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Krishna Kisor De Vs. Nagendrabala Chaudhurani - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1921Cal435,66Ind.Cas.694
AppellantKrishna Kisor De
RespondentNagendrabala Chaudhurani
Cases Referred and Green v. Atlenborough
mortgage suit - mortgage, denial of, by mortgagor and stranger --recital as to payment of consideration--burden of proof--question of onus of proof, when immaterial--consideration recited not paid in full--validity of land, if affected--pardanashin lady, dealings with--principles applicable--alteration of document after execution, effect of--material alteration, what is--court's decision not to rest on mere suspicion--execution purchaser--property purchased subject to mortgage--mortgage, invalid,--benefit, by whom taken. - asutosh mookerjee, j.1. this is an appeal by the seventh defendant in a suit on a mortgage-bond executed by the first six defendants in favour of the plaintiff on the 13th february 1915 to secure a loan of rs. 12,000 which was made re payable on the 12th april 1516 and was to carry interest at nine-and-a-half percent per annum with half yearly rests. the right, title and interest of the mortgagors in the hypothecated property was sold in execution of a decree for money at the instance of one of their creditors an i was purchased by the seventh defendant on the 20th june 1916 in the name of his son in law, the eighth defendant, who executed a release in his favour on the 25th january 1917. the mortgagee instituted the present suit on the 20th february it 18 for realisation of the mortgage.....

Asutosh Mookerjee, J.

1. This is an appeal by the seventh defendant in a suit on a mortgage-bond executed by the first six defendants in favour of the plaintiff on the 13th February 1915 to secure a loan of Rs. 12,000 which was made re payable on the 12th April 1516 and was to carry interest at nine-and-a-half percent per annum with half yearly rests. The right, title and interest of the mortgagors in the hypothecated property was sold in execution of a decree for money at the instance of one of their creditors an I was purchased by the seventh defendant on the 20th June 1916 in the name of his son in law, the eighth defendant, who executed a release in his favour on the 25th January 1917. The mortgagee instituted the present suit on the 20th February It 18 for realisation of the mortgage dues and joined as defendants the mortgagors as also the purchasers of the equity of redemption.

2. The mortgagors did not enter appearance, and the claim was resisted by the seventh defendant alone who urged that the bond had not been executed in conformity with Section 59 of the Transfer of Property Act, and was net a bona Me document executed for consideration, but was in fact a colourable deed brought about with a view to defraud the unsecured creditors of the mortgagors. It was farther alleged that the stipulation as to payment of interest and compound interest was an unconscionable bargain. On these pleadings, five issues were raised in the following termes

1. Was the mortgage bond in suit duly executed and attested?

2. Was there any consideration for the bond in suit

3. Is the plaintiff entitled to get compound interest as claimed?

4. Is the contract for payment of interest a hard and unconscionable bargain P Is the contract legally enforceable

5. To what reliefs, if any, is the plaintiff entitled

3. The Subordinate Judge has answered all the issues in favour of the plaintiff and has decreed the claim in full. On the present appeal, the decree of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that the plaintiff has failed to prove that the consideration reacted in the bond was paid either in whole or in part; secondly, that the plaintiff has failed to prove that the mortgage-bond was operative against Saratkumari Debi, a pardanashin lady, who acted as guardian of her infant sons, the fourth and fifth defendants; and thirdly, that the bond was void by reason of material alteration after execution and attestation.

