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Hardwar Singh And Anr. vs Hari Parshad Rai

High Court Of Judicature at Allahabad|21 August, 1942


1. This is an appeal by the plaintiffs whose suit for the recovery of Rs. 984-11-0 was dismissed by the Courts below. The facts are that the plaintiffs in the very first para. of their plaint said that on 7th Sawan Sudi Sambat 1992, corresponding to 6th August 1935, the defendant took Rs. 720 from the plaintiffs for legal necessities and executed a sarkhat, the basis of the suit, in favour of the plaintiffs and the promise was that the entire debt would be paid with interest at 1 per cent. per mensem. Along with the plaint they filed a document which in the district of Ballia and adjoining districts is called a sarkhat. Such a transaction in the eastern districts of these provinces is a well known mercantile transaction. The original date on the sarkhat was 7th sawan Badi, corresponding to 22nd July 1935, but the document, as it was tendered in Court, bore the date 7th sawan sudi, sambat 1992, corresponding to 6th August 1935. The defence with which we are concerned is that the document bears a material alteration for which the plaintiffs are responsible and therefore the document is void and the plaintiffs' suit could not succeed. This defence found favour with the Courts below and relying on the case in Mt. Gomti v. Meghrai Singh ('33) 20 A.I.R. 1933 A.I.R. 1933 All. 443 the plaintiffs' suit has been dismissed by the trial Court as well as by the lower appellate Court. In second appeal before us, it is contended that the authority of the ruling just now mentioned by us has been completely destroyed inasmuch as the case went up to the Privy Council, and their Lordships of the Privy Council in Nathu Lal v. Mt. Gomti Kuer ('40) 27 A. I. R. 1940 P. C. 160 upset the decision of this Court. It is quite true that the decision of this Court was upset by their Lordships of the Privy Council on the facts of that particular case, but the rule relating to the effect of material alteration in a deed made after its execution remains still the same as it has remained ever since (1614) 11 Co. Rep. 26 (1614) 11 Co. Rep. 26, Pigot's case. In 1940 A.L.J. 598 their Lordships of the Privy Council held that the alteration which was considered material by this Court was not material and therefore the party relying on the document which had been altered should not be damnified. Regarding the rule it is enough to quote the observations of Sir George Jessel, M. R. in Suffell v. Bank of England (1882) 9 Q. B. D. 555. The Master of the Bolls in that case observed as follows:
The leading case, and which from the time of James I has always been so treated is (1614) 11 Co. Rep. 26 and whatever may be said of the first resolution in (1614) 11 Co. Rep. 26 (1614) 11 Co. Rep. 26 Pigot's case no doubt has ever been raised as to the second resolution, which is this that when any deed is altered in a point material by the plaintiff himself, or by any stranger without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line or through the midst of any material word, the deed thereby becomes void. So that even if a single word which is material is erased, it destroys the instrument.
A man shall not take the chance of committing a fraud and when that fraud is detected, recover on the instrument as it was originally made. In such a case the law intervenes, and says that the deed thus altered no longer continues the same deed and that no person can maintain an action upon it ... And this principle is founded on great good sense, because it tends to prevent the party in whose favour it is made from attempting to make any alteration in it. This principle, too, appears to me as applicable to one kind of instrument as to another.
2. Their Lordships in Nathu Lal v. Mt. Gomti Kuer 1940 A. L. J. 598 ('40) 27 A. I. R. 1940 P. C. 160 observed:
The rule is dictated by public policy and is independent of considerations of clime or race. It is consistent with the principles of equity and good conscience which have generally prevailed in India, unless they conflicted with Hindu or Mahomedan law. In their Lordships' opinion, there is no such conflict and there is no reason why the rule should not be made applicable to India.
3. There cannot be the slightest doubt that this rule has been adopted in numerous Indian decisions. Their Lordships found themselves in agreement with some of the cases that were decided in India, and out of the numerous cases it is enough to mention the case in Govindasami v. Kuppusami 12 Mad. 239. In that case the date was altered from 11th September to 25th September and their Lordships of the Madras High Court held that the alteration concerned the period of limitation and affected the liability of the defendant. It is true that in that case there was a part payment and the period of limitation had not expired when the suit was instituted, but the suit was dismissed because the suit was upon the basis of the document where in the material alteration occurred and was not based upon any antecedent transaction for which the instrument was given as security. In the present case, it is contended that the alteration is not material inasmuch as on the date when the suit was instituted, namely on 30th July 1938, the suit was in time inasmuch as there was a local legislation known as the U. P. Temporary Postponement of Execution of Decrees Act by which under Section 5 in computing the period of limitation the period during which the Act shall remain in force was excluded. That may be so, but the fact remains that the liability of the defendant was altered by reason of the alteration and the creditor could never be sure that a particular debtor was an agriculturist within the meaning of the U. P. Temporary Postponement of Execution of Decrees Act unless he took a great deal of trouble in the matter and made a diligent search in the Tahsil papers in order to find out how much agricultural holding the debtor possessed.
4. It was then contended that the suit was not upon the sarkhat in question but was upon the loan which was taken by the defendant and the sarkhat only evidenced the transaction of loan. It is admitted that there was no antecedent transaction for which the present instrument was, given as security. The execution of the instrument and the taking of the loan synchronised, and we know that in the plaint the document was stated as the basis of the suit. For the reasons given above we think the view taken by the Courts below is correct, and we dismiss this appeal with costs.
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Hardwar Singh And Anr. vs Hari Parshad Rai


High Court Of Judicature at Allahabad

21 August, 1942