1. Plaintiff is the appellant. He sued to set aside certain alienations made by his grandmother purporting to act as his guardian during his minority. His allegations were that there was no necessity for the sales referred to in the plaint and that they were fraudulent and for grossly inadequate consideration. The present appeal relates only to the alienation in favour of the respondents under Exhibit 4. The respondents stated that the sale was bona fide for consideration and for purposes of discharging the debts mentioned in the sale-deed and that it is binding on the plaintiff. The District Munsif held that the alienation evidenced by Exhibit 4 was not binding on the plaintiff, as there was no evidence adduced to show that the sale-deed was for the purpose of discharging the debts mentioned therein. An appeal was filed against the decree of the District Munsif: but neither in the grounds of appeal nor in any other proceedings was any reason given for the defendants not examining witnesses to prove the necessity for the sale. Even before the Subordinate Judge no application seems to have been filed by the parties requesting permission to adduce further evidence, nor is any explanation, so far as I can see, offered as to why the defendants did not call witnesses to prove that the recitals in Exhibit 4 were correct. On appeal, the Subordinate Judge commented on the fact that the creditors, to whom money under Exhibit 4 is alleged to have been paid, would be important witnesses and directed the District Munsif to record evidence adduced by both the parties as regards the necessity for the alienation and submit it to him.
2. It is argued by the appellant's Vakil that the Subordinate Judge had no power to call for further evidence. The question for determination is whether an Appellate Court has power to call for further evidence in cases where there is no evidence on record in respect of the issue under consideration.
3. There can be little doubt that the recitals in documents as to the existence of necessity are not by themselves evidence of necessity in the absence of any evidence aliunde. I need only to refer to the decision of their Lordships of the Privy Council in Brij Lal v. Musammat Inda Kunwar 23 Ind. Cas. 715; 1 L.W. 794; 26 M.L.J. 443; 18 C.W.N. 649; 12 A.L.J. 495; 36 A. 187; 19 C.L. 469; (1914) M.W.N. 405; 15 M.L.T. 395; 16 Bom. 1. R. 352 (P.C.), where they observe as follows:
"Recitals in mortgages or deeds of sale with regard to the existence of necessity for the alienation have never been treated as evidence by themselves of the fact. And it has been repeatedly pointed out by this Board that to substantiate the allegation there must be some evidence aliunde."
4. I am of opinion that the District Munsif rightly held that Exhibit 4 was not binding on the plaintiff as there was no evidence of necessity.
5. As I have already pointed out, there is absolutely no explanation on record as to why witnesses were not called to prove necessity,' nor does the judgment of the Subordinate Judge throw any light on the matter. That this evidence is necessary for a proper determination of the question" is' a truism: but the point is whether there were any materials before the Subordinate Judge which would in law empower him to call for further evidence. I do not think that Order XLI, Rule 27, of the Code of Civil Procedure empowers the Appellate Court to call for further evidence of its own motion in regard to a question on which no evidence was adduced in the lower Court and no explanation offered for the omission. The cases referred to by the respondents' Vakil, to which I shall refer later on, do not really touch the question. Rule 27(1) of Order XLI runs as follows:
The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if:
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
6. There has been no change in the law so far as this section is concerned and Rule 27(1) is in terms identical with Section 568 of the Civil Procedure Code, 1882.
7. The powers of the Appellate Court were considered by their Lordships of the Privy Council in Kessowji Issur v. Great Indian Peninsula Railway Company 31 B. 381; 11C.W.N. 721; 6 C.L.J. 5; 4 A.L.J. 461; 2 M.L.T. 435; 9 Bom. L.R. 671; 17 M.L.J. 347; 341. A. 115 (P.C.), where it was held that the legitimate occasion of Mention 568 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. That is the subject of the separate enactment in Section 623."
8. In Krishnama Chariar v. Narasimha Chariar 31 M. 114; 3 M.L.T. 308, Sir Arnold White, C.J., and Mr. Justice Miller, after quoting the observations of their Lordships of the Privy Council above referred to, held that the Appellate Court can admit further evidence only if the conditions laid down by the Privy Council are satisfied. The facts, as reported, show that the documents which were admitted in evidence in appeal were not filed in the lower Court.
9. Krishnama Chariar v. Narasimha Chariar 31 M. 114; 3 M.L.T. 308 was followed by Mookerjee and Holmwood, J., in Midnapore Zemindary Co., Limited v. Muktakeshi Dasi 16 Ind. Cas. 776; 40 C.402; 17 C.W.N. 615.
