Parbati Charan Mukherjee v. Amarendra Nath Bhattacharjee

1. This appeal arises out of a suit for recovery of Rs. 16,126 under the following circumstances:

The plaintiff and the defendants carried on a foundry business in which the plaintiff had a 6 annas share, the defendants being the owners of the remaining 10 annas share. The plaintiff sold his 6 annas share in the business to the defendants for a price of Rs. 21,000 on the 12th August, 1922 The defendants paid Rs. 6,000 out of the Rs. 21,000 to the plaintiff and for the balance of Rs. 15,000 executed a mortgage-bond about three months afterwards on the 15th November, 1922 in which they stated

"as we are unable to pay the balance of Rs. 15 000 in cash to you, we admit the said Rs. 15'000 to be due to you and as security for payment of the same we mortgage to you the 'machineries described in the schedule"

The interest payable was 12 annas per cent' up to the end of Chaitra and thereafter at Re. 1 per cent, per annum. There was also a provision for payment of compound interest with three monthly rests. The defendants not having paid the money within the due date, the plaintiff instituted the present suit on the 28th June, 1923 for recovery of the money on the basis of the mortgage-bond.

2. The defence was that the bond was materially altered, inasmuch as there was no contract for the payment of compound interest and that after execution and attestation of the document and before registration, certain lines were interpolated in the document containing the stipulation as to payment of compound interest and that in these circumstances, the plaintiffs were not entitled to recover the debt.

3. The Court below upon the evidence carne to the conclusion that there was a material alteration of the bond and dismissed the suit altogether.

4. The plaintiff has appealed to this Court. The first question for consideration is whether there was any interpolation and material alteration of the document. The evidence has been placed before us and that evidence shows that there was a material alteration.

5. It appears that the matter in dispute between the parties had been referred to arbitration of three respectable gentlemen of the locality. One of them was examined by the defendants and the other examined by the Court and the learned Subordinate Judge relying upon the evidence of the latter and also upon other evidence in the case, came to the conclusion that the bond had been materially altered.

6. The learned Advocate for the appellants has relied upon certain circumstances which-, it is contended, go against the defendants' case. I do not think, however, that they. are sufficient to rebut the evidence adduced in the case and I am unable to differ from the finding of fact arrived at by the Court ' below. That being so, there was material alteration of the document and there is no doubt that upon the document so altered the plaintiff cannot recover the money.

7. The next question is whether the plaintiff can succeed on the basis of the original consideration. Now, it has been held in a number of cases that he is entitled to succeed if he can prove the debt by independent evidence. I need only refer to some of them. Pramatha Nath Sandal v. Dwarka Nath Dey 23 C. 851 : 12 Ind. Dec. (N.S.) 565, Moti Lal Saha v. Monmohan Gossami 5 C.W.N. 56, Atmaram v. Umedram 25 b. 616 : 3 Bom. L.R. 213, and Dula Meah v. Abdul Rahaman 81 Ind. Cas. 641 : 28 C.W.N. 70 : A.I.R. 1926 Cal. 452. In the case of Moti Lal Saha v. Manmohan Gossami 5 C.W.N. 56, the plaintiff' brought a suit for recovery of money on the allegation that the defendants had taken from the plaintiffs a loan by executing a note in favour of one of the plaintiffs. It was held that even if the promissory-note be a forgery, the plaintiffs would succeed if they could prove the loan by in dependent evidences. See also the cases collected in Ram Bahadur v. Dusari Ram 19 Ind. Cas. 840 : 17 C.L.J. 399, in which the note was inadmissible under the Stamp Act or other Acts.

8. Reliance, however, has been placed on behalf of the respondents on the case of Gour Chandra Das v. Prosanna Kumar Chandra 33 C. 812 : 3 C.L.J. 363 : 10 C.W.N. 783. But that case is distinguishable. The learned Judges in considering the question whether the plaintiff was entitled to succeed on the basis of the original consideration) distinguished the cases referred to above, and in doing so, they observed:

It is obvious from the plaint that the suit is not based on the original consideration: the original bond, which is supposed to have been renewed, was not produced in evidence, and we have no materials from which we could ascertain, when the loan was first advanced, when it was re-payable and assuming the new bond to be admissible as a proof of acknowledgment, on the principle explained in Atmaram v. Umedram 25 b. 616 : 3 Bom. L.R. 213, whether it would be sufficient to prevent the operation of the Statute of Limitations.

