1. Appellant is the plaintiff, a Muslim Religious Society of Coimbatore represented by its President and Secretary. The suit, which the learned Subordinate Judge of Coimbatore dismissed with costs, was laid for the specific performance of a contract, Ex. A-1, dated 15-12-1946 against the first defendant by which he agreed to convey to the plaintiff the suit property for Rs. 7300. It is common ground that the Society paid the first defendant a sum of Rs. 1000 that day. The suit was filed on 16-10-1947. It was dismissed mainly on a finding that the suit agreement had been materially altered by the top and bottom portion of it, which contained a material recital on the reverse, being scissored off. This is said to have contained a recital which made time given for completion, which was 30 days, the essence of the contract.
2. The suit property, 49 cents in extent on which there was a rice mill and a residential house originally belonged to one Hussain Sahib, the late husband of Fatima Beebi the 4th defendant. Hussain Sahib became indebted to a local Nidhi who got a decree and brought the property to sale in execution in 1938. The fourth defendant, who was in residence in the house on the suit site desired to continue living there and approached the first defendant, who had a mortgage on the suit property and was a lessee of the lice mill on the site for about 20 years, for assistance.
The first defendant bought the suit properly from the Nidhi under a sale deed Ex. B-6 dated 14-2-1940, the case of the fourth defendant being that there was an understanding that he would re-convey the property to her on payment of the sale price. The fourth defendant then in 1946 sold all her rights in the entire property on 1-5-1946 by a sale deed Ex. A-2 to the plaintiff-society. It appears that a small portion of this site had been used as a Muslim religious burial ground.
It is in this back-ground that the plaintiff-society and the first defendant came to a settlementwith the assistance of some mediators and Ex. A-1was written in the shop of one Bava Sahib by hisclerk Krishnaswami Iyengar (P. W. 3). JameshaRowther (P. W. 1) who was the President of theplaintiff-society, was present at the time. Firstdefendant admitted his signature on Ex. A-1 whichcontains a clear agreement by him to sell the suitproperty as decided by mediators to the plaintiff-society.
Ex. A-1 contains an acknowledgment of receipt by the first defendant of Rs. 1000 in cash, and an undertaking to execute a deed of cancellation of the sale in his favour within a period of one month and to receive the balance of consideration of Rs. 6300 in the presence of the Registrar.
3. A registered letter Ex. A-3 was sent on behalf of the plaintiff-society signed by the President dated 10-1-1947 asking the first defendant to receive the money and to complete the transaction. This letter was not delivered, and was returned with the endorsement that the addressee was not known and no house number was given. Ex. A-3 was addressed to the first defendant, T. Krishnaswami Naidu, Town Street, Pappanaickenpalayam, Coimbatore. - A telegram evidenced by a receipt Ex. A-3(b) is said to have been sent by P. W. 1 to the first defendant on 13-1-1947, and another registered letter Ex. A-3(a) dated 17-1-1947 in an envelope which was still unopened at the time of the hearing of the appeal was also returned by the Post Office undelivered.
In the suit itself summons could not be served on the first defendant in the ordinary way, and he only made an appearance after substituted service. Prima facie it would appear as though the firstdefendant was successfully evading the plaintiff and service of these registered letters. The learned Subordinate Judge in view of his finding that the suit agreement Ex. A. 1 was materially altered did not think it necessary to go into the question as to whether it was the first defendant who really defaulted in not complying with his obligations under the contract.
4. We come now to the suit agreement, Ex. A-1 from which there can be no doubt a portion has been scissored off, presumably containing a recital considered material and prejudicial to the plaintiff's case. This document was not filed on 16-10-1947 along with the plaint which was returned for its production. After some extensions of time, it was ultimately filed on 23-12-1947 and returned for payment of stamp duty and penalty. This was done and the plaint was numbered on 8-1-1948.
In the written statement filed on 16-6-48 the first defendant resisted specific performance on the ground that Ex. A-1 was taken from him by undue influence and coercion and took objection to Ex. A-1 as having been seriously mutilated since its execution with portions both at the top and bottom being scissored away. The mutilation of the document was not made an issue in the first set of no less than nine issues framed on 2-7-1948 but was made one of three additional issues framed on 3-2-1949. The second and third defendants were longstanding lessees of portions of the site, the latter claiming to have put up an office room, a boiler room and a godown at considerable cost.
5. The learned Subordinate Judge quite rightly negatived the contention of the first defendant that Ex. A-1 was taken from him under undue influence and coercion by a number of Muslims bringing pressure to hear upon him, who threatened him with risks of trouble if he purchased this property in this Muslim locality. We are only concerned in this appeal with the obvious mutilation of the agreement Ex. A-1. That the document has been tampered with appears to us patent on its face.
The sheet of foolscap has been scissored off at the top and bottom very close to the top line, in fact so close as to make it not only most improbable but also impossible for any ordinary written of a document to achieve this feat without running his pen on the table, blotter or other article on which the paper was rested. The material recital scissored off is said by the first defendant as D. W. 1 to have been on the reverse.
In order to make the last line on the front page readable with the first line on the reverse we have the Tamil letters 'mi', and 't' affixed to the first line on the reverse obviously in different ink. D. W. 1 swore that what was scissored off was a clear stipulation that within a period of one month, if there was default in completing the transaction of purchase in addition to the advance of Rs. 1000 being forfeited, the agreement was to become unenforceable. In other words, the clause clearly and unequivocally making time the essence of the contract was scissored off in this really clumsy manner.
