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Ravjibhai Nathabhai Patel Vs. Ranchhod Ragunath Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 526 of 1927
Judge
Reported in(1929)31BOMLR1262
AppellantRavjibhai Nathabhai Patel
RespondentRanchhod Ragunath Patel
DispositionAppeal dismissed
Excerpt:
.....the alteration is fraudulent or innocent, and whether the plaint is or can also be based on the original loan itself and evidence exists aliunde. where the alteration is fraudulent, the courts will not allow the plaint to be amended and the plaintiff to fall back on the original cause of action. but where the alteration, though material, is innocent and the plaint is based on the original cause of action as well as on the document altered, the claim, if properly proved, can be allowed on the original cause of action. or if the original plaint is not on the original cause of action, it is open to the plaintiff to apply and the court to consider whether the plaintiff should be allowed to amend it. - - the party who may suffer has no right to complain, since there cannot be any..........district judge, and on remand, the district judge held that the plaintiff could fall back on the original loan of rs. 2,000 as the cause of action. he set aside the decree of the trial court dismissing the suit, and decreed the claim which, he held, was not barred by limitation. the defend-ant appeals.2. the two questions in appeal are, firstly, whether the respondent can be allowed to fall back on the loan as his original cause of action, notwithstanding the material alteration in the promissory note, and, if so, secondly, whether the claim is barred by limitation. paragraph 2 of the plaint states as follows:-the abovenamed defendant had borrowed rs. 2,000 cash from the plaintiff no. 1, the guardian of plaintiff no. 2, in the month of aso of samvat 1974 (a.d. 1918) and the defendant.....
Judgment:

Madgavkar, J.

1. The facts of this appeal are stated in Ranchhod v. Ravjibhai (1925) 28 Bom. L.R. 631. This Court remanded the appeal for decision on the merits to the District Judge, and on remand, the District Judge held that the plaintiff could fall back on the original loan of Rs. 2,000 as the cause of action. He set aside the decree of the trial Court dismissing the suit, and decreed the claim which, he held, was not barred by limitation. The defend-ant appeals.

2. The two questions in appeal are, firstly, whether the respondent can be allowed to fall back on the loan as his original cause of action, notwithstanding the material alteration in the promissory note, and, if so, secondly, whether the claim is barred by limitation. Paragraph 2 of the plaint states as follows:-

the abovenamed defendant had borrowed Rs. 2,000 cash from the plaintiff No. 1, the guardian of plaintiff No. 2, in the month of Aso of Samvat 1974 (A.D. 1918) and the defendant in respect of this liability had executed a promissory note in favour of plaintiff 1 in Uttarsanda on the 5th of the first half of Aso of Samvat 1974, i.e., on October 10, 1918.

3. In paragraph 8 of the plaint the plaintiff referred to the alteration now in question and attempted to explain it on the ground, that money had really been advanced by the guardian from the moneys of the minor plaintiff No. 1, though by mistake the promissory note had been taken in the name of the grand-father. the plaintiff was not cross-examined to show any fraudulent intention. The lower appellate Court has found that repayment was made as it was professed to be made on July 10, 1920, sufficient bring the present suit in time, and that the alter- alternate apparently made in order to save limitation. In these circumstances, it must he held that though the alteration is on a material point, it is not proved to have been made with fraudulent intent but was made innocently.

4. As regards the consideration, the plaint recites the loan of Us, 2,000 in the same month in which the promissory note was passed. The accounts were not produced, and it does not appear from the pleadings that the appellant questioned the amount of the loan. It appears to me that the plaint was framed as though it was based not only and mainly on the promissory note but also to some extent on the loan.

5. In law, in the case of a material alteration, where the alteration is fraudulent, the Courts are disinclined to allow the plaintiff to fall back on the original cause of action : Alderson v. Langdale (1832) 3 B. & Ad. 660. In Davidson v. Cooper(1844) 13 M. & W. 343 Lord Denman C.J. observed (p. 852):-

A party who has the custody of an instrument made for his benefit, is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should be borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration except through fraud, or laches on his part.

