1. This appeal is by theplaintiff and it arises out of a suit for declaration of title to certain land described in the schedule to the plaint,alternatively, for partition of 4.30 acres of land in the plaintiff's share.
2. The plaintiff's case in brief is as follows: Plots Nos. 1067, 1094, 1095 and 1084 having a total area of 20.12 acres with a jama of Rs. 77-11-3 p. described in schedule Kha to the plaint belonged to defendants Nos. 2, 3, 4 and their mother Subasini. The defendant No. 1 is the husband of Subasini and the defendants Nos. 2 to 6 are her sons. Subasini is now dead. The defendant No. 2 was in possession of his share of land by amicable partition with his co-sharers. The plaintiff No. 2 and one Jogendra Nath Burman purchased the specific 4.30 acres of land from the defendant No. 2 by a kobala dated May 3, 1954 corresponding to 20th Baisakh, 1361 B. S. In the said kobala through inadvertence Ejamali possession was noted. Out of the entire 20.12 acres of land of the Kha schedule 17.04 acres described in the schedule Kha (1) have been recorded in the recent R. S. Khatian No. 588 having a jama -of Rs. 74-14 annas. In the said Khatian the plaintiff No. 2 and Jogendra have been recorded as owners of 4 as. 1 gd. 1 kr. 1 kranti share of the land of the said Khatian with a remark regarding their exclusive possession of 4.35 acres of land of plot No. 1084. By a kobala dated May 8, 1958 corresponding to 25th Baisakh, 1365 B. S. Jogendra sold his share to the plaintiff No. 1. The two plaintiffs thus became the owners of the disputed 4.35 acres of land of plot No. 1084 described in Schedule Ka, The plaintiffs alleged that they were in possession of the Ka schedule land by cultivating the same. In 1373 B. S. the plaintiffs grew paddy on Ka schedule land but defendants Nos. 1 to 4 forcibly cut the paddy and took away the same from a portion of the plot. The plaintiff No. 2 filed a criminal case but the accused persons were acquitted. Being emboldened by the decision of the Criminal Court the defendants tried to obstruct the plaintiffs' possession in the Ka schedule land and they gave out that they would harvest the paddy from the said land. With this allegation the plaintiff instituted the suit for declaration of title to Ka schedule land and for a permanent injunction restraining the defendants from interfering with the possession in the said land. Alternatively, a prayer was made for partition of the land of schedule Kha (1) and for separate allotment of 4.30 acres of land to them.
3. The suit was contested by the defendants Nos. 1 to 6 by filing a joint written statement. The defendants denied the material allegation in the plaint. They denied that the plaintiffs have any title to or possession in the suit land or that they have any share in the same. The defence case is that after the partition of Bengal in 1947 the defendant No. 1 acquired the suit property along with other land with his money in the benami of his wife Subhasini and his son the defendant No. 2. The plaintiff No. 2 and Jogendra who are relations of defendant No. 1 was aware of this fact. The defendant No. 1 was living in East Bengal even after the acquisition of the properties but the family of defendant No. 1 was residing in West Bengal. It was alleged that the defendant No. 1 being in need of money approached the plaintiff No. 2 and Jogendra for a loan. The plaintiff No. 2 and Jogendra suggested that as a security for the loan the defendant No. 2 in whose name the property stood should execute a document in their favour and that they would return the document to the defendant No. 2 with the necessary endorsement when the loan would be repaid with interest. It was further alleged that it was agreed that the suit land would remain in possession of the defendant No. 1. The defendant No. 1 agreed to the said proposal whereupon the plaintiff No. 2 and Jogendra advanced a loan of Rs. 2,000/- to the defendant No. 1 on defendant No. 2 executing a document in favour of the plaintiff No. 2 and said Jogendra on 3rd May, 1954. It was further alleged that the defendant No. 1 continued to possess the suit land along with other co-sharers even after the execution of the said document by the defendant No. 2. In Magh 1363 B. S. the defendant No. 1 sent Rs. 2,700/- from East Pakistan through one Kartik Chandra Koyal for payment to the plaintiff No. 2 and Jogendra on account of the principal amount of the loan together with interest thereon. The said Kartick Koyal and the defendant No. 2 paid the said amount to the plaintiff No. 2 and Jogendra in the month of Magh, 1363 B. S. Plaintiff No. 1 and the plaintiff No. 2 and Jogendra made endorsement on the back of the original document and handed over the same to Kartik Chandra Koyal in the presence of defendant No. 2. It was alleged that the defendant No. 1 lost the original deed and he asked the plaintiff No. 2 andJogendra to execute a deed of Reconveyance in favour of the defendant No. I who was the real owner of the properties. It was alleged that the plaintiffs realising that the defendant No. 1 lost the original document conspired to grab the disputed property and with that end in view the plaintiffs got a kobala executed by Jogendra in favour of the plaintiff No. 1 and the plaintiffs thereupon started the present suit on a false claim. It was alleged by the defendants that at the material time the defendant No. 2 was a minor and as such he had no legal capacity to execute the document in favour of the plaintiff No. 2 and Jogendra. The plaintiff's claim that the defendant No. 2 was in separate possession by virtue of amicable partition with his co-sharers was also denied.
