JUDGMENT Kisch, J.
1. This is a second appeal by the defendants in a redemption suit which has been decreed by the trial Court and the decree affirmed by the lower appellate Court. The suit has been very hotly contested in all Courts as, although the alleged mortgage was for a sum of Rs. 2,550 only, the property with the constructions upon it is now said to be worth well over a lac of rupees. The plaintiffs' case was that on 25th March 1844 one Gulab Singh whose representatives in interest are Bhojraj Singh and Meghraj Singh, plaintiffs 1 and 2, executed a sale-deed by which he transferred 5 biswas of four villages, all of which are now included in the town of Bahjoi, district Moradabad, to Het Ram and Tulla Ram, the predecessors in interest of the defendants, some of whom are the legal representatives of the alleged mortgagors and others transferees of portions of the property. On the same date Het Ram and Tulla Ram executed an agreement by which they covenanted to return the' property on the payment by Gulab Singh or his heirs of the amount of the sale-deed at any time after the expiry of 25 years. The plaintiffs contended that these documents constituted a mortgage by conditional sale. As the plaintiffs Bhojraj Singh and Meghraj Singh were unable to provide the funds to redeem the mortgage, they sold a portion of the property to plaintiffs 3-5 and the suit was instituted on 8th September 1928, about six months before the expiry of 60 years from the date on which the right accrued under the agreement to get back the property on repayment of the sale consideration.
2. A large number of defendants resisted the suit and a number of written statements were filed. The contesting defendants challenged the genuineness of the alleged agreement. They maintained that the property had been sold out right by Gulab Singh to their predecessors-in-interest and that the agreement produced by the plaintiffs, was a forgery. They further contended that in any case the documents did not amount to mortgage by conditional sale, but that the one constituted an out and out sale and the other a separate contract to reconvey the property. A number of other pleas was taken by the parties but with these we are not concerned for the purposes of the present appeal as they have not been pressed before us. During the 84 years that had elapsed since the transactions before the institution of the suit a large number of titles had been created by sales of portions of the property by Het Ram or Tulla Ram or their heirs, sales in execution of Court decrees and a deed of gift, in all of which transactions the property was treated as having been in the full ownership of Het Ram and Tulla Ram.
3. As the agreement purported to be over 30 years' old and was produced from proper custody the trial Court made the presumption mentioned in Section 90, Evidence Act, and admitted the document in evidence without calling upon the plaintiffs to prove it. It held that the agreement was genuine document and that the sale-deed and agreement constituted a mortgage by conditional sale. It accordingly decreed the plaintiffs' suit. On appeal by a number of the defendants the lower appellate Court affirmed the findings of the trial Court on both points and dismissed the appeal. Thirteen of the defendants have come to this Court in second appeal. The task of the learned Counsel for the appellants has been rendered a difficult one by his being precluded from questioning in second appeal the finding of fact of the lower appellate Court that the agreement of 25th March 1844 is a genuine document.. We ourselves must confess that if the matter had been still at large, we should have felt considerable hesitation in accepting the document as genuine, but we are also bound by the finding of the Court below. Accepting this finding the learned Counsel has contended firstly, that the document, was improperly admitted in evidence and secondly, that the Courts below were wrong in holding that the two documents constituted a mortgage by conditional sale and not the one an. out and out sale and the other a separate agreement to reconvey the property. With regard to the second point we do not think that, accepting the agreement as genuine, there can be any doubt that the two documents together constituted a mortgage by conditional sale. The transaction as phrased in the first document is ostensibly a sale and purports to convey an absolute interest. The agreement of the same date is as follows:
Thakur Gulab Singh, zamindar of Qasba Bhajoi aforesaid, has sold (paper torn) the said Qasba to these executants for Ks. 2,550 of the kaldar coins and the mutation of names will be effected in the Nizamat Office, District Moradabad. Henco we have covenanted and given in writing that whenever Thakur Gulab Singh, vendor of the: said village or his collateral heirs pay the amount of the sale-deed in a lump sum after expiry of the period of 25 years, i. e., with effect from 1251 Fasli to 1275 Pasli these executants or our heirs shall willingly get the names of Gulab Singh and his heirs recorded in and our names and those of: our heirs expunged from the papers of the Nizamat Court, District Moradabad, we or our heirs shall put forth no excuse. If perchance we or our heirs make any excuse in accepting the amount of the sale-deed in respect of the said village, Gulab Singh or his heirs shall be authorized to deposit the amount of the sale-deed in the Hon'ble High. Court, get their names recorded and our names or those of our heirs expunged. We or our heirs shall have no objection. After expiry of the period of 25 years Thakur Gulab Singh or his heirs shall be authorized to pay the amount of the sale-deed whenever they may like it and get the property sold, released from us or our heirs and representatives. We or our heirs shall have no objection. If we do so, it shall not be entertained in the Nizamat Court or the High Court. Hence we have executed these few presents by way of a conditional agreement so that it may serve as evidence and be of use whenever needed.
