In Re: Satti Subbi Reddi

Venkataramana Rao, J.—The suit out of which this second appeal arises was brought on a promissory note dated 20th February 1933

purporting to be executed by defendants 1 and 2. Defendant 1 is the father and defendant 2 is the son. The case for the plaintiffs is that there was a

prior promissory note dated 20th February 1930 and when it was about to be barred defendant 2 came to the plaintiffs on 20th February 1933,

the last day of limitation, and represented that his father would be coming later and asked him to prepare a, fresh pro-note in which both of them

will join and make themselves liable for the amount due and accordingly he fixed his thumb impression on the pro-note that was then prepared. But

as the father did not turn up, he first intended to take away the promissory note and have it executed by defendant 1 (the father), but subsequently

at his request the word ''nisani'' of defendant 1 was written by P.W. 1 across the stamp to indicate the execution by defendant 1. The first Court

thought that the document was a forgery and even defendant 2 would not be liable as defendant 1 has not executed the note. The learned

Subordinate Judge on appeal held that the putting of the nisani of defendant 1 with the consent of defendant 2 does not amount to a forgery and

that in the circumstances defendant 2 must be held liable.

Two contentions have been urged before me by Mr. Ramamurthi. The first is based on the decision in Santhu Mohideen Pillai v. Jamal Md.

Jamaluddin 1928 Mad 1092 and a later judgment of Walsh, J., in Kumaraswami Desikar v. Dhiraviam Pillai 1935 40 MLW 802 viz. that Section

87, Negotiable Instruments Act, applies and the note having been materially altered is unenforceable. These two decisions purport to differ from

the decision in Madam Pillai v. Athinarayana Pillai 1925 21 MLW 532. In my opinion there can be no question of any material alteration within the

meaning of Section 87, Negotiable Instruments Act, because there is no question of alteration of any instrument and the nisani of defendant 1 was

put simultaneously with the execution of the note by defendant 2. Section 87 only contemplates an alteration subsequent to the execution of the

note. Further the alteration must have been made without the consent of the party who is sought to be made liable. Here the finding is that the nisani

was put with the consent of defendant 2. In Santhu Mohideen Pillai v. Jamal Md. Jamaluddin 1928 Mad 1092 Wallace, J., says that the plaintiff in

that case connived at the fraud. In Kumaraswami Desikar v. Dhiraviam Pillai 1935 40 LW 802 the finding was that the signature was a forgery. In

the present case the finding is that it is not. The second contention urged by Mr. Ramamurthi is that the document must be deemed to be an

inchoate instrument and the liability of defendant 2 can only arise after defendant 1 had executed it and that it was the intention of all parties at any

rate as appearing from the evidence of the plaintiffs'' witnesses that both the parties should execute the promissory note and the decision in

Sivaswami Chetti v. Sevugam Chetti (1902) 25 Mad 389 was relied on. In that case Bhashyam lyengar, J., observes thus:

When a document is intended to be executed by several persons, but is executed only by some of them, the question whether it takes effect as

against those who have executed it, notwithstanding that the rest have declined to join in the execution of the document, rests upon the intention of

the parties.

The finding in this case is that:

It is not proved that there was an understanding that defendant 2 was to be only jointly liable with defendant 1 or that the former should not be held

liable until and unless defendant 1 also put his thumb mark on Ex. A.

The question has to be viewed from the point of view of defendant 2. Did he contract on the understanding that he was to be liable only on

defendant 1 executing the note ? The circumstances in this case point to the conclusion that he represented to the plaintiffs that he will make himself

liable and that he will also get his father to sign the note. Of course it may no doubt have been the intention of the plaintiffs that both should join in

the execution of the note, but it does not necessarily follow that they never intended to fasten the liability on defendant 2 or intended the document

to take effect only in case defendant 1 should join him or that the note could not be complete even as against defendant 2 unless defendant 1

should join in the execution of the note. Their anxiety to have the liability fixed on both will not render the document incomplete if the original object

was to have the renewal of the promissory note without its being barred by limitation. Having regard to all the circumstances in this case, I agree

with the learned Subordinate Judge that the document must be regarded to be complete so far as defendant 2 is concerned. In this view the second

appeal fails and is dismissed.