9. The bond sued upon in that case was executed in substitution of an earlier bond which was not produced, and the original consideration had become merged in the later bond. In the present case, no question of limitation can arise. The sale which gave rise to the debt took place on the 8th August, 1922. The mortgage-bond was executed on the 15th November, 1922 and the suit was brought on the 28th June, 1923. The suit was therefore within one year of the date of the bond. Reliance, however, has been placed upon another passage at page 819 where the learned Judges say:

It is by no means clear that the original debt itself may not be extinguished by a fraudulent alteration in the instrument.

10. The only case cited is that of Alderson v. Langdale (1832) 3 B. & Ad. 660 at p. 663 : 1 L.J.K.B. 73 : 37 R.R. 513 : 110 E.R. 241. That was a case of Bill of Exchange and Lord Tenterden, C.J., observed:

It is perfectly clear that a Bill of Exchange will operate as a satisfaction of a preceding debt, if the holder make it his own by laches--as by not presenting it for payment when due. Here, we think that the plaintiff, by altering the bill in a material part,...and caused it to operate as a satisfaction of the debt for which it was originally given.

11. The learned Judges in the case of Gour Chandra Das v. Prosanna Kumar Chandra 33 C. 812 : 3 C.L.J. 363 : 10 C.W.N. 783, go on to say:

It has been maintained by high authority, that, where a party by his own act alters a genuine instrument, so that it cannot, be the foundation of any legal remedy, he ought not to be permitted to prove the promise contained in it by any other evidence, on the principle that the debtis merged in the instrument and hence the destruction of the latter leaves nothing upon which to sue. This doctrine, perhaps, may be regarded as somewhat technical; but, although we may hold, that in the absence of fraud, the instrument only and not the original debt is destroyed, where a party has voluntarily and fraudulently altered a deed, and has thus destroyed, the evidence of his debt, there is no reason why he should be allowed to fall back upon the original consideration and establish it by evidence, which he himself has destroyed.

12. The learned Judges

"then referred to some American cases. We have not access to cases in American Courts. But it seems to me that the observations of the learned Judges apply only to cases where the document is accepted in substitution for a debt, i.e., where the debt is merged in the instrument or where the execution of it is the consideration for a contract so that the legal liability of the obligor is only under -the document. And if the document cannot be enforced by reason of its material alteration, he cannot be made liable in any other way. They cannot apply to cases where the document is executed by way of security of a pre-existing debt, which is not extinguished by a material alteration of the document and such debt can be proved by other evidence unless other evidence is inadmissible under some Statute."

13. In the present case the plaintiff states 'in the second paragraph of the plaint that it was agreed upon between the parties that the plaintiff sold his 6 annas share in the foundry business for a price of Rs. 21,000, and that the defendants promised to pay the price so settled, namely, Rs. 21,000. In the third paragraph it is stated that as the defendants were then unable to pay the balance of the purchase-money, viz., Rs. 15,000, they executed a mortgage bond in favour of the plaintiff in which they acknowledged the said sum of Rs. 15,000 as their debt, mortgaging the machineries of the foundry to the plaintiff by way of security for the payment of the sum of Rs. 15,000.

14. The defendants in their defence admitted that the statements contained in the second paragraph of the plaint are true, so that the promise to pay Rs. 21,000 was admitted, and it is common ground that only Rs. 6,000 was paid by the defendants.

15. The defendants also in the fifth paragraph of their written statement stated that they. had gone to the plaintiff to pay Rs. 1,000 out of the amount due to him under the bond but the did not make the payment when they found on production of the mortgage bond that the stipulation as to compound interest had been interpolated in the document. This goes to show that the debt wag admitted and so far as the original sum of Rs. 21,000 is concerned, the promise to pay it was expressly mentioned in the plaint and admitted to be true by the defendants. The statement in the third paragraph of the written statement that the defendants, acknowledged the sum of Rs. 15,000 mentioned in the bond executed by them by way of security for payment of the sum of Rs. 15,000 was not in terms admitted in the written statement. In the mortgage bond, however, it was expressly stated that the defendants were unable to pay Rs. 15,000, that they admitted Rs. 15,000 being due to the plaintiff and that as security for payment of the same they mortgaged the machineries.