4. As regards the first point, there has been some discussion at the Bar as to the onus of proof upon the question of payment of consideration, as the bond contains a recital that the money secured thereby had been received by the borrowers; there is, however, no room for controversy as to the true role on the subject. If an action to enforce a mortgage security is contested by the mortgagor and execution is admitted by or proved against him, the onus lies upon him to prove that the recital as to the payment of consideration for the deed which be executed is untrue. This ia in accord with the decisions of the Judicial Committee in Kaleepershad Tewarree v. Rajah Sahib Perhlad Sein 12 M. I. A. 282 : 12 W. R. P. C. 6 : 2 B. L. R. P. C. 111 : 2 Suth P. C. J. 225 at p. 2(sic)0 2 Sar. P. C. J. 4(sic)9 : 20 E. R. 345 : 1 Ind. Dec. (N. S.) 554., Ali Khan v. Indar Parshad (sic) I. A. 92: 23 C. 950 : 7 Sar. P. C. J. 63 : 12 Ind Dec. (N.S.) 631 (P. C.). and the decision of the Full Bench in Fulli Bibi v. Bassirudi Midha 4 B. L. R. 54 (F. B.) : 12 W. B. 25 (F. B.)., where reference is made to Chowdry Deby Persad v. Chowdry Dowlul Singh 3 M. I. A. 347 : 6 W. R. P. 55 : 1 Suth P. C. J. 161 : 1 Sar P. C. J. 288 : 18 E. R. 531. When, however, the c'aim is contested by a stranger who denies that the bond was executed and also asserts that there was no consideration for the mortgage, the onus is upon the mortgagee to prove his ease. This position may be fortified by reference to a long line of decisions, amongst others, to the cases of Brajeshware Peshakar v. Budhanuddi 6 C. 268 : 7 C. L. R. 6 : 3 Ind. Dec. (N. S.) 175., Shib Narain v. Shankar Panigrahi 5 C. W. N. 408., Ghurphekni v. Purmeshar Dayal Dubey 5 C. L. J. 653., Bisheswar Dayal v. Harbans Soh(sic)'y 6 C. L. J. 659 : 3 M. L. T. 38., Rahimjan v. Ima(sic)u'an 15 Ind. Cas 698 : 17 C. L. J. 173., Manohar Singh v. Sumirta Kuar 17 A. 428; A. W. N. (1895) 93 : 8 Ind. Dec. (N. S.) 597., Babbu v. Sita Bam 25 Ind. Cas. 426 : 36 A. 478 : 12 A. L. J. 806. The rule recognised in these cases is also supported by the analogy of the principle explained by the Judicial Committee in Brij Lal v. Inda Kunwar 23 Ind. Cas. 715 : 36 A. 187 : 26 M L. J. 442 : 18 C. W. N. 649 : 12 A. L. J. 4(sic)5 : 19 C. L. T. 469; (1914) M. W. N. 405 : 15 M. L. T. 895 : 16 Bom. L. R. 35(sic); I. L. W. 794(P. C). that recitals of legal necessity in mortgages or conveyances executed by Hindu widows are not of themselves evidence of such necessity, without substantiation by evidence ahunde as against reversioners who are strangers to the transaction: Maheshar Baksh Singh v. Raton Singh 23 I. A. 57 : 23 C. 766 : 7 Sar. P. C. J. 19 : 6 M. L.J. 127 : 12 Ind Dec. (N. S.) (sic)08., Deputy Commissioner of Kheri v. khanjan Singh (sic)4 I. A. 72 : 29 A. (sic) 5 C. L. J. 344 : 9 Bom. L. R. 5(sic) 1 : 11 C. W. N. 474 : 4 A. L. J. 232 : 2 M. L. T. 145 : 17 M. L. J. 283 : 10 O, C. 117 (P. C.)., Khub Lal v. A(sic)odhya Misser 91 Ind. Cas, 433 : 43 C, 574 : 22 C. L. J. 345. In the case before up, the reality of the mortgage transaction is impugned by the purchaser of the equi(sic) y of redemption and the burden of proof lies, consequently, in the first instance, on the plaintiff to establish that the deed was duly executed and the consideration was paid. We may add, however, that the question of onus of proof arises only where there is no evidence one way or the other which will enable the Judge to some to a conclusion upon the question of fact to be determined; but where evidence has been adduced by both the parties and the relevant facts are before the Court, the question of burden of proof, as pointed out by Viscount Haldane in Kundan Lal v. Begam-un-nissa (16) 47 In, Cas. 337 : 22 C. W. N. 937 : 8 L. W. 233 (P. C.)., and by Sir Lawrence Jenkins in Seturatnam Aiyar v. Venkatachala Goundan 56 Ind. Cas. 117 : 47 I. A. 76 43 M. 567;(19(sic)0) M. W. N. 6; (sic) M. L. T. 102 : 11 L. W. 3(sic)9 : 38 M. L. J. 476 : 22 Bom. L. R. 578 : 18 A. L. J. 707 : 25 C. W. N. 485 (P.C.). becomes immaterial, and importance should not be attached to the question on whom the initial onus lay; in push circumstances, the question of the burden of proof is really not pertinent. We shall now examine the evidence as to the execution and attestation of the mortgage deed and the payment of consideration.