4. Various issues which were framed in the suit were answered by the trial Court in favour of the plaintiff. The trial court declared the plaintiff's title and passed a preliminary decree for partition of plaintiff's undivided 4.30 acres of land out of the lands described in schedule Kha (1) to the plaint. On appeal by the defendants the Lower Appellate Court held that the plaintiff's kobala, Ext. 1 (a), was a void document, and therefore, the plaintiffs did not acquire any title, and on that ground alone the lower appellate Court allowed the appeal and dismissed the suit. The lower appellate Court came to that conclusion in view of the fact that there were some alterations in the document. Ext. 1 (a), which rendered it void altogether. In that view of the matter the lower appellate Court did not consider it necessary to go into the other questions on which the trial Court found in favour of the plaintiffs. Against the said decision of the lower appellate Court the present appeal has been filed by the plaintiff No. 2 alone, his father, the plaintiff No. 1, having died in the mean time leaving him as his only heir.
5. Before we proceed further it will be helpful to notice the alterations which have been made in the kobala for which the lower appellate court has taken the view as mentioned above. The schedule to the kobala shows that the defendant No. 2 sold 13 Bighas or 4.30 acres of land out of 20.12 acres in plots Nos. 1067, 1094, 1095 and 1098. A mere look at the schedule shows that the figure '1098' has been altered to '1084' by crossing out the figure '9' and putting downthe figure '4' after the figure '8'. Similarly, the word 'khal' which was written against plot No. 1098 has been changed into 'bilan'. These alterations have been made in a different ink and there has been no attempt to conceal the fact that such alterations have been made. It is not disputed that these alterations were made subsequent to the execution and registration of the kobala. From the nature of the alterations made it is evident that there was no attempt to obliterate the previous writing. The plaintiff's did not mention in their plaint that there was any error in the kobala or that the figures '1098' and the word 'khal' were written by mistake in place of the figures and the word which now appear in the kobala, Similarly, in the written statement there is no allegation that plot No. 1084 which is recorded as 'bilan' was not included or intended to be included in the kobala. It is clear, therefore, from the pleadings of the parties that both sides proceeded on the basis that plot No. 1084 was intended to be included in the kobala executed by the defendant No. 2. It is also significant to note that the C. S. Khatian, Ext. J, in which the aforesaid plots have been recorded shows that the nature of the land and the total area of the respective plots have been correctly mentioned in Ext. 1 (a) the disputed kobala. The C. S. record shows that the plot No. 1098 measures only 21 decimals whereas plot No. 1084 is 5.20 acres. The R. S. Khatian, Ext. 6 (h), further shows that plot No, 1098 has been recorded in favour of Jatindra Nath Mondal and others on the basis of unregistered exchange with properties in Pakistan. It appears further from the answers to the interrogatories delivered by the plaintiffs that the defendants categorically stated that the kobala was executed in respect of plot No. 1084 along with other plots. Both the parties, therefore, accepted the position that plot No. 1084 which is a 'bilan' land having an area of 5.20 acres was intended to be included in the kobala.
