JUDGMENT
Bhimasankaram, J.
1. The 1st plaintiff and the legal representatives of the 2nd are the appellants. The suit was brought to enforce specific performance of an agreement dated 30-8-1949 executed by the 1st defendant for herself and also as the guardian of the defendants 2 and 3, defendants 2 and 3 being the son and daughter respectively of the 1st defendant who is the wife of Venkatadri Apparo not a party to the suit. The plaint states that although the agreement was taken in the name of the 1st plaintiff and the defendants 4 and 5, the second plaintiff and the 6th defendant also were interested in the agreement. The agreement was for the sale of 80 acres of land for a sum of Rs. 3,200/-. It would appear that under a settlement deed executed in her favour by her husband, the 1st defendant became entitled to the properties’ for life with the remainder being vested in her children.
2. The suit was resisted on several grounds but the one which seems to me decisive of the issue of this appeal is whether the agreement Ex. A-1 has been materially altered so as to disentitle the plaintiffs for enforcing any claim based upon it. In view of the fact that I find myself in agreement with the conclusion reached by the lower Court that there is an alteration, that the alteration is material and that it has been brought about without the knowledge of the 1st defendant, presumably by the 1st plaintiff, I do not propose to consider the other contentions which are covered by the numerous issues raised in the trial Court. There is, however, an incidental question to be decided as to whether the plaintiff cannot recover, at any rate, the sum of Rs. 1,000/- admitted to have been received by the 1st defendant under the agreement.
3. I shall first deal with the main issue. Now, a look at Ex. A-1 which, it is admitted, was drawn up by the 1st defendant herself shows that about B line and a quarter of the writing in it has been scored out. At one end of the scored out portion appears the letter. ‘Ma’ presumably standing For the initial letter in the surname of the 1st defendant and at the other end stands ‘Ha’ again presumably standing for the initial letter in her name. Both these letters appear to Jiave been over-written and the ink which was used to write these letters is clearly not the same as the ink which had been used for writing the rest of the agreement.
No footnote appears in the agreement mentioning the scoring out. Prima facie, therefore, one would start with some sort of suspicion as to whether the scoring out was made by the writer of the agreement. The agreement, it is admitted, was executed at Madras where the 1st defendant resides. At the bottom of it appear the attesting signatures of three persons, the first of whom is one K. Venkatarama Dass described by the parties as a resident of Vijayawada who has not been examined in the case; the next witness is A.K. Bhasyam Iyengar who is a tutor of the defendants 2 and 3 who is examined, as D.W. 5; the third is Mulakala Suranna who, it is stated, is the father of the 2nd plaintiff and who has also not been examined.
It may be noticed that while under the attesting signatures of Vcnkatararnadass and D.W. 5. the date 30-8-1949,–which is the date of the instrument– is inserted, there is no date inserted below the signature of the last of the witnesses and it is clearly in a different ink from the ink used cither in the body of the original or by the other attestors in their signatures. In support of the defence case of the alteration, not only the 1st defendant but the 5th defendant in the case, who is one of the parties to the original agreement has been examined. D.W. 5, as already stated, is the 2nd attestor. On behalf of the plaintiffs, there is only the evidence of P.W. 1.
Now, P.W. 1 would have us believe that he was not present at the time when Ex A-1 was drawn up, that it was given to him by the 5th defendant, later and when it was handed over to him, it stood just as it now is with the particular portion scored out. There is however, Ex. B-6 a receipt dated 30-8-1949 the date of the agreement–given by him in which he acknowledges the receipt of this agreement. This would rather indicate that h” received it on the very day of its execution and was presumably in Madras at that time. In any case. It is clear that the evidence of P.W. 1 does not help the plaintiffs. There is no witness on their side who can say that the portion was scored out at the time of execution by or with the consent of the executant. On the other side, as I have already stated, there is the evidence of D.Ws. 1, 2 and 5. I shall now deal with their evidence.
