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Shivalingappa Vs. P.B. Puttappa - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 302 of 1966
Judge
Reported inAIR1971Kant273; AIR1971Mys273; (1971)1MysLJ282
ActsNegotiable Instruments Act, 1881 - Sections 87
AppellantShivalingappa
RespondentP.B. Puttappa
Appellant AdvocateC.R.V. Swamy, Adv.
Respondent AdvocateM.R. Narasimhamurthy, Adv.
DispositionAppeal dismissed
Excerpt:
.....comparative hardship under the act. where the landlord claimed that he has inherited the property under a will and there was no challenge by other legatees or claimants, the tenant cannot challenge the genuineness of the will. - i do not find any good reasons to disagree with the conclusion of the learned civil judge. the alleged endorsement could as well have been made on an independent piece of paper and not on the back side of the pronote. 6. the learned civil judge, after assessing the evidence on record, has recorded a finding of fact to the effect that the defendant has failed to prove the discharge pleaded by him to the extent of rs......court reversed the decree of the trial court and decreed the plaintiff's suit. the learned civil judge came to the conclusion that the pronote has not been materially altered. he held that the discharge pleaded to the extent of rs. 2,000/- has not been satisfactorily established.4. it is the legality of the decree passed by the learned civil judge in appeal that is challenged in this second appeal under section 100 of the code of civil procedure.5. shri swamy, the learned counsel for the appellant contended that the finding of the learned civil judge that the pronote (ex. d-l) has not been materially altered, is not in accordance with law. in order to satisfy myself, i perused the pronote (ex. d-l). the pronote is on a printed form. the alleged alteration of the pronote is on the.....
Judgment:

V.S. Malimath, J.

1. This is a defendant's second appeal against the decree passed by the Civil judge, Hassan, in Regular Appeal No. 74 of 1965, reversing the decree passed by the Munsiff, Arsikere, in Original Suit No. 403 of 1963. The respondent-plaintiff brought the suit to recover a sum of Rs. 2,635/-, which includes principal amount of Rs. 2,000/- and interest thereon. The suit is based on the pronote dated 9-2-1961 executed by the defendant in favour of the plaintiff, which has been marked as Exhibit D-l in the present case. The defendant did not deny the execution and consideration of the pronote. He, however,pleaded discharge to the extent of Rs. 2,000/-. The defendant further took a specific stand that the pronote in question has been materially altered by the plaintiff. The defendant's case is that at the time of Navarathri in the year 1961, he paid a sum of Rs. 2,000/- to the plaintiff and made an endorsement on the back side of the pronote about the payment of the said sum of Rs. 2,000/- to the plaintiff. The defendant's case is that the said endorsement was made in pencil and not in ink, as no pen wasavailable at that tuna The defendant has further stated that the plaintiff has erased the endorsement made by him and that is the material alteration of the pronote. Relying on the provisions of Section 87 of the Negotiable Instruments Act. the defendant contended that the pronote has become void and unenforceable. The plaintiff denied the discharge pleaded by defendant to the extent of Rs. 2,000/-. He further asserted that no endorsement whatsoever, was made on the back of the pronote by the defendant. He also asserted that no erasure was made, as alleged by the defendant.

2. The learned Munsiff dismissed the plaintiffs suit. He came to the conclusion that the pronote has been materially altered, as contended by the defendant. He appears to have come to the conclusion that the discharge pleaded by the defendant to the extent of Rs. 2,000/- was established,

3. The lower appellate court reversed the decree of the trial court and decreed the plaintiff's suit. The learned Civil Judge came to the conclusion that the pronote has not been materially altered. He held that the discharge pleaded to the extent of Rs. 2,000/- has not been satisfactorily established.

4. It is the legality of the decree passed by the learned Civil Judge in appeal that is challenged in this second appeal under Section 100 of the Code of Civil Procedure.

