THEETHAN KANDI S SON CHAMI; ANA PATTAR S SON ANA PATTAR Vs. ANA PATTAR S SON ANA PATTAR; THEETHAN KANDI S SON CHAMI

JUDGEMENT

(1.) In this case the plaintiff sued for the payment of the value of certain paddy which, he said, he advanced to the defendants for a consideration which had failed. At the trial he sought to prove what, that consideration was by giving secondary evidence of an unstamped document, which is not allowed by law. The plaintiff was therefore, in this position: he proved that he handed the paddy to the defendants, but he could not prove the terms on which he handed it. Mr. Ananthakrishna Aiyar says, that being so, his position is hopeless; and he cannot give any evidence of the circumstances in which he gave the paddy because the moment he attempts to do it, he would offend against the rule of evidence which prohibits oral evidence of an unstamped document. But it is competent to the plaintiff to go thus far; he can prove the handing over of the paddy and state that he got nothing in return. 1 think that is enough to throw upon the defendants the burden, which they have not discharged, showing that it was either given as a gift or that in fact some consideration passed for it. On this point, therefore, the appeal fails.

(2.) It also fails on the other point which was taken, namely, that the matter was res judicata by reason of the judgment in a prior suit on a promissory note, because in that suit the same issue was raised. No doubt it was raised; but when the trial came on, the Court so far from deciding it declined to go into the question and held that it was not necessary to go into it. That decision cannot, therefore, operate as res judicata.

(3.) On both grounds therefore, the appeal fails and is dismissed with costs. In S.A. No. 1453 of 1914. Coutts-Trotter, J.