SAYERUDDIN AKONDA Vs. SAMIRUDDIN AKOND

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of land commenced against him by his father. The disputed property stands in the name of the appellant and the question in controversy was, whether he was the beneficial owner or whether it had been acquired by Ho father in his name. The Courts below have decided against the appellant and it is now contended that the decision of the Subordinate Judge is erroneous inasmuch as he has acted upon evidence inadmissible in law.

(2.) The defendant alleged that, although he was a boy, thirteen years old at the time when the property was acquired, the consideration was provided by his paternal grand-father. The plaintiff answered that his father died before the property had been acquired, and he produced a mortgage-bond which had been executed by him on the 28 October 1892 in which he is described as the son of Khan Mahomed Akonda, deceased. The Courts were thereupon required to consider, whether the mortgage bond was admisssible in evidence as against the appellant. The Subordinate Judge has held that it was admissible by virtue of Section 32, Clause (2) of the Indian Evidence Act, read with Section 21 Clause (1). The appellant has contended that this view cannot be supported. The respondent has not placed reliance upon Section 32, Clause (2), but has invoked the assistance of Section 32, Clause (5). We are of opinion that the statement made by the plaintiff in the mortgage-bond executed by him on the 28 October 1892, namely, that his father had died previously may be made admissible in more than one way.

(3.) It is clear that Section 159 might have been utilized for the purpose. The plaintiff went into the witness-box and stated that his father died in 1892. At a subsequent stage, when he was asked whether his father had died before the disputed property was acquired, he answered that he did not remember. He might then have been permitted to refresh his memory by reference to the mortgage-deed. This, however, was not done for the obvious reason that no exception was taken to the reception of the mortgage-bond in evidence. We may here point out that, although, as ruled by the Judicial Committee in Miller, Official Assignee of the Estate of Ramkishen Das V/s. Babu Madho Das 23 I.A. 106 : 19 A. 76 : 7 Sar. P.C.J. 73 : 9 Ind. Dec. (N.S.) 50 (P.C.), an erroneous omission in the Trial Court to object to an admission which was irrelevant did not make it relevant and admissible in evidence; still, as explained in Girindra Chandra Ganguli V/s. Rajendra Nath Chatterjee 1 C.W.N. 530, an objection that a document, which per se is not admissible in evidence, has been improperly admitted in evidence, cannot be entertained in the Court of Appeal, when, if the objection had been taken in the Trial Court it might have been met and the proceeding regularised.