S. Nainar Sundaram, J.
1. The defendant in O.S. No. 384 of 1977 on the file of the Additional District Munsif, Coimbatore, is the petitioner in this revision. The respondent is the plaintiff. The plaintiff laid the suit for recovery of amount due under a promissory note bearing the date 20th April, 1974. The suit on the promissory note had come to be laid on 14th April, 1977. The defendant contested the suit mainly putting forth two contentions. One is that there is material alteration of the date of the suit promissory note which was executed only on 20th March, 1974, and not on 20th April, 1974, and the other is that he is entitled to the benefits of Tamil Nadu Act 31 of 1976 and Tamil Nadu Act 40 of 1978. The parties placed their evidence, oral and documentary and that was the subject-matter of assessment by the first court and it countenanced the pleas of the defendant that there was material alteration of the suit promissory note and in any event the defendant is entitled to the benefits of only Tamil Nadu Act 31 of 1976 and not the other Act. As a result, the suit was dismissed, but without costs. The plaintiff appealed and the appellate court opined the other way about it and it rejected the aforesaid pleas of the defendant and granted a decree in favour of the plaintiff. The judgment and decree of the appellate Court are being put in issue in this revision.
2. Mr. R. Arunagirinathan, learned Counsel for the defendant, petitioner herein would submit that the plaintiff, examined as P.W. l, had admitted that the month originally written in the suit promissory note was erased and the month 'April' was written and so also, on the Revenue stamps the month '3' was corrected as '4'. On this basis, the learned Counsel submits that when once it has become evident that the suit promissory note suffers an alteration in respect of the date, which is a material alteration, the plaintiff must explain as to when and how this alteration was made and, in the absence of such explanation, the suit promissory note must be deemed to have suffered a material alteration under Section 87 of the Negotiable Instruments Act, 1881, hereinafter referred to as the Act. For this submission, learned Counsel places reliance on the judgment of Gopal Rao Ekbote, J. in Subba Reddi v. Neela Pareddi : AIR1966AP267 . Further, learned Counsel would submit that on the question of the defendant being entitled to the benefits of Tamil Nadu Act 31 of 1976, the appellate court has not properly assessed the evidence placed in the matter and has wrongly cast the onus of proof on the defendant.
3. As against the above submission made by the learned Counsel for the defendant, Mr. R.T. Doraiswami, learned Counsel appearing for the plaintiff, respondent herein, would submit that no suggestion was put to the plaintiff, examined as P.W.1, that the alteration was made after the execution of the suit promissory note and the defendant did not even care to reply to the suit notice issued as per Ex.A-2 and in the said circumstances, as per Section 118(b) of the Act, the suit promissory note must be presumed to have been executed on the date which it bears.
4. Section 87 of the Act states that 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 and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. Alteration presupposes a particular condition of the instrument which prevailed anterior to the alteration. Section 87 deals with alterations which have come to be made or effected after the negotiable instrument was made and executed and without the consent of the party sought to be made liable thereunder. If an alteration was made or effected even before the execution of the negotiable instrument and the party who subscribes his signature thereto is aware of that condition of the instrument and signs it without any protest thereto and thereby consenting to the alteration being there, he cannot turn round subsequently to make a grievance that there has been an alteration of the negotiable instrument and avoid his liability thereunder. There could also be a case where, after the instrument was made and executed, with the consent of the party concerned, the negotiable instrument was altered. Even in such a case the alteration will not vitiate the negotiable instrument.
5. In Subba Reddi, In re : AIR1936Mad154 it has been countenanced that Section 87 of the Act only contemplates an alteration subsequent to the execution of the note and further the alteration must have been made without the consent of the party who was sought to be made liable. In the present case, while the plaintiff was examined as P.W.1, it has been simply elicited that the month originally written in the suit promissory note was erased and the month 'April' was, written and so also the month '3' was corrected as '4'. It was not suggested to him that these alterations were made after the suit promissory note was executed and without the consent of the defendant. The defendant, examined as D.W.1, also did not specifically depose that these alterations were not there at the time when the suit promissory note was executed and they were brought in only subsequently.
6. Section 118(b) of the Act states that until the contrary is proved, the presumption is that every negotiable instrument bearing a date was made or drawn on such date. This is the general presumption. But, when an alteration is apparent on the face of the instrument, the onus is on the plaintiff to explain it and show as to when and how the alteration came to be made. In Mussamut Khoob Connur v. Badoo Moondnarain Singh (1861) 9 M.I.A.1 it was observed as follows:.It may be conceded that, in an ordinary case the party who presents an instrument, which is an essential part of his case, in an apparently altered and suspicious state, must fail, from the mere infirmity or doubtful complexion of his proof, unless he can satisfactorily explain the existing state of the document.
