1. This Revision Petition arises out of a suit S.C.S 143/62 instituted by the petitioner-plaintiff for the recovery of a sum of Rs. 1,864 on the foot of a promissory note dated 29-7-1959. The principal defence with which I am concerned in this revision petition was that the promissory note was not executed on 29-7-1959. but it was executed on 22-7-1959. It was contented by the defendant that in order to bring the suit within limitation, the plaintiff after erasing the figure ‘2’ has re-written the figure ‘9’.
2. The lower Court after proper enquiry found that there has been a material alteration in the promissory note and that the date was changed from 22nd to 29th in order to bring the suit within limitation. The suit was filed on 30th July, 1959, 29th being a holiday.
3. The main contention of Mr. A. Kuppuswamy, the learned Counsel for the petitioner; is that when the defendant even before inspecting the suit document took a stand that the promissory note was really executed on 22nd July, 1959 and not on 29th July 1959 and when in support of that contention he stated in his deposition that he has a diary with him, which was not produced, adverse inference ought to have been drawn against him and it ought to have bean held that the suit promissory note was not materially altered and that it was really executed on 29th July 1959. After going through the judgment of Court below, I find that the lower Court has not believed the defendant's evidence in that behalf, and also did not believe the evidence adduced by the plaintiff. It is pertinent to note that the lower Court reached the conclusion after examining the promissory note that the figure ‘9’ is re-written after the old figure has been erased. In view of that suspicious nature of the document, it held that material alteration has taken place. I do not in these circumstances feel that the production of the diary could have any effect upon the suit. Even otherwise, the lower Court has disbelieved the defendant's evidence. It did not also believe the plaintiff's evidence. The position therefore is that there is no reliable evidence on either side of the parties. A careful examination of the suit promissory note, however reveals that some figure was there in the place of ‘9’, which was erased and the figure ‘9’ was subsequently written upon it. That this is so is clear became at the place where erasure has taken place, the thinning of the paper is clearly seen. That is why when figure ‘9’ was written, the ink has spread. There can be no doubt that the lower Court was correct in treating the document as suspicious in view of the abovesaid circumstance. When there is no evidence on either side explaining about this suspicious nature of the document, what course should the Court take is the real question which arises in the case.
4. The law on the point seems to me to be clear. The English rule that a material alteration of a date makes it altogether void is summarised thus in Halsbury's Laws of England, III Edition, Vol. 11, page 367, paragraphs 598 and 599:—
“598. A writing proposed to be executed as a deed may be altered by erasure or interlineation or in any other way before it is so executed; and any alteration so made before execution does not affect the validity of the deed. Any alteration, erasure or interlineation appearing upon the face of a deed is presumed, in the absence of evidence to the contrary, to have been made before the execution of the deed.”
“599. If an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is therby made void. The avoidance, however, is not ab initio, or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration, and so as to prevent the person, who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound thereby, who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made.”
5. The law is not otherwise in India. The abovesaid rule is quoted with approval in several Indian decisions. Section 87 of the Negotiable Instruments Act statutorily adopts the said rule, Section 87 in so far as it is relevant is in the following terms:—
“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;”
6. It must be remembered that it is not any and every alteration that avoids the instrument. To have that effect, the alteration must be in a material particular. A material alteration can be brought about by change of date or time of drawing or of the place of payment or by change in the sum payable etc., It is thus evident that the date of a promissory note is a material portion of it, and any alteration of such date will naturally avoid the promissory note, unless, of course, as stated in the Section, such an alteration is made with the consent of the other party, or is made to effectuate the common intention of the original parties. It is wrong to assume that the date of the promissory note is merely a description. It indicates the time when the promissory note was executed. In most cases, the date is very material in calculating the date of the performance of the contract and more often fixing the period of limitation within which the plaintiff will have to institute the suit on the foot of such promissory note. It is immaterial whether the alteration is made in the date or month or year. Any such alteration being material must necessaily result in the avoidance of the promissory note.
7. It is true that in two cases, alterations, though material, do not vitiate the instrument; firstly, when the alteration is made before the promissory note is executed, and secondly, if the alteration made was merely to correct a mistake, or to make it what it was originally intended to be, As stated earlier, the Section (Section 87) itself states that the alteration can be made with the consent of the parties, or to carry out the common intention of the original, parties. Any mistake occurring before the execution of the promissory note can however always be corrected before the document is actually executed.
