KALIANNA GOUNDER versus PALANI GOUNDER & ANR.

Citation: [1970] 2 S.C.R. 455 · Decided: 17-09-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

455 
A 
KALIANNA GOUNDER 
v. 
PALANI GOUNDER & ANR. 
September 17, 1969 
B 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J 
c 
D 
E 
F 
G 
D-eed-Construcrion of-Allegatio11 of subsequent <1/l~ration to incor
4 
porate sellers obligation to clear land e11cu1nbra11ces-lf a n1arer(al altera-
tion vitiaring agreement. 
' 
The appellant agreed on July 4, 1956 to purchase certain lands from ! 
the respondents for Rs. 12,000. 
A memctrandum reciting that Rs. 2,000 . 
were paid as advance by the appellant to the res.pendents 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. 2,000 as recited in the memorandum and since the balance of Rs. 1,650 
which was promised to be paid within three days was not paid, the agree-
ment 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. 10,000 on account of the balance purchase price due 
from tiim. 
In their written staten1ent 
the 
respondents 
claimed that 
Rs. 1,650 out of Rs. 2,000 not having been so paid, the agrellment was 
canceUed; and that in any event the agreement 
having been altered 
in 
material particulars after its execution by the addition o'f the words; "cl_ear 
the debts and execute the sale deed free from encumbrances", the suit \V3.."'i 
not maintainable. 
The Trial Court upheld the appellant's clainl and decreed the suit. The 
High Court in appeal, reveised 1he 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. 2,000 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 
resiling from the agreement. 
· 
(ii) Even assuming that the words in question \\·ere introduced in the 
memorandum after its execution since the respondents ~·ere liable to clear 
any encumbrances subsisting on the land before executing the sale deed, 
it 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 instlurnent [463 AJ 
Nathu L<il and Ors. v. M11ssamat/Go1nti Kuflr and Others, L.R. 67 Li\. 
3'18; referred to. 
• 
CIVIL APPELLATE JUR!SDICTfON : Civil Appeal No. 1360 c,f 
1966. 
Appeal from the judgment and decree dated January 
19, 
1962 of the Madras High Court in Appeal No. 351 of 1958. 
H 
M. C. Chagla, M. K. Ramaml'rthi, S. Setlwrarnam, J. Rama-
m11rthy and Vineet Kumar, for the appellant. 
A.' V. V. Nair, for the respondent. 
4 56 
SUPREME COURT REPORTS 
[ 1970] 2 S.C.R. 
The Judgment of the Court was delivered by 
Shah, J. 
Palani Gounder and his son T. P. Sengottaiah-
hereinafter collectively called "the defendants··-own Survey No. 
7 65-B in Kugallur village. 
Kalianna Gounder-hereinafter call-
ed "the plaintiff"-agreed on July 4, 1956 to purchase from the 
defendants that land for Rs. 12,000. 
A memorandum reciting 
that Rs. 2,000 were paid as advance by the plaintiff to the defen-
dants was executed by the plaintiff and the defendants. 
The 
memorandum was written by one Ramamurthy Iyer and the signa-
tures thereon were attested by one Kaliyanna Gounder. 
On July 7, 1956, the defendants informed the plaintiff by 
a letter that only a smn of Rs. 350 was paid by the plaintiff w 
the defendants and not Rs. 2,000 as recited in the memorandum, 
and since the balance of Rs. 1,650 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 actlon in the 
Civil Court for a decree for specific performance of the agreement, 
~md deposited in Court Rs. 10.000 which according to him was 
the balance of the purchase price due by him. 
The defendants 
Jiled their Y1ritten statement contending. inter a/ia, 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 repre-
senfation that he will pay the balance of Rs. 1,650 within three 
days and since the amount was not paid the agreement was can-
cdled, and that in any event the agreement having been altered 
in material particulars. after it was executed, by adding the words: 
'·Clear the debts and execute 

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