6. The question which therefore arises for consideration is about the legal effect of the alterations which have been made in the kobala in the present case. It was contended on behalf of the respondents that the kobala, Ext. 1 (a), was produced from the custody of the plaintiffs, but the plaintiffs failed to offer any explanation regarding the alterations made in the kobala. It was accordingly argued that such failure on the part ofthe plaintiffs to explain the circumstances under which the alterations were made in the document has rendered the whole document void, and, therefore, the plaintiffs were not entitled to claim any relief on the basis of the said document. It is true that the document in question has been produced from the custody of the plaintiffs. There is no dispute that the plaintiff No. 2 and Jogendra got their names recorded in the R. S. Khatian under Section 44(1) of the West Bengal Estates Acquisition Act on the basis of the kobala, Ext. 1 (a). Absence of any explanation on behalf of the plaintiffs as to how the alterations took place must necessarily lead to the conclusion that the alternations were made by or on behalf of the plaintiffs and at their instance. The trial Court after a consideration of the evidence adduced in the case recorded a similar finding on this point and we find no reason to differ from the said finding of the trial Court.
7. The next question to be considered is whether the alterations which appear in the disputed kobala is a 'material alteration' so as to render the document void altogether. On this point reliance was placed on behalf of the respondents on one of the earliest decisions of the Judicial Committee in the case of Petamber Manikjee v. Moteechund Manikjee, (1836-37) 1 Moo Ind App 420 (PC). In that case the dispute was whether a partnership existed between the respondent and the appellant in respect of a certain share belonging to the appellant in a banking concern. The trial Court and the first appellate Court decided that the appellant had failed to establish the existence of the partnership. It was found that the original paper of the document had been cut off and four lines just above the signature written at the back of it; these four lines and the signature were written in a different handwriting from the first part of the document. The Judicial Committee held that under such circumstances the Court would refuse to receive the said document or act upon it till it is most satisfactorily proved that the alteration was made prior to the signature. As there was no such evidence in that case the decisions of the Courts below were affirmed by the Judicial Committee. The next case cited on behalf of the respondent is Mt. Khoob Conwur v. Baboo Moodnarain Singh, (1861-63) 9 Moo Ind App 1 (PC) where it was held thatthough the onus of proof of the genuineness of the instrument in its altered state lies upon the party producing and claiming under it, yet the altered and suspicious appearance of the instrument may be explained by proof of its original state when executed, and its existing state sufficiently accounted for, to rebut the presumption of the Deed having been falsified and tampered with after execution by the party claiming under it. Mr. Mukherjee also relied upon the decision in Spector v. Ageda, (1971) 3 All ER 417. In that case it was found that the alteration made in the document in question was to the detriment of the borrower and, therefore, it was held that such alteration is a material alteration which invalidated the document. In Nathulal v. Mt. Gomti Kuar, AIR 1940 PC 160, the law on this point was summarised by the Judicial Committee as follows (at p. 161) :--
'If an alteration (by eraser, 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 valid. The avoidance is however not ab initio or so as to nullify any conveyancing effect which the Deed has already had, but only operates as from the time of such alteration and so as to prevent the person who has made or authorised the alteration and those claiming under him, from putting the Deed in suit to enforce, against any party bound thereby who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration is 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 expressly, or reduces to certainty some provisions which was originally unascertained and as such void, or may otherwise prejudice the party bound by the Deed as originally executed. The effect of making such alteration without the consent of the party bound is exactly the same as that of cancelling the Deed. The avoidance of Deed is not retrospective and does not revest or reconvey any estate or interest in property which passed under it. And the Deed may be put in evidence to prove that such estate or interest so passed or for any other purpose than to maintainan action to enforce some agreementtherein contained.'
There may be alterations in a Deed which are not material even if such alterations have been made after the execution of the Deed. In Halsbury's Laws of England, 3rd Edition, Vol. II, p. 370, Article 604 alterations which are not material have been dealt with. It says :--
'An alteration made in a Deed, after its execution, in some particular which is not material does not in any way affect the validity of the Deed; and this is equally the case whether the alteration was made by a stranger or by a party to Deed ... ... ... ... ... It appearsthat an alteration is not material which does not vary the legal effect of the Deed in its original state, but merely expresses that which was implied by law in the Deed as originally written or which carries out the intention of the parties already apparent on the face of the Deed, provided that the alteration does not prejudice the party liable thereunder.'
