Gajadhar Tewari and Others vs Nand Lal Pande and Others

Wort, J.—This appeal arises out of an action in which the plaintiff in substance claimed a declaration of his title to certain property, the property being conveyed to him in the year 1919 by defendant 24. The main question in the trial Court was whether defendant 24, who was a lady, was a minor at the time she conveyed the property to the plaintiff. Other questions were gone into before the learned trial Judge, but in appeal the plaintiff, having lost his action before the learned Munsif, confined himself to the one question, namely whether his vendor was a minor or whether she was a major and whether, therefore, she had a right in law to convey a valid title to the plaintiff. The learned District Judge has dealt with this question and has come to a conclusion as a fact that the lady at the time she executed the conveyance was a minor.

It is, therefore, clear that the plaintiff''s action was bound to fail.

Before me a number of points have been argued none of which is urged in the grounds of appeal. Therefore, the appellant has no right to advance arguments on these questions, but I propose to deal with them. The main point argued was that the learned Judge had relied upon certain inadmissible evidence in coming to his conclusion. There was oral evidence of what the Judge calls local witnesses and his comment upon that evidence was that it was of the usual contradictory character. Then there came a lady doctor and an Assistant Surgeon and then there were two other items of evidence which were relied upon. One is described in the judgment of the learned Judge as Ex. J. This is a mistake for Ex. I, and in any event was a deposition of another lady doctor in a previous proceeding between the parties. Quite clearly this was inadmissible in evidence.

Then the deposition (Ex. F) of the appellant was used to contradict his present case. Section 145, Evidence Act, makes it necessary to put this document to the witness. This procedure was not adopted for the simple reason that he did not go into the witness-box, but that does not entitle the Court to break the law. There was one way only of using this document; as it could not be used in that way in the circumstances it was as I have said inadmissible. Now the question that has been argued is first that as this inadmissible evidence has been relied upon the judgment is not in accordance with law. I am bound in this respect by Section 167, Evidence Act, which provides that the acceptance of inadmissible evidence is not a ground to set aside a judgment or grant a new trial if there is other evidence upon which the finding could be arrived at.

I am using my words, and not the words of the section, but the statement of the law I have made is in substance of the section I have referred to. Two cases are relied upon: one of this Court and the other of the Calcutta High Court. The first is Mt. Sumitra Kuer v. Ram Kair Chowbey AIR 1921 Pat 61 and the other is the case of Saraj Kumar Acharji Chowdhury and Others Vs. Umed Ali Howladar and Others and Gopal Chandra Saha and Others, . I can state the substance of both cases in this way. In both those cases documents had been relied upon by the Courts below which were clearly inadmissible in evidence, and the learned Judges who decided those cases (one in this Court by Sir Dawson Miller, C.J.) decided that as it was impossible to state what the finding of the Court of appeal below would have been had this evidence been rejected, as it should have been, it was necessary to send the case back and a new hearing to be ordered. Now the point, as I have stated, which was argued by the learned Advocate on behalf of the appellant is this, namely, that as the evidence was inadmissible the judgment of the Court below was wrong in law. Quite clearly on the plain reading of Section 167, Evidence Act, that argument cannot be supported.

It was developed however in this way by stating that as the High Court hearing a second appeal is not entitled to go into the evidence it is impossible to say whether the evidence in the case excluding the objectionable evidence was sufficient to ''justify the decision'' to use the words of the section Now it amounts to this. On the argument of the ''learned Advocate that in every second appeal that state of affairs must exist and, therefore, in every second appeal where any evidence has been wrongly admitted or wrongly rejected the case must of necessity go back. That argument seems to me to repeal the provisions of Section 167, Evidence Act, if it is to be acceded to. I read Section 167 as meaning this: that if there was evidence apart from the rejected evidence of the fact, then that in itself precludes the Court from ordering a new trial.

In my judgment, therefore, the point cannot be supported for two reasons: one that it was not raised in the grounds of appeal, and secondly that the view put forward in the argument in my judgment can find no support from the law as I understand it.

The next question was this. It is said that as the contract is found to be void the appellant is entitled to return of his money. The lady who was minor at the time of the contract was made a party to the action, but although the plaintiff must have foreseen the possibility, at any rate, of his losing his case he made no claim against the minor for the return of the money. It is contended that equitably he is entitled to its return.

What the result of an action brought for the return of the money in these circumstances would have been of course I cannot say, but it is quite possible, as the contract was made in 1919 and the action was not brought until some nine years later, it might have been met with the plea of limitation. It seems, therefore, in these circumstances particularly as the claim has never been made in the Courts below, that this application cannot be acceded to. It is suggested that the learned Judge in the Court below has not delivered a judgment in accordance with law, because such a question as whether the plaintiff was entitled to the property or not has not been decided although that issue amongst others was decided by the trial Court.

A short answer to that is that the appellant in the Court below confined himself to the question of the minority of his vendor and be is not entitled now to object to the judgment of the learned District Judge when he deliberately confined himself to questions other than the one I have just mentioned. For those reasons it seems to me the appeal must fail and must be dismissed with costs. Leave to appeal is allowed.