An innocent holder of a negotiable instrument is not prejudiced by a material alteration if it is the result of accident or the action of a stranger without the consent of the holder and without any fraud or negligence on the holder's part.

Leach, C.J.

1. The question raised in this appeal is whether the holder of a promissory note is affected by a material alteration in the instrument when the alteration has been made by a stranger and there has been no fraud or laches on the part of the holder. On 15th October 1928, the appellant executed a promissory note in favour of the adoptive father of the respondent who is a minor. The father died in 1929, being survived by his wife in addition to the respondent, who continued to live with his adoptive mother who is his legal guardian. On 12th October 1931 the appellant paid Rs. 10 on account of the debt due on the instrument and the fact of payment was endorsed on the instrument. On 22nd October 1934 the respondent, through his mother, filed a suit to enforce payment of the amount then due. It was pleaded by the appellant that there were two material alterations in the note and it is now accepted by the respondent that the plea was justified. The alterations consisted in the changing of the date of the promissory note from 15th October 1928 to 25th October 1928; and the date of the endorsement from 12th October 1931 to 22nd October 1931. The appellants case was that these alterations, were made by the natural father of the respondent. The District Munsif of Aska, who tried the suit, found that the note had been materially altered, but in his opinion the> evidence did not disclose who was responsible for the alterations, although it appeared to him likely that they had been made by the respondents natural father. As it had-not been shown that the natural father was responsible the District Munsif decreed the suit with costs.

2. The respondent appealed to the District Court of Ganjam. The District Judge found as a fact that the natural father had made the alterations and held that as the result the respondent was not entitled to sue upon it. Accordingly he allowed the appeal and dismissed the suit. The respondent then appealed to this Court, and his appeal was hoard by Abdur Rahman J. who restored the decree of the District Munsif. The learned Judge considered that there was no evidence on the record on which it could be hold that the natural father had made the alterations. In his opinion the District Judge had merely surmised this and the evidence did not warrant the surmise. The learned Judge considered that, as the respondent was in no way responsible for the alterations, he was not prejudiced by them and therefore was entitled to maintain the suit. The learned Judge gave, however, a certificate under Clause 15 of the Letters Patent, which has permitted of this further appeal.

3. It has not been suggested at any stage of the proceedings that the respondent or his guardian was responsible for the alterations in the promissory note nor has it been suggested that there has been negligence. Therefore it must be assumed that the promissory note was taken out of the custody of the guardian without her consent and without any failure of duty on her part. Whether the alterations were in fact made by the natural father of the respondent matters not. Even if the alterations had been made by him in the mistaken belief that he was helping his natural son that would not in the circumstances of this case deprive the respondent of his right to sue. Section 87, Negotiable Instruments Act, provides that any material alteration of a negotiable instrument renders it void as against anyone who is a party to the instrument at the time of the making of the alteration and does not consent to it, unless the alteration was made in order to carry out the common intention of the original parties. It cannot be said that the appellant, the maker of the promissory note, consented to these alterations, but the section must be read in the light of authority and there is authority which says that in circumstances such as we have here an innocent holder of the instrument is not damnified by a material alteration. At common law a person who has cu