Ramaier vs Shunmugam Pillai and Others

Shephard, J.—This is a suit brought upon an instrument of hypothecation executed in the plaintiff''s favour by one Ponnappa Pillai now

deceased. The defendants are the sons and grandsons of Ponnappa. It has been found by the District Judge that after the bond came into the

plaintiff''s hands, an attestation was added, purporting to be signed but not in fact signed by Ponnappa''s son, Shunmugam. In the opinion of the

judge this addition for which the plaintiff was responsible constituted a material alteration of the instrument and he accordingly dismissed , the suit.

There can be. no doubt that the object in making this addition was to facilitate the proof of the execution of the instrument as well against the

executant as against his son, the defgnd-ant. It was the more important to obtain the son''s attestation rather than that of a stranger because when

the instrument came to be enforced, it would be material to show that he had admitted the debt and that his interest in the property was therefore

affected by the hypothecation. In this respect and also because in the Calcutta case cited in argument, (Mohesh Chunder Chatterjee v. Kamini

Kumari Dabia I. L. K. 12 C 313), the added signature was genuine, that ease is distinguishable from the present. I am however of opinion that the

principle laid down in that case applies and that there is hero no material alteration of the instrument within the meaning of the penal rule on which

the defendants rely.

It is clear that the adding of an attestation whether the signature is genuine or not, does not purport to affect the terms of the contract between

the parties to the instrument, nothing new is embodied in it, no fresh party is added as was the case in Gardner y. Walsh, 24 L. J. (Q. B.) 285. The

executant of the instrument could not be affected by the addition prejudicially or otherwise. It cannot be said that the identity or effect of the

instrument is altered, for it remains as it was, when executed by Ponnappa Pillai an instrument hypothecating his property. It is not as if the

attestation were necessary in order to make the instrument legally operative. That would be a totally different case and is expressly excepted from

the proposition laid down in Mohesh Chunder Chaiterjee v. Kamini Kumari Dabia I. L. R.12 C 313; (Cf. Davidson v. Cooper 11 M. & W. 778).

In the present case the object which the attestation fulfilled, might have been almost equally well secured by a memorandum written on a separate

piece of paper. It was not indispensable for the plaintiff''s purpose that anything should be written on the very paper on. which the instrument was

written.

I can find no authority for holding that in such a case there can be deemed to have been a material alteration of the instrument and I would

therefore reverse the decree of the District Judge and remand the appeal.

Hundley, J.

In my opinion, even on the finding of the District Judge that the name of 1st defendant as an attesting witness to the hypothecation bond sued on

was forged, after execution and registration and after the document came into plaintiff''s hand, the case does not come within the rule laid down in

Master v. Miller 4 T. R. 320, and the other English cases, and declared by the Full Bench decision reported in Christacharlu v. Karibasayya I. L.

R. 9 M. 399, to be applicable to this country, so as to disentitle plaintiff to sue on the bond. In the order in Appeal No. 89 of 1890 to which I was

a party this court following I. L. R. 12 C 313, in preference to Sitaram Krishna v. Daji Devaji I. L. R. 7 B 418, held that the addition of a name of

an attesting witness subsequently to the delivery of the document was not a material alteration which invalidated the document. I adhere to the

principle of that decision and it seems to me to make no difference in principle that the addition of the name of the attesting witness is a forgery and

made with the fraudulent intention of precluding the person whose name is forged from denying the genuineness of the document. The attestation

clause is no part of the document as executed by the executant, but merely one means of proof of the document, and, as such, is not a material part

of the document as executed, within the principle of the rule under consideration. Attestation was not in this case necessary to the validity of the

document as it was executed before the Transfer of Property Act came into force. I express no opinion as to what would be the effect of the

addition of an attesting witness''s name in cases Avhere attestation was necessary to the validity of the document.

I would reverse the decree of the Lower Appellate Court and and remand the appeal for disposal upon the other questions raised.