars would be treated as unfair, which would dis- entitle him from seeking the equitable remedy of specific performance.
31. Since the remedy of specific performance is a discretionary remedy on equitable grounds, plaintiff has to produce materials with respect to his readiness and willingness at all point of time. The conduct of the plaintiff also assumes significance in a case of this nature. The Court was expected to weigh the materials produced by the plaintiff to come to a definite conclusion 20/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 with regard to the readiness and willingness to perform the contractual obligation voluntarily undertaken by the plaintiff. Any action on the part of the plaintiff to take undue advantage of the situation would result in denial of the equitable remedy. In short, the conduct of the plaintiff throughout should be taken note of to decide the genuineness of the claim and his bonafides."
11.In all the judgments relied on by the learned counsel for the appellant, there was a written agreement consisting of specific details of the negotiations, terms and conditions and identity of the property, which is required in the case of a sale agreement. But in the instant case, the very sale agreement is bereft of required details and uncertain and appears to be a void document. The judgments relied on by the learned counsel for the appellant cannot be applied to the present case on hand.
12.From the materials placed before this Court, it is noted that the sale agreement executed by the defendants said to have been manipulated by the plaintiff. The First Appellate Court on seeing the manipulation with naked eye has set aside the decree of specific 21/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 performance.
13.Now, whether the judgment of the First Appellate Court is correct or not? is to be analyzed.
14.It is well settled that as per Section 29 of the Indian Contract Act, agreements, the meaning of which is not certain or capable of being made certain are void. In any contract, there shall be offer and acceptance. Ex.A1 is the sale agreement, based on which, the specific performance is sought for. A reading of the agreement shows that it was executed by the defendants in favour of the plaintiff on 22.11.2007. The crucial part of the agreement is that the defendants for family expenses received a sum of Rs.5,00,000/- in the presence of witnesses towards advance out of Rs.6,00,000/- for the 25 cents of land in S.No.255.
15.The recital in Ex.A1 is extracted hereunder:- 22/34
https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 "f.r.255 y; v';fs; g{kp 25 brz;il +.6/00/000/- f;F ngrp ml;thd;rhf v';fs; FLk;gr; brytpw;fhf j';fsplkpUe;J ehsJ njjpapy; fPH;fhDk; rhl;rpfs; Kd;go +gha;. 5/00/000/- (+gha; Ie;J ,yl;rk;) buhf;fkha; bgw;Wf;bfhz;Ls;nshk;."
16.At the outset, as per Section 9 of the Indian Contract Act, the mandatory details with regard to identity of the property is not available in the agreement. It simply says 25 cents of land in S.No.255. Other than that, the 25 cents of land situates in which Village? which Taluk? which District? what are the boundaries, which is the Registration District, Sale Registration District are not specifically stated. It does not also specify as to how the defendants are entitled to the property and what is the time within which the contract shall be performed as per the terms of the agreement. The entire sale agreement is condensed in four lines in a one page document. The sale agreement as stated above does not contain the clear identity of the property, where it situates and also does not reveal the exact boundaries of the properties. When there is no clarity about the identity of the property and that it belongs to the defendants, it cannot be said that the contract is certain and thereby, it is 23/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 a void contract.
17.The First Appellate Court after analysing the evidence, found that the plaintiff is a well informed person and he intended to purchase the property for the purpose of starting a Petrol Bunk. He is an educated person. But, in his evidence, the plaintiff would state that the name of the village and details of the property were not found in the so-called sale agreement and no time limit was fixed. Having admitted that these details were not found, would depose that he has paid the huge sum of Rs.5,00,000/- out of the total sale consideration of Rs.6,00,000/-. Only because it was typed by the defendants and given it to him by them and he retained it without affixing his signatures. Ex.A1- sale agreement, on the face of it, does not contain the required details of sale and an educated person, like the plaintiff, paying major amount of the sale consideration, on the basis of such document, is not credible. The findings of the First Appellate Court, in the considered opinion of this Court is based on valid reasons. Any prudent person, particularly a businessman, having wide knowledge in the business, a Certified Contractor, income tax assessee and who has entered into several sale 24/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 transactions and purchased the properties, will not accept such an agreement bereft of essential details, more particularly, to be submitted to the statutory authorities of Petroleum Corporation.