10. In Garden Reach Spinning & Manufacturing Co. Ltd. v. Secretary of State for India in Council 28 Ind. Cas. 865; 19 C.W.N. 401, Fletcher and Richardson, JJ., held that Order XLI, Rule 27, confers on Courts only a restricted power of admitting further evidence, and that the Appellate Court ought not to admit, fresh evidence, documentary or oral, whether or not it was in existence at the time of the judgment of the lower Courts or at the time the appeal was preferred, unless the Appellate Court, after examining the evidence on record, comes to the conclusion that it requires additional evidence in order to enable it to pronounce judgment.
11. In Subba Naidu v. Ethirajammal 12 Ind. Cas. 673; 10 M.L.T. 409; 22 M.L.J. 14; (1911) 2 M.W.N. 440, the question arose as to whether an Appellate Court can call for a document for the purpose of coming to the conclusion as to whether the oral evidence in the case is true. The question for decision was whether Article 85 of the Limitation Act applied (it being alleged that the accounts were mutual, open and current). The facts of the case, as stated in the judgment of Phillips, J., are that oral evidence of the transactions between the parties was given but the account books were not filed although a summons had been taken out for their production. It also appears that the plea of limitation was not raised before the District Munsif but was, for the first time, raised before the Appellate Court. On the facts Mr. Justice Abdur Rahim was of opinion that the District Judge had no power to admit further evidence, but Mr. Justice Phillips took the contrary view. A Letters Patent Appeal (No. 118 of 1911 See Subba Naidu v. Ethirajammal, 28 Ind. Cas. 640.--Ed) was preferred and Justices Benson, Sankaran Nair and Sundara Aiyar were of opinion that on the facts stated by Mr. Justice Phillips, the District Judge was justified in admitting additional evidence. Their Lordships rested their decision on the facts of the particular case. The facts set out in the judgment of Mr. Justice Phillips show that this was not a case where there was no evidence but was a case where there was oral evidence, and a wilful default in the production of account books which had been subpoenaed for and which would have thrown light on the evidence.
12. In Andiappa Pillay v. Muthukumara Thevan 14 Ind. Cas. 140; 11 M.L.T. 24l; 36 M. 477; (1912) M.W.N. 450, Benson and Sadasiva Aiyar, JJ., differed from the view taken by Abdur Rahim, J., in Subba Naidu v. Ethirajammal 12 Ind. Cas. 673; 10 M.L.T. 409; 22 M.L.J. 14; (1911) 2 M.W.N. 440 above referred to, and held that an Appellate Court has power to admit further evidence under the clause or any other substantial cause' in Section 568, Civil Procedure Code, which cause need not be ejusdem generis with the causes stated in the previous part of the section. This was a case where the District Judge wanted further evidence, as the District Munsif had not sufficiently considered Exhibit I filed in the case and had only exhibited part of that document. Benson, J., was of opinion that the words 'or for any other substantial cause' in Section 568 of the Civil Procedure Code, 1882, should not be construed in the narrow sense suggested by the doctrine of ejusdem generis so as, in effect, to confine them to causes of the same kind as those stated in the earlier part of the section. Sadasiva Aiyar, J., was inclined to take a wider view that the Appellate Court had power to admit evidence and will admit evidence if it thought that it was necessary. He observed that the Privy Council in Kessowji Issur v. Great Indian Peninsula Railway Company 31 B. 381; 11C.W.N. 721; 6 C.L.J. 5; 4 A.L.J. 461; 2 M.L.T. 435; 9 Bom. L.R. 671; 17 M.L.J. 347; 341. A. 115 (P.C.) did not mean to give lesser powers to an Appellate Court to admit fresh evidence than the Original Court would have had in the case of a review. With all deference I am of opinion that Section 568 will be rendered nugatory if the Appellate Court is invested with the same powers as the Original Court to admit further evidence. The language of the Privy Council in Kessowji Issur v. Great Indian Peninsula Railway Company 31 B. 381; 11C.W.N. 721; 6 C.L.J. 5; 4 A.L.J. 461; 2 M.L.T. 435; 9 Bom. L.R. 671; 17 M.L.J. 347; 341. A. 115 (P.C.), followed in Krishnama Chariar v. Narasimha Charriar 31 M. 114; 3 M.L.T. 308, is clear and limits the powers of the Appellate Court considerably.
