SURENDRA NATH BOSE Vs. ASHUTOSH SAHA

JUDGEMENT

(1.) This is a rule obtained by the plaintiff-petitioner on an application under Section 25, Provincial Small Cause Courts Act, and it is directed against a decree of dismissal passed by the First Subordinate Judge, Pabna, in Small Cause Court Suit No. 35 of 1937. The material facts may be shortly stated as follows : Two brothers named Kristo Das and Debi Das purported to own a house in the town of Pabna and they mortgaged the said house to one Asutosh Saha, the predecessor of the opposite party in the present rule on 23 August 1929 to secure an advance of Rupees 2000 only. After this mortgage Kristo Das sold his equity of redemption to his wife Arunprova. The mortgagors had a stepbrother named Girish who claimed a third share in the mortgaged property and he started a suit for partition of his share in the mortgaged premises on that footing, This suit was dismissed by the trial Court as well as by the Appellate Court and Kristo Das and Debi Das were declared to be the 16 annas owners of the house in dispute.

(2.) At about this time, there were negotiations between the mortgagee and the mortgagors for sale of the mortgaged property to the former, the debtors having no other means of paying off the debt. On 19 June 1933, a kobala was executed by the two brothers, Kristo Das and Debi Das as well as by Kumudini (their mother) and Arunprova, the wife of Kristo Das by which the mortgaged properties were sold to Asutosh for a consideration of Rs. 3700 only. The kobala recited that the mortgage debt amounted to Rs. 2650 and deducting that from Rs. 3700 which was settled as the price of the property a sum of Rupees 1050 was payable by the vendee to the vendors. As however Girish was threatening at that time to file a second appeal to this Court and the result of the litigation was still unknown, the vendee paid only half of the balance of the consideration money amounting to Rupees 525 and retained the other half as deposit in his hands. It was stipulated in the kobala that if no appeal was filed by Girish then on the expiry of the period of limitation fixed for the filing of such appeals and even if an appeal was filed then on that appeal being dismissed, the balance of Rs. 525 would be paid by Asutosh to Arunprova. The vendors on the other hand agreed to carry on the litigation with Girish and pay all his expenses and in case he did not, the purchaser was given the option of carrying on the litigation himself and he was to be reimbursed for all the expenses which he would have to incur for this purpose. At the end of the document and after it was apparently finished, appeared a clause which reads as follows: Be it declared that the date of filing the appeal has expired on 17 June 1937 and it within seven days from this date the balance of purchase money is not paid, the document would be void and inoperative.

(3.) As a matter of fact however an appeal was duly filed by Girish and it was eventually heard and disposed of by this Court on 19 March 1936. On 22 February, 1937 the present plaintiff got two conveyances, one from Arunprova and the other from the three other vendors by which the claim of the vendors to the unclaimed purchase money was transferred to him. It is on the strength of this kobala that the plaintiff has instituted the present suit and he has claimed a sum of Rs. 700 representing the balance of purchase money and interest thereon under the terms of the kobala. The trial Court dismissed the, suit on the sole ground that there was a material alteration in the kobala made at the instance of the plaintiff or his predecessors and this incapacitated him from founding a claim upon this document. It is the propriety of this view that has been challenged before me by the learned advocate who appears in support of this rule. It seems to me that the law on the point is perfectly well settled. As was laid down in Master V/s. Miller (1791) 4 T.R. 320: Whenever any instrument is purposely altered by a person in lawful possession of it in a material part of it, the instrument is void for the purpose of enabling any person to sue on it or to defend himself by using it as a direct defence depending on its obligatory force as an instrument.