18.Section 92 of Indian Evidence Act, 1872, makes it clear that no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms.
19.In Ex.A1 - the recitals are as under:
“f.r.255 y; v';fs; g{kp 25 brz;il +.6/00/000/- f;F ngrp ml;thd;rhf v';fs; FLk;gr;
brytpw;fhf j';fsplkpUe;J ehsJ njjpapy;
fPH;fhDk; rhl;rpfs; Kd;go +gha;. 5/00/000/-
(+gha; Ie;J ,yl;rk;) buhf;fkha;
bgw;Wf;bfhz;Ls;nshk;“"
20.In Ex.B1 - the recitals are as follows:-
25/34
https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 "v';fs; FLk;gr; brytpw;fhf j';fsplkpUe;J ehsJ njjpapy; fPH;fhDk; rhl;rpfs; Kd;go +gha;. 5/00/000/- (+gha; Ie;J ,yl;rk;) buhf;fkha; bgw;Wf;bfhz;Ls;nshk;“
21.A reading of Ex.A1 excluding one sentence “v';fs; FLk;gr; brytpw;fhf j';fsplkpUe;J ehsJ njjpapy; fPH;fhDk; rhl;rpfs; Kd;go +gha;. 5/00/000/- (+gha; Ie;J ,yl;rk;) buhf;fkha; bgw;Wf;bfhz;Ls;nshk;“ makes it a cogent acknowledgment of borrowal by the defendants. Ex.B1 does not contain the sentence which mentions payment of advance out of the total sale consideration, which reads as under:
"f.r.255 y; v';fs; g{kp 25 brz;il +.6/00/000/- f;F ngrp ml;thd;rhf......."
22.It is categorically admitted by the plaintiff as P.W.1, serial number of the stamp paper is one and the same. On a bare perusal of all the details including the survey numbers, name of the plaintiff and name of the stamp vendor and serial number and date with signatures are all same. What is added in Ex.A1 is the captioned sale agreement and 26/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 that one sentence in para 3, viz., “f.r.255 y; v';fs; g{kp 25 brz;il +.6/00/000/- f;F ngrp ml;thd;rhf......"
23.Apart from this, Ex.B1 is a clear acknowledgment of loan making it as a loan transaction. Adding this one sentence, gives an appearance that it is a sale agreement which is bereft of required details. The space between the lines in Ex.B1 and Ex.A1 is uniform and does not show any abnormality. On the other hand, the addition of one sentence in para 3 of Ex.A1 shows that there is difference in space and it is obvious that the particular sentence is interlineated in the said document.
24.When there is a specific reply by the defendants by virtue of his reply notice marked as Ex.B5 that there is interpolation of this particular sentence. He has not taken steps to discharge the burden of disproving that allegation. When a specific allegation is made against the sale agreement, the burden is on the plaintiff to prove that the sale agreement was executed and there was consensus ad-idem in executing 27/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 the sale agreement. In Ex.B5 it is also stated that the value of the property is more than Rs.50,00,000/- and not Rs.6,00,000/- as mentioned in the notice issued by the plaintiff. In respect of the alteration as Rs.6,00,000/-, the plaintiff has not taken any steps to send it for forensic examination to prove that there was no interpolation and that he has not taken steps to prove the value of the property was only Rs.6,00,000/- and the agreement was fair and not tainted with malafides.