4. According to D.W. 1, there was no correction or scoring in Ex. A-1 when it was delivered to the plaintiffs. She also says that the initials ‘Ma’ and ‘Ha’ appearing over the scored portion were also not there. According to her, a full sentence was scored out and that sentence is as follows :
“If the building is not purchased within the term mentioned (the advance) will be returned by me with interest at As. 0-10-0 per cent per mensem.”
She also states in her evidence that the third attestor Mulakala Suranna was not there at the time when the agreement was executed and that it was attested then by only Venkataramadass and Bhashyam Iyengar. It is elicited in her cross-examination that Venkatarama Dass the first attestor who is a resident of Vijayawada is alive. In order to throw doubt upon her assertion that there were only two attestor the was asked in cross-examination why she had left some space in Ex. A-1 between the signatures of the first two attestors and her endorsement that the document was in her own hand-writing. It is to be noticed that the agreement was prepared on a paper ruled in pencil and that each of the attesting signatures appears on a separate ruled line: that of Suranna appearing after the signature of Bhashyam Iyengar, the second attestor.
The suggestion is that as a line appears to have been left over for a third signature. Mulakala Suranna must have been present at the time and inserted his. But this suggestion does not advance the case of the plaintiffs; for as if is admitted that he is the father of the 2nd plaintiff he must have been examined by them. The fact that the plaintiffs while suggesting his presence at the time have not examined him would rather go against their case. It
was also elicited in the cross-examination of the 1st defendant that she had not looked into the agreement at any time previous to the date of her examination as a witness in the suit.
The implication apparently was that she must have been all the time aware that there was a portion scored out in the original and that was why even without looking into the document, she raised the plea in her written statement in the suit that the agreement was materially altered. But it must be observed that her defence is only one in common with the defence of the other defendants and there is nothing to show that the 5th defendant who put forward the same defence had not looked into the document by then. It is also not brought out in the evidence that she herself gave instructions to her advocate when the written statement filed on her behalf was prepared. Another suggestion that the scoring out was due to reduplication of a clause was rejected by her.
5. I shall now refer to the evidence of D.W. 2i This witness, as already stated, is the 5th defendant in the suit and he is now supporting the defence because, it is said, he is interested in the 7th defendant who is the daughter of the 4th defendant stated to be a cousin of his. But he is the only person among the persons interested in the agreement along with the plaintiff, who, both sides agree, was present on the occasion when the agreement was prepared. According to this witness, both he and the 1st plaintiff–and they alone among the persons so interested–were present at the time. He swears that there were no erasures or corrections or scorings out in Ex. A-1 at the time when it was prepared.
According to him the document was delivered by him into the hands of the 1st plaintiff at the residence of the 1st defendant on the date on which it was executed at Madras; and he swears that Ex. B-6 the receipt to which I have already referred was then passed by the 1st plaintiff to him. He also states that ever since, the agreement has been only with the 1st plaintiff. In cross-examination, he states that the initials ‘Ma’ and ‘Ha’ were not to be found in the original at the time when it was drawn up. The suggestion made on behalf of the plaintiffs that what was scored out was a clause which was repeated, was repudiated by him.
He states clearly that the 1st plaintiff did not ask the 1st defendant to delete any condition incorporated in the agreement. He also says that Ex. A-1 was attested only by a gentleman of Bezwada and another of Madras referring obviously to the first and the second attestors, Venkataramadass and Bhasyam Iyengar. He also gave the words of the sentence scored out, and they are almost the same as those mentioned by the 1st defendant in her evidence. It was suggested to him in the cross-examination that in the entry as to the date in Ex. B-9 he had altered the original figure 9, representing the month, into 8 but that suggestion he denied.
