P. Devadass, J.@mdashThe defendants who have lost their case both before the trial Court as well as before the first appellate Court are the appellants herein.
2. Plaintiff instituted the suit for recovery of money based on Ex.A.1 promissory note, stated to have been executed by the defendants in favour of Grace Mary, wife of plaintiff. She is no more. Plaintiff after obtaining an order in a succession O.P, sued the defendants. He had also issued Ex.A.4, suit notice to both. It was received by 2nd defendant under Ex.A.6, however, returned by 1st defendant under Ex.A.5. Thus, the suit.
3. The suit has been resisted by the defendants. Second respondent filed the written statement, which has been adopted by the first defendant. They pleaded complete ignorance about the identity of plaintiff''s late wife. Suit promissory note is a rank forgery. It was forged by plaintiff, a fraud and a drug addict. The promissory note is afflicted with material alteration. This is the gist of their case.
4. The trial Court framed the issues. Tried the suit. Plaintiff examined himself as P.W.1 and one Jeyachandran, attestor to Ex.A.1 as P.W.2 and marked Exs.A.1 to 10, while the second defendant examined himself as D.W.1 and no document was marked on their side.
5. The trial Court appreciated the submissions of both sides and also adverted to the evidence adduced and concluded that the execution of suit promissory note has been established and it is not affected by any material alteration, defendants failed to rebut the legal presumption arose under Section 118 Negotiable Instruments Act and thus decreed the suit.
6. In the first appeal, in A.S.No. 97 of 2010, preferred by the defendants, hearing both sides and reappreciating the evidence the 1st appellate Court concurred with the findings of the trial Court and dismissed their appeal.
7. In the circumstance, the defendants have directed this Second Appeal.
8. At the time of admission of the Second Appeal, my then learned Brother formulated the following substantial question of law:
Whether the pronote is forged, concocted or fabricated document and whether there is any material alteration in the said document?
9. The learned counsel for the appellants/defendants contended that the defendants did not know who the plaintiff''s wife is. The learned counsel contended that the plaintiff is a fraud. Due to prior enmity, to wreak vengeance, plaintiff manufactured Ex.A.1. The learned counsel contended that Ex.A.1 is fabricated. And it has material alteration also.
10. The learned counsel for the appellants would further submit that the plaintiff''s wife had passed away. After keeping quite for a considerable time, he initiated the proceedings for succession O.P. and the activities of the plaintiff in initiating the suit itself smelts a rat.
11. In making his comments on the judgments of the Courts below, the learned counsel for the appellants would submit that those Courts having found that there is material alteration in the year and also in the Tamil year in Ex.A.1, they have failed to apply the correct position of law and have failed to hold that Ex.A.1 is unenforceable.
12. On the other hand, the learned counsel for the respondent would submit that falsity of the defence of the defendants as to their non-execution of Ex.A.1 is exposed by the admission of D.W.1 that they know her already by, looking at her in the photographs Ex.B.8 to B.10 showing 2nd defendant garlanding her at a function. Further, it is joint execution of Ex.A.1 by both the defendants. However, even inspite of receiving the suit notice under Ex.A.6, the 2nd defendant kept mum. But, he has came out with distortion and concoction only in his written statement and evidence. But, he was caught when he was cross-examined by the plaintiff.
13. The learned counsel for the respondent would further contend that there is no material question. Further, when P.W.2 was in the witness box no question was posed to him as to when this material alteration was made. Had it was done, then it would have been explained by him. Therefore, their version in the written statement is a story telling.
14. I have anxiously considered the rival submissions, perused the materials on record and the impugned judgment of the Courts below.
15. Ex.A.1 is stated to have been executed by defendants 1 and 2 in favour of one Grace Mary, who is the wife of the plaintiff. Now, plaintiff has become a widower. He had succeeded to all her properties and actionable claims. He had also obtained order in the succession O.P. in his favour.
