Indian Kanoon - Search engine for Indian Law

4. The first defendant Smt. Hanumakka is the absolute owner of the schedule property. The case of the plaintiff is that she entered into an agreement on 05.11.1990 agreeing to sell the aforesaid 28 acres 37 guntas of land in favour of the plaintiff for a sum of Rs.3,47,100/-. The plaintiff paid a sum of Rs.1,75,000/- to the defendants. On the same day, the defendants delivered possession of the schedule property to him. Her son by name Ashwathappa has also attested the agreement of sale dated 05.11.1990. The first defendant agreed to execute the sale deed as soon as survey and durast work of the suit schedule property was carried out. She also agreed to complete the sale transaction within thirteen months from the date of the agreement. The plaintiff was always ready and willing to perform his part of the obligation. He was ready with the balance sale consideration. He requested the first defendant more than a dozen time to come and execute the sale deed. The first defendant under one pretext or the other evaded to execute the sale deed. The plaintiff during 1993 got issued two legal notices to the defendants. Though the first defendant received the said notice, she neither replied nor complied with the demand made therein. Right from the date of execution of the agreement, the plaintiff was ready to perform his part of the obligation as contemplated under the agreement. It is the defendants who were evading to execute the sale deed. Pursuant to entering into the agreement, the plaintiff has developed the land by investing huge lot of money i.e., he has raised mango groves and he has also leveled the entire land by using the bulldozer and also made preparation to fence the entire land for which purpose he has invested lot of money. The defendants even to this day have not made any attempt to disturb the possession of the suit schedule property. The first defendant has not executed the sale deed. The suit was originally filed only against the first defendant. Subsequently, an application was filed for impleading second defendant, which was allowed. Thereafter, the plaintiff filed an application for impleading defendant Nos.3 and 4. It was also allowed. After they were impleaded the plaintiff amended the plaint by adding para- 5(a). The second defendant has purchased item (c) of the suit schedule property from the Power of Attorney holder of the first defendant. The first defendant has executed a General Power of Attorney in favour of one Sri Amit Gupta on 22.07.1992. On 29.08.1992 it was revoked. On the day Amit Gupta conveyed the property to the second defendant the General Power of Attorney was not in existence and Amit Gupta had no power to convey the property. Even though he has conveyed the property, it would not create or confirm any better right, title or interest in favour of the second defendant. The second defendant cannot claim that she had become absolute owner of the property by virtue of the sale deed dated 05.10.1993. By virtue of the agreement dated 05.11.1990 the plaintiff had no subsisting right over the property in question. The sale deed in favour of the second defendant would in no way affect the right of the plaintiff over the suit property. The agreement dated 05.11.1990 has not been terminated till the filing of the suit. Therefore, the first defendant by herself or through her agent have no right to convey the suit schedule property in favour of the second defendant and the alleged sale deed do not bind the right of the plaintiff in any manner nor affect his interest in any manner. The first defendant has sold the first item of the suit schedule property in favour of the third defendant under a sale deed dated 15.02.1992. The first defendant on 26.06.1992 has also sold the 'B' and 'D' schedule properties in favour of defendant No.4 by executing another sale deed and getting it registered. The first defendant has not disclosed the said alienation made by her in the written statement placed by her in the year 1996. As such her conduct in that regard is depricable. The plaintiff came to know about the alienation in favour of defendant Nos.3 and 4 only during third week of June 1999. Thereafter he made an application under Order 1 Rule 10(2) CPC for impleading the purchasers as additional defendants in the above case, which application was allowed. That is how they are arrayed as defendants 3 and 4 in the suit. Defendants 3 and 4 have purchased the property under two registered sale deeds. The said sale deeds are subject to the final result of the case since they came to picture after the agreement of sale dated 05.11.1990. The sale deeds dated 15.02.1992 and 26.06.1992 will not take away the right vested with the plaintiff to get a decree for specific performance of the agreement dated 05.11.1990. The said sale deeds are void abinitio. They have been created by the first defendant in favour of the defendant No.3 and 4 in order to defeat the rights of the plaintiff under the agreement dated 05.11.1990. The said documents are collusive, executed with an intention to defraud the plaintiff and therefore, the plaintiff sought for a decree for specific performance of the agreement dated 05.11.1990. Subsequently, by way of an amendment of the prayer column, he sought for a direction directing the defendant Nos.1, 3 and 4 to execute the sale deed jointly in favour of the plaintiff in pursuance of the agreement dated 05.11.1990 and put the plaintiff in lawful possession of the suit schedule property.

(4) Whether the application filed by the plaintiff in the Appellate Court under Order XXI Rule (2) of CPC, is maintainable and requires to be allowed or whether the suit of the plaintiff is barred by limitation in so far as defendants 3 and 4 are concerned?

(5) Whether the suit of the plaintiff is liable to be dismissed on the ground of delay and latches?

POINT No. (1) - EFFECT OF MATERIAL ALTERATION

19. The suit is one for specific performance of the agreement of sale dated 5.11.1990. The consideration agreed upon for sale is Rs.3,47,100/-. The extent of land agreed to be sold is 28 acres 37 guntas, at the rate of Rs.12,000/- per acre. The execution of this agreement is not in dispute. What is contended is that in the agreement material alteration has been made to which the vendor has not agreed. Secondly, the said agreement is cancelled. It is after such cancellation and after sale of the schedule property to defendants 2 to 4 the agreement is altered and on that basis the suit is filed. Therefore, the suit agreement is unenforceable. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The plaintiff has not mentioned in the plaint about these alterations. However, in his evidence he admits that the writing in the hand happened in the presence of the first defendant. The first defendant has consented for the same and accordingly she has also signed. Therefore, the interpolation in Ex.P1-the agreement of sale is admitted. Therefore, the question is, whether the interpolation took place prior to the execution of the agreement of sale and whether the first defendant has given her consent for such alteration. Further, whether the said alteration is a material alteration so as to render the deed void, if it is proved that the alteration has been made without the consent of the first party.

31. In this background, the question that arises for our consideration is, what is a material alteration and what is the effect of such alteration in a deed.

32. In paragraph 1378 of Volume 12 of Halsbury's Laws of England (Fourth Edition) it is observed as under:-

"if an alteration (by erasure, interlineation, or other- wise) 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 so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against an party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.

36. Therefore, once the evidence on record shows that a material alteration is made in a deed, after its execution, without the consent of the party liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration from putting the deed in suit to enforce against a party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made because the material alteration varies the rights, liabilities and legal position of the parties as ascertained by the deed in its original state. It varies the legal effect of the instrument as originally expressed. It prejudices 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. Therefore, as the above mentioned alteration substantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything, but material alterations and since they have been made without the consent of the first defendant, it has the effect of cancelling the deed and it is unenforceable, as on the date of the suit in law as the deed has become void and it is non est, i.e., not in existence.