1. This appeal arises from a suit filed by applts. for recovery of Rs. 727-5-6 from respa. under an on-demand-promissory note. The consideration for the pronote marked Ex. I is mentioned as Rs. 682 which the resps. owed in respect of transactions carried on with the applts. A sum of RS.. 264-7-0 realised by sale of areca left with the applts. by the resps. was deducted from the debt due under Ex. I & the amount claimed is alleged to be the balance due. The execution of the pronote & consideration therefor are admitted, but liability is disputed on the ground that the areca was worth more than the amount mentioned in the plaint & that there is a material alteration of the instrument. The trial Ct. negatived both these pleas & decreed the suit, but on appeal by the defts. the learned Subordinate Judge has dismissed the suit with costs.
2. The contention as regards the value of the areca cannot be properly advanced to avoid liability as it is not alleged that the pltfs. acted contrary to any understanding for its disposal. Having failed to fix any terms or even give instructions in this behalf, defts. cannot expect the pltfs. to be custodians of the articles for an indefinite period. The pltfs. allege that the sale was effected with consent of the defts. & the sale list is signed by them. Defts. deny this. Whether it is true or not, the objection to the sale is, we think, highly belated & untenable.
3. The only point for consideration, therefore, is whether there is an alteration in the pronote such as to disentitle the pltfs. to seek payment. The body of the pronote is in print, the dates at the top & names of executants only being in manuscript. The date of execution is stated at the beginning to be 30-6-1940. At the foot of the pro-note & below the signature of defts. the figures 28 9-1940 are found.
4. The date at the top has to be ignored as it is not the case of either party that the pronote was then executed & both agree that the figures at the bottom are to be treated as furnishing the date of actual execution. But there is difference between the parties about the figure denoting the month, as according to the pltfs. it is '9' which would make it 'September' & '6' according to the defts. fixing it as 'June'. The figure appears to be undoubtedly changed, unlike the other figures, from its original form & does not seem to have been inserted at first as V. It is not clear as to how & by whom this was meddled with. (After discussing the evidence, the judgment proceeded.) The deft.'s statement that it was on 28-6-1940 that they executed the pronote after the accounts were taken up to end of June is nearer the truth than pltfs. If the true date of execution was 28-6-1940 as we think it was, the date 28-9-1940 now found must be held to be an alteration.
5. It remains to see whether the alteration affects the rights of parties & the suit is maintainable. Section 87, Negotiable Instruments Act, states :
'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 & does not consent thereto, unless it was made in order to carry out the common intention of the original parties.'
The section does not mention as to what constitutes 'material alteration' but Section 64 in the English Bills of Exchange Act which correspondsto this specifies . . .
'(2) In particular the following alterations are material namely any alteration of the date, the sum payable, the time of payment, place of payment ...'
In Halsbury's Laws of England, vol. 10, p. 227it is said
'A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed. . . . The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the bond.'
As regards suits being barred on account of 'material alteration' there is the following passage:
'If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution . . . without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance ..... operates as from the time of such alteration & so as to prevent the person who has made or authorised the alteration & 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.'
The alteration found in this case must be held to be, therefore, a material one.
6. The plots have not explained as to how the alteration occurred though the burden of proof as regards this lies on them. As explained in Hen-man v. Dickinson, (1828) 5 Bing 183,
'where a party sues on an instrument which, on the ace of it, appears to have been altered, it is for him to how that the alteration has not been improperly made.'
The figure denoting the month is, as already mentioned, strikes at first sight as a correction of or substitution for another previously put. In view of this, the 1st issue is wrongly framed by requiring defts. to prove execution of the pronote on 28-6-1940 instead of calling upon pltfs. to show that it was on 28-9-1940. The pltfs. do not suggest that the doubtful form of the figure having reference to the month was due to the act of the defts. or that it was changed by them or with their consent. The promissory note remained in the custody of the pltfs. & produced by them. The alteration serves to help the pltfs. if at all by enlarging the period of time to file the suit. The suit was filed on 1-7-1946 & would be time barred if it was executed on 28-6-1940 as pleaded by defts. There is no proof of any demand for payment prior to the suit. The account books in which thedebt due under the pronote is said to have been noted, the references to show that particulars of the claim were sent subsequent to Ex. I & that a demand was made for settlement, are not filed & there is no satisfactory reason for withholding the same. A consideration of all these leads to the inference that plfs. alone are responsible for the alteration & cannot claim any amount as being due under the pronote. In Govindasami v. Kuppu-sami, 12 Mad 239, a suit filed on a bond the date of which was altered from 11 to 20-9-1882 was dismissed on the view that the alteration vitiated the instrument, the bond was void & not receivable in evidence to prove the debt. There is stronger reason to take the same view in the present case as it is on a pronote governed by express provisions of Section 87, Negotiable Instruments Act.
7. The pltfs. are traders who profess to have dealings to the extent of three or four lakhs of rupees & are not unfamiliar on their own showing with proceedings in Cts. They should have taken care to avoid suspicion being raised against them on account of the date being tampered with. So long back as 1884 it was held by Lord Den-man C. J. in Davidson and Cooper, (1844) 67 R.R. 638 :
'that a party who has the custody of an instrument, made for his benefit is bound to preserve it in its original state & that any material ' alteration will vitiate the instrument.'
On the principle ex turpi causa non ori tur actio (from a base cause no action arises) the pltfs. cannot seek any relief in Ct. on a document which is found to be materially altered.
8. The appeal is dismissed with costs. The defts. have in their written statement pressed for the pltfs. being prosecuted for altering the month with a view to make illegal gain. Let notices be issued to the applts. to show cause why they should not be prosecuted.