Mahila Bai Kokila Bai vs Ram Singh and Another

Chaturvedi, J.—This is second appeal filed by widow (sic)of the original Plaintiff and is from judgment and decree dated 14-10-50 of the (sic)Judge, Bhind, affirming the judgment decree of the Civil Judge, Second Class, whereby he dismissed the Plaintiff''s The suit was based on a bond dated 28-2-1938 which purported to be on behalf of, and was alleged to have been, executed by two brothers, Ram Singh and Gokul Singh, Respondents in this appeal. The execution was denied by both and an issue about it was framed. The trial Court tield that when the document was executed by Ram Singh the other brother Gokul Singh was not present but afterwards the Plaintiff put some thick inkspot on the document and marked it as the thumb impression of Gokulsingh Respondent. Taking the instrument as a forged one, it dismissed the entire suit and the First Appellate Court concurred in the finding and upheld the dismissal of the suit.

As the concurrent findings of the two Courts below rest upon abundant evidence, on facts, there could be nothing substantial to be said and the counsel for the Appellant, Mr. Bhagwan Das Gupta, therefore strenuously argued that if the execution of the bond by Ram Singh was proved, a decree ought to have been passed against him. In my opinion this contention is not tenable. If the suit had been based not on the bond but on the original consideration and had this been proved and if the Courts below had not come to the conclusion, that the thumb impression of Gokul Singh was forged I would have certainly followed - Narsingdas Agarwala Vs. Shaik Bhortoo and Others, in remanding the case for retrying it against Ram Singh Defendant alone. In the present case the suit is however based only on the bond in dispute and it seems to me that if the Plaintiff recovers at all, it must be on the basis of this bond and as it bears a forged thumb impression of Gokul Singh I should be disposed to follow the rule laid down in - Laduram Marwari Vs. Bansidhar Marwari and Another, that no decree could be passed in favour of the Plaintiff.

The question, in my opinion, presents two aspects; the first being that the forged thumb impression may be ignored. In this case the absence of the signature or of thumb mark of either of the two brothers who are alleged to have executed the bond would to my mind appear to show that it being not duly executed the document was incomplete and never became an instrument or agreement capable of affording a cause of action on which the suit could be instituted. The second aspect is that the forgery should not be ignored, but must be taken into consideration. The rule is now well settled that where a document containing material alteration was in the possession of the Plaintiff and was produced from bis custody, he has to explain when and how the alteration was made - Kanhayalal v. Sitaram AIR 1924 Nag 250 (C); - AIR 1947 145 (Nagpur) .

If he cannot cogently explain the alteration he cannot get a decree on the basis of a document with material alteration in it. In - Gour Chandra v. Prasanna Kumar 33 Cal 812 (E), the question was discussed to what extent the identity of an instrument must be changed in order that its legal effect may be altered so as to vitiate the entire instrument. It was observed that it must depend upon the nature of the alteration in each particular case. It was added that the test is not necessarily whether the pecuniary liability of one of the parties has been increased by the change as it is of no consequence whether the alteration would be beneficial or detrimental to the party sought to be charged on the contract; but the important question is whether the integrity and identity of the contract have been changed.

The rule of the English Common Law was laid down in ''Pigot''s case'', (1614) 11 Co. Rep. 28 (F), that a deed is void when it is altered in a point material. That was only as regards a deed, but the rule so laid down was extended in -Master v. Miller (1791) 4 Term Rep. 320 (G) to instruments not under seal. The entire case law on the point was reviewed by the Court of Appeal in - Suffell v. Bank of England (1882) 9 QBD 555 (H), where at p. 561 Sir George Jessel M.R., cited with approval the following passage from the judgment of Grose J. in Master v. Miller, (G) :

The policy of the law has been already stated, namely, that a man shall not take'' the chance of committing a fraud, and when that fraud is detected recover on the instrument as it was originally made. In such a case the law intervenes, and says that the deed thus altered no longer continues the same deed, and that no person can maintain an action upon it.

