1. This is a suit brought upon an instrument of hypothecation executed in the plaintiff's favour by one Ponnappa Pillai, now deceased. The defendants are the sons and grandsons of Ponnappa. It has been found by the District Judge that, after the bond came into the plaintiff's hands, an attestation was added purporting to be signed, but not in fact signed by Ponnappa's son Shanmugam. In the opinion of the Judge this addition, for which the plaintiff was responsible, constituted a material alteration of the instrument, and he accordingly dismissed the suit. There can be no doubt that the object in making this addition was to facilitate the proof of the execution of the instrument as well against the executant as against his son the defendant. It was the more important to obtain the son's attestation rather than that of a stranger, because when the instrument came to be enforced, it would be material to show that he had admitted the debt and that his interest in the property was therefore affected by the hypothecation. In this respect and also because in the Calcutta case cited in argument--Mohesh Chunder Chatterjee v. Kamini Kumari Dabia I.L.R. 12 Cal. 313--the added signature was genuine, that case is distinguishable from the present. I am, however, of opinion that the principle laid down in that case applies, and that there is here no material alteration of the instrument within the meaning of the penal rule on which the defendants rely.
2. It is clear that the adding of an attestation, whether the signature is genuine or not, does not purport to affect the terms of the contract between the parties to the instrument; nothing new is embodied in it, no fresh party is added as was the case in Gardner v. Walsh L.J. 24 Q.B. 285. The executant of the instrument could not be affected by the addition prejudicially or otherwise. It cannot be said that the identity or effect of the instrument is altered, for it remains as it was, when executed by Ponnappa Pillai, an instrument hypothecating his property. It is not as if the attestation were necessary in order to make the instrument legally operative. That would be a totally different case and is expressly excepted from the proposition laid down in Mohesh Chunder Chatterjee v. Kamini Kumari Dabia I.L.R. 12 Cal. 313 and see Davidson v. Cooper 11 M. & W. 778. In the present case the object which the attestation fulfilled might have been almost equally well, secured by a memorandum written on a separate piece of paper. It was not indispensable for the plaintiff's purpose that anything should be written on the very paper on which the instrument is written.
3. I can find no authority for holding that in such a case there can be deemed to have been a material alteration of the instrument, and I would therefore reverse the decree of the District Judge and remand the appeal.
4. In my opinion, even on the finding of the District Judge that the name of defendant No. 1 as an attesting witness to the hypothecation bond sued on was forged after execution and registration and after the document came into plaintiff's hand, the case does not come within the rule laid down in Master v. Miller 1 Sm. L.C. 85 and the other English cases, and declared by the Full Bench decision in Christacharlu v. Karibasayya I.L.R. 9 Mad. 399 to be applicable to this country, so as to disentitle plaintiff to sue on the bond. In the order in Vazeeralli v. Surianarayana Appeal No. 89 of 1890, unreported to which I was a party, this Court, following Mohesh Chunder Chatterjee v. Kamini Kumari Dabia I.L.R. 12 Cal. 313 in preference to Sitaram Krishna v. Daji Devaji I.L.R. 7 Bom. 418 held that the addition of the name of an attesting witness subsequently to the delivery of the document was not a material alteration which invalidated the document. I adhere to the principle of that decision; and it seems to me to make no difference in principle that the addition of the name of the attesting witness is a forgery and made with the fraudulent intention of precluding the person, whose name is forged, from denying the genuineness of the document. The attestation clause is no part of the document as executed by the executant, but merely one means of proof of the document, and, as such, is not a material part of the document as executed within the principle of the rule under consideration. Attestation was not in this case necessary to the validity of the document as it was executed before the Transfer of Property Act came into force. I express no opinion as to what would be the effect of the addition of an attesting witness's name in cases where attestation was necessary to the validity of the document.
5. I would reverse the decree of the lower Appellate Court and remand the appeal for disposal upon the other questions raised.