JUDGMENT
Wallace, J.
1. The finding of fact by the lower Court is that defendant 2 did not sign the note. That being so, the conclusion follows that the note in part is not genuine. The question them arose, and should have been dealt with by the lower Court, whether plaintiff was a party to this fraud on defendant 2; if he was he could not be given a decree on a document vitiated by his own fraud; if he was not, the lower Court’s decree would be right. The-case in Amirtham Pillai, v. Manjah-Goundan [1914] 26 M.L.J. 257, relied on by petitioner, does not seem to be in point, as here there could arise no suggestion that defendant 1 agreed to be bound only if defendant 2 was jointly bound, since defendant 1 was himself’ a party to the forging of defendant 2’s mark on the note.
2. I remand the case for a finding, on the evidence on record, as to whether the plaintiff was a party to the fraud by which defendant 2’s mark was put on the pro-note. Time for submission of findings one month and for objections ten days.
Findings
3. The point on which I have been called upon to submit a finding, on the evidence on record is whether the plaintiff was a party to the fraud by which defendant 2’s mark was put on the promissory note.
4. The evidence of the plaintiff is to the effect that defendants 1 and 2 were present when the promissory note in question was executed, that defendant 2 said that he did not know to write his name and that thereupon defendant 1 put the mark of defendant 2 in the promissory note presumably with the consent of the latter. I have disbelieved this evidence and found that defendant 2 was no party to the document, Under such circumstances if the document was brought into existence in the presence of the plaintiff, and seeing that it was executed in his favour, it is impossible to hold that the plaintiff was unaware of, or was not a party to, the fraud by which 2nd defendant’s name also was included in the document and his mark put by defendant 1. The plaintiff must have, at least, connived at the fraud, even if there is no direct evidence to show that he was instrumental in introducing defendant 2’s name. There is no direct evidence to prove that the plaintiff was a party to the fraud. Fraud has to be inferred from the circumstances and probabilities of the case. On a consideration of these I find that the plaintiff must have been a party to the fraud. The finding is submitted accordingly.
JUDGMENT
5. I accept the finding of the lower Court that plaintiff was a party to the forging of defendant 2’s mark on the document. Such a forgery has been held by two learned Judges of this Court in Amirtham Pillai v. Manjah Goundan [1914] 26 M.L.J. 257 and Civil Revn. Petn. No. 601 of 1912 to be a material alteration within the meaning of Section 87, Negotiable Instruments Act. The case in Madam Pillai v. Athinarayana Pillai A.I.R. 1925 Mad. 929 has been relied on by plaintiff; if this is contrary to the above two rulings, I prefer to follow the latter.
6. The plaintiff must, therefore, in consequence of his own fraud, be non-suited. I reverse the decision of the lower Court and dismiss his suit in toto. The plaintiff and defendant 1 will pay each his own costs throughout.