Brett L.J. at p. 568 observed thus:

I incline to think with regard to instruments which either contain the contract and something more, or which do not contain the contract at all, that the rule may be thus stated - whenever any instrument is purposely altered by a person in lawful possession of it in a material part of it, the instrument is void for the purpose of enabling any person to sue on it or to defend himself by using it as a direct defence depending on its obligatory force as an instrument.... Any alteration of any instrument seems to me to be material which would alter the business effect of the instrument if used for any ordinary business purpose for which such an instrument or any part of it is used.

Cotton L.J. then observed that it is not every small alteration that may avoid the instrument, but it must be a material alteration so that the party defending himself may be able to say that it is not the same instrument which he executed or to which he put his hand. In such cases the question is not whether the contract has been altered, but the question is whether the instrument has been altered in a material way. Then the Lord Justice cited with approval the following extract from-Sanderson v. Symonds (1819) 1 B and B 426 at p. 430 (I) :

The original rule was not intended so much to guard against fraud as to insure the identity of the instrument and prevent the substitution of another without the privity of the parly concerned.

This rule has also been followed by the High Courts in India, see - Surendra Nath Bose Vs. Ashutosh Saha and Others, and - Janardan v. Pran Dhan Das AIR 1940 Pat 245 (K).

In - AIR 1940 160 (Privy Council) it was observed by their Lordships of the Judicial Committee that the rule relating to the effect of material alteration in a deed made after its execution as prevails in English Courts applies to Indian(sic) cases; as the rule is based on "great godsense"(sic), is dictated by public policy and is independent(sic) of considerations of clime or ra(sic) Their Lordships then referred to - Subramania Ayyar v. Krishna Ayyar 23 Mad (M); - Mangal Sen v. Shankar Sahai 25 580 (N); - Gogun Chunder v. Dhuranidti 7 Cal 616 (O) and - Namdev Jayram Khole and Others Vs. Swadeshi Vyapari Mandali Ltd., where this rule had been adopted and observed that the rule was consistent with the principles of equity and good conscience which(sic) have generally prevailed in India. The English(sic) Law was then briefly summarised indicate(sic) that a material alteration is one which varies(sic) the rights, liabilities, or legal position of the (sic) parties ascertained by the deed in its origin(sic) state or otherwise varies the legal effect of the instrument as originally expressed or reduce (sic)to certainty some provision which was originally unascertained and as such void, or (sic) otherwise prejudice the party bound by deed as originally executed. It was laid down(sic)that the effect of making such an alteration without the consent of the party bound exactly the same as that of cancelling the deed(sic) This rule has since then been followed by the (sic)High Courts in India: See - Hardwar Singh and Another Vs. Hari Parshad Rai, AIR 1947 145 (Nagpur) .

Applying this rule to the circumstances(sic) of the present case, I find that the recital in the deed was to the effect that a loan of Rs. 1091/- was taken by the two brothers jointly(sic) from the Plaintiff and both of them jointly(sic) promised to repay the loan in annual instruments of Rs. 75/-. If the recital had been(sic) the name of RamSingh alone the forg thumb-mark on the deed would not have been(sic) a material alteration. But as the averment the plaint and the recital in the deed are(sic) the effect that the two brothers had jointly, executed(sic) the bond, the forged thumb-mark of other brother would not only alter and varies(sic) the rights and liabilities of Ram Singh, as would not be able to compel his brother,(sic) contribute equally with himself to the. Performance(sic) of promise, but would altogether(sic) change the integrity and identity of the contract.

It appears that Ram Singh had signed the bond on the understanding that Gokul Singh(sic) would also sign the bond, but either Gokul Singh refused to execute the bond or the Plaintiff thought that the attempt to approach (sic) for execution of the bond may not be successful. He therefore put some ink-spot on,(sic) deed making it look like a thumb-mark a (sic) underneath it wrote "Nishani Angutha: Gokul Singh". In my opinion, under the circum- stances, the identity and the integrity of bond having been lost no decree can be pass(sic) against Ram Singh in the presence of the material alteration in the bond. I would, therefore, (sic)dismiss the appeal with costs.