Nathu Lal and Ors. v. Mst. Gomti Kaur and Ors.
AIR 1940 PC 160
Plaintiff executed a sale deed (A) in favour of defendants who in turn executed a deed (B) for conditional transfer of the properties sold to them both on 25th March 1844, condition being paying the stipulated consideration amount for transfer of sold properties anytime after expiry of period of 25 years from date of deed B. By both deeds A and B, parties intended to create ‘mortgage by conditional sale’ and hence, were to be regarded as single deed of mortgage. Plaintiffs while pleading specific performance of obligations under the mortgage submitted certified copy of deed B bearing date 26th March 1844. Hence, before filing the original deed B, they made holes near to the date of agreement so that it could be read as 26th instead of original 25th. Second, plaintiffs also made hole after the words “has sold” in deed B, though word “shartia” (conditional) was visible.
ISSUE: Whether the unilateral alterations as mentioned above were material enough to render the mortgage void?
A material alteration (S.62) is one which varies the rights, liabilities or legal position of parties as ascertained by deed in its original state, or otherwise varies the legal effect of the deed as originally it had. When such material alteration is made unilaterally by one party without the consent of other party, it operates to make the deed void from the date such alteration is made and both the parties will be discharged from their respective future obligations under the deed.
The document A, sale deed and document B, agreement to release, being part of the same transaction created the relationship of mortgagor and mortgagee between defendant and plaintiff respectively as soon as they were executed in 1844.
If these unilateral alterations were to be held ‘material’ then they would have the effect of making the agreement void. However, such alterations which effected just before the pleadings, will not make the whole mortgage void ab initio so as to nullify its conveyancing effect (under deed A, plaintiffs conveyed property to defendant, this sale deed will be subsisting and valid), however, they will relieve the parties of their future obligations as under the mortgage, i.e. covenant by the defendants to release the property in event of depositing the amount mentioned in deed B, would be unenforceable by law. Though the suit for redemption of mortgage will lie (since not whole of mortgage has become void) but the action would be barred by limitation period of 60 years and will not be stipulated by deed B (which had given whimsical period as to when plaintiff would give the consideration anytime after 25 years of deed).
However, as regards the first alteration as to date of the agreement, same date could be inferred from vernacular date mentioned in the agreement as 25th March 1844. As regards the second alteration, since the word “shartia” meaning conditional was visible hence, it could be clearly implied that it was intended to be conditional sale agreement and consequently agreement was of nature of mortgage and not of sale agreement. Therefore these alteration were not material and hence, did not operate to make the mortgage void.
Author: Vishrut Kansal (National University of Juridical Sciences, Kolkata)