16. It is contended on behalf of the respondents that this admission in the mortgage bond cannot be relied upon as the bond is entirely vitiated by the material alteration and cannot be used for any purpose whatsoever.

17. The question has been considered in a number of cases and it has been held that an instrument which by reason of an alteration becomes invalid as the foundation of action is not necessarily void for all purposes. In the case of Earl of Falmouth v. Roberts (1842) 9 M. & W. 469 : 1 Dowl. (N.S.) 633 : U L.J. Ex. 180 : 152 E.R. 198 : 60 R.R. 790, the rule as to the destructive effect of altering a written instrument was stated by Baron Parke to apply where the obligation sought to be enforced is by reason of the instrument. In Suffel v. Bank of England (1882) 9 Q.B.D. 555 at p. 568 : 51 L.J.Q.B. 401 47 L.T. 146 : 30 W.R. 932 : 46 J.P. 500, Brett, L.J., observed:

"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. I put in those cautionary words myself, because I am not sure that, although an instrument maybe avoided for the purposes which I have mentioned, nevertheless it may be used for other and collateral purposes, as for instance, by way of proving or enforcing an admission where the instrument itself is not used either for the purpose of its being sued upon or for the purpose of its being used as a direct defence in the terms which I have stated."

18. In Agricultural Cattle Insurance Co. v. Fitzgerald (1851) 16 Q.B. 432 at p. 440 : 20 L.J.Q.B. 244 : 15 Jur. 489 : 117 B.R. 944, Lord Campbell, C.J., observed that there is no ground for saying that if a deed be altered in a material part it is rendered void from the beginning...but it may still be given in evidence to prove a right or title created by its having been executed, or to prove any collateral fact.

19. In Pattison v. Luckley (1875) 10 Ex. 330 : 44 L.J. Ex. 180 : 33 L.T. 360, Bramwell, B. referring to the case of Earl of Falmouth v. Roberts (1842) 9 M. & W. 469 : 1 Dowl. (N.S.) 633 : U L.J. Ex. 180 : 152 E.R. 198 : 60 R.R. 790, observes that even if we hold that the instrument ceased to have any intrinsic operation, still we must look at it to see the terms of the bargain.

20. The same view has been taken in the case of Christacharlu v, Karibasayya 9 M. 399 : 10 Ind. Jur. 409 : 3 Ind. Dec. (N.S.) 673. In that case the learned Judges pointed; out that where the obligation existed before the execution of the altered document, and it is open to the obligee to sue on the original obligation, and he does so, the document may be adduced in proof of the nature and extent of the obligation. So in a suit on an account stated, an altered promissory-note given as security for the amount is admissible to prove the settlement and the amount due, although it could not have been made the foundation of the action.

21. In the case of Atmaram v. Umedram 25 B. 616 : 3 Bom. L.R. 213, the learned Judges say:

It is true that the reason of the-rule laid down in Pigot's case (1614) 11 Co. Rep. 26b : 77 E.R. 1177, has been pointed out to be the fraud or laches of the party altering the deed or instrument or allowing it to be altered while it was in his custody. But in no case has the fraud been held to vitiate every document which is adduced merely as evidence in support of a claim or contention.

22. Further on it is observed by the same learned Judges:

The rule has been borrowed from the English cases by our High Courts and applies to the bonds or other instruments creating per se rights and liabilities on the ground that it is consistent with justice, equity and good conscience. But we do not think that the rule of justice, equity and good conscience requires that it ought to be carried further and applied to documents which are not the foundation of a plaintiff's claim but are merely evidence of a defendant's pre-existing liability.

23. The rule, therefore, is confined to cases where the instrument is made the foundation of the claim of the defendants liability.

24. In the present case I think that the admissions in the document may be referred to for proving the original debt and the plaintiff can recover upon the original consideration.