6. The remaining witness is D.W. 5. He says that both the 5th defendant as well as the 1st plaintiff were present when Ex. A-1 was prepared, that Mulakala Suranna was not there, that Ex. A-1 as originally written contained no correction or scoring out and that it did not have the initials ‘Ma’ and ‘Ha’ now to be found there. He is a tutor of the 1st defendant’s children receiving a tuition fee of Rs. 40/- from her. It was suggested to him that he was not actually present when the document was drawn up and that he was only called upon to attest after it had been written up. But ha says that he was present when the document was prepared and that he attested it after going through
die document. Except for the suggestion that he is a creature of the 1st defendant being in her evidence, there is nothing else suggested why his evidence should not be believed.
7. Now, apart from this evidence on behalf of the defence there is no positive evidence, as I have already stated, to the effect that the portion in question was scored out even when Ex. A-1 was written. P.W. 1 denies that he was present at the time; although it is not difficult to see when one reads through his evidence carefully, that he was present. Even in his ‘chief examination he stated, perhaps without realising the full implications of the statement, that the 1st defendant put her signature in Ex. A-1, “in our presence”. It is also worth noting that in the cross-examination of D.W. 1 the following question was put to him on behalf of the plaintiffs :
“As 5th defendant and 1st plaintiff said that they would not agree to the recital that the advance money should be refunded with interest at 10 annas per cent per mensem on the ground that it would be a loss to them when they would spend large amounts for repairs, you struck off the portion covered by Ex. A-1 (a)?”
This question would also imply that the 1st plaintiff (along with the 5th defendant) was present at the time when the agreement was prepared. Further, it also contradicts the other suggestion made on behalf of the plaintiffs that what was scored out was merely a repeated clause,
8. On this evidence it is clear to me that the defence version as to alteration must be held to have been established. As stated by their Lordships of the Privy Council as early as in Petamber Manikjee v. Moteechand Manikjee 1 Moo Ind App 420 at p. 429 (PC),
“If a plaintiff produces a bond in this country, or any other instrument, which appears to have been altered, the Court will not receive it, or act upon it, till it is most satisfactorily proved by all the subscribing witnesses at the least and other evidence, that that alteration was made antecedently to the signature.”
In the later case of Mt, Khoob Koonwar v. Baboo Moodnarain Singh. 9 Moo Ind App 1 at p. 17 (PC), their Lordships observed that
“in an ordinary case, the party who presents an instrument, which is an essential part of his case, in an apparently altered and suspicious state must fail from the mere infirmity or doubtful complexion of his proof, unless he can satisfactorily explain the existing state of the document.”
Considering the present case from the point of view implied in these observations of the Privy Council. it is perfectly clear that there is no evidence adduced on behalf of the plaintiffs to explain how it fs that this very suspicious scoring out has come about
Therefore, I am clearly of the opinion that the learned Subordinate Judge was right in his conclusion that the clause of the kind mentioned by the defendants was scored out without the knowledge of the 1st defendant, the executant.
9. The next question is whether the alteration so made is a material alteration. On this, I think, there is little room for doubt. As stated in Halsbury’s Laws of England, Edn. 2, Vol. 10, p. 227, para 287 in a passage which has been cited by their Lordships of the Privy Council in Nathu Lal v. Mt Gomti Kuar, AIR 1940 PC 160 :
“A material alteration is one which varies ‘he rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision
which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed,”
It is obvious that the clause suggested on behalf of the defendants as having been originally there and subsequently scored out is a clause which can be described as one of the terms of the contract. It follows that the alteration is an alteration of the character which disqualifies the plaintiff from putting Ex. A-1 in suit.
10. It has, however, been contended by Mr. Veerabhadrayya for the appellants that his clients are entitled to compensation for breach of the contract and alternatively that they are entitled to refund of the advance paid by them to the 1st defendant at the time of the agreement. He says that the evidence on behalf of the defendants themselves shows that the 1st defendant was guilty of default and that the plaintiffs were always ready and willing to fulfil the terms of agreement. He referred me in the first instance to Section 19 of the Specific Relief Act and argued that under the second paragraph of that section, I have discretion to direct payment of compensation for the breach of the contract in cases where specific performance ought not to be granted and that I should exercise that discretion in this case in favour of his clients in view of the admission of the defence witnesses. The relevant paragraph of Section 19 is as follows;
“If in any such suit the Court decides that Specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant find that that the plaintiff is entitled to compensation for that breach it shall award him compensation accordingly.”