4. Thus under the terms of this agreement the right of repurchase in the vendors may be exercised by them or their heirs only after 25 years. After that period has expired they may exercise the right whenever they chose to do so. Time therefore is not_ of the essence of the contract. In dealing with Ja document that was ostensibly a sale and an agreement to reconvey the property sold after 20 years, their Lordships of Judicial Committee in Narasingerji v. Parthasaradhi Rayanam Garu AIR 1924 P.C. 226, observed as follows:
There can only be a repurchase more that 20 years after the expropriation. But if time was of the essence for such repurchase it could in no circumstances be postponed beyond six years from the date of the conveyance. Clearly therefore and within the intendment of the documents themselves time is not of the essence in this matter and so soon as that is established all pretence for holding this ostensible sale and repurchase to be anything else than a mortgage by conditional sale disappears....
5. These observations of their Lordships are applicable to the transaction evidenced by the two documents in the present case. They appear to conclude the matter in controversy and it is unnecessary for us to refer to other authorities. We may mention however that the test laid down in Narasingerji v. Parthasardhi Rayanam Garu AIR 1924 PC 226 was followed by a Bench of this Court in Mathura Kurmi v. Jagdeo Singh AIR 1927 All 321. The learned Counsel for the appellants has laid much stress on the wording of the sale-deed which purports to convey an absolute interest in the most unambiguous terms. The same however was the case with regard to the sale-deed in the case noted above. Their Lordships observed that: "The words of conveyance needlessly iterate the description of an absolute interest." But nevertheless, they held that read in conjunction with the agreement to reconvey the transaction was a mortgage by conditional sale. In our opinion therefore it is impossible to hold that the document can be construed the one as an out sale and the other as an independent agreement to reconvey the property, but that they must be held to constitute a mortgage by conditional sale.
6. We now turn to consider the first point, namely, that the agreement was improperly admitted in evidence. The contention of the learned Counsel for the appellants on this part of the case is two-fold. In the first place he argues that. in the circumstances of the case the trial Court did not exercise a proper judicial descretion in making the presumption of the due execution of the document and admitting it in evidence without proof, but that it should have called upon the plaintiffs to offer proof of the document. In the second place he argues that owing to there being an alteration in the date of execution the document was rendered void. While keeping in mind that it is not open to us to question in second appeal the finding of fact of the Court below that the document is genuine, it is necessary for the appreciation of the case as put before us in argument by the learned Counsel for the appellants to make certain remarks about the document.
7. When the suit was filed the plaintiffs were in possession of an incorrect copy of the sale-deed. This copy, besides other mistakes, bore date 26th March 1844 as the date of the execution of the deed. The copy is said to have been given to the plaintiff Bhoj-raj Singh by his mother together with the agreement after the execution for murder of his father Lal Singh. In a sale-deed of a portion of the property in suit executed by the plaintiffs, Bhojraj Singh and Meghraj Singh, in favour of one Karan Singh for the purpose of financing the litigation (a transaction which however fell through) the date of the sale-deed in suit was given as 26th March 1844, and the same date was given in the plaint as originally filed. The date of the execution as originally written in the agreement was "25th March 1844" corresponding to Chait Sudi 6, 1251F. The plaintiffs deliberately made a hole in the word "pachiswin" (twenty-fifth) in the agreement, so as to make it appear that the date written in the document was "Chhabiswin" (twenty-sixth) and so made it to correspond with the date in their copy of the sale-deed which they filed in Court along with the agreement. When the original sale-deed was produced by the other side the plaintiffs were allowed to amend their plaint and give the date of the alleged mortgage by conditional sale as 25th March 1844instead of 26th March 1844.