25. The last question is whether the plaintiff can succeed in recovering the debt upon the suit as framed. There are statements in the plaint which go to show that the suit is on the basis of the bond. On the other hand, it is also stated that on the 10th August, there was a promise to pay Rs. 21,000 but that only Rs. 6,000 was paid and that the mortgage bond was executed on the 15th November, 1922 for the sum of Rs. 15,000 by way of security. And although in the first prayer the plaintiff claimed a declaration for a charge, the second prayer was for the recovery of the money. The facts necessary to be investigated in the case were all stated. The defendants were fully aware of those facts and having regard to the prayer kha and the general prayer in the plaint, I think that the plaintiff should get a decree for the sum of Rs. 15,000. The plaintiff, however, is not entitled to any interest or coats.

26. He will get a money decree for Rs. 15,000 only.

We direct that each party do bear his or their own costs in both the Courts.

Page, J.

27. On the 12th August, 1922, the plaintiff sold to the defendants for Rs. 21,000 his 6 annas share in an iron foundary carried on under the name and style of the Crown Engineering and Foundary Works Company. Oh the same day the defendants took possession, and the title to the plaintiff's share in the said property passed to the defendants as malika or proprietors. At the time of the sale the defendants paid Rs. 6,000 to the plaintiff, but have not paid any part of the balance of Rs. 15,000. On the 15th November, 1922, three months after the sale, the defendants executed a mortgage bond in favour of the plaintiff under which they hypothecated certain machinery and effects, part of the property which they had acquired as aforesaid, for the sum of Rs. 15,000 in respect of the balance of the purchase money and interest thereon. The above facts were admitted by the defendants in their written statement and also in their testimony at the trial. The learned Subordinate Judge found that a provision for the payment of compound interest had been inserted in the said bond by the plaintiff or his agent, Hari Sadan Mookerji, after it was executed and without the knowledge and consent of the defendants, and accordingly he dismissed the plaintiff's suit with costs. Now, it is common ground that the alleged interpolation of the provision for compound interest effected a material alteration in the terms of the bond, and that the plaintiff would not be entitled thereafter to enforce the provisions of the bond. In so far, therefore, as the plaintiff founded his cause of action upon the bond lam of opinion that it was right--indeed it was inevitable--that the suit should be dismissed. The principles laid down in Pigot's case (1614) 11 Co. Rep. 26b : 77 E.R. 1177, and in Master v. Miller (1719) 1 Sm. L.C. (12th Ed.) 803 : 4 T.R. 320 : 2 R.R. 399 : 100 E.R. 1042, are part of the law in India, and even if the plaintiff were permitted to amend the plaint and to sue upon the bond in its original form with the altered provisions expunged, it would not avail him, for, in circumstances such as those obtaining in this case, the law will not allow the bond to be admitted in evidence for the purpose of enforcing the provisions thereof, or being used as the foundation of a cause of action. Gogun Chunder Ghosev. Dharani Dhar Mondul 7 C. 616 : 4 Shome L.R. 187 : 6 Ind. Jur. 90 : 9 C.L.R. 257 : 3 Ind. Dec. (N.S.) 945, Christacharlu v. Karibasayya 9 M. 399 : 10 Ind. Jur. 409 : 3 Ind. Dec. (N.S.) 673, and Harichand Mancharam v. Govind Luxman Gokhale 71 Ind. Cas. 763 : 28 C.W.N. 73 : A.I.R. 1923 P.C. 47 : 17 L.W. 572 : 44 M.L.J. 608 : 32 M.L.T. 175 : 37 C.L.J. 440 : 25 Bom. L.R. 531 : 47 B. 335 : 50 I.A. 25 (P.C.). The plaintiff-appellant, however, contends that he was entitled to resort to the original consideration, and in this suit to recover the sum of Rs. 15,000, the balance of the purchase price of the foundry. The defendants resist the plaintiff's claim on three alternative grounds: (1) that the original debt was extinguished by the material alteration of the terms of the bond; (2) that the obligation to pay the balance of the purchase money merged in the bond, and that the debt of Rs. 15,000 was satisfied by the acceptance of the bond; and (3) that the claim being founded upon the bond the plaintiff cannot recover upon the basis of the original debt without altering the frame of the suit, and that an amendment in that behalf ought not to be permitted, inasmuch as such a cause of action is now barred by the Statute of Limitation. In support of the first contention the learned Advocate for the defendants relied upon the judgment of Rampini and Mookerjee, JJ. in Gour Chandra Das v. Prasanna. Kumar Chandra 33 C. 812 : 3 C.L.J. 363 : 10 C.W.N. 783. In that case, after the bond had been executed by the first defendant and while it was in the custody of the plaintiff, a material alteration of the bond was made by the plaintiff or some one on his behalf by adding the name of the second defendant as one of the executants thereof. The plaintiff sued both the defendants on the bond, but the suit was dismissed. The High Court granted a Rule calling upon the first defendant to show cause why the decree should not be set aside in so far as it dismissed the claim of the plaintiff as against the first defendant; but ultimately the Rule was discharged. It appears that the consideration for the bond in that suit was money due under an earlier bond for which the later bond was taken in substitution. The plaintiff therefore, was not entitled to rely upon the original consideration which had become merged in, and had been, satisfied by the later bond. The Court held that:

it is obvious from the plaint that the suit is hot based on the original consideration ; the original bond, which is supposed to have been renewed, was not produced, in evidence, and we have no materials from which we could ascertain, when the loan was first advanced, when it was re-payable, and assuming the new bond to be admissible as a proof of acknowledgment, on the principle explained in Atmaram v. Umedram 25 B. 616 : 3 Bom. L.R. 213 whether it would be sufficient to prevent the operation of the Statute of Limitations.

28. At the hearing of the Rule the learned Judges held that the plaintiff was not entitled to rely either on the bond or oh the original consideration as the basis of a cause of action, and discharged the Rule. The decision undoubtedly was correct; but in the course of the judgment their Lordships passed the following observations which have been relied upon by the learned Advocate for the defendants:

It is by no means clear that the original debt itself may not be extinguished by, a fraudulent alteration in the instrument; see for instance, Alderson v. Langdale (1832) 3 B. & Ad. 660 at p. 663 : 1 L.J.K.B. 73 : 37 R.R. 513 : 110 E.R. 241 and the notes to Master v. Miller (1719) 1 Sm. L.C. (12th Ed.) 803 : 4 T.R. 320 : 2 R.R. 399 : 100 E.R. 1042. It has been maintained by high authority that, where a party by his own act alters a genuine instrument, so that it cannot: be the foundation of any legal remedy, he ought not to be permitted to prove the promise contained in it by any other evidence, on the principle that the debt is merged in the instrument and hence the destruction of the latter leaves nothing upon which to sue. This doctrine, perhaps, may be regarded as somewhat technical; but, although we may hold, that in the absence of fraud, the instrument only and not the original debt is destroyed, where a party has voluntarily and fraudulently altered a deed, and has I bus destroyed the evidence of his debt, there is no reason why he should be allowed to fall back upon the original consideration, and establish it by evidence which he himself has destroyed : Warder v. Willyard 24 Am. St. Rep. 250 : 46 Minnesota 531 Wilson v. Hayes 12 Am. St. Rep. 754 : 4 L.R. A. 196 : 40 Minnesota 531, Walton Plow Co v. Compbell 16 L.R. A. 468 : 35 Neb. 173, and Gettysbury National Bank v. Chisolm 47 Am. St. Rep. 929 : 169 Pa. St. 564.