5. The first three defendants, Khagendranath, Kumudindu and Mohanlal, along with their brother Makhanlal (who was the father of the fourth and fifth defendants and has since died), were members of a family of Zemindars, the Mookerjees of Janai, in the District of Hugbli. The family had got involved in financial troubles, and on the 12th June 1907 the four brothers executed a deed of trust in favour of the sixth defendant Rajanikanta Bhattacharya (the father-in-law of Makhanlal) for the better management of their properties and for the payment of their debts. The embarrassment, however, was so grave that plan, to save the family estates proved fruitless, and towards the end of the year 1914, the Moaker-jees were much barrassed by execution proceedings instituted by at least two unsecured creditors who held decrees for money against them, namely, Phanindranath Mitra and the present plaintiff, Nagendrabala Chaudhurani. The pressure was indeed so persistent that it became necessary to raise a loan by mortgage of portion of the estate. But a difficulty was created by the circumstance that Makhanlal had died leaving a widow Saratkumari (the daughter of the trustee defendant Rajanikanta) and two infant sons. In 1910, after the death of her husband, Saratkumari had obtained a certificate of guardianship of the person and properties of her infant children. On the 3rd September 1914 she obtained permission from the District Judge to raise a loan of Rs 45,000 jointly with the unties of the minors and the trustee, in order to pay off the debts due from the estate which, at the time, were alleged to amount to over a lakh of rupees. This permission was revoked on the 2nd December 1914 but liberty was reserved to renew the application when negotiations would be completed, On the 8th February 1915 Saratkumari applied again for sanction to join her brothers-in-law and her father in raining a sum of Rs. 12,000, the loan to carry interest at nine-and-a-half per sent, per annum. It was stated that the money was required to pay the decretal debts due to Phanindranath Mitra and Nagendrabala Chaudhurani as also the accommodation loans which had been taken from time to time to avert threatened execution sales, and to avoid a sale under Regulation VIII of 1819 of a valuable paint held by the family under the Maharaja of Bard wan. The security proposed to be offered to the creditor was the patni which had been previously mortgaged to one Haridas Banerjee on the 30th August 1907. The District Juged heard the Pleader, Babu Grish Chandra Ghose, who appeared in support of the petition and has been examined as a witness in this case. The application was allowed and the petitioner was directed to file within one month the proofs (that is, the statement of the debts and payments). This was tarried out and the amounts were duly filed on the 8th March 19(sic)5 showing that a sum of Rs. 12,000 had been raised on a mortgage to Nagendrabala Chaudhurani and had been applied in the discharge of numerous debts, large and small, which were due from the estate and were described in minute detail, These antecedent circumstances lend strong support to the genuineness of the transaction which is set up by the plaint if and is spoken to by her witnesses, Dharanidhar Ghose, who was her officer from 1908 to 19(sic)6 and is an attesting witness to the mortgage-bond, deposes to the fact of execution and attestation and also proves the actual payment of the consideration. According to this witness, the execution and attestation took place in the house of Rajani Kanta where his daughter Saratkumari lived with her children. The document was then taken by Bhudar Chandra Dutt, the scribe (an officer of the plaintiff), to her house where the payment was to be made. The first defendant Khagendra Nath and the sixth defendant Rajani Kanta accompanied him and received the money in the presence of all the attesting witnesses. The story, as narrated by this witness, is corroborated by Murali Mohan Ray who was formerly an officer of the trust estate in the employ of Rajani Kanta. The actual payment was made by the witness Surandra Nath Bose who was at the time the manager of the estate of the mortgagee. The testimony of these, witnesses is pima facie trustworthy and has been shaken in no way by