6. The evidence of the then President of the society Jamesh Rowther (P. W. 1) and Bava Sahib's clerk Krishnaswami Iyengar (P. W. 3} who wrote Ex. A-1 is to say the least of it thoroughly unsatisfactory. P. W. 3 gave this astonishing evidence in the box in explanation,
'Paper was not available. In a note book there were two papers which were spoiled and ink also was spilt. Defendant 1 cut at the top and bottom portion. He dictated a draft. After that he (defendant-1) read from the draft and I wrote Ex. A-1.'
His replies in cross-examination to the effect that the note-book belonged to school children and that the 'ink and spoiling' were both at the top and bottom are nothing more than gross insults to elementary judicial intelligence. His further insistence in-cross-examination that the Tamil letters 'mi' and 't' in the first line of the second page were not written in a different ink is falsified by a mere glance at the document, P. W. 1 has obviously perjured himself when he swore in support of the evidence of P. W. 3 that the first defendant himself scissored off the top and bottom of this soiled paper before the document was written.
Even P. W. 1 admitted in cross-examination that at the top of such documents the society invariably wrote a pious prayer such as 'God will shower His grace on us. We have no hesitation in accepting the evidence of the first defendant that Ex. A-1 was mutilated by this recital of time being the essence of the contract being clumsily scissored off subsequent to its execution.
7. The law applicable is well settled, the rule prevalent in English courts being also applicable in India, as was laid down by their Lordships of the Privy Council in -- 'Nathuml v. Mt. Gomti Kuar .
'If an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed after its execution, by or with the consent of any party thereto or person entitled thereunder but without the consent of the party or parties liable thereunder, the deed is thereby made void.'
In that case the document in question was a sale deed more than 30 years old in which there were two holes, one partly eliminating a date. An allegation way made that these holes were effected subsequent to the document being filed into court: The District Munsif found the allegation on enquiry to be baseless and decreed the suit. The decree was set aside by the Allahabad High Court, who took the view that a hole made in a document affecting a date was a material alteration which rendered the document void so that it could not be used to enforce a right to redeem.
Their Lordships of the Privy Council on the particular facts of that case restored the decree of the District Munsif. In -- 'Master v. Miller', (1791) 100 ER 1042 (B), the earliest leading case on the subject, an alteration of the date of a bill of exchange, after acceptance, whereby the payment would be accelerated was held to avoid the instrument; and no action can be afterwards brought upon it even by an innocent holder for valuable consideration. This decision was followed in -- 'Suffell v. Bank of England', (1882) 9 QED 555 (C).
That was a case in which the plaintiff had bona fide purchased Bank of England notes, which had been altered by the numbers on them being erased and then substituted with the object of preventing the notes from being traced, payment of the notes having been slopped. What is or is now a material alteration in a document must depend ultimately on the facts of each case. It has been defined in , as,
'One which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.'
8. Mr. Gopalaswami Iyengar has urged that this mutilation was not really material and that the plaintiff could have successfully maintained his suit on the document with the recital which the first defendant alleges was scissored off. There can in the first place be no doubt that the top of this document containing a recital which was considered material was scissored off. We have no hesitation in accepting the evidence of the first defendant that this recital related to time being the essence of the contract.
There can in the next place he no doubt that this mutilation was suggested on legal or quasi-legal advice on an apprehension that the mandatory time essence clause would defeat a suit for specific performance. One thing is perfectly clear and that is that the person mutilating this document did intend to make a material alteration with a view to prejudice the first defendant. This in our view by itself is sufficient to render the agreement void whether the mutilation was really material or not, in the sense that the suit may have succeeded without it.
So far as the removal by scissoring off the mandatory time clause in the contract is concerned, even on the contract as pleaded by the first defendant the plaintiff-society appears to have prima facie a good case, if they could have shown that the first defendant made no response to registered notices and could not be traced in spite of their best endeavours in order to obtain his co-operation in the completion of the transaction. All we ate prepared to say in this matter is that the persons responsible for mutilating this document have been guilty not only of most culpable conduct, but also of extremely foolish conduct in seeking to hoodwink and bamboozle the court in this clumsy manner.
There seems to be an idea prevalent in some quarters that truth will 'not bring success in litigation, which can only be achieved by forgery, perjury or a complete distortion of truth, There can be no question that the suit as laid on this mutilated document Ex. A-1, scissored off with deliberate dishonest intention must fail, the contract being thereby rendered void.
At the same time we are most reluctant to dismiss this suit 'in toto', plaintiff being a religious society having replaced P. W. 1 by another President. We think that in the circumstances the society should have a decree against the first defendant for the return of the Rs. 1000 deposit which he admittedly received on the date of Ex. A-1.
In this connection Mr. C.A. Vaidyalingam for the first defendant in the course of his arguments staled that he would advice his client immediately to return this deposit. This alternative prayer was not asked for in the trial Court, nor was this necessary to enable the Court to grant the plaintiff society this relief under Section 19, Specific Relief Art; nor when once a suit for specific performance has been dismissed would any suit lie by the society for return of this deposit.
In a suit for specific performance, the wide discretion a Court has in granting relief to the two parties to the contract is incapable of strict definition and must depend on the facts of each case. One of the main reasons underlying the principle that a suit on a materially altered document should be void and unenforceable is the need to penalise and punish such conduct and some times it may be that as in (1791) 100 ER 1042 (B) and (1882) 9 QBD 555 (C), the innocent have to suffer for the guilty.
While granting the plaintiff-society this modified relief, we consider that legal conscience requires to be vindicated in this case by the issue of a rule against the Ex-president of this society, P. W. 1 and Krishnaswami Iyengar, P. W. 3, the clerk who wrote Ex. A-1 to appear before us on Monday the 21st September and show cause why they should not be prosecuted for perjury on the footing of the evidence they have given in connection with this document.
First defendant will recover costs to the extentto which he has succeeded in the trial Court; butin this Court we direct the parties to bear their owncosts.