16. Plaintiff/P.W.1, Bastin deposed as to the execution of Ex.A.1 in favour of his wife by the defendants for the principal of Rs.50,000/- payable with 24% interest per annum. P.W.2, Jeyachandran, attestor to Ex.A.1 spoken as to the execution of Ex.A.1 by the defendants. This primary evidence has been let in for proving their execution of Ex.A.1. It is acceptable. Naturally, the legal presumption under Section 118 of the Negotiable Instruments Act arises.
17. Now, let us see, whether the presumption has been rebutted by the defendants and let us also see the tenability and acceptability of the material alteration in Ex.A.1pleaded by the defendants.
18. Plea of material alteration in the suits instituted based on negotiable instruments is very important because it goes to the root of the matter. ''Alteration'' means a ''change'' The phrase ''material'' means ''very important''. So far as Section 87 of the Negotiable Instruments Act, which deals with material alteration, it is those alteration which would change the legal character of the instrument, which would extend or extinguish a right or liability under the instrument. An alteration to the date in the instrument is a material alteration because it extents enforceability of an instrument on the point of limitation otherwise currency of its enforceability would have been lost.
19. It would be profitable to notice here how the phrase ''material alteration'' has been couched in Section 87 of the Negotiable Instruments Act. It runs as under:
"87. Effect of material alteration. - Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee. - And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those sections 20, 49, 86 and 125. "
20. The devastating role of material alteration in a suit based on a negotiable instrument has been highlighted by the Andhra Pradesh High Court in
(5) The law on the point seems to me to be clear. The English rule that a material alteration of a date makes it altogether void is summarised thus in Halsbury''s Law''s of England, III Edition, Vol.11, p.367, Paras.598 and 599:-
598. A writing proposed to be executed as a deed may be altered by erasure or interlineation or in any other way before it is so executed, and any alteration so made before execution does not affect the validity of the deed. Any alteration, erasure or interlineation appearing upon the face of a deed is presumed, in the absence of evidence to the contrary, to have been made before the execution of the deed
599. If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance, however, is not ab initio, or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration, and so as to prevent the person, who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound thereby, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.
(6) The law is not otherwise in India. The above said rule is quoted with approval in several Indian decisions. Section 87 of the Negotiable Instrument Acts statutorily adopts the said rule. Section 87 is so far as it is relevant is in the following terms:-
Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
It must be remembered that it is not any and every alteration that avoids the instrument. To have that effect the alteration must be in a material particular. A material alteration can be brought about by change of date or time of drawing or of the place of payment or by change in the sum payable, etc., etc. It is thus evident that the date of a promissory note is a material portion of it, and any alteration of such date will naturally void the promissory note, unless, of course, as stated in the Section such an alteration is made with the consent of the other party, or is made to effectuate the common intention of the original parties. It is wrong to assume that the date of the promissory note is merely a description. It indicates the time when the promissory note was executed. In most cases the date is very material in calculating the date of the performance of the contract and more often fixing the period of limitation within which the plaintiff will have to institute the suit on the foot of such promissory note. It is immaterial whether the alteration is made in the date or month or year. Any such alteration being material must necessarily result in the avoidance of the promissory note.
(7) It is true that in two cases alterations, though material, do not vitiate the instrument; firstly, when the alteration is made before the promissory note is executed, and secondly, if the alteration made was merely to correct a mistake, or to make it what it was originally intended to be. As stated earlier, the Section (S. 87) itself states that the alteration can be made with the consent of the parties, or to carry out the common intention of the original parties. Any mistake occurring before the execution of the promissory note can, however, always be corrected before the document is actually executed.
(8) The general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a negotiable instrument renders it suspicious. It is only reasonable that the party claiming under it should remove the suspicion. It is true that it is not on every occasion that a party tendering an instrument in evidence is bound to explain any material alteration that appears upon its face. He must, however, explain when he is seeking to enforce it. It is plain that when the alteration appears to have been made contemporaneously with the document, or if it is made at some subsequent period with the privity of the parties charged and there is no fraud, it does not affect the validity of the instrument.