8. It may be mentioned that there was another hole in the body of the agreement which appears to have been deliberately made. Where the agreement refers to the sale of the property the words that appear to have been used were "Bai Sliarai Kya" (sold according to law) an expression which occurs in the sale-deed. A hole has been made in the word "Sharai" so as to give the impression that the phrase used as "Bai Shartia Kya" (conditionally sold)' a most unusual expression, and it was contended in the Court below that the use of these words in the agreement constituted an admission by the executants that the sale was a conditional one. When the original sale-deed was produced, and the copy of the sale-deed had been filed by the plaintiffs (to which reference has already been made) and the agreement was compared with it, it was at once obvious that the seal and signature of the qazi on the copy of the sale-deed were not genuine and had been deliberately copied from the seal and signature of the Qazi on the agreement.
9. It was also urged by some of the defendants in their written statements and corroborated by the documents filed by them that one of the financiers of the litigation Nathu Lal, plaintiff 3, had been found, in the course of a litigation in 1924, to have been in possession of a great number of blank stamp papers bearing thumb-impressions which had been discovered in iris house,, and that he had been the plaintiff in several shady suits. Thus the document itself as well as one of the par-tics relying upon it were prima facie open to grave suspicion, and one would have expected a Court to be on its guard in admitting such a document without proof particularly when the other side was alleging that it was a forgery. There were a number of other points noticeable about the document, which were hardly calculated to allay the suspicion that should have been aroused in the mind of the Court. It was in a different language to the sale-deed which was in Persian, while the agreement was in Urdu. It was by a different scribe although it purported to ?have been executed on the same date. It was insufficiently stamped, having been written on a stamp paper of the value of Rs. 1, whereas it ought to have been written on a stamp paper of the value of Rs. 16. The stamp on the agreement and the stamp on the-sale-deed were purchased on different dates, the former on 11th January 1844, and the latter on 1st February 1844.
10. The agreement had never been produced in any Court and it was produced for the first time in this case-after more than 84 years from the date of its execution. In the mutation proceedings that took place after the-execution of the sale-deed the vendees, had been shown in the revenue papers as the owners of the property and these-entries had been allowed to stand through two successive settlements. In a certain partition proceedings to which Lal Singh's widow and various other members of his family were parties the property was partitioned and, if it had belonged to the representatives, of Het Ram and Tulla Ram one would have expected an objection to have been raised by some member of Lal Singh's, family. From 1871 right down to the time of the institution of the suit a. very large number of new titles had been created as a result of transfers by the alleged mortgagors or their representatives treating themselves as full owners. In Suit No. 605 of 1869 in respect of a house situated on the property in question between Tulla Ram,, one of the original mortgagors, arid Lal Singh, the father of the plaintiffs Bhojraj Singh and Megraj Singh, the sale-deed was produced as Tulla-Ram's title-deed. Lal Singh had objected that Tulla Ram was the mortgagee and not the vendee of the property but he did not produce the agreement and the suit was decided against him.
11. All these points were ascertainable by the Court from the pleadings of the parties and the documents filed by them before the evidence opened. We are not here concerned with the reasons given by the Courts below, right or wrong, for holding, after consideration of all these points, that the document was a genuine one. But it is clear to us that so many matters of greater or lesser significance, all tending prima facie to throw doubt on the document,, and appearing at the very thereshold of the case, should have caused the Court to exercise extreme caution in making any presumption in the plaintiffs' favour with regard to the agreement. It is true that the trial Court found from the documents filed that in Suit No. 83 of 1865 Lal Singh and Indarjit Singh, his uncle, alleged that they had executed a mortgage-deed in the year 1857 to pay off a mortgage by' Gulab Singh of the property in question and that, as already stated, in Suit No. 605 of 1869, Lal Singh had alleged that Tulla Ram was mortgagee of a portion of the property. This evidence however did not go very far to establish the genuineness of the agreement because in the year 1857 there were still 12 years to run before Gulab Singh had any right to recover the property under the terms of the agreement, and, as already observed, although in Suit No. 605 of 1869 Lal Singh was alleging that Tulla Ram was only a mortgagee of the property then in suit, the agreement that would have established this contention was not produced. These two points therefore were certainly not sufficient to remove the suspicion that should, for the above reasons, have attached to the agreement when the question arose as to whether it should be admitted in evidence.
