- (1.) THIS is a civil second appeal on behalf of Bhanwarlal against whom Gulabchand plaintiff-respondent brought a suit for the recovery of Rs. 1,486-5-9 in the Court of the Munsif, Phalodi. The suit is based on a promissory note Ex. P-1 dated 9-51949 executed at Phalodi for Rs. 1,260/ -. The front portion of Ex. P-l is a promissory note signed by the defendant. On the back portion are four stamps of 0-1-0 each of the then Jodhpur State cancelled by the alleged signature of the defendant. Below that there is the attestation by one witness Ramchandar. The plaintiff alleged that the defendant borrowed the amount of Rs. 1,260/- and executed Ex. P-l. The defendant denied the case of the plaintiff in toto. He denied to have borrowed the amount of Rs. 1,260/-and to have executed the document ex. P-1. Both the lower Courts have decreed the suit of the plaintiff holding that the defendant had borrowed the amount of Rs. 1,260/- from the plaintiff and had executed the front portion of Ex. P-1. Regarding the back portion both the Courts have come to the conclusion that the four stamps were not affixed at the time of the execution of the document but were affixed by the plaintiff without the consent of the defendant and that the signature of the defendant on the stamps cancelling the stamps was forged. It is also the concurrent finding of both the Courts that the document was not attested at the time of the execution but got attested by the plaintiff later on. On these two findings, it was argued by the defendant before both the lower courts that as the promissory note had been materially altered by the plaintiff without the consent of the defendant, it was void and the plaintiff's suit should be dismissed on that ground. Both the lower Courts have held that the alterations made in the document are not material and as such the plaintiffs suit was not liable to be dismissed on that ground.
(2.) IN this appeal the main argument that has been urged on behalf of the defendant is that the alterations made on the back of the document are material alterations and the suit should have been dismissed as the plaintiff had made material alterations in the document.
(3.) IT has been laid down by their Lordships of the Privy Council in the case of nathu Lal v. Mt Gomti Kuar, AIR 1940 PC 160 that "a material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed. " It has also been held in the above authority 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, erasing, or by drawing of a pen through a line or through the midst of an material word, the deed thereby becomes void. " this is the rule of English Law and their Lordships were of opinion that there was no reason why the rule should not be made applicable to India. The English Rule has been adopted in India to its full extent in the case of negotiable instruments section 87 of the Negotiable Instruments Act, 1881 lays down as follows : "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; 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 of Sections 20, 49, 86, and 12". ;