It seems to me plain that this paragraph posits the existence pf a valid contract which the Court decides in its discretion not to enforce specifically, while finding that it was broken by the defendant But in the present case the claim of the plaintiffs is being rejected not on the ground that it is not a fit case for specific performance but on the ground that they are not entitled to put in suit an agreement which they have materially altered. I cannot for a moment entertain the argument that in circumstances like the present where the plaintiffs are put out of Court on the ground that they are guilty of improper conduct they could claim damages on the basis that the 1st defendant was guilty of breach off the contract as it had originally stood. This argument does not in my opinion deserve any serious; consideration.
11. I shall next consider the other argument of Mr. Veerabhadrayya that the appellants are entitled to the refund of the advance paid by the 1st plaintiff to the 1st defendant. In support of his contention he has relied upon the decisions reported in Surayya v. Ramayya,’ 1915 Mad WN 150; (AIR 1915 Mad 1152) Anantha Rao v Surayya, ILR 43 Mad 703: (AIR 1920 Mad 64), Krushnacharana Padhi v. Gourochandro Dyano Sumanto, 1939-2 Mad LT 686: (AIR 1940 Mad 62) and Athar Tamath Majith v. Krishnaswami Naidu, . In 1915 Mad WN 150: fAIR !91S Mad 1152) (supra) the Court held that the contract which was reduced to writing was materially altered by the plaintiffs and that it could not be enforced at their instance.
Sadasiva Iyer J, who was one of the learned Judges who decided that case dealt in a manner which, if I may say so with respect, was eminently characteristic of that very learned Judge-with the argument that the plaintiffs were entitled to a sum of Rs. 400/- admittedly received by the defendants under the contract, in these words :
“I wag at first inclined to hold that as “on grounds of public policy”, no plaintiff “should be allowed to take the chance of committing a fraud without running the risk of loss on detection”, (These words, it may be noted are the words by Lord Kenyon in 1 Smith’s L.C., 8th Edn. 857), the plaintiffs in the present case could not be allowed to recover any portion of the sum obtained from them by the defendant under that same contract by taking advantage of Section 65 of the Contract Act after their fraud was detected. In other words, the plaintiffs could not say “You have discovered our forgery. All right. Treat the deed of contract as void and give up a decree for the money received from us by the defendant under that void contract.”
That, I thought, would be allowing them to take advantage of their own wrong which rendered the contract void and on general principles of jurisprudence, I thought they ought not to be allowed to do so. That was probably the ground of the decision in Govindaswami v. Kuppuswami, ILR 12 Mad 239, where the learned Judges refused to accede to the argument advanced on the plaintiff’s side that the altered document might be received in evidence to prove the defendant’s indebtedness for the sum mentioned in it and that a decree might be passed for recovering that debt.
But having regard to illustration (c) to Section 65 of the Contract Act. I do not feel myself strong enough to dissent from my learned brother’s decision on this point. In that illustration, though A wilfully absented herself from the theatre on the 6th night and thus led to the result of the contract being made void at the instance of the other party, she was held entitled to recover remuneration for the previous nights in which she did perform: see also Gulab Chand v. Fulbai Hart Chand. 11 Bom LK 649″
This passage would clearly indicate that the learned Judge was at first unwilling lo adopt the view adumbrated in the judgment of his colleague Spencer, J. in the following passage in his judgment:
“It remains to be considered whether the plaintiffs’ suit should have been dismissed altogether on the contract being found void. Sections 64 and 65 of the Contract Act provide that when a voidable contract is rescinded or when a contract becomes void, any party to it who has received any benefit or advantage thereunder is bound to restore or make it good.
