Chaudhuri Janardan Parida and Others vs Prandhan Das

This second appeal arises out of a suit for recovery of money which has been dismissed by both the Courts below. The case of the plaintiffs as set out in the plaint was that they sold to the defendant a certain property for a consideration of Rs. 4000 which was mentioned in the sale deed itself. It was alleged by the plaintiffs that out of the consideration Rs. 1500 remained unpaid and was to be paid to a creditor of the plaintiffs''. Maguni, who held a mortgage of some of their properties. It was alleged that the defendant did not pay the money to the creditor, who brought a suit. The plaintiffs further alleged that out of the sum of Rs. 1500 so due the defendant paid to them Rs. 305 and therefore the suit was for Rs. 1195 only and interest thereon.

The defence was that the entire consideration of Rs. 4000 was paid up. The defendant however admitted that there was an independent agreement between him and the plaintiffs to the effect that the plaintiffs would make over to him the village and the settlement papers of the properties sold and would help him in the realisation of the arrears of rent of the period prior to the sale. These arrears were assigned by the plaintiffs to the defendant by the sale deed itself. The defendant admitted having paid Rs. 305 to the plaintiffs, but he said, it was a part payment as the plaintiffs had by that time done something towards carrying out the promise made by them, but as the plaintiffs failed to carry out their part of the promise nothing was due to them.

The Courts below have held that the plaintiffs'' story that Rs. 1500 remained unpaid out of the consideration of Rs. 4000 was false and that the entire consideration as mentioned in the deed had been paid up. They also held that there was an independent agreement between the plaintiffs and the defendant for the payment of Rs. 1500 in consideration of certain things to be done by them which they did. Both of them however have agreed in dismissing the suit on three grounds, one, that the plaintiffs could not succeed on a case not made put in the plaint, second, that the documents relied upon by the plaintiffs were tampered with and therefore the plaintiffs could not use them to support their claim and, the third, that the suit was barred. The plaintiffs have preferred this second appeal. The plaintiffs produced two documents which have been marked as Exs. 1 and 2. The former is a letter addressed by the defendant to Mr. S.N. Das Gupta, an advocate of this Court, in which he had promised that he would bring the mortgage bond dated 8th August 1917 from Hrudananda Sahu son of Maguni and would make it over to him, that is, the advocate, and that if he did not do so he would pay Rs. 1500. The document as it stands makes it an unconditional bond but both the Courts below have held that there was a condition attached to it by way of post script which has been torn off by the plaintiffs.

The next document is Ex. 2 which is supposed to be an adjusted account which shows that out of Rs. 1500 Rs. 205 was paid before and on the day when it was written, that is, 20th January 1933 another Rs. 100 was paid and the balance left was Rs. 1195. Here again, both the Courts below have found that at the end of the account the words "Baki Debu" which mean "I shall pay the balance" have been added in order to make it a fresh promise to pay. In our opinion the view taken by the Courts below is correct and there is no merit in this appeal. First of all, as pointed out by the Courts below, the plaintiffs'' suit was that Rs. 1500 was left unpaid out of the consideration of Rs. 4000.

They could not in the Courts below nor can they now rely upon an independent agreement and put forward a case quite different from the one made out in the plaint. The learned advocate, Mr. Subba Rao, has argued that from the very beginning the plaintiffs have been relying upon an independent contract, but a reading of the plaint makes it perfectly clear that their case was that the balance was left out of the consideration of Rs. 4000. The suit must be dismissed on this simple ground only.

As, however, Mr. Rao has argued the other points also, we would like to give our findings upon them. The fact that the document (Ex. 1) was tampered with is a finding of fact of the Courts below and is binding upon us in second appeal. Now let us see what is the effect.

