Decided on September 03,1953



Mack, J. - (1.) Appellant is the plaintiff, a Muslim Religious Society of Coimbatore represented by its President and Secretary. The suit, which the learned Subordinate Judge of Coimbatore dismissed with costs, was laid for the specific performance of a contract, Ex. A-1, dated 15-12-1946 against the first defendant by which he agreed to convey to the plaintiff the suit property for Rs. 7300. It is common ground that the Society paid the first defendant a sum of Rs. 1000 that day. The suit was filed on 16-10-1947. It was dismissed mainly on a finding that the suit agreement had been materially altered by the top and bottom portion of it, which contained a material recital on the reverse, being scissored off. This is said to have contained a recital which made time given for completion, which was 30 days, the essence of the contract.
(2.) The suit property, 49 cents in extent on which there was a rice mill and a residential house originally belonged to one Hussain Sahib, the late husband of Fatima Beebi the 4th defendant. Hussain Sahib became indebted to a local Nidhi who got a decree and brought the property to sale in execution in 1938. The fourth defendant, who was in residence in the house on the suit site desired to continue living there and approached the first defendant, who had a mortgage on the suit property and was a lessee of the lice mill on the site for about 20 years, for assistance. The first defendant bought the suit properly from the Nidhi under a sale deed Ex. B-6 dated 14-2-1940, the case of the fourth defendant being that there was an understanding that he would re-convey the property to her on payment of the sale price. The fourth defendant then in 1946 sold all her rights in the entire property on 1-5-1946 by a sale deed Ex. A-2 to the plaintiff-society. It appears that a small portion of this site had been used as a Muslim religious burial ground. It is in this back-ground that the plaintiff- society and the first defendant came to a settlement with the assistance of some mediators and Ex. A-1 was written in the shop of one Bava Sahib by his clerk Krishnaswami Iyengar (P. W. 3). Jamesha Rowther (P. W. 1) who was the President of the plaintiff-society, was present at the time. First defendant admitted his signature on Ex. A-1 which contains a clear agreement by him to sell the suit property as decided by mediators to the plaintiff- society. Ex. A-1 contains an acknowledgment of receipt by the first defendant of Rs. 1000 in cash, and an undertaking to execute a deed of cancellation of the sale in his favour within a period of one month and to receive the balance of consideration of Rs. 6300 in the presence of the Registrar.
(3.) A registered letter Ex. A-3 was sent on behalf of the plaintiff-society signed by the President dated 10-1-1947 asking the first defendant to receive the money and to complete the transaction. This letter was not delivered, and was returned with the endorsement that the addressee was not known and no house number was given. Ex. A-3 was addressed to the first defendant, T. Krishnaswami Naidu, Town Street, Pappanaickenpalayam, Coimbatore. - A telegram evidenced by a receipt Ex. A-3(b) is said to have been sent by P. W. 1 to the first defendant on 13-1-1947, and another registered letter Ex. A-3(a) dated 17-1-1947 in an envelope which was still unopened at the time of the hearing of the appeal was also returned by the Post Office undelivered. In the suit itself summons could not be served on the first defendant in the ordinary way, and he only made an appearance after substituted service. Prima facie it would appear as though the first defendant was successfully evading the plaintiff and service of these registered letters. The learned Subordinate Judge in view of his finding that the suit agreement Ex. A. 1 was materially altered did not think it necessary to go into the question as to whether it was the first defendant who really defaulted in not complying with his obligations under the contract.;

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