cross-examination, But we have in addition the evidence of the plaintiff herself who has pledged her oath that the sum of Rs. 12,000 was advanced from her own funds and under her direction by her manager Surendra Nath Bose. Against this mass of evidence, what have we on the other side? We have the testimony of Sashi Bhutan Mitra, an attesting witness, who asserts that at the request of the sixth defendant, he affixed his signature after the body of the document had been written out but before the executants had signed it. He adds that he did not see the passing of the consideration; obviously, this does not cast doubt upon the case of the plaintiff, for the execution took place in the house of Rajani Kanta, while the payment was made in the house of the plaintiff. We have also the testimony of the seventh defendant, the appellant before us. He has admittedly no personal knowledge of the mortgage transaction and naturally presses the Court to scan with suspicion every incident connected therewith. We must bear in mind, however, that, as stated by Sir Lawrence Jenkins in Mina Kumari Bibi v. Bi(sic)hy Singh (18) 40 Ind. Cas. 213 : 4(sic)T, A. 72 : 44 C. 662 : 25 C. L. J. 508 : 1 P. L. W. 425 : 5 L. W. 711: 32 M. L. J. 425. 21 C. W. N. 585 21 M. L. T. 344 : 15 A. L. J. 382 : 19 Bom L.R. 421; (19(sic)7) (sic) W. N. 473 (P. C). and Lord haw in Muhammad Mahbub Ali Khan v. Bharai Indu 53 Ind. Cas. 54 : 23 C. W. N. 321; (1919) M. W. N. 507 (P. C.), recalling the dictum of Lord Westbury in Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M. I. A. 28 : 7 W. R. P. C. 10 : 2 Sar. P. C. J. 216; I Suth. P. C. J. 65(sic) 20 E. R. 11 (P. C.). and of Lord Hobhouse in Uman Parshad v. Gandharp Singh 141. A. 127 (P. C.) : 15 C. 20s 5 Sar. P. C. J. 71; Rafique & Jackson's P. C. No 98 : 11 Ind. Jur. 474 : 7 Ind. Dec. (N. S.) 599., though, there may be ground for suspicion, though the conduct of the parties may engender doubt, the Court's decision mast rest, not upon suspicion but upon legal grounds established by legal testimony. Such as it is, the legal proof here is all on the plaintiff's side, while if indirect signs are Bought, the suggestions thrown out by the defendant turn out to be of the most unsubstantial character, entirely unsupported by solid evidence. It has been insinuated against the plaintiff that she lent her name to enable the mortgagors to defraud their unsecured creditors. But no theory has been propounded, no motive has even been hinted at, to make this hypothesis credible. The evidence shows that the plaintiff is a wealthy parda nashin lady whose income from her personal estate is half a lakh a year; she is the wife of a wealthy landowner whose income from his own properties is one lakh a year. Mr. Mallik who has pressed the appeal with great zeal and earnestness could not suggest even a plausible reason why a parda naihin lady in the position of the plaintiff should consent to lend her name to a fictitious transaction of this character, with the inevitable result that she Would be involved in a litigation and be examined as a witness. But if it seems unlikely that she could be pi availed upon to enter into such a transaction, it is no less improbable that her husband, who is shown by the evidence to have been present at the time of the payment, should have permitted his wife to get entangled in such a situation. But it is still more inexplicable that she should perjure herself in Court and conspire to divide the spoils after success in a nefarious litigation. On the other hand, the course followed by the appellant is not calculated to inspire confidence in his case. He purchased the equity of redemption at an execution sale after it had been proclaimed that Nagendrabala Chaudhurani claimed to have a mortgage en the property about to be sold. Indeed, it transpires that on the 16th February 1916 the Execution Court had recorded an order that as she had filed documents to substantiate her prayer under Order XXI, Rule 62, Civil Procedure Code, her petition was to be read over by the Court Officer to the intending purchasers at the time of sale. No. doubt, as pointed out by the Judicial Committee in Iuatunnisa Begam v. Pertab Singh 3 Ind. Cas. 79(sic) 36 I. A. 203 : 31 A. 583 : 10 C. L. T. 313 : 13 C. W. N. 1143 : 6 A. L. J. 8l7 : 11 Bom. L. R. 1220 : 6 61. L. T. 277 : 19 M. L. J. 682 (P.C)., if the mortgage notified turns out to be invalid, the benefit is taken by the purchaser, and the judgement-debtor is not entitled to claim from him a refund of the amount alleged to have been due on the mortgage; and the purchaser is free to contest the reality or Validity of the mortgage when he is attacked by the mortgagee; Shib Kunwar Singh v. Sheo Prasad Singh 28 A. 418; A. W. N. (1906) 68 : 3 A. L. J. 200. Jaira Mal v. Radha Kishan 20 Ind. Cas. 182 : 35 A. 257 : 11 A. L. J. 357., Ganesh v. Purshottam 1 Ind. Cas. 10(sic) : 33 B. 311 : 11 Bom. L. R. 26 : 5 M.L. T. 228., Narayan v. Umbar 10 Ind. Cas. 913 : 36 B. 275 : 13 Bom. L. R. 307. But the fact, nevertheless, remains that the appellant, when he purchased the equity of redemption in the name of his son in law on the 20th June 1916, was apprised of the alleged mortgage. We have the farther fact that after he had purchased the equity of redemption for Rs. 24,000, the judgment debtors applied to have the sale Set aside under Order XXI, Rule 90, Civil Procedure Code, on the ground that there were irregularities in the execution proceedings which had caused them substantial injury as the property had been sell at an inadequate price. In that proceeding, the Court held, on the objection of the appellant, that the property was worth at least Rs. 60,000, and that as it had been sold subject to two mortgages, namely, a tint mortgage for Rs. 24,000 in favour of Sambhunath Kehetri, and a second mortgage for Rs. 12,000 in favour of Nagendrabala Chaudhurani, it could not be deemed to have been sold at an inadequate price. This order was made on the 16th December 1916 and the sale to the appellant was confirmed. We must take it, accordingly, that at the time of the purchase, as also at the time of the confirmation of the sale, the appellant believed in the reality of the mortgage. The question naturally arises when, how, and from whom did he receive information which made him change his faith and adopt the conclusion that the mortgage was fictitious. He admits in his deposition that be had known the Mookerjees for twenty years; he had also known their trustee Rajanikanta for seven or eight years. There had also been a proposal to sell the disputed prop9rty to him five or six months before the auction-sale. In such circumstances, and in view of the fast that he is not altogether a stranger to law (he is an experienced Solicitor of this Court), it might be expected that he would make enquiries and would also make a frank and full disclosure to the Court as to the information he had gathered in respect of the title to this property, bath before and after his purchase. There is a singular absence of such materials from the record and the appellant cannot make a legitimate grievance if the Court holds that the positive evidence adduced on behalf of the plaintiff cannot be summarily swept away by vague allegations of a concerted sacheme to defraud the creditors of the borrowere, when there is no trace in the evidence of such a design or of a plan for its execution. We feel no doubt whatever that the Subordinate Judge was right in his conclusion that the mortgage was a genuine transaction, that the deed was executed and attested, and that the consideration was paid. We may add that, as a last resort, it has been faintly suggested that the whole of the consideration was not paid. There is, however, no foundation for this o intention, which is based on the endorsement on the bond made by the trustee on the 19th March 1(sic)15 to the effect that Rs. 2,000 had been paid on the 13th February 1915, that is, on the day the bond was executed. There is some discrepancy in the evidence as to whether this sum of Rs. 2,000 was re-paid on that date or subsequently; but we see no reason to doubt that the payment was in fast made and the plaintiff has accordingly sued on the basis that the sum advanced was Rs. 10,000 As was pointed out in Munshi Bajrangi Sahai v. Udit Narain Singh 10 C. W. N. 932 : 3 C. L. J. 54 (Short Notes), the validity of a bond is not affected by the fast that the consideration recited was not paid in full; the bond is operative to the extent of the sum actually advanced. The first ground urged in support of the appeal cannot consequently be sustained.