12. In spite of all this however the agreement appears to have been admitted in evidence as a matter of course as a document over 30 years old produced from proper custody. There is no indication that the Court had applied its mind at all to the question whether it was a proper case to raise the presumption mentioned in Section 90, Evidence Act. The raising or not of such a presumption is a matter for judicial discretion and it appears to_ us that this was eminently a case in which the Court should have refused to presume the due execution of the document under Section 90, Evidence Act. Nor is the question at this stage_ merely an academic one. In considering whether the presumption that the document was genuine had been rebutted by the various circumstances mentioned above and other evidence, to which it is not necessary to refer, the Court below, accepting the findings of the trial Court, relied almost entirely on the admission of Lal Singh and Indarjit Singh in 1857 that they had executed a mortgage deed to pay off a mortgage created by Gulab Singh over the property, and the allegation by Lal Singh in Suit No. 605 of 1869 that Tulla Ram was only a mortgagee of a portion of the property. In addition to this the Court below relied on its own comparison of certain signatures appearing on the agreement with other signatures of the persons who purported to have signed the agreement. There may have been a mortgage of the property executed by Gulab Singly but as the mortgage was not redeemable until 12 years after 1857 and as the agreement was not produced in Suit No. 605 of 1869, this evidence could hardly be regarded as other than inconclusive, while the Court's own comparison of signatures has very-little value. It is clear therefore that but for the presumption of the due execution of the document raised under Section 90, Evidence. Act, the suit might have had a very different result. In their commentary on the law of Evidence applicable to British India,. Edn." 9. Messrs. Woodroffe and Amir Ali in dealing with Section 90, Evidence. Act, observe as follows:
This rule of presumption which, it has been; said should even in England be carefully exercised, must be applied with exceeding caution in this country where forgery and fraud cannot be said to be of rare occurrence...Should the genuineness of the document be for any reason doubtful, it is perfectly open to the Court...to reject, it however ancient it may be. Even if proper custody be also shown the Court has still power to-, reject the document if it is of opinion that it is a fabrication. The section only says that the Court may raise the presumption mentioned in it, not that it must do so and experience shows that-"may presume" in such instances ought generally to be construed in the more rigorous of the senses; allowed by Section 4 of this Act.
13. In our opinion the trial Court did not exercise a proper judicial discretion in raising the presumption of the genuineness of the document and admitting it in evidence without calling i on the plaintiffs to prove it. This conclusion of ours however is not sufficient to dispose of the appeal as it would not to proper for us to overrule the discretion of the trial Court to raise the presumption arising under Section 90, and to reject the document, without sending the case back for retrial and giving: the party producing the document an. opportunity of supporting the presumption, Rajendra Prasad Bose v.
Gopal Prosad Sen (A.I.R. 1929 Pat. 51, Imrit Chamar v. Sibdhari Pandey (1913) 13 IC 120. If therefore the matter had ended here,, we should have felt constrained to remand the case but, as already pointed., out, the learned Counsel for the appellants also relies for his contention that the document ought not to have been acted upon by the Court below, on the fact: that the date of the document has been altered by the plaintiffs. In our opinion, this contention is well founded and should be given effect to.
14. It is the rule of English law that a material alteration in a document by a' party to it after its execution without the consent of the other party renders it void, Aldous v.
Cornwell (1868)3Q B 573, In re Howgate & Osborn's Contract (1902) 1 Ch D 451, Bishop of Creditn v. Bishop of Exter (1905) 2 Ch 455. The principle underlying these decisions is that an immaterial alteration does not affect the validity of the instrument but a material one does affect it. This principle has been accepted by the Courts in India, Gogun Chunder Ghose v. Dhuronidhur Mundul (1881) 7 Cal 617, Atma Ram v. Ummed Ram (1901) 25 Bom 616, Gour Chandra Das v. Prasanna Kumar Chandra (1906) 3 Cal 812 and Haran Chandra Karmakar v. Kishori Lal Ghosh AIR 1929 Cal 789. It may therefore-be accepted that the rule of law aplicable to the subject is that a material alteration in a document by a 'party to it after its execution with lout the consent of the other party renders it void provided, of course, that the altered instrument is the foundation of the plaintiff's claim and the source of the defendants' obligation or liability. It remains to be considered whether the change in the date of the agreement is a material alteration avoiding the instrument. It may be stated here that the Courts below have found, and there could be no other finding that the alteration in the date of the agreement, and also the forgery of the seal and signature of the Qazi on the copy of the sale-deed produced by the plaintiffs, were the the work of the plaintiffs.
