(Babui) Shamsunder Kuer vs Ramkhelawan Sah and Others

Chatterji, J.—These appeals arise out of suits for ejectment of the defendants from the lands in dispute and in the alternative for redemption of two mortgages. Five annas four pies share in the village Parsa (Tauzi No. 789) was owned by Bindeswari Prasad and his brother Hari Prasad, the husband of the plaintiff. Bindeswari Prasad executed two mortgage bonds�one dated 5th June 1899, for a consideration of Rs. 99 in respect of 2 bighas 17 cottahs 17 dhurs of zerait (or bakasht) land in favour of defendant 1, Ram Khelawan; and the other dated 29th August 1899, for Rs. 99 in respect of 1 bigha 13 cottahs and 7 dhurs of another piece of zerait (or bakasht) land in favour of one Babu Lal Sah who assigned his right as mortgagee to defendaL. 1. In execution of his mortgage decree defendant 1 purchased the mortgaged lands, measuring 4 bighas and odd, and took delivery of possession thereof in 1913. In the meantime the 5 annas 4 pies interest of the two brothers came to be sold for arrears of Government revenue in the year 1900 and purchased by one Iswar Sahai, who, nine months later, appears to have executed a conveyance of it in favour of the plaintiff-appellant.

The case of the plaintiff was that the mortgages executed by Bindeswari were not for any legal necessity and not binding upon the family and furthermore that she had not been impleaded in the mortgage suit brought by defendant 1, and had consequently a right of redemption. The learned Munsif passed a decree in favour of the plaintiff, but in appeal the learned Subordinate Judge dismissed the suit on the ground that the plaintiff was the benamidar for the two brothers.

The first part of the case namely, that the mortgages were invalid, has not been pressed before us in appeal. The finding that the purchase was made by Bindeswari and his brother in the name of the plaintiff is challenged in second appeal and it is urged by Mr. Hasan Imam on her behalf that the finding of fact of the first Court of appeal is not binding, inasmuch as it is based on a certain judgment, Ex. Q(1) which is not admissible in evidence. This will necessitate a consideration of the question as to what this judgment is and to what extent the learned Subordinate Judge relied on it.

The learned Subordinate Judge applied the different tests of benami transaction namely, relationship, source of consideration, custody of the deed, possession and motive and came to a decisve finding that the purchase of the plaintiff was a benami one. In arriving at this conclusion he was guided mainly by the entry in the Record-of-Rights, an entry made in spite of dispute raised at the time. In support of her case the plaintiff relied upon Ex. 7 to show that in 1916 she obtained a decree for redemption of a mortgage which had been executed by the brothers in favour of one Mangni Lall before the sale of the milkiat in question. The learned Subordinate Judge states, that the judgment, Ex. 7, must be considered along with the judgment, Ex. Q(1) and that the value of Ex. 7 is considerably minimized by the judgment, Ex. Q(1). The latter judgment was passed in a damage suit brought by the two brothers against said zarpeshgidar Mangni Lall after the revenue sale on the ground that the sale was brought about by the default of the zarpeshgidar in paying Government revenue. The suit was dismissed on the ground that the plaintiffs of that suit had themselves made the purchase in the name of the plaintiff and did not consequently suffer any damage.

The point for determination will be whether the existence of this judgment is a relevant fact. The learned Subordinate Judge. Mentions, while discussing the motive for the benami transaction, that it is to be found in the damage suit brought by the two brothers against their zarpeshgidar. Thereby he means that the benami purchase was made in the name of the plaintiff in order to enable the two brothers to sue the zarpeshgidar for damage.

Sections 40 to 43, Evidence Act, deal with the subject of relevancy of judgments. Judgments, qua judgments or adjudications are admissible as res judi-cata u/s 40, or as in rem u/s 11 or as relating to matters of public nature u/s 42, Evidence Act. Judgments other than those mentioned in Sections 40, 41 and 42 may be relevant u/s 43, if their existence is a fact in issue or is relevant under some other provisions of this Act. It is obvious that a judgment, merely because it is not inter partes, is not shut out. The Full Bench case of Gurjja Lal v. Fatteh Lal [1880] 6 Cal. 171 has been modified by the Privy Council in Ram Banjan Chakerbati v. Ram Narain Singh [1895] 22 Cal 533 as held in the Full Bench case of Tepu Khan v. Bajani Mohun Das [1898] 25 Cal. 522. As was observed by Maclean, C.J., in Tepu Khan''s case [1898] 25 Cal. 522, under certain circumstances and in certain cases, the judgment in a previous suit, to which one of the parties in the subsequent suit was not a party, may be admissible in evidence for certain objects in the subsequent suit.

This view will receive support from the cases of Bhitto Kunwar v. Kesho Persad Missir [1897] 19 All. 277, Dinomoni v. Brajo Mohini [1902] 29 Cal. 187, Gopi Sundari Dasi and Others Vs. Kherod Gobinda Chowdhury and Others, . and Mohammad Ehia v. Ganga Deyal Ojha [1917] 40 I.C. 838 . In the last mentioned case this Court has held that judgments, not between parties to the suit, containing a declaration that the right in dispute has been asserted and. recognized in a a Court of law, are admissible in evidence under the provisions of Section 13,Evidence Act. As pointed out in Gopi Sundari Dasi and Others Vs. Kherod Gobinda Chowdhury and Others, a judgment like this though not conclusive is admissible in evidence like any other fact to be weighed in the balance. The decision of Das, J., in Hitendra Singh v. Rameshwar Singh AIR 1925 Pat. 625 is not inconsistent with the view that a judgment not inter partes is admissible in evidence under certain circumstances because his Lordship specifically mentions that if the existence of a judgment is a fact in issue or is relevant under the other provisions, of the Act, it is admissible.

8.Now the learned Subordinate Judge has referred to the judgment, Ex. Q(1) as affording a motive for the benami transaction. Further he has referred to it as an item to be considered along with Ex. 7 relied on by the plaintiff. Ex. 7 affords an instance in which the plaintiff''s right as owner was asserted while Ex. Q(1) affords an instance where her position as a benamidar was successfully asserted.

The judgment in question, to my mind, is admissible in evidence under Sections 11 and 13, Evidence Act. The learned Subordinate Judge has specifically mentioned that it is not conclusive evidence, and uses it as modifying the effect of Ex. 7. I am of opinion that the consideration of the judgment in the way done by the learned Subordinate Judge bas been properly done and his finding of fact cannot be assailed on the ground of a reference made by him to Ex. Q(1). It is significant that no ground was taken in the grounds of appeal as to the non-admissibility of Ex. Q(1).

A point was raised by Mr. Sinha on behalf of the respondent that the question of inadmissibility of this judgment cannot be agitated by the appellant, inasmuch as this document was admitted in evidence in the lower Court" without any objection. This contention has no force because the absence of an objection will not make admissible a document which is per se irrelevent or inadmissible The only effect is that no objection can be taken as to the mode of proof.

In my opinion the case is concluded by the finding of fact arrived at by the learned Subordinate Judge on a careful consideration of all the facts and circumstances and there is no substance in the appeal which is, accordingly, dismissed with costs.

Adami, J.

I agree.