6. As regards the second point, it has been urged that the mortgage should not be held operative in respect of the one-fourth share of the hypothecated property owned by the fourth and fifth defendants, inasmuch as there is no evidence to show that the deed was executed by their guardian Saratkumari Debi, a parda nathin lady, under circumstances which would make the transaction binding upon her. Stress has been laid on the absence of specific evidence to establish that the document was read over and explained to her and that she had independent advice. In support of this position, reliance has been placed upon the decisions in Bindubashini Dasi v. Giridhari Lal Roy 3 Ind. Cas. 330 : 12 C. L. J. 115., Alikjan Bibi v. Rambaran Shah 7 Ind. Cas 166 : 12 C. L. J. 357. and Kali Bakhsi Singh v. Ram Gopal Singh 2(sic) Ind. Cas. 935 : 41 I. A 23 : 36 A. 81 : 19 C. L. J. 172 : 18 C. W. N. 282; (1914 M. W. N. 112 : 16 O. C 378 : 12 A. L. J. 115 : 15 M. L. T. 130 : 1 O. L. J. 67 : 26 M. L. J. 121 : 16 Bom. L. R. 147 (P. C.). In our opinion, there is no real force in this contention. The objection now pub forward was not specifically set cub in the written statement and is not covered by the issues. The evidence was consequently not directed to this point and the judgment of the Subordinate Judge does not indicate that this aspect of the matter was urged before him in the course of argument. Nor can we discover the faintest trace of the point in the numerous grounds embodied in the memorandum of appeal presented to this Court. Not withstanding these circumstance', we have enter-tuned the objection, inasmuch as the interest of infants represented by a parda nashin lady seamed to be involved; but for reasons presently to be stated, we have arrived at the conclusion that there is no substance whatever in the objection urged by the appellant. It is well settled that the Court, when called upon to deal with a deed executed by a parda nashin lady, must satisfy itself upon the evidence, first, that the deed was actually executed by her on by some person duly authorised by her, with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and, thirdly, that she had independent and disinterested advice in the matter. (sic)The leading judicial decisions which recognise these principles are collected in the judgment of this Court in Mariam Bibee v. Muhammad Ibrahim 48 Ind Cas. 561 : 28 C. L. J. 306 at p. 367, and on examination they will be found to fall broadly into two groups, namely, first, oases where the person who seeks to bold the lady to the terms of her deed is one who stood towards her in a fiduciary character or in some relation of personal confidence; and, secondly, eases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of eases, the Court will require the confidence and influence to be proved intrinsically. This is a fundamental distinction which does not appear to have been always kept in view, with the result that observations made in the one class of eases have been applied without serutiny to the other class of cases, Illustrations of the confusion which has resulted from this failure to discriminate between the two classes of eases, are furnished by the decisions in Ranee Usmut Kumar v. Tayler 2 W. R. 307., Tayler v. Ranee Asmedh Koonwar 5 W. R. 246., Soondur Koomaree v. Kishoree Lal 5 W. B. 246., Ram Parshad v. Ranee Phoolputtee 7 W. R. 98., Kanai LaL v. Kamini Debi 1 B. L. R. (0. C. J.) 31 foot-note., Roop Narain Singh v, Gugadhur Parshad 9 W. R.297., Latehemy Umma v, Lewcock (1800) 1 Strange (n. c ) 26 at p. 30 : 5 Ind. Dec. (0. s.) 14., Chellummal v. Garrow (1812) 2 Strange (n. c.) 1 : 5 Ind. Doc (o s.) 233., Narsummall v. Lutchmana Naic (1809) 1 Strange (n. c.) 312 : 5 Ind. Dec. (o. s.) 165. Reference may also be made in this aonneation to the two deaisions of the Judicial Committee in Moonshee Buzloor Buheem v. Shums oon nissa Begum 11 M. I. A. 551 at p. 585.8 W. R. P. C. (sic)? 