Judgement

Appeal (No. hi of 1936) from a judgment and decree of (the High Court (March 8, 1933) reversing a judgment and decree of the Additional District Judge of Moradabad (January 12, 1931) which had affirmed a judgment and decree of the Munsif of Chandausi (June 4, 1929).

The suit out of which this appeal arose was brought by the appellants (plaintiffs 3 to 5) and respondents 29 and 30 (plaintiffs 1 and 2) against respondents 1 to 28 (defendants 1 to 28) claiming redemption of certain properties on the allegation that the sale of the properties evidenced by a sale deed of March 25, 1844, and executed by Gulab Singh, the representative-in-interest of the plaintiffs, in favour of Het Ram and Tula Ram, the representatives-in-interest of the defendants, and an alleged agreement to transfer the said properties, dated March 25, 1844, and executed by Het Ram and Tula Ram in favour of Gulab Singh, formed one transaction and constituted a mortgage by conditional sale of the properties comprised in the sale deed.

The facts, and the relevant terms of the material documents, appear fully from the judgment of the Judicial Committee.

The Munsif delivered judgment in favour of the plaintiffs. He found that the alleged agreement bore the date of March 25, 1844, but that the plaintiffs, or somebody on their behalf, finding that that date did not tally with the date of the sale deed as given in the alleged certified copy thereof, made a hole near the figure 25, and thereby gave it the appearance of 26. He found, however, that the agreement was genuine, that the two documents formed one transaction, and that they constituted a mortgage by conditional sale, which the plaintiffs were entitled to redeem.

An appeal by fifteen of the defendants to the Additional District Judge of Moradabad was dismissed. He agreed with the Court below that the hole in the agreement was made by the plaintiffs or their advisers.

On second appeal by thirteen of the defendants to the High Court (Iqbal Ahmad and Kisch JJ.) it was held that the two documents constituted a mortgage by conditional sale. They further held, however, that the alteration in the date of the agreement was the work of the plaintiffs; that the change of the date of the document was a material alteration which avoided the document; and that a decree should not have been passed on the basis of such a document; and they accordingly allowed the appeal.

1940. April 15, 16. L. P. E. Pugh K.C. and J. M. Pringle for the appellants. This being a second appeal there is no appeal on fact, but only on law. It has been decided against the respondents by all three Courts below that there was a mortgage by conditional sale, and the whole point in the case now is whether there was a material alteration which vitiated the agreement. [On the question of mortgage by conditional sale, reference was made to Narasingerji Gyanagerji v. Panuganti Parthasaradhi.(( 1924) L. R. 51 I. A. 305, 316.)] The High Court said that the plaintiffs caused the alteration from March 25 to March 26 to be made in the agreement, and that is the only alteration relied upon in the High Court. Though there are a number of Indian cases in which the English rule as to the effect of material alterations in deeds has been applied, as for example, in Subrahmania Ayyan

v. Krishna Ayyan (( 1899) I. L. R. 23 M. 137, 143.), and Mangal Sen v. Shankar Sahai (( 1903) I. L.

R. 25 A. 580, 591-2.), there has only been one Privy Council case in which the matter has been considered, Mussamut Khoob Conwur v. Baboo Moodnarain Singh (( 1861) 9 Moo. I. A. 1, 17.), and that case indicates that the doctrine is introduced in India in a very modified form. On the general principle see also Ranee Surnomoyee v. Maharajah Sutteeschunder Roy Bahadoor (( 1864) 10Moo. I.

A. 123,149.), and Sevvaji Vijaya Raghunadha Kristnan Gopalar v. Chinna Nayana Chetti (( 1864) 10 Moo. I. A. 151, 161, 163). The rule in England is stated in Halsburys Laws of England, 2nd ed., vol. x., p