Judgment

SHAH, J.: Palani Gounder and his son T. P. Sengottaiah - hereinafter collectively called "the defendants" - own Survey No. 765-B in Kugallur village. Kalianna Gounder - hereinafter called "the plaintiff" - agreed on July 4, 1956 to purchase from the defendants that land for Rs. 12,000/-. A memorandum reciting that Rupees 2,000/- were paid as advance by the plaintiff to the defendants was executed by the plaintiff and the defendants. The memorandum was written by one Ramamurthy Iyer and the signatures thereon were attested by one Kaliyanna Gounder.

2. On July 7, 1956, the defendants informed the plaintiff by a letter that only a sum of Rs. 350/- was paid by the plaintiff to 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 agreement stood cancelled. The plaintiff on receipt of the letter instituted an action in the Civil Court for a decree for specific performance of the agreement, and deposited in Court Rs. 10,000/- which according to him was the balance of the purchase price due by him. The defendants filed their written statement contending, inter alia, 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 representation that he will pay the balance of Rs. 1,650/- within three days and since the amount was not paid the agreement was cancelled, 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 the sale deed free from encumbrance", the suit was not maintainable.

3. The Court of First Instance upheld the plaintiff s claim and decreed the suit for specific performance of the agreement. In appeal to the High Court of Madras the decree was reversed. The High Court held that the plaintiff paid Rs. 350/- only on July 4, 1956, and on a representation that he will pay the balance of Rupees 1,650/- payable as advance obtained possession of the agreement of sale, and the plaintiff not having paid the amount payable by him the suit for specific performance of the agreement was (sic) maintainable. The High Court also held that the agreement was altered in material particulars by adding the covenant relating to "clearance of encumbrance" after the memorandum was executed. With certificate granted by the High Court this appeal is preferred by the plaintiff.

4. Two questions fall to be determined in this appeal: (1) whether the plaintiff paid Rs. 350/- only as contended by the defendants on July 4, 1956, and obtained possession of the agreement on a false representation; and (2) whether the memorandum was altered in material particulars after execution, and was on that account discharged?

5. The plaintiff in his statement before the Court asserted that he paid the full amount of Rs. 2,000/- on July 4, 1956 to the defendants. He was supported by his witness Ramamurthy Iyer - the writer of the document. On the side of the defendants there is the evidence of T. P. Sengottaiah who asserted that only Rs. 350/- were paid at the time of the execution of the memorandum, and when the balance was demanded the plaintiff promised to pay the same within three days. He also stated that the amount was not paid within three days as promised and on that account the agreement was cancelled. His testimony was supported by the attesting witness.

6. The learned Trial Judge accepted the testimony of the plaintiff and his witness Ramamurthy Iyer. The High Court was of the view that the testimony of T. P. Sengottiah and the attesting witness should be preferred. In our judgment the dispute may be resolved by considering the conflicting testimony of the witnesses in the light of broad probabilities.

7. The memorandum expressly recites that the defendants "have received Rs. 2,000/- as advance" and "within