GONNABATHULA THAMMAYYA, BEING MINOR BY HIS NATURAL FATHER AND NEXT FRIEND GONNABATHULA AUDEYYA Vs. GONNABATHULA CHINNAYYA

JUDGEMENT

(1.) The question in this suit was whether the plaintiff had been adopted by one Chinnayya before his death in September 1918. The District Munsif came to the conclusion on the evidence before him that the plaintiff was so adopted. On appeal to the Subordinate Judge, the Subordinate Judge came to a different conclusion on the evidence. It is contended in second appeal that the conclusion, which, the Subordinate Judge Game to was influenced by the reception in evidence of Ex. A and Ex. II. These were attempted to be put in before the learned District. Munsif but were rejected. Therefore, application was made to the Subordinate Judge to admit these. Exhibit A is a, public copy of the deposition of P.W. No. 3 (4th defendant herein) before the Revenue Inspector. The request to admit this Ex., A was made by the respondent, and on that application the learned Subordinate Judge makes this note: P.L.N., who argues the case for the appellant's learned Vakil, has no objection to have the document marked. Mark this as an exhibit on the plaintiff's side A.

(2.) As to Ex. II this is a statement made by the natural father of the adopted boy and the Judge's note on the petition to admit that is: There is no objection to the statement made by the natural father.

(3.) The question I have to consider is whether the consent or want of objection by which Exs. A and II, were admitted in evidence by the Subordinate Judge is valid or whether as contended for by Mr. Somayya for the appellant the documents would naturally become evidence if and when they were put to the witness either to corroborate or contradict them. In other words, is the consent to the reception of these, matters simply a waiver of formal proof or does it go to the root of the matter and is it an attempt to make evidence of what is really not evidence under the provisions of the Evidence Act? I may at once say that Ex A is sought to be put in under Section 157 and Ex. II, under Section 14.5. Several cases have, been quoted, for instance Bhavamma V/s. Ramamma 78 Ind. Cas. 176 : 19 L.W. 205 : (1924) M.W.N. 270 : 34 M.L.T. 555 : (1924) A.I.R. (M.) 537. By Section 145 of the Indian Evidence Act, the credit of a witness maybe impeached, by proof of his former inconsistent statements, and before a witness, can be impeached he must be given an. opportunity of making any explanation which is open to him. And further in Bal Gangadhar Tilak V/s. Shri Shriniwas Pandit 29 Ind. Cas. 639 : 39 B. 441 at p. 461 : 13 A.L.J. 570 : 19 C.W.N. 729 : 17 Bom. L.R. 527 : 22 C.L.J. 1 : 29 M.L.J. 34 : 18 M.L.T. 1 : (1915) M.W.N. 481 : 2 L.W. 611 : 42 I.A. 135 (P.C.) documents had been used for the purpose of contradicting witnesses without calling their attention to the portion of the documents so used. These depositions in a criminal case were imported in. bulk into a civil enquiry as to a question of adoption. Their Lordships of the Privy Council held that there were no circumstances in that case to bring the matter within the purview of Section 33 of the Evidence Act, nor any warrant for using the documents for the purpose of either contradicting or discounting the evidence of the witnesses given in the suit. There is no question there of any consent or waiver of objection. On the other hand in a Full Bench case in this Court Jainab Bibi Saheba V/s. Hyderally Saheb 56 Ind. Cas. 957 : 43 M. 609 : 38 M.L.J. 532 : 28 M.L.T. 23 : (1920) M.W.N. 360 : 12 L.W. 64, it was held that the evidence recorded in a previous proceeding between the same parties may be made admissible in a subsequent proceedings by their consent. Coutts Trotter, J., there said:-- "It is clear that in this country neither an omission by an Advocate to object to the giving of irrelevant and inadmissible evidence, nor the failure of the tribunal to exclude it of its own motion, will validate a decree based on material which the Evidence Act declares to be. inherently and in substance irrelevant to the issue. A wholly different question arises where the objection is not as to the nature and quality of the evidence in itself, but merely as to the mode of proof pint forward".