B.K. Mukherjea, J.
1. This is a rule obtained by the plaintiff-petitioner on an application under Section 25, Provincial Small Cause Courts Act, and it is directed against a decree of dismissal passed by the First Subordinate Judge, Pabna, in Small Cause Court Suit No. 35 of 1937. The material facts may be shortly stated as follows : Two brothers named Kristo Das and Debi Das purported to own a house in the town of Pabna and they mortgaged the said house to one Asutosh Saha, the predecessor of the opposite party in the present rule on 23rd August 1929 to secure an advance of Rupees 2000 only. After this mortgage Kristo Das sold his equity of redemption to his wife Arunprova. The mortgagors had a stepbrother named Girish who claimed a third share in the mortgaged property and he started a suit for partition of his share in the mortgaged premises on that footing, This suit was dismissed by the trial Court as well as by the Appellate Court and Kristo Das and Debi Das were declared to be the 16 annas owners of the house in dispute.
2. At about this time, there were negotiations between the mortgagee and the mortgagors for sale of the mortgaged property to the former, the debtors having no other means of paying off the debt. On 19th June 1933, a kobala was executed by the two brothers, Kristo Das and Debi Das as well as by Kumudini (their mother) and Arunprova, the wife of Kristo Das by which the mortgaged properties were sold to Asutosh for a consideration of Rs. 3700 only. The kobala recited that the mortgage debt amounted to Rs. 2650 and deducting that from Rs. 3700 which was settled as the price of the property a sum of Rupees 1050 was payable by the vendee to the vendors. As however Girish was threatening at that time to file a second appeal to this Court and the result of the litigation was still unknown, the vendee paid only half of the balance of the consideration money amounting to Rupees 525 and retained the other half as deposit in his hands. It was stipulated in the kobala that if no appeal was filed by Girish then on the expiry of the period of limitation fixed for the filing of such appeals and even if an appeal was filed then on that appeal being dismissed, the balance of Rs. 525 would be paid by Asutosh to Arunprova. The vendors on the other hand agreed to carry on the litigation with Girish and pay all his expenses and in case he did not, the purchaser was given the option of carrying on the litigation himself and he was to be reimbursed for all the expenses which he would have to incur for this purpose. At the end of the document and after it was apparently finished, appeared a clause which reads as follows:
Be it declared that the date of filing the appeal has expired on 17th June 1937 and it within seven days from this date the balance of purchase money is not paid, the document would be void and inoperative.
3. As a matter of fact however an appeal was duly filed by Girish and it was eventually heard and disposed of by this Court on 19th March 1936. On 22nd February 1937 the present plaintiff got two conveyances, one from Arunprova and the other from the three other vendors by which the claim of the vendors to the unclaimed purchase money was transferred to him. It is on the strength of this kobala that the plaintiff has instituted the present suit and he has claimed a sum of Rs. 700 representing the balance of purchase money and interest thereon under the terms of the kobala. The trial Court dismissed the, suit on the sole ground that there was a material alteration in the kobala made at the instance of the plaintiff or his predecessors and this incapacitated him from founding a claim upon this document. It is the propriety of this view that has been challenged before me by the learned advocate who appears in support of this rule. It seems to me that the law on the point is perfectly well settled. As was laid down in Master v. Miller (1791) 4 T.R. 320:
Whenever any instrument is purposely altered by a person in lawful possession of it in a material part of it, the instrument is void for the purpose of enabling any person to sue on it or to defend himself by using it as a direct defence depending on its obligatory force as an instrument.
4. The principle has been applied by this Court, in several cases : vide the cases in Gour Chandra Das v. Prasanna Kumar Chandra (1906) 33 Cal. 812 and Haran Chandra v. Kishori Lal : AIR1929Cal789 . The whole controversy therefore narrows down to this as to whether there was any material alteration in the document made by or at the instance of the plaintiff or his predecessor which makes him incapable of enforcing any obligation, covenant or promise contained in the same. The Judge has held that the document was materially altered by interpolation of the clause at the end of the document which I have set out above and which is to the effect that as the date of filing the appeal by Girish had expired the balance of the purchase money would have to be paid within seven days, failing which the document would be void and infructuous. Assuming that it was an interpolation, the question arises as to whether the rights and liabilities or the legal position of the parties as ascertained by the original deed were altered in a material way by the insertion of this clause. In my opinion the answer to the question must be given in the negative. The document clearly shows that it was the intention of the parties that the balance of the purchase money would be paid only if no appeal was filed by Girish or if any appeal was filed by him, when the said appeal was dismissed. As was held by the Courts below, the clause mentioned above was based upon a total misapprehension. It was assumed wrongly that the time for filing the appeal had already expired and consequently the balance of the purchase money had become payable under the terms of the document itself. It merely laid down a time limit, namely seven days within which the money was to be paid though there was no such stipulation in the unchallenged part of the document. The original stipulation would seem to indicate that the money became payable as soon as the time for filing the appeal expired. The so called alteration mentioned a period of time within which it had to be paid. It was held however and that rightly by the Court in the previous litigation between the parties that the time was not of the essence of the agreement with regard to either of the stipulations. If that is so, I' am unable to hold that the alteration made any material change as regards the rights of the parties or that their legal position was in any way altered. In my opinion therefore the plaintiff's case should not have been dismissed on this ground alone.
5. There is one matter however which requires consideration before the plaintiff can be given any relief. It appears that it was the opposite party who carried on the litigation with Girish and eventually brought it to a successful termination. According to the terms of the kobala they were entitled to have the expenses incurred by them in connexion with that litigation, and they also got a decree for costs against the plaintiff's predecessors. As an assignee of an actionable claim the plaintiff could get the rights subject to all equities that could be urged against the assignor. The Court however rejected this part of the defendants' case on the ground that the defendants did not pay proper court-fee and the claim was beyond the pecuniary jurisdiction of the Small Cause Court. I do not think that either of these difficulties was insuperable. If it was beyond the Small Cause Court jurisdiction of the Subordinate Judge, he could try the case as an ordinary money suit and in any event, if the demand for set off was well founded, it could have been allowed to the extent of the plaintiff's claim. The defendants might also have been called upon to pay proper court-fees upon the claim they made. In my opinion this part of the defendants' case requires investigation. I therefore make the rule absolute and set aside the judgment and decree of the lower Appellate Court. The case is sent back to the Subordinate Judge in order that the defendants' claim for set-off as made in their written statement may be considered and decided. If the Court thinks it necessary it might allow the parties to adduce additional evidence on the point. The rule is accordingly made absolute. There will be no order as to costs in this rule.