2 suth, P. C. J. 59 : 2 Sar, P. C, J. 259 : 20 E. R. 208. and Geresh Chunder Lahoree v. Bhuggobutty Debia (42). In the former case, where the transaction was between a husband and a wife, their Lordships observed that the burden of proving the reality and bona fides of the purchases pleaded by her husband was properly thrown on him. In the latter case, which was one of a death-bed gift in favour of the donor's brothers in their wives' names to the exclusion of her husband's adopted son, their Lordships pointed out that the Judicial Committee and the Courts in India had always been careful to see that deeds taken from pardah women had been fairly taken and that the party executing them had been a free, agent and duly informed of what she was about. The substance of the matter then is that the fairness of the bargain is the crucial test. This principle runs through the later decisions of the Judicial Committee, though the rule is more specially enforced in eases where a fiduciary relation involving trust and confidences is shown to exist; Syud Fussul Hussain v. Amjud Ali Khan (43), Ashgar Ali v. Delroos Banoo Begum. (44), Tacoordeen Tewary v. Nawab Syed Ali Hossein (45), Sudisht Lal v. Sheobarat Koer (45), Mahomed Buksh Khan v. Hosseini Bibi (47), Amarnath Sah v. Achan Kuar (48), Annoda Mohun Rai v. Bhuban Mohini Debi (49), Shambati Koeri v. Jago Bibi (50), Ismail Mussaiee v. Hafiz Boo 33 I.A. 86 : 33 C. 773 : C.L.J. 484 : 8 Bom. L.R. 379 : O.C.W.N. 570 : 16 M.L.J., 166 : 3 A.L.J. 353 : 1 M.L.T. 137 (P.C.), Satfad Hmain v. Abid Bntain Khan [b2)i Kali Bakhih Singh v, Bam Oopal Singh (53), It may also ba observed that the Court must have regard to ths intellectual attainments of the lady concerned and will naturally be disinclined to set aside tbe deed where she ia proved to bave been of basiness habits, to have been literate and to havtj possessed a capacity to judge for herself; Hodge$ v. Delhi and London Bank Limited (51), Bindu-bmhini Dasi v. Oiridhari Lai Roy (28), Alikjan Bibi v. Bambaran Shah (29), These are only general principles, and it cannot be too strongly emphasised that there is a grave risk of failure of justice, if they are moulded into inelasti: formulas or srystalised into icfhxible rules, and treated as of universal application, regard-less of ihe spscial facts and surrounding circumstances of the concrete case which requires adjudication. Tested in the light of these principles, how dees the case before us stand f Saratkumari, though a pardx nashin lady, was in no sense illiterate and was able to read the mortgage deed which had been written in her vernacular. The execution of the dead bad been preceded by an application on her behalf to the Distriet Judge who had granted the requisite sanction. The terms of the deed were of the simplest character imaginable, and the covenant for the payment of interest was in no way unusual. Sue lived with her infant children in the family of her father and had the benefit of bis advice ; indeed, it was at his instance that the loan wis raised with a view to discharge the family debts and to save the estate from sale in ' execution of decrees obtained by unsecured creditors, she was joined in the mortgage transaction by her three brothers-in law who were the uncles and co sharers of her infant children and were equally interested in the protection of the estate. The only persons whose advice she could have taken, either in the family in which she was born or in the family into which she had married, were her father and tbe brothers of her husband; tbey were present throughout tbe transaction and themselves joined as parties, It is also significant that neither she nor her father nor her brothers in-law have entered appearance in this suit and contested the claim, though their personal liability under the mortgage instrument has not been extinguished by the lapse of time. In these circumstances, we are of opinion that the deed has been amply established to have been fairly taken from her, that she executed it as a free agent, and that she was duly informed of what she was about. Consequently, the deed cannot be successfully impeached, and the second objection urged by the appellant must be overruled.