29. The learned Advocate for the defendants has contended that the learned Judges in this passage intended to lay down that the effect of a fraudulent alteration of a document was that the original debt becomes extinguished, and cannot be proved either by means of the document or aliunde. In my opinion, the language used does not warrant such a contention. If the execution of a document is the consideration for a contract, or if the document is accepted in substitution for a debt, the legal obligations of the party executing the document to the other party to the contract are limited to those which can be enforced under the document and not otherwise. In the one case the document formed part of the original consideration, in the other the preexisting debt merged in the document, the acceptance of which operated as an accord and satisfaction of the debt for which it was given. The result in either case would be that if the bond becomes void, and the obligations thereunder are unenforceable by reason of a material alteration of its terms, the obligee is without remedy; for his cause of action against the defendants must needs be founded upon the defendants' liability under the bond, and ex coneessis to prove this cause of action, the bond cannot be admitted in evidence. On the other hand, if the document is accepted as security for the payment of a pre-existing debt, and merely by way of further assurance, the original debt is not extinguished by reason of a material alteration of the terms of the document. The document, indeed, thereby becomes void as a security, but the original debt survives, and may be enforced in such manner as the law permits. No doubt, in certain circumstances it may happen that by reason of some statutory provision the only medium through which the original consideration can be proved is the document itself; in which case evidence dehors the document is not admissible, and if the document is void and cannot be adduced in evidence to found a cause of action, legal proef of the original consideration will not be forthcoming. Where, however, no such statutory prohibition exists, in my opinion, the original debt may be proved aliunde, and inasmuch as the altered document is not wholly vitiated, and may be used for a collateral purpose, the document is admissible inter alia to prove the circumstances under which the original debt was contracted, and as evidence of any admission contained therein of the defendants' liability for the pre-existing debt. Sutton v. Toomer (1827) 7 B. & C. 416 : 1 Man. & Ry. 125 : 108 E.R. 778, Hutchins v. Scott (1837) 2 M. & W. 809 : 1 M. & H. 194 : 6 L.J. Ex. 186 : 1 Jur. 265 : 150 E.R. 984 : 46 R.R. 770, Earl of Falmouth v. Roberts (1842) 9 M. & W. 469 : 1 Dowl. (N.S.) 633 : U L.J. Ex. 180 : 152 E.R. 198 : 60 R.R. 790, Gould v. Coombs (1845) 10. B. 543 : 14 L.J. C.P. 175 : 9 Jur. 494 : 135 E.R. 653, Agricultural Cattle Insurance Co. v. Fitzgerald (1851) 16 Q.B. 432 at p. 440 : 20 L.J.Q.B. 244 : 15 Jur. 489 : 117 B.R. 944, Pattison v. Luckley (1875) 10 Ex. 330 : 44 L.J. Ex. 180 : 33 L.T. 360, Sufell v. Bank of England (1882) 9 Q.B.D. 555 at p. 568 : 51 L.J.Q.B. 401 47 L.T. 146 : 30 W.R. 932 : 46 J.P. 500, Sheikh Akbar v. Sheik Khan 7 C. 256 : 8 C.L.R. 528 : 3 Ind. Dec. (N.S.) 713, Radhakant Shaha v. Abhoy Churn Mitter 8 C. 721 : 11 C.L.R. 310 : 4 Ind. Dec. (N.S.) 466, Atmaram v. Umedram 25 B. 616 : 3 Bom. L.R. 213, Moti Lal Saha v. Monmohan Gossami 5 C.W.N. 56, Banarsi Prasad v. Fatal Ahmed 28 A. 298 : A.W.N. (1909) 9 : 3 A.L.J. 25.

30. Now the observations from the judgment of Rampini and Mookerjee, JJ., upon which the learned Advocate for the defendants relied must be read in the light of the facts which had been disclosed in the evidence; and it appears that the bond in suit in that case was given in substitution for an earlier bond, and that the pre-existing liability of the defendants had merged in the later bond. The rights of the parties, therefore, were controlled and limited by the bond in suit, the terms of which by reason of the material alteration had become unenforceable. It follows:

that the debt is merged in the instrument, and hence the destruction of the latter leaves nothing upon which to sue.

31. In my opinion, the learned Judges who decided that case did not intend to lay down the "broad principle for which the learned Advocate for the defendants contended ; and read in the sense which I have indicated the proposition of law in the above passage is in accordance with the principles which I have enunciated. The fact that the learned Judges, cited Alderson v. Langdale (1832) 3 B. & Ad. 660 at p. 663 : 1 L.J.K.B. 73 : 37 R.R. 513 : 110 E.R. 241, in support of the view which they expressed is a further indication that their Lordships intended to restrict their observations to cases in which the document either formed part of the original consideration, or was taken in satisfaction of the original liability; for the case of Alderson v. Langdale (1832) 3 B. & Ad. 660 at p. 663 : 1 L.J.K.B. 73 : 37 R.R. 513 : 110 E.R. 241, is one of merger, and Lord Tenterden, C.J., in giving judgment observed that:

It is perfectly clear that a Bill of Exchange will operate as a satisfaction of a preceding debt, if the holder make it his own by laches--as by not presenting it for payment when due. Here, we think that the plaintiff, by altering the bill in a material part, made it his own as against the defendant, and caused it to operate as a Satisfaction of the debt for which it was originally given.

