TMI Blog1951 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... unt claimed is alleged to be the balance due. The execution of the pronote consideration therefore are admitted, but liability is disputed on the ground that the areca was worth more than the amount mentioned in the plaint that there is a material alteration of the instrument. The trial Ct. negatived both these pleas decreed the suit, but on appeal by the defts. the learned Subordinate Judge has dismissed the suit with costs. 2. The contention as regards the value of the areca cannot be properly advanced to avoid liability as it is not alleged that the pltfs. acted contrary to any understanding for its disposal. Having failed to fix any terms or even give instructions in this behalf, defts. cannot expect the pltfs. to be custodians ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere taken up to end of June is nearer the truth than pltfs. If the true date of execution was 28-6-1940 as we think it was, the date 28-9-1940 now found must be held to be an alteration. 5. It remains to see whether the alteration affects the rights of parties the suit is maintainable. Section 87, Negotiable Instruments Act, states : Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration does not consent thereto, unless it was made in order to carry out the common intention of the original parties. The section does not mention as to what constitutes material alteration but Section 64 in the English Bills of Exchange Act whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies on them. As explained in Hen-man v. Dickinson (1828) 5 Bing 183, where a party sues on an instrument which, on the face of it, appears to have been altered, it is for him to how that the alteration has not been improperly made. The figure denoting the month is, as already mentioned, strikes at first sight as a correction of or substitution for another previously put. In view of this, the 1st issue is wrongly framed by requiring defts. to prove execution of the pronote on 28-6-1940 instead of calling upon pltfs. to show that it was on 28-9-1940. The pltfs. do not suggest that the doubtful form of the figure having reference to the month was due to the act of the defts. or that it was changed by them or with their consent. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g back as 1884 it was held by Lord Den-man C. J. in Davidson and Cooper (1844) 67 R.R. 638 : that a party who has the custody of an instrument, made for his benefit is bound to preserve it in its original state that any material alteration will vitiate the instrument. On the principle ex turpi causa non oritur actio (from a base cause no action arises) the pltfs. cannot seek any relief in Ct. on a document which is found to be materially altered. 8. The appeal is dismissed with costs. The defts. have in their written statement pressed for the pltfs. being prosecuted for altering the month with a view to make illegal gain. Let notices be issued to the applts. to show cause why they should not be prosecuted. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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