Bindeshry Singh vs Pergas Singh and Others

James, J.—The suit out of which this appeal arises was instituted for recovery of the amount due on two hand-notes, one for the sum of Rs. 100 and the other for Rs. 1460. The defendants'' liability on the hand-note for Rs. 100 was admitted, and in respect of that amount with interest the suit was decreed. We are not concerned with that hand-note.

For the claim on the hand-note for Rs. 1460, the defence was that on 30th Assin 1340, a hand-note had been executed for Rs. 460, and Rs. 325 had been paid in cash by which the plaintiff''s dues on two hand-notes of 1338 had been satisfied. The defendants claimed that the amount payable under the hand-note of 1340 had been altered to Rs. 1460 and that the date had been altered to 1341. The plaintiffs endeavoured to prove the authenticity of the hand-note which they produced by proof of the existence of debts amounting to Rs. 1460 for which it was executed: but in this they failed; and the Courts have found that the hand-note on which the plaintiffs sued was the hand-note of Rs. 460 subsequently altered by the plaintiffs in such a manner as to amount to forgery. The trial Court dismissed the whole claim on this hand-note; but on appeal the Subordinate Judge allowed the plaintiffs'' claim for Rs-460 on the ground that the defendants had admitted that the sum was due and that by admitting the execution of the hand-note of 1340, they had proved that they had given a written acknowledgment of liability under the hand-notes of 1338.

The defendants appeal from that decision while the plaintiffs prefer a cross-objection against the findings that there had been alterations in the hand-note and that the debts amounting to Rs. 1460 had not been proved. Regarding the plaintiffs'' cross-objection, it may be said at once that these points are concluded by the findings of fact of the Court below and the questions cannot again be agitated in second appeal.

For the defendant-appellants, Mr. S.N. Rai argues that when it was found that the hand-note had been fraudulently altered, the plaintiffs should have been granted no relief, and the description by the defendants of the manner in which the original hand-note had been executed could not properly be treated as an admission that they were still liable on the hand-note of 1338. Mr. S.N. Rai relies principally on the decision of this Court in Ram Autar Shukul Vs. Baldeo Shukul, which followed a decision of the Calcutta High Court in Gour Chandra Das v. Prasanna Kumar Chandra (1906) 33 Cal. 812. Mr. B.N. Mitter suggests that the account given by the defendants in their written statement should be treated as an admission that by an acknowledgment in writing made in 1340 they gave further life for the purpose of limitation to the hand-notes executed in 1338 but as Mr. S.N. Rai points out, there is nothing in the written statement which amounts to an admission that the defendants did this.

The defendants described how the hand-notes of 1338 were satisfied by the hand-note which they executed for Rs. 460 but they claim that in view of the; alteration in the hand-note, they must be treated as exonerated from all liability. It appears to be clear that the argument of Mr. S.N. Rai must prevail, and the decision of the learned Subordinate Judge on this point was not correct. The question of whether a person who had altered an instrument could be entitled to succeed on the basis of the original consideration and to rely upon the altered bond as embodying an acknowledgment sufficient to save the bar of limitation was considered in Gour Chandra Das v. Prasanna Kumar Chandra (1906) 33 Cal. 812 where it was held that this could not be done.

The hand-notes of 1338 were satisfied by the hand-note which was executed in 1340 and after the execution of the hand-note of 1340 the plaintiffs could no longer sue on the hand-notes of 1338. The plaintiffs by their own fraudulent act chose I to destroy their promissory note of 1340 and they cannot utilise the admission that a hand-note as originally executed satisfied the hand-notes of 1338 as in any way reviving their right to sue upon those original hand-notes. The appeal must therefore be allowed and the cross-objection dismissed.

So much of the decrees of the lower Courts as direct the payment of Rs. 460 with interest and of corresponding costs will be set aside. The appellants are entitled to their costs in this Court and corresponding costs in the Courts of the Subordinate Judge and the Munsif.