21. For some times, questions cropped up before the Courts, whether an alteration in a negotiable instrument to be a material alteration should have been in the nature of giving some benefit to the holder of the instrument. The said question has been negatively answered both by this Court as well as by the Privy Counsel (See AIR 1935 Mad 401 and
22. Now, who is to prove that the negotiable instrument in question is not subjected to material alteration or, who is to clear the doubt raised with regard to material alteration. This question was answered in
23. A negotiable instrument, afflicted with the disease of material alteration is a void instrument. A void instrument/document cannot be enforced in a Court of law. Promissory note, which is having material alteration, thus cannot be enforced in a Court of law. In such an event, the suit must fail.
24. Now, in the instant case, there is specific plea in the written statement that there is material alteration in the suit promissory note. Material alteration is a mixed question of fact and law. The law relating to material alteration vide Section 87 of the Negotiable Instruments Act could be applied only when it was factually established.
25. We have examined Ex.A.1 from top to bottom, line by line, word by word, every inch. It is in printed promissory note form. It is filled up. In it, in the year ''2004'', the number ''4'' as well as after the word Tamil, the Tamil year has been erased. There is interpolation and insertion of number ''4'' in the year and also corresponding alteration in the year in Vernacular language.
26. On this aspect, P.W.1 was tested on the alter of cross-examination. He simply given a negative answer. The attempt of the defendants to get a positive answer on the true position of Ex.A.1 from him failed. P.W.1 tried to wriggle out of the adverse situation emanating from Ex.A.1. But Ex.A.1 has exposed him. Next, came P.W.2. He was not spared in the cross examination.
27. It was contended by the learned counsel for the respondent that no proper question as to Ex.A.1 has been posed to P.W.2 when he was cross examined.
28. It is pertinent to note that Ex.A.1 came from the possession of plaintiff. It is he who has to explain about the alterations in Ex.A.1. Whereas he has not even mummed about it in his chief examination. One thing is clear. Men will lie. But not the documents. Live human beings utters lies to the extent possible, but not the documents and dead bodies. They will always tell the truth. Truth, as it is. False, as it is.
29. It is pertinent to note that the plaintiff''s wife has become immortal. Her mortal husband is suing the defendants on the basis of Ex.A.1 promissory note, now as a proxy for the departed soul. The instrument came from his possession. Very many allegations have been made in the written statement as against him. In such circumstances, at the time when he entered the witness box he knows the possible defense of the defendants with reference to Ex.A.1 including the plea of material alteration. After having introduced Ex.A.1 in his evidence he did not explain as to how, why this alteration have crept in Ex.A.1. However, the muddle in the form of alteration in the date in Ex.A.1 has been consistently pointed out by the defendants in his cross- examination to P.W.1 and this aspect also received the due attention of the trial Court as well as the first appellate Court. However, after catching hold of the point they did not view it in proper perspective. They viewed the document through their naked eyes, but not through their legal eyes, namely, in the ambit, purport and scope of Section 87 of the Negotiable Instruments Act.
30. If we look at Ex.A.1, ex-facie there is alteration in the number ''4'' in the year ''2004''. Trial Court has also found out this so also the first appellate Court. They have concentrated more on facts that on law. They have misconstrued the true position of law and effect of material alteration.
31. There is alteration as to the year in Ex.A.1, whether it is for the benefit of the plaintiff or not it does not matter, when question of law comes, right from Privy Counsel upto today, the plight of such an instrument is that it is void. Such an instrument cannot be enforced in a Court of law. A Court of law cannot be a venue to enforce void documents. An invalid document cannot be validated in a Court of law. This is the tenor of the said decisions on Section 87 of the Negotiable Instruments Act.
32. In this view of the matter, Ex.A.1, having been a void document has not been properly understood by the Courts below. The perspective of law relating to Section 87 of the Negotiable Instruments Act has not been rightly understood and law has not been correctly applied by the both the Courts and on this aspect they have fell into error.
33. Thus, the answer to the substantial question of law on material alteration goes in favour of the appellants. In the circumstances, there is no need for us to enter into other aspects as in the first round itself, it is all over.
34. In view of he foregoings, this Second Appeal succeeds. The decrees and judgments of the trial Court as well as the first appellate Court are uprooted. The suit is dismissed. However, in the circumstances, the parties do bear their respective costs throughout.