8. The general rule in English law following in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a negotiable instrument renders it suspicious. ??? is only reasonable that the party claiming under it should remove the suspicion. It is true that it is not on every occasion that a party tendering an instrument in evidence is hound to explain any material alteration that appears upon its face. He must however explain when he is seeking to enforce it. It is plain that when the alteration appears to have been made contemporaneously with the document, or if it is made at some subsequent period with the privity of the parties charged and there is no fraud, it does not affect the validity of the instrument.
9. It is thus evident that where the instrument appears to be altered, it is incumbent upon the holder, that is, the plaintiff, to show that the alteration is not improperly made. It is now fairly settled that in case of negotiable instrument, the presumption is that the alteration was made subsequent to the issue of instrument What must follow is that when a promissory note appears to have been altered or there are marks of erasures on it, the party seeking to enforce the promissory note is bound to satisfy the Court that alteration does not avoid the promissory note by explaining how the alteration has been effected: If it falls under any one of the exceptions mentioned above, it is obvious that such an alteration will not fall within the mischief of Section 87 of the Negotiable Instruments Act.
10. Where an instrument appears to be materially altered, the law naturally casts heavy burden on the plaintiff to explain the alteration and show when it was made. Ordinarily, the party who presents a negotiable; instrument which is an essential part of his case in an apparently altered and suspicious state, must fail from the mere infirmity or doubtful complexion of the instrument unless he can satisfactorily explain the existing state of the document: See Mussamut Khoob Conwar v. Baboo Moodnarain Singh . 9 Moores I.A 1 at 17.. It is true that this wholesome rule is not without its exceptions. If there be, for example, independently of the instrument corroborative proof strong enough to rebut the presumption which arises against an apparent and presumable falsifier of evidence, there must however be an explanation and such a strong proof to rebut the initial presumption. It is relevant to note that the presumption under the English Law is that in the case of deeds signed and sealed alterations were made before execution, but no such presumption exists in the case of negotiable instruments. The law on the subject has been thus stated in the Halsbury's Laws of England, III Edition, Vol 11, Para 622, page 379:—
“A writing which is intended to be under hand only can be altered by erasure, or interlineation, or otherwise, before it is signed, but it lies upon the party who puts the instrument in suit to explain an alteration and show when it was made.”
11. That being the position of law, as I understand it, let me see whether any explanation was offered by the plaintiff about the suspicious nature of the suit promissory note. I have already stated that on examination of the document, it becomes clear that there are marks of erasure and the figure ‘9’ is re-written in the manner in which it is mentioned above. There can be little doubt that the date which is material looks to be altered. In such circumstances, it was for the plaintiff who seeks to enforce this promissory note to explain to the Court as to when and how this alteration was made. The plaintiff in his deposition denies any correction. He has no explanation to offer in case it is found that the date appears to be materially altered.
12. In the absence of any explanation on behalf of the plaintiff who seeks the enforcement of the document, it is obvious that the plaintiff must fail, as the onus was on him to show chit the material alteration was made either with the consent of the parties or in order to effectuate the common intention of the parties. In the absence of any such plea, the presumption, as stated earlier, is that the material alteration was made subsequent to the execution of the document. In view of that presumption, the irresistible conclusion is that the suit promissory note is void under Section 87 of the Negotiable Instruments Act and it cannot therefore be enforced in a Court of Law. In Henman v. Dickinson, it was held as follows:—
“……………where an alteration appears upon the face of a Bill the party producing it must show that the alteration was made with consent of the parties, or before issuing the bill”
13. To the same effect is C.S Pillay v. K.K Konar . 1935 Rangoon 131.. I am therefore satisfied that the plaintiff has failed to offer any explanation, and also failed to prove that the material alteration appearing on the face of the promissory note was made with the consent of the parties, or was made in order to effectuate the common intention of the parties. His suit therefore was rightly dismissed on that ground. This Revision Petition therefore is dismissed. In the circumstances of the case, I leave the parties to bear their own costs of both the Courts.
14. Petition Dismissed.