13. In Arasappa Pillai v. Manika Mudaliar 25 Ind. Cas. 587; 16 M.L.T. 301, Spencer and Hannay, JJ., were not prepared to go to the length of a holding that the powers of the Appellate Court and Original Court were the same as regards the admission of evidence. There the question was whether a certain document was fraudulent and collusive. The defendant examined no witnesses and filed no documents to prove his case, and on appeal the District Judge suo motu made an order remanding the case for fresh evidence to be taken and calling for a finding upon the issue whether the sale was for grossly inadequate consideration. It was argued that the District Judge was wrong in remanding the suit for fresh evidence when the defendant had deliberately stated in the lower Court that he had no witnesses to call. Their Lordships were of opinion that there was no inherent lacuna or defect in the evidence as it stood, for, so far as the defendant was concerned, it was a case of no evidence at all. The order of the District Judge was set aside and he was directed to deal with the case on the evidence on record.
14. In Ambuja Ammal v. Appadurai Mudali 30 Ind. Cas. 402; 38 M. 414, Sundara Aiyar and Sadasiva Aiyar, JJ., were of opinion that the words "any other substantial cause" confer a wide discretion on the Appellate Court to admit additional evidence when the ends of justice require it to be done.
15. It appears from the facts of that case that a petition was presented to the Subordinate Judge for the admission of certain documents in evidence, but it does not appear whether it was either a case where there was no evidence in the lower Court or a case where the evidence was insufficient to satisfy the Appellate Court without further light being thrown on the question.
16. In Venkatachella Pillai v. Ranga Pillai 28 Ind. Cas. 694; 28 M.L.J. 334; 17 M.L.T. 220, Ayling and Sadasiva Aiyar, JJ., were of opinion that the expression for any other substantial cause" in Order XLI, Rule 27, gives power to the Appellate Court to admit fresh evidence on the same grounds as would justify the Court of first instance in granting a review. This was a case where fresh evidence was discovered after filing the appeal and was not known to the parties at the trial in the lower Court.
17. If in cases where there has been no evidence in the lower Court the powers of the Appellate Court are to be restricted to the grounds specified in Order XLVII relating to review, it is difficult to see how the Appellate Court can, without any proof of facts sufficient to bring it under Order XLVII, admit documents suo motu or call for evidence.
18. Whatever doubts or difficulties may exist, where there is some evidence on record and further evidence is required by the Appellate Court in order to satisfy itself, I think that Appellate Court has no power to call for fresh evidence in cases where no evidence has been adduced in the lower Court in respect of any issue and where there is consequently no room for any doubt. I would reverse the decree of the Subordinate Judge and restore that of the District Munsif with costs in this as well as in the lower Courts.
Phillips, J.
19. The sole question for determination is, whether, when a party has deliberately omitted to adduce evidence on an issue in the original Court, an Appellate Court is justified under the provisions of Order XLI, Rule 27, in ordering the party to adduce his evidence. It cannot be said that such evidence is necessary to enable the Court to pronounce judgment, for when the burden of proof is on a party who fails to adduce evidence, it is perfectly clear that judgment should go against him, and such a judgment can be pronounced without further evidence. It has then to be seen whether the Subordinate Judge had any other substantial cause for calling for further evidence. There was no evidence on record to prove the necessity for which the alienation under Exhibit IV was made, for the recital in the document is in itself not evidence, when there is no other evidence to support it, [Brij Lal v. Mussummat Inda Kunwar 23 Ind. Cas. 715; 1 L.W. 794; 26 M.L.J. 443; 18 C.W.N. 649; 12 A.L.J. 495; 36 A. 187; 19 C.L. 469; (1914) M.W.N. 405; 15 M.L.T. 395; 16 Bom. 1. R. 352 (P.C.)], and in this case we have only the evidence of an attesting witness who remembers nothing about the execution of the document. I have read my learned brother's judgment and, therefore, I need not again discuss the several cases which have been very carefully reviewed by him, for in these cases the several learned Judges are not in entire agreement as to the limits within which an Appellate Court is empowered to call for further evidence when there is already some evidence on record, but in interpreting the words "substantial cause" the facts of each case must be taken into account and an answer supplied accordingly subject to the principles governing the case. In this case, however, defendants Nos. 1 to 4 adduced no evidence in the original Court, and gave no explanation for the omission to do so and in appeal made no application for further evidence. There being no evidence on record on the question of necessity the Subordinate Judge could and should have given judgment against the party on whom lay the burden of proving necessity, and I have no doubt but that in these circumstances the provisions of Order XLI, Rule 27, did not justify him in ordering further evidence to be recorded. I, therefore, concur in the order proposed.