The defendant’s written statement contains the following admissions :
“Being unable to perform the contract, the defendant failed in business and for the Rs. 800/- received by the defendant from plaintiffs he returned on 26-8-1910 Rs. 400/-, and therefore Rs. 400/- the balance of amount and the difference in price as it stood on 24-1-191.0 is due to the plaintiffs.”
“Thus defendant is always ready to pay to the plaintiffs the sum of Rs. 150/- due to them for Rs. 400/- due by the defendant to the plaintiffs according to the rate referred to in paragraph 6 (i.e., 0 annas in the rupee).”
On this independent admission of liability for a debt of Rs. 400/- the plaintiffs are prima facie entitled to recover that sum, seeing that the defendant has had the benefit of the money without rendering any return for it.”
The learned Judge however has not considered actually the language used in either of the sections of the Contract Act referred to by him nor has he even referred to illustration (c) to Section 65 upon which reliance was specifically placed by his learned colleague. He seems to have based his decision rather upon the admission contained in the written state-
ment of the defendant than upon any principle of law.
12. Now, it seems to me that a close examination of the language of the illustration (c) to Section 65 of the Contract Act discloses that it has little bearing upon the wording of the main section. It is not easy to see how A contract becomes void merely because a person breaks it. The learned commentators Pollock and Mulla observe in their commentary upon this section in their well-known edition of the Indian Contract Act, that “the illustrations to this section are rather miscellaneous.” With reference to illustration (c), they point out that
“it is not clear whether the contract is to be treated as divisible, so that A is entitled to Rs. 100/-for each night on which she did sing or the Court is to estimate what, on the whole, the partial performance was worth; nor would it be clear in England without fuller statement of the terms and circumstances.”
One would have thought that the clause “when a contract becomes void” refers to a supervening circumstance rendering the contract unenforceable It is not easy to see how when a party to a contract makes it unenforceable by his own conduct, it could, be said to have become void.
13. But this illustration has misled another learned Judge of the Madras High Court too in ILR 43 Mad 703: (AIR 1920 Mad 64) where again, the question of refund in a case like the present was involved. It may be noted that Spencer, J. was also a party to this later decision. In Spencer J.’s Judgment in this decision the relevant passage is this :
“The only question then left was as to the appellant’s (Plaintiffs) right to recover the advance of Rs. 1,200/- and this must be found for the appellant on the strength of first defendant’s admission and the reason given below.”
It is true that in an earlier portion of the judgment, he refers to the decision in 1915 Mad WN 150; (AIR 1915 Mad 1152), but only for the purpose of rejecting the claim for damages advanced on behalf of the appellant. Krishnan J. however deals with the point in these words :
“Though plaintiff cannot take advantage of the breach to claim damages, he is not precluded from relying upon it and treating the contract as having become void under Section 65 and requiring the defendant to repay the money advanced to him. Illustration (c) of Section 65 seems to indicate that the section is meant to apply also to cases where one party, breaks a contract and the other party in consequence of it rescinds it. The material alteration, though it prevents plaintiff from enforcing the contract, does not seem to prevent him from rescinding it. No authority has been cited to show that it does. On the other hand the ruling in 1915 Mad WN 150: (AIR 1915 Mad 1152), would seem to support the view that the money advanced could be claimed back Plaintiff would therefore he entitled to be paid back the Rs. 1,200/- that he paid.”
Curiously, Spencer J, himself does not rest the decree for Rs. 1,200/- which he was inclined to award to the plaintiff on the authority of the decision in 1915 Mad WN 150: (AIR 1915 Mad 1152) (supra), So, it cannot be said that in either of these cases the learned Judges laid down any rule of law concerning the right to claim refund of any advance paid under a document which has been materially altered subsequently by the person who made the advance.