15. In several decided cases it has been held that a change of the date of a document is a material alteration avoiding the document. In Govindasami Kuppusami (1889) 12 Mad 239. the date of a bond on the basis of which the plaintiff brought the suit had been altered from 11th September to 25th September while it was in the possession of the plaintiffs. Fraud was not proved and the period of limitation reckoned from the earlier date had not expired. It was nevertheless held that the bond was void as such and was not receivable in evidence to prove the debt. In Namdev Jayram Khole v. Swadeshi Vyapari Mandali A.I.R. 1926 Bom. 491 it was held that prima facie, the date when a particular document is executed would oe clearly material; and the onus would be on the person making the alteration to show that so important an alteration, on the particular facts of any case, was not material. In Balmukand v.
Purshotam Das A.I.R. 1930 Lah 548 it was held that a date of a document is a material part of it and the party who alters it with a fraudulent object cannot be allowed to avail himself of the document. It will be observed that in Govindasami v. Kuppusami (1889) 12 Mad 239 the alteration in the date was held to avoid the document, although the alteration would not have affected the question of limitation in the suit that was brought on the basis of the, document. One of the grounds of the, doctrine that a material alteration in a written instrument avoids the instrument is that of public policy, which dictates that:
no man should be permitted to take the chance of committing a fraud, without running any risk of losing by the event in case of detection (Taylor on Evidence, Vol. 2, eleventh edition.)
16. The Madras decision referred to gives effect to this doctrine. Effect was also given to the same doctrine in the case of Oodeychand Boodaji v. Bhaskar Jagonnath (1881) 6 Bom 871. In that case the alteration was made in a promissory note in respect of the rate of interest specified in the promissory note. The clause in which the alteration was made was. a penal clause which, even if unaltered, the Court would not give effect to, but. nevertheless the alteration was held to preclude the document from being receivable in evidence. In the present case the change of the date was made by the plaintiffs in a deliberate attempt to deceive the Court as to the date on which the document had been executed. A further fraud on the Court was attempted by the forging of the seal and signature of the Qazi on a copy, of the sale-deed in the possession of the plaintiffs which was filed with the altered agreement and which bore the incorrect date 26th March 1844. In our opinion the alteration in the date rendered the document void and a decree should not have been passed on the basis of such a document.
17. The learned Counsel for the respondants contends that the alteration in the date is not a material alteration because, although the English date, 25th March 1844, has been changed, the Hindi date, Chait Sudi 6, 1251 F., has not_ been_ changed and this date corresponds with 25th March 1844, which was the correct date of the agreement. This contention however loses its force in view of the fact that frequently one Hindi date corresponds to two, English dates. Thus in the well-known Mashur Alam Yantri" of 1933, to take a couple of instances at random, 24th January is equivalent to the Hindi, dates Magh Badi 13, Magh Badi 14, and 17th February is equivalent to the, Hindi dates Phagun Badi 7 and Phagun Badi 8. It may therefore well be that Chait Sudi 6,1251 F, corresponded with both 25th and 26th March 1844, and therefore there was no point In altering the Hindi date. The date of the agreement was 25th March 1844. This was the, -date which the plaintiffs desired to alter in order to induce the Court to believe that the date of the agreement was 26th March and this is the date, 4hat they did alter.
18. It was contended by the learned Counsel for the respondents that the doctrine that a material alteration renders a document void applied only to contracts and not to documents which create a title. We are not prepared to accept this contention in the broad terms in which it has been ennunciated. Nor does it apply to the present case. The agreement did not create a title. When a mortgage is _ executed there is no vesting of an interest in favour of the mortgagor. We therefore hold that the agreement must be considered to have, been rendered void by this alteration and that the plaintiffs' suit must fail., The result. is that we allow this appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit. with costs in all Courts.