7. As regards the third point, it has been contended that the mortgage-deed has become void and inoperative by reason of a material alteration made therein, without the assent of all parties concerned, after execution and attestation. It appears that the mortgage deed as written out did not contain a schedule of the details of the consideration money. There was a statement in the first clause to the following effect:

We borrow this day from your fund the sum of Bs. 12,000 as per details given below and acknowledge receipt of the said money by this document,' The details, however, could not be inserted then, betause it had been arranged that the document would be executed and attested in the house of Bajani Kanta where his daughter Sarat Kumari lived, but the actual payment would be made in the house of the plaintiff. A blank space was accordingly left on the final sheet, and when the payment was made in the house of the plaintiff, the soribe made the following entry in the blank space:

Schedule of consideration money.Currency Note No, -^28,620,one picas ,,. Bs. 1,000No. Do, 06918, onepiece ... 1,000Small notes, one thousand pieces at Bs, 10 ' 10,000eaoh ,!, ----------12,000 Twelve thousand rupees only,

8. On these, fasts, it has been argued, there was a material alteration in the doanment whish should have been raexeout-ed by the borrowers and re attested by the witnesses, in order that it night be operative in law as a m-rtgage instrument. The Subordinate Judge has overruled this contention in the Court below on the authority of the deoision in Anemia Mohan S*ha v. Ananda Chandra Saha (55), whish shows that an alteration in a document after its execution and registration, made in good faith to sarry out the original intention of the parties, does not vitiate the instrument. We are of opinion that there was in this case ii3 material alteration in the deed when the sshedale setting out the details of the sonsideration money mentioned in the body of the dosument was inserted in the blank spate and that neither re execution nor re-attestation was neeessary to revive its vitality whish had in no way been afiested, muoh less suspended, by what had taken place. It was ruled by this Court in Qour Chandra Das v. Frasanna Kumar Ohandra (56) and Achhuta-nand v. Bum Nath (57) that a material .hange or alteration of an instrument is whish sauses it to speak a language different in legal effest from what it originally spoke. Aesordingly, any aet whish shanges the legal effest of the instrument, that is, whish shanges the legal identity or sharaster of the instrument, either in its terms or in the relation(sic) of the patties to it, is a material shange or teshnisally an alteration. It is the effest of the ast upon the instrument and not the particular manner in whish it is done, that is material, and hense an alteration to be material must be an astual alteration, whether by erasure, interlineation, addition or substitution of material matter affesting the identity of the instrument or contrast ; it must also be in a material part of the instrument and must affest the lights and obligations of the parties thereto. To eon-etitute ui alteration material, it is enough that, if the instrument were genuine, it would operate differently from the original. Sash is the fundamental prinoiple whish lies at the root of the rule that a material alteration in an instrument invalidates it against all parties nob oonsenting to the alteration. Bat it would be a fruitless task to endeavour to resonsile or even to sompare the numerous oor.fluting decisions, and often timsi finespun distinctions, of whish the alteration of promissory-no^es and other like instruments and the legal consequences flawing therefrom have been the proliSt theme. Assordingly, the most advantageous eourae to follow is to test the fasts of the litigation before the Court in the light f the fundamental principle just enunciated. Now, in the case before us, the first clause of the doaument resiles that Rs. 12,000 was the consideration for the mortgage'and aoknow-lsdges reseipt of the sum by the borrowers. The bond woull be operative even though tho details of the consideration money were not set out : its validity depends not upon the detailed enumeration but upon the astual payment of the sonsideration money: and it is well settled that either party to a dosument may show that there was in fast no sonsideration though consideration was recited therein or that the sonsideration was in reality different from what was stated in the deed: Huhumehand v. Hiralal (58), Vatudeva Bhatlu v, Naraiamma (59)8 Kumara v. Srinivasa (60), Edityam Iyer v. Ramakriskna Iyer (61), Lula Himrnat Sahaiv, Llewehellen (o2), Oopal Singh v. Laloa Singh (63), Indariit v. Lai Ohand (64). It has been urged, however, that though the alteration in the present sase was not material in the Eense that it varied the rights, liabilities or legal position of the parties as assertained by the deed in its original state, or otherwise varied the legal effest of the instrument as originally expressed {.Gardner v. Walsh (65)], it was still a material alteration, sufficient to invalidate the instrument, as it reduced to .orflinty a provision whioh was originally unascertained. This argument is manifestly fallacious, The provision that the consideration was R?. 12,000 was not open to the objeotion of uncertainty and the schedule did not make that certain whioh was previously unascertained. What was made .ertain by the schedule was the mode of payment of the money, but that was not material for the validity of the deed: Markham v. Oonaston (66), Eigleton v. Outteridge (67), Barned's Banking Co., In re. Contract Corporation, Ex parte (68), The distinctions which have beep recognised in some of tha cases as ti the materiality of words inserted in blanks in a deed are of a refined character and some of the decisions are not ea*y to reconcile. Thus in Sellin v. Fries (69) the addition of a schedule of oreditors to a composition deed, after execution and registration, was held to ba a material alteration which vitiated the deed ; but in-TFooi v. Slack (5 0) the addition to the schedule of the names of two creditors after execution and registration was held to be immaterial; see also Srench v. Patton (71), Weeks v.Maillardet (52), Dainei v. Heath (73), Dyer v. Green (74), Batten, In re, Milne, Ex parte (75). The substance of the matter is, that the addition of anything perfectly immaterial does not affect the liability of the parties [Cation v, Simpson (76)], and where the alteration is an immaterial one, the Queen's Bench, declining to be bound by the second resolution in Pigot's case (77), decided in Aldms v. Oornwell (7^) which was followed in Orediton v. Bishop of Exeter 09), that the alteration does not vitiate the instrument, even though made by a party thereto. What alteration is immaterial must plainly depend upon the nature of the instrument as also upon the nature of the change; reference may be made in this connection to Murkham, v, Gomston (06) an! Faget v. Paget (80) among earlier cases, and to Adsetts v. Hives (81) and Green v. Atlenborough (82) among modern decisions. We hold, accordingly, for the reasons set cat above, that the insertion of the schedule, setting out the details of the consideration mentioned in the body of the mortgage bond in this case, did not constitute a material alteration; it did not vary the meming of the instrument or change the rights or interests, duties or obligations of the parties in any essential particular. The third contention of the appellant cannot thus be possib'y supported.

9. The result follows that the decree of the Subordinate Judge must be affirmed and thia appeal dismissed with costs,

Bitbklamp, J.

10. I agree and have nothing to add,

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