5. Shri Swamy, the learned counsel for the appellant contended that the finding of the learned Civil Judge that the pronote (Ex. D-l) has not been materially altered, is not in accordance with law. In order to satisfy myself, I perused the pronote (Ex. D-l). The pronote is on a printed form. The alleged alteration of the pronote is on the back side of the pronote. The back side of the pronote is blank and nothing whatsoever is found written there at present. Shri Swamy pointed out that the texture of the paper on the side somewhere near the middle on the top side indicates that some erasure of some writing has been made. He relied upon the evidence of the hand-writing expert to whom the document was sent who has given an opinion that there is some erasure of some writing on the back side of the pronote. In order to prove that an endorsement was made by the defendant on the back side of the pronote, which has subsequently been erased by the plaintiff, the defendant has not only examined himself but also examined one Shankarappa, D. W. 2. The learned Civil Judge has assessed the evidence of tie defendant and his witness, Shankarappa, D. W. 2. He has observed that Shankarappa, D, W. 2, is a chance witness whose evidence is not worthy of acceptance. I do not find any good reasons to disagree with the conclusion of the learned Civil judge. As the defendant has not established that an endorsement was made on the back side of the pronote in pencil,the question of erasing the alleged endorsement does not arise-

Sri Swami contended that the evidence or opinion of the hand-writing expert to the effect that something was written on the back side of the pronote which has been erased has been accepted by both the courts below, He, therefore, contended that his client has established that there is an alteration in the pronote (Ex. D-l). As the pro-note was in the custody of the plaintiff all along, Sri Swamy urged that it is for the plaintiff to explain satisfactorily the erasure that is found on the back side of the pro-note. The plaintiff has asserted that there was no writing on the back side of the pro-note and that he has not erased any such writing on the back side of the pronote. Merely on the basis of the vague type of evidence of the hand-writing expert it is difficult to hold that there was some writing on the back side of the pronote which has been erased by the plaintiff when the document was in his custody. Even otherwise, I find it difficult to accede to the contention of Shri Swamy that Section 87 of the Negotiable Instruments Act can be invoked in the facts and circumstances of this case. It is not disputed that no part of the promissory note as such has been altered in any manner whatsoever. Even if the entire contention of the defendant is accepted, it would only mean that an endorsement made by the defendant on the back side of the pronote has been materially altered by the plaintiff.

As already noticed no part of the pro-note is written on the back side of the document (Ex. D-l). The entire pronote has been completed only on one side of the paper. Section 87 of the Negotiable Instruments Act contemplates material alteration of a negotiable instrument. If there is a material alteration of a negotiable instrument, the same renders the document void against any one who is a party thereto at the time of making such an alteration and does not consent thereto unless it was made in order to carry out the common intention of the original parties. The endorsement which is alleged to have been made on the back side of the pronote does not form part of the negotiable instrument. It is an independent transaction, unconnected with the negotiable instrument in question. The alleged endorsement could as well have been made on an independent piece of paper and not on the back side of the pronote. Merely because an endorsement has been made on the back side of the pronote, it does not become part of the pronote. As the endorsement in question is not a part of the negotiable instrument, any alteration in the said endorsement does not attract the penal provisions of Section 87 of the Indian Negotiable Instruments Act. Hence, even if the entire case of the defendant about the endorsement and its alteration on the bade side of the pronote is true, the same does not, in any way, render the pronote (Ex.D-l) void under Section 87 of the Negotiable Instruments Act. There is, therefore, no substance in the contention of Sri Swamy that the plaintiffs suit is liable to be dismissed on account of the alleged material alteration of the endorsement on the back side of the pronote Ex. D-l.

6. The learned Civil Judge, after assessing the evidence on record, has recorded a finding of fact to the effect that the defendant has failed to prove the discharge pleaded by him to the extent of Rs. 2,000/-That finding is not liable for interference in this second appeal.

7. For the reasons stated above, this appeal fails and the same is dismissed.

8. In the circumstances of this case, I consider it reasonable and proper to direct the parties to bear their respective costs in this court as well as in the two courts


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