25.In the judgment of this Court in N.H.M.YAKOOB's case (cited supra) this Court has held that interpolation or interlineation will amount to material alteration and it will make the sale agreement as void which dis-entitle specific performance. The relevant portion of the said judgment is extracted hereunder:
"12.Per contra, the learned Senior Counsel for the respondents, Mr.R.Krishnamurthi, mainly submitted that even the very recitals in the plaint as well as Ex.A-1 show that no actual delivery was effected; but the defendants only agreed to grant permission to the 28/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 plaintiff to form layout and get sanction and to survey the land for the purpose of forming layout. He submitted that the word " nkw;go" used in more than 8 places in the document and the word " nky;go" in the description of the property, which was alleged to have been newly added, clearly show that it was not the same person who wrote the words in both the places and that the difference is visible even to a naked eye. According to him, it is in different hand writing and in different ink and it was later introduced. He would submit that the interlineation certainly creates a valuable right, in view of Section 53-A of the Transfer of Property Act, in favour of the plaintiff so as to claim possession over the property and on the basis of the same, the plaintiff can ask for injunction against the real owner, namely, the defendants, and the court below is justified in holding that there is a material alteration subsequent to the execution of Ex.A-1 and it goes to the root of the transaction as it materially affected the rights of the parties. He would also submit that even though the learned trial Judge held that time is not the essence of the contract, yet, specific performance of an agreement being 29/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 a discretionary relief, there is absolutely nothing to show that the plaintiff was ready and willing to perform his part of the contract throughout the period specified in the agreement and subsequently also. The learned Counsel submitted that though it is stated that 5 persons came to purchase the plots and entered into agreements and subsequently they have gone back, there is absolutely nothing to prove those transactions. There is no evidence to show that there were persons who were willing to purchase the plots and that the plaintiff has necessary funds to purchase the property. It is in evidence that the plaintiff is a real estate agent. But, there is no evidence to prove that he is possessed of sufficient funds to obtain the sale deed in pursuance of the agreement and as such even on the ground that he was not ready and willing to perform his part of the contract, he is not entitled to the discretionary relief.
13.The question that arises for consideration in this appeal is, whether the alleged material alteration in Ex. A-1 regarding the clause of delivery of possession at the end of the description of property is true and if so, whether it is a material alteration which would be 30/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 sufficient to non-suit the plaintiff holding that the agreement is void and unenforceable as found by the trial court."
26.In the above judgments, insertion of sentence pursuant to a sale agreement was found to be bad. But in the instant case, it is not interlineation or interpolation or manipulation of a sale agreement. But the material alteration changes the entire character of the document. The character of a document has been converted into a sale agreement from one of a loan transaction. It affects the legal rights of the parties. In a loan transaction, the jural relationship between the parties would be of borrower and lender. Whereas, in a sale agreement, the relationship of the party is one of the vendor and vendee. The lender has a legal right to recover the loan amount with or without interest. In case of default, he can bring any immovable property for sale. The borrower has option to discharge the loan by paying the money, whereas, in a sale transaction the legal right of the vendee is to purchase or enforce specific performance and the vendor is obliged to execute the sale deed. Therefore, the legal rights between the parties are entirely different 31/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 between these two different transactions. The interlineation made in the document, which converts the nature of the document itself is certainly a material alteration. Even after material alteration, Ex.A1 is not specific but having uncertain terms. Therefore, viewing from any angle, Ex.A1 – sale agreement is void and not enforceable. The First Appellate Court has rightly declined the specific performance against the plaintiff / appellant by setting aside the erroneous finding of the Trial Court that the plaintiff has proved the sale agreement, consensus ad-idem and entitled for specific performance on account of failure on the part of the defendants. The questions of law are therefore answered against the plaintiff / appellant and in favour of the defendants / respondents.
27.In the result, the Second Appeal stands dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
26 / 04 / 2022 TK 32/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 To
1.The Principal District Judge Coimbatore.
2.The Principal Subordinate Judge Tirupur.
33/34 https://www.mhc.tn.gov.in/judis SA NO.323 OF 2016 M.GOVINDARAJ, J.
TK SA NO.323 OF 2016 26 / 04 / 2022 34/34 https://www.mhc.tn.gov.in/judis