But this wholesome rule admits of exceptions, if there be, independently of the instrument, corroborative proof strong enough to rebut the presumption which arises against an apparent and presumable falsifier of evidence. And, such corroborative proof will be greatly strengthened if there be reason to suppose that the opposite party has withheld evidence which would prove the original condition and import of the suspected document....
Chandrasekhara Aiyar, J. in Subramania Pattar v. Porathana Andi : AIR1942Mad709 , took note of the principle as follows:
As the alteration is apparent on the face of the document the onus is on the plaintiff to explain it and to show that it is not a material alteration which renders the instrument void and unenforceable.
7. In V. Kondiah v. C.P. Pulliah : AIR1960AP121 , S. Qamar Hassan, J. also took note of the principle:.that where a party sues on an instrument which on the face of it appears to have been altered, it is for him to show that the alteration had not been improperly made.
To similar effect is the decision of Gopal Rao Ekbote, J. in Subba Reddi v. Neelappareddi : AIR1966AP267 .
8. There can be no doubt that alteration of the date would amount to a material alteration. The date is an important part of the instrument, because it fixes the period of limitation within which the defendant could be sued. Hence, where the date of the instrument is altered subsequently, so as to enable the making of the claim on the basis of the altered instrument within the extended period, it would amount to material alteration and make the instrument void. In Govindasami v. Kuppusami, I.L.R. (1889) 12 Mad. 239 the date of an instrument was changed from 11th to 25th September and it was held that such a change was a material alteration, because it materially affected the liability of the defendant by granting time to the plaintiff to file an action against the defendant even though the suit was actually filed within the period of limitation as counted from the 11th September.
9. In the present case, both the counsel admit that the concentration in the courts below on this aspect was not from the proper legal angle at all and evidence was placed at a tangent and they express a grievance that the evidence placed is inadequate either way. I find that the defendant, examined as D.W.I, has also not asserted that the alteration was not there at the time of the execution of the suit promissory note. The evidence of the plaintiff, examined as P.W.1, has been frank. He did not try to give a camouflaged evidence with regard to the factum of the alterations. But, it was not suggested to him that the alterations were made subsequent to the execution of the suit promissory note. If in fact the month in the suit promissory note was altered after it was executed and without the consent of the defendant, it will stand vitiated. But, unfortunately, this crucial aspect has not come out in evidence. The appellate court has mostly acted on presumptions. The appellate Court has omitted to take note of the fact that the plaintiff, examined as P.W.1 has admitted chat there is an alteration even in the body of the suit promissory note. The appellate Court observes that in the writings found in the suit promissory note it has been specifically narrated that the promissory note was executed by the defendant for valuable consideration of Rs. 2,000 on 20th April, 1974. This observation exposes the lack of due advertence to the evidence already on record which indicates that there is alteration even in the body of the suit promissory note with regard to the month as admitted by the plaintiff, examined as P.W.1. But, it is not possible to straightway conclude that the alteration was not there even at or before the time of execution of the suit promissory note and it may be that the alteration was there even earlier and the defendant was aware of the same and signed it only in such a condition. It is only in this regard I find that the evidence is inadequate and inchoate. Conscious of this lacuna in the evidence in this regard on either side, both the counsel make a request that in case this Court should be inclined to remit the matter back, the parties should be given due chance to place further evidence. In my view, in the interest of justice, as well as in the interest of the. parties, the matter requires fresh examination by the appellate Court, after the parties place further evidence on this question.
10. On the question as to whether the defendant is entitled to the benefits of Tamil Nadu Act 31 of 1976, the appellate Court has taken the ipse dixit of the plaintiff, examined as P.W.1, that the defendant owns a house and is not an agriculturist. The appellate Court has not adverted to any other factual aspect on this question. That could not be the proper way of assessing and adjudicating the question. Mr. R. Arunagirinathan, learned Counsel for the defendant submits that here again the evidence placed by the parties is insufficient and the parties deserve permission to place further evidence on this question also. This submission is being supported by Mr. R.T. Doraiswami, learned Counsel for the plaintiff, and both the counsel pray for an opportunity to place further evidence on this aspect also.
11. For the reasons expressed above, I am constrained to allow this appeal and I do allow this appeal, set aside the judgment and decree of the appellate court and remit the matter back to the appellate court for fresh consideration, keeping in mind the principles deducible under Sections 87 and 118(b) of the Act and taking note of the judicial pronouncements exemplifying the said principles and adjudicate the question as to whether the suit promissory note suffers a material alteration with regard to the date as contended by the defendant. The appellate Court will also advert to the question whether the defendant will be entitled to the benefits of Tamil Nadu Act 31 of 1976 and give a fresh decision thereon. The appellate Court will permit the parties to place further evidence as they may deem it necessary on both the questions. The parties are directed to bear their respective costs up to this stage. Further costs will depend upon the result before the appellate court.
12. The suit is of the year 1977 and the appellate Court will dispose of the matter within a period of three months from the date of receipt of a copy of this order, along with the records, from this Court.