A material alteration of a negotiable instrument renders it void as against any party who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties.

GOPAL RAO EKBOTE, J.

( 1 ) THIS revision petition arises out of a suit S. G. S. 145/62 instituted by the petitioner-plaintiff for the recovery of a sum of Rs. 1,864 on the foot of a promissory note, dated 29-74959. The principal defence with which I am concerned in this revision petition was that the promissory note was not executed on 29-7-1959, but it was executed on 22-7-1959, It was contended by the defendant that in order to bring the suit within limitation the plaintiff after erasing the figure 2 has rewritten the figure 9.

( 2 ) THE lower Court after proper enquiry found that there lias been a material alteration in the promissory note and that the date was changed from 22nd to 29th in order to bring the suit within limitation. The suit was filed on 30th July 3959, 29th being a holiday.

( 3 ) THE main contention of Mr. A. Kuppuswamy, the learned Counsel for the petitioner, is that when the defendant even before inspecting the suit document took a stand that the promissory note was really executed on 22/07/1959 and not on 29/07/1959 and when in support of that contention he stated in his deposition that he has a diary with him, which was not produced, adverse inference oughty to have been drawn against him and it ought to have been held that the suit promissory note was not materially altered and that it was really executed on 29/07/1959.

( 4 ) AFTER going through the judgment of the Court below I find that the lower Court has not believed the defendants evidence in that behalf, and also did not believe the evidence adduced by the plaintiff. It is pertinent to note that the lower Court reached the conclusion after examining the promissory note that the figure 9 is re-written after the old figure has been erased. In view of that suspicious nature of the document it held that material alteration has taken place. I do not in these circumstances feel that the production of the diary could have any effect upon the suit. Even otherwise the lower Court has disbelieved the defendants evidence. It did not also believe the plaintiffs evidence. The position, therefore, is that there is no reliable evidence on either side of the parties. A careful examination of the suit promissory note, however, reveals that some figure was there in the place of 9, which was erased and the figure 9 was subsequently written upon it. That this is so is clear because at the place where erasure has taken place the thinning of the paper is clearly seen. That is why when figure 9 was written the ink has spread. There can be no doubt that the lower Court was correct in treating the document as suspicious in view of the above said circumstance. When there is no evidence on either side explaining about this suspicious nature of the document what course should the Court take is the real question which arises in the case.

( 5 ) THE law on the point seems to me to be clear. The English rule that a material alteration of a date makes it altogether void is summarised thus in Halsburys Laws of England III Edition, Vol. 11. p. 367, Paras. 598 and 599:-"598. A writing proposed to be executed as a deed may be altered by erasure or interlineation or in any other way before it is so executed; and any alteration so made before execution does noi affect the validity of the deed. Any alteration, erasure or interlineation appearing upon the lace of a deed is presumed, in the absence of evidence to the contrary, io have been made before the execution of the deed. ""599. If an alteration (by erasure, 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 en-titled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance, however, is not ab initio, or so as to nullify any convevancing 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

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