This independent contract which has been admitted by the defendant and was not referred to in their plaint by the plaintiffs was admittedly embodied into a letter written by the defendant to Mr. S.N. Das Gupta. u/s 91, Evidence Act, the plaintiffs, are debarred from adducing oral evidence to prove that contract once the terms of it were embodied into writing. It is not a case in which a contract was independently made and later the defendant acknowledged it in some writing. Here the terms of the contract were reduced to writing at the same time when it was made. Therefore the document only, or if permissible, a secondary evidence of its contents, can be the only evidence available to the plaintiffs to prove their case. Now this document has been found by the Courts below to have been mutilated by the cutting off of a portion of it which embodied the conditions on which the payment was to be made. The effect of this is that the plaintiffs are not entitled to succeed.

The principle has been stated in Gogun Churider Ghose v. Dhuronidhar Mundul (1881) 7 Cal 616 , and is as follows:

Where a man has been wicked enough to alter a document fraudulently in this way, we do not think it consistent with equity and good conscience or with sound policy, (especially in a country like this, where forgery and fraud is so lamentably common), that he should be entitled to recover upon it.

The principle may be illustrated in another way. It is this: When there is a document and under the law no other evidence other than the document itself or secondary evidence of its contents can be used to prove a contract, the document, if available, must be produced before the Court or a case must be made out for admitting secondary evidence. But if the plaintiff who sues upon that document has made alternations, interpolations in it, he has not placed the original document before the Court as the document has lost its identity by having been altered in the meantime, and as he himself has been responsible for destroying its identity, he cannot in justice and equity be allowed to adduce secondary evidence of its contents.

In Gour Chandra Das v. Prasanna Kumar Chandra (1906) 88 Cal 812 Rampini and Mookerjee JJ. referred to the case in Gour Chandra Das v. Prasanna Kumar Chandra (1906) 88 Cal 812 and observed:

Any change in an instrument, which causes it to speak a different language in legal effect from that which it originally spoke, which changes the legal identity or character of the instrument either in its terms or the relation of the parties to it, is a material change, or technically, an alteration, and such change will invalidate the instrument against all parties not consenting to the change. This is a wholesome rule founded on sound policy and may be defended on two grounds, namely first that no man shall be permitted, on grounds of public policy, to take the chance of committing a fraud without running any risk of loss by the event when it is detected and secondly that by the alteration the identity of the instrument is destroyed, and to hold one of the parties liable under such circum-stances would be to make for him a contract, to which he never agreed.

Now in the present case, on the finding of facts the document as it originally stood was a conditional promise to pay. By cutting off a portion it becomes an unconditional promise to pay. Therefore the plaintiffs are not entitled to succeed. The suit is also barred by limitation. If it was an unconditional promise to pay Rs. 1500 in case the document, referred to above, was not secured from Hrudananda Sahu, son of Maguni, and no time having been fixed for bringing the document from him, a reasonable time must be allowed.

The suit has however been instituted six years after the writing of the letter, viz. on 11th January 1930. The learned advocate relied upon the fact that there was an acknowledgment of the debt and payment of the principal. He referred to Ex. 2. This has also been tampered with in material particulars. Instead of it being an evidence of payment of the principal or of adjustment of accounts by adding the words "Baki Debu" it became again an unconditional promise to pay.

Mr. Subba Rao contended that the Courts below were not justified in holding that the words "Baki Debu" are forged because no such issue was raised before the trial Court. He said that the contents of this document were mentioned in the plaint and it was distinctly stated that after adjusting the accounts the defendant promised to pay the sum due to the plaintiffs. There was no specific denial of this fact in the written statement nor the defendant alleged that there was any interpolation in this paper. He therefore urged that the learned Munsif ought not to have gone into the question whether the words "Baki Debu" were added to this document.

We have carefully read the written statement. In fact there was a denial by the defendant and he said that he never paid any money towards the satisfaction of the claim as put forward by the plaintiffs and that he never promised to pay anything to them. He gave a different explanation of the payment as we have said before. However the two grounds set forth above are by themselves sufficient for the dismissal of the appeal. The appeal is dismissed with costs.