The alteration made to the contract document rendered the contract void and impossible of performance under section 65 of the Contract Act.

R B M B Kinkhed—On 28-4-1920 Mt. Bahenabai and two others Wamanrao and Sitaram executed a bond for Rs. 800/- in plaintiff's favour, agreeing to repay the debt with Sawai interest Rs. 200/-. The document is marked Exhibit P-7. It evidences a borrowing by all the three executants jointly and severally. It recites that the sum of Rs. 800/- then borrowed in cash was taken for meeting the expenses of the marriage of the son of Mt. Bahena.

2. The document has according to the findings of both the Courts below been altered by the addition of certain words which makes it a document executed by Mt. Bahena for her minor son Govinda as well as for her own self whereas its original complexion showed that it was executed by her in her own individual character. The tenor of the contract evidenced by the document has been thus materially altered as the Lower Courts have found. They have dismissed the suit as the same could not be held maintainable on the basis of an altered instrument.

3. The plaintiff comes up in 2nd appeal and urges that (1) the alteration which is found to have been made is not material and therefore effect should have been given to the bond though altered. The question whether an alteration is material or not is always dependant upon the nature of each transaction and must be judged, in the light of the circum stances of each case. It also depends upon the nature of the alteration and its juxta position in the particular part of the document, where it is interpolated and the new complexion the instrument is made to bear by reason of the alteration.

4. It does not appear to me to be a pure question of law the opinions of both the Courts below are that the alterations are material and I do not think I should be inclined to hold the other way. I have held in 20 Nag. 76 (77) that an alteration which is not material does not affect the operation of the instrument. The whole question therefore which the Courts below had addressed themselves to consider was about the materiality or otherwise of the alterations and they have drawn the only conclusion that was possible namely that they were material. The materiality or otherwise of an alteration must be determined with reference to the effect thereof on the transaction as it stands and how it reads after the alteration. I think reading the instrument as a whole and taking into consideration the several circumstances and aspects of the case, I must say that nothing that was said before me on this point induces me to disagree with the lower appellate Court on the conclusions drawn by it.

5. I therefore hold that the exhibit P-7 was materially altered so as to render the contract evidenced by it void and of no effect and also to exonerate the executants from their contractual obligations as set forth in that instrument. The contract thus becomes void or impossible of performance under section 65 of the Contract Act.

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8. The next question is does it operate to deprive the plaintiff who had mid some money under it to ask for at least a refund of the consideration on the ground that the contract has become void and also on the ground that the contract has become impossible of performance, and that the defendants executants can not keep his money in good conscience to themselves. It is argued that a contract which is void ab initio such as a contract with a minor, the refund may not be claimable, but where the contract becomes void or impossible of performance different considerations ought to prevail. The appellant's pleader relies upon a case in 38 Mad. LJ 256 in support of his contention that although his client may forfeit the advantage of the special contract embodied in the bond, there is no warrant in law for depriving him of the equitable relief of refunding to him what is his, and what the other party can not claim to have become theirs apart from the contract. It is said that to punish a man with a wholesale dismissal of his claim would he dealing out justice unt