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Ananda Mohan Saoa and ors. Vs. Ananda Chandra Saha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.182
AppellantAnanda Mohan Saoa and ors.
RespondentAnanda Chandra Saha
Excerpt:
material alteration - alteration to carry out original intention of parties, effect of. - .....the defendant alleges that there was no consideration. it is further alleged that when the mortgage-bond was in possession of the plaintiff, the mortgage interest being in terms re. 1 per mensem, the plaintiff fraudulently inserted the words per cent.' in the bond, thus making the interest from eight annas per cent, per annum to re. 1 per cent, per annum. the defence of the henami character of the document was abandoned; and the learned judge found that consideration had been received for this document as was evidenced by a previous deposition of the defendant. thereupon stress was laid upon the alleged alteration in the document. it has been found as a fact that the document has been altered. it has also been found as a fact that there has been no fraud and that the document was.....
Judgment:

John Woodroffe, J.

1. This appeal has been heard at great length. The point which is raised is a simple one. The suit was brought on a mortgage-bond of Rs. 200. The defence which has been found to be false is that money was not borrowed, that the bond was not executed or registered as the plaintiff alleges, but that the defendant with a view to defraud his own creditors got up a sham mortgage and in order that the benami character of this transaction should not be discovered, he made it over to the plaintiff who has taken advantage of the fact. Subsequently, it is alleged that there was a dispute between the plaintiff and the defendant about some tin-shed and other matters and the plaintiff then put in force this mortgage against the defendant. The defendant alleges that there was no consideration. It is further alleged that when the mortgage-bond was in possession of the plaintiff, the mortgage interest being in terms Re. 1 per mensem, the plaintiff fraudulently inserted the words per cent.' in the bond, thus making the interest from eight annas per cent, per annum to Re. 1 per cent, per annum. The defence of the henami character of the document was abandoned; and the learned Judge found that consideration had been received for this document as was evidenced by a previous deposition of the defendant. Thereupon stress was laid upon the alleged alteration in the document. It has been found as a fact that the document has been altered. It has also been found as a fact that there has been no fraud and that the document was not fraudulently altered. It has been found as a fact too that it was the intention of the parties, as it seems to me to be obvious upon reading the document, that interest was to be paid at the rate of Re. 1 per cent, per mensem. Anybody reading this document (Re. 1 per mensem) could not fail to read it in the sense in which both the Munsif and the Subordinate Judge have done, namely, that interest was to be paid at the rate of Re. 1 per cent, per mensem. The finding is that this was the agreement between the parties, and in making this alteration effect was given to the common intention of the parties. It has been held as a matter of law, as has been pointed out in the judgment of the Subordinate Judge, that an alteration made in good faith to carry out the original intention of the parties does not vitiate the instrument. That is the rule of law and applying the facts found to this rule, the finding of the Subordinate Judge disposes of this question.

2. It is unnecessary, therefore, to consider the other point which has been raised on behalf of the appellant, namely, that apart from this' question altogether, there are a number of decisions which show that as soon as a document is registered, a charge is created in favour of the plaintiff and the plaintiff is entitled to enforce the charge and no alteration subsequent to the registration of the document can affect the validity of the document. A large number of oases has been cited in support of this proposition. It is unnecessary to decide that question, because this case is disposed of upon the ground which I have already stated.

3. In my opinion the judgment and decree of Mr. Justice Walmsley should be set aside. I accordingly set aside the judgment and decree of Mr. Justice Walmsley and restore the judgment and decree of the Subordinate Judge.

4. The appellants will be entitled to their costs of this appeal and of the hearing before Mr. Justice Walmsley from the respondent.

Chaudhuri, J.

5. I agree


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