6. These remarks are clearly applicable to India: Bank of Hindothan, China and Japan v. Smith (1867) 36 L.J.C.P. 241. It has been held by this Court in Damodar Jagannath v. Atmaram Babaji I.L.R.(1888) 12 Bom. 443 that in the case of a suit to recover the balance of the debt due on an unstamped note which was inadmissible, the defendant's admission could not enable the plaintiff to succeed in the suit, the plaintiff having offered independent evidence of the advance alleged by him. In Krishnaji v. Bajmal I.L.R(1899) . 24 Bom 360 the suit was based on the consideration independently of the hundi. The claim was allowed on the independent admission of the loan, although the hundi was defective and inadmissible for want of stamp. In Virbhadrapa v. Bhimaji I.L.R.(1904) 28 Bom. 432 although the stamped receipt was not properly cancelled, the plaintiff was allowed to sue on the original loan, In Gogun Ghunder Ghose v. Dhuronidhur Mundul I.L.R.(1881) Cal. 616 where the signatures of the two brothers were forged, it was held that 'where a person brings a suit upon a document which, when produced in evidence, is found to have been fraudulently altered to the knowledge of the plaintiff, no Court ought to allow the amendment to enable him to succeed upon it in its original state.' In Pramatha Nath Sandal v. Dwarlca Nath Dey I.L.R.(1896) Cal. 851 where a chiti was inadmissible for want of the necessary two anna stamp, the plaintiff was held to have a cause of action independently of the document, unless, as in the case of Sheikh Akbar v. Sheikh Khan I.L.R.(1881) Cal. 256 there was no cause of action apart from the inadmissible document itself. In Gour Chandra Das v. Prasanna Kumar Chandra1I.L.R(1906) . Cal. 812 which was again a case of the forgery of the signature of the second person on the bond, the Court declined to allow the plaintiff to fall back on the original cause of action. In Chriatacharlu v. Karibaeaijya I.L.R(1885) . Mad. 399. a similar principle in regard to the fraudulent alteration in the registered mortgage bond was affirmed. In Banani Prasad v. Fazal Ahmad I.L.R. (1905) All 298 the mere absence of the cancellation of the stamp did not cause the original cause of action to lapse or the evidence all under of the debt to be inadmissible. So also Ram Sarup v. Jasodha Kwnwar I.L.R.(1911) All 158. This principle is affirmed by their Lordships of the Privy Council in the case of alterations material but innocently made: Payana Reena Saminathan v. Pana Lana Palaniappa [1914] A.C. 618.

7. The result of these authorities is, therefore, as follows :- Where there is no cause of action apart from the inadmissible document, such as in Sheikh Akbar v. Sheikh Khan referred to above, the whole claim fails with the inadmissible document. Where there has been a material alteration in the document, the further questions for the consideration of the Court are whether the alteration is fraudulent or innocent and whether the plaint is or can also be based on the original loan itself and evidence, exists aliunde. Where the alteration is fraudulent, the Courts will not allow the plaint to be amended and the plaintiff to fall back on the original cause of action. But where the alteration, though material, is innocent and the plaint is based on the original cause of action as well as on the document altered, the claim, if properly proved, can be allowed on the original cause of action. Or if the original plaint is not on the original cause of action, it is open to the plaintiff to apply and the Court to consider whether the plaintiff should be allowed to amend it. In the 1829 present case the plaint was, in my opinion, sufficient to enable the plaintiff to ask the Court to consider without further amendment the question of the loan. The amount of the loan has not been seriously disputed, and it has been admitted by the appellant in the written statement and in the letter Exhibit 11. As regards the date of the repayment, I see no reason to question in appeal the finding of the lower appellate Court differing from the trial Court that the date which it been to be July 10, 1920, was the date of the repayment, and not, as the appellant alleged and the trial Court held, June 10, 1920. In this view the claim is in time.

8. The appeal fails and is dismissed with costs.


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