KRISHNASWAMI PATHAR Vs. RAMACHANDRA AYYAR

JUDGEMENT

(1.) Defendants 3, 4 and 5 are the appellants. This second appeal arises out of a suit instituted by the plaintiff to recover a sum of Rupees 612 14-0 alleged to be due under two registered mortgage bonds assigned to him under Ex. 0 by the original mortgagee. The contesting defendants set up Ex. 1 to prove that the mortgagee agreed to receive only Rs. 425 in discharge of the mortgage bonds and a promissory note for Rs. 20. The District Munsif admitted Ex. 1 in evidence and gave a decree to the plaintiff for Rupees 156 only on the strength of this agreement. In appeal it was argued that Ex. 2 was inadmissible for want of registration under Clause (b), S. -17, Registration Act.

(2.) This argument was accepted by the learned District Judge and the decree of the lower Court was accordingly modified with the result that the plaintiff was given a decree for Rs. 405-14-0 with costs and subsequent interest, a larger amount than what was awarded to him by the District Munsif.

(3.) In second appeal it is argued that the lower Court was wrong in allowing the appellant to argue that Ex 1 was inadmissible in evidence inasmuch as that objection was not taken before the District Munsif and that the District Judge's decision that Ex. I is inadmissible is wrong. There are decisions of the Privy Council to show that, when a piece of evidence is irrelevant, the erroneous omission before the lower Courts to object to the admission of that evidence does not make that evidence relevant: see A.B. Miller Official Assignee of the Estate of Ramkishen Das V/s. Babu Madho Das [1897] 19 All. 76 and him Yam Hong V/s. Lam Choon & Co. A.I.R. 1928 P.C. 127; see also Marahari v Ambabai[1920] 44 Bom. 192. It therefore follows that the learned District Judge did not act wrongly when he allowed the appellant before him to raise the objection regarding the admission of Ex. 1 though it was not raised in the first Court.