32. Reference also in this connection was made by Rampini and Mookerjee, JJ., to certain cases decided by the Courts in America; but I do not pause to consider them, for, while I regard with great respect the decisions of the Courts of the United States of America, I prefer to rely upon the judicial pronouncements of the Courts in England and in other parts of the British Empire where the Common Law of England runs as the repository of the Common Law. 80 numerous and varied are the law reports to which the Courts in India have access, and must needs consider, that for my part I should hesitate to add to the number by citing the decisions of American Judges, however erudite they may be, in connection with principles of English Law which have clearly and decisively been expounded in Courts within the Empire. Now, applying the above principles to the facts of the present case it is admitted on the pleadings that the plaintiff sold his share of the property in suit to the defendants; that the defendants promised to pay the purchase price of Rs. 21,000; that Rs. 6,000 was paid at the time of the sale: and that defendants have not paid the balance of Rs. 15,000. It is common ground that three months after the purchase was effected, the defendants executed the bond in suit in respect of the said sum of Rs. 15,000, and that the bond contains a recital that:

As we are unable to pay the balance of Rs. 15,000 in cash to you, we admit the said Rs. 15,000 to be due to you, and as security for payment of the same, mortgage to you the machineries described in the schedule below.

33. Having regard to the evidence in this case, I am of opinion that the parties agreed that the bond in suit should be taken as security for the payment of the pre-existing debt of Rs. 15,000, and not by way of accord and satisfaction of the said debt; and, notwithstanding the avoidance of the security by the alteration of the terms of the bond, in my opinion, the plaintiff is entitled to maintain a cause of action founded upon the original debt of Rs. 15,000.

35. The third ground of defence remains to be considered, and it is incumbent upon the Court, to determine whether, having regard to the frame of the suit, the plaintiff is entitled in this suit to claim relief: based upon the, original consideration... The allegations of fact upon which such a claim' rests are clearly set out in the plaint, and are admitted in the written statement; and having regard to the prayer kha and the: general prayer a, in my opinion, a claim for relief in the suit in respect of the original' debt of Rs. 15,000 cannot be held to take> the defendants by surprise. In such circumstances it would be inequitable that the defendants should be enabled to evade payment of a sum which they admit to be due, and which they promised to pay as the purchase price of the plaintiff's share in the foundry which they bought, because the plaintiff also claimed relief in respect of the defendants' obligation under the bond which are not enforceable. In my opinion, the plaintiff is entitled to recover the sum of Rs. 15,000 which is the admitted balance of the purchase price in this suit as framed. Pramatha Nath Sandal v. Dwarka Nath Dey 23 C. 851 : 12 Ind. Dec. (N.S.) 565, Sukhdeo Prasad v. Lachman Singh 24 A. 456 : A.W.N. (1902) 114 and Abbakke Heggadthi v. Kinhiamma Shetty 29 M. 491. Christacharlu's case 9 M. 399 : 10 Ind. Jur. 409 : 3 Ind. Dec. (N.S.) 673, is distinguishable from the present case, for in that case.

it is plain that the plaintiff: neither stated in the plaint the original contract; nor did he claim the debt as created thereby, nor did he intend to do so He sued on the instrument as altered, and on it alone.

36. But their Lordships also held that:

if in this case it appeared on the plaint that the plaintiff's cause, of action was the debt as created by the original bond, even though the plaintiff might also have claimed to sue on the altered bond, then the plaintiff would be entitled to relief for the first instalment.

37. For these reasons I agree that the appeal should be allowed, and a decree passed in the sense which my learned brother has indicated.