In Ananda Mohon v. Ananda Chandra,25 Cal LJ 155 : (AIR 1917 Cal 811), a Division Bench of this Court held that an alteration in a document after its execution and registration made in good faith to carry out the original intention of the parties does not vitiate the instrument. That was a Letters Patent Appeal from the decision of a single Judge who held that the alteration in the document was a material alteration and therefore the document became void. The document in question in that case was a mortgage bond in which the stipulation was that interest would be payable at 'Rupee one per mensem'. Subsequently, it was altered to 'Rupee one per mensem per centum'. The trial Court as well as the lower appellate Court found as a fact that the document had 'been altered but that there had been no fraud and the document was not fradulently altered. The Division Bench held that as the alteration was made in good faith to carry out the original intention of the parties the document was not vitiated by the alteration made. In the case of Kalianna Gounder v. Palani Gounder, : 2SCR455 the Supreme Court held that in a memorandum of agreement for sale of land the insertion of the words 'clear the debts and execute the sale deed free from encumbrance' after its execution did not amount to material alteration so as to cancel it. InNandilal Agrani v. Jogendra Chandra Dutta, 36 Cal LJ 421 : (AIR 1923 Cal 53) a Division Bench of this Court after discussing the facts of the case observed as follows (at p. 57) :--
'... ... ... ... This is a case where whatwas intended by the mortgagor and the mortgagee alike to be included in the security, has been so misdescribed by reason of a manifest clerical error that nothing would pass by the Deed and the intention of the parties would be defeated. On proof of this, the Court is competent to give effect to what was indisputably the real agreement between the parties.'
8. Applying the above propositions of law to the facts and circumstances of the present case as appearing from the evidence on record we have no hesitation to come to the conclusion that the alterations made in the kobala, Ext. 1 (a), were made in good faith in order to give effect to the real intention of the parties. This would be evident from the C. S. Khatian, Ext. J, which shows that plot No. 1084 has a total area 5.20 acres and it is recorded as 'bilan' whereas plot No. 1098 has an area of 21 decimals and it is a 'khal'. It will further appear from Ext. J that the total area of plot Nos. 1067, 1094, 1095 and 1084 is 20.12 acres. But the total area of the first of those three plots and plot No. 1098 comes to 15.12 acres. The disputed kobala as it originally stood mentions the area of plot 1098 as 5.20 acres although the area of that plot is in fact 21 decimals. The defendants do not say that the plot No. 1098 belonged to the defendant No. 2. On the contrary in answer to the interrogatory the defendants categorically stated that what was intended to be sold was plot No. 1084 along with other plots. Exts. 4, 5 and 5 (a) which are the notice of the proceeding, the petition objection and the order under Section 44(1) of the West Bengal Estates Acquisition Act recording the name of Jogendra and the plaintiff No. 2 as co-sharers in the tenancy clearly indicate that as early as 1956 Jogendra and the plaintiff No. 2 were claiming that they have acquired interest in plot No. 1084 along with the other plots. The R. S. Khatian, Ext. 6 (b) shows that plot No. 1098 belongs to some third party. All these facts taken together unmistakably show that plot No. 1098 and the word 'khal' was wrongly written in the kobala in place of plot No. 1084 which is 'bilan' land and which was really intended to be sold alongwith other plots. That being so, the alterations in the kobala in the present case cannot be said to be a material alteration which would render the document void.
9. As the lower appellate Court dismissed the suit solely on the ground that the document, Ext. 1 (a), contained material alterations which rendered it void, without going into the other questions raised before it, the appeal must be remitted to that Court for a fresh decision in accordance with law. We wish to make it clear that apart from our finding on the question as to whether or not the document was rendered void on account of material alterations if there is any expression of opinion by us in this judgment on any other point involved in the present case it will not be binding upon the lower appellate Court and that Court will be free to come to its own conclusion on such other points.
10. This appeal accordingly succeeds. The judgment and the decree of the lower appellate Court are set aside and the appeal is remitted to that Court for a fresh decision in accordance with law. Costs will abide the result of the appeal.
A.N. Banerjee, J.
11. I agree.