14. I have also been referred to the decision of Abdur Rahman J. in 1939-2 Mad LJ 686: (AIR 1940 Mad 62). I do not propose to deal at length with the observations of the learned Judges because I find
myself in complete agreement with the remarks made about these observations by Rajamannar C.J., speaking on behalf of the Bench which decided the case of . The learned Judge pointed out that the observations of Abdur Rahman J. in that particular case were entirely unnecessary for the purpose of his decision and that in fact, on appeal under the Letters Patent, that decision was confirmed only on the ground that the instrument there in question was not affected by the rule as to material alteration. Ho also said that he was unable to agree with the learned Judge.
15. The next decision to which reference has been made by Mr. Veerabhadrayya is , a decision of a Division Bench of the Madras High Court consisting of Mack and Krishnaswami Nayudu JJ. There the documents sued on were mutilated in such a manner as to bring about a material alteration. The learned Judges held that there can be no question that the suit as laid on this mutilated document scissored off with deliberate dishonest intention must fail. But they proceeded however to make the following remarks :
“At the same time we are most reluctant to dismiss this suit in toto. plaintiff being a religious society having replaced P.W. 1 by another President. We think that in the circumstances the society should have a decree against the 1st defendant for the return of the Rs. 1,000/- deposit which he admittedly received on the date of Ex. A-1. In this connection Mr. C.A. Vaidyalingam for the 1st defendant in the course of his arguments staled that he would advise his client immediately to return this deposit. This alternative prayer was not asked for in the trial Court, nor was this necessary to enable the Court to grant the plaintiff-society this relief under Section 19 of the Specific Relief Act not when once a suit for specific performance has been dismissed would any suit lie by the society for return of this deposit.
In a suit for specific performance the wide discretion a Court has in granting relief to the two parties to the contract is incapable of strict definition and must depend on the facts of each case. One of the main reasons underlying the principle that “J suit on materially altered document should be void! and unenforceable is the need to penalise and punish such conduct and sometimes it may be that as in Master v. Miller, (1791) 4 TR 320: 100 ER 1042, and Suffell v. The Bank of England, (18″2) 9 QBD 555 at p. 572 the innocent have to suffer for the guilty.”
16. This decision, it seem? to me. really rests not upon any principle nor upon the provisions of Section 65 of the Contract Act but upon two circumstances–(1) the fact that the plaintiff was a religious society, and (2) the fact that Mr. C.A. Vaidyalingam for the respondents was prepared to advise his client immediately to return the deposit. I am unable to extract any principle from this decision.
17. Now I shall refer to the latest decision of the Madras High Court having a bearing upon this point. That is the decision in , to which I have already referred. Their Lordships point out in that case that when an instrument which embodies a contract becomes unenforceable for some reason or other such as material alteration, it is not correct to say that the contract itself becomes void. The learned Judges noticed all the cases above referred to except the one in and distinguished them nearly in the same way as I have done.
They remarked that in the first two cases, the decision really tested not upon any rule of law but upon the admissions of the parties. The observations of Abdur Rahman J. in 1939-2 Mad LJ 686: (AIR 1940 Mad 62), they declared, were obiter and in any case, wrong. The decision in , was not brought to their notice presumably because the counsel concerned did not think that it enunciated any rule of law.
18. In my view, there is no authority binding upon me which has ruled that in such a case as the present refund of advance should, as a matter of law, be directed. I should like to add that in my opinion it would be inconsistent with the policy which the Courts ought to pursue in regard to a matter of this character that any kind of relief should be given to the plaintiff who has been found guilty of having materially altered the document which he puts in suit. Such a case, as I have pointed out, docs not fall under Section 65 of the Contract Act and I can think of no equitable principle–if any such can be invoked apart from the provisions of the Contract Act–which entitles a person in the position of the plaintiffs to recover the advance.
19. For these reasons, I dismiss the appeal with costs.
20. In view of the result of the appeal, Mr.
Veerabhadrayya states that it is not necessary for
him to press C.M.P. No. 10971 of L958. It is
therefore dismissed.
