1. The Subordinate Judge is wrong in he view that the burden of proof is on the first defendant to show that a transaction which has been entered into by practically all the adult members of the family is binding upon the minors who sue to set it aside. The Subordinate Judge only discusses the evidence of the first defendant. He nowhere indicates that the plaintiffs have prima facie proved their case.
2. We think he is wrong in his view of the onus of proof and, therefore, cannot accept the finding.
3. We must ask him to re-hear the case in the light of the above observations and to submit a revised finding on the 4th issue in the case. No fresh evidence will be admitted. The finding will be submitted within six weeks from this date and seven days will be allowed for tiling objections.
4. The Lower Court submitted a finding that the transaction was not supported by consideration. Then the following judgment was delivered by their Lordships.
JUDGMENT
5. The finding of the Subordinate Judge is vitiated by his reliance on inadmissible evidence. The Subordinate Judge has used certain interrogatories answered by the second defendant in the case as evidence in favour of the plaintiff, the suit is by a junior member of the Tarwad to set aside an alienation in favour of the first defendant. Second and the other defendants are the Karnavan and the other members of the Tarwad. There can be no doubt that the plaintiff and defendants Nos. 2 to 5 have the same interest in the suit. Although they are arrayed on opposite sides, the plaintiff is really fighting the case on their behalf as well as for himself. Under these circumstances, we are of opinion that it was not open to the plaintiff to administer interrogatories to persons who are supporting his case. Plaintiff says in his evidence that he is being financed by the second defendant in this action. Another circumstance against these interrogatories is that defendants Nos. 3 to 5 filed no written statement. It has been held that interrogatories to ex parte defendants should not be permitted: See Marshall v. Langley(1) that persons like defendants Nos. 2 to 5 are not within the connotation of the term “opposite party” is well established by English decisions: Spokes v. Grosvenor and West. End Hotel Co.(2), Brown v. Watkins(3), Shaw v. Smith(4) and Molloy v. Kilby(5) These decisions are applicable to the interpretation of the expression “opposite party” in Order XI, rule 1. The next question relates to the admissibility of these interrogatories in evidence, even granting that they were properly administered. She primary emotion of an interrogatory is to elicit information which can be utilised for conducting the trial. They are not evidence prima facie See Waghji Thackersey v. Khatrao Rowji(6) and Gosto Behary Pal v. Johur Lal Pal(7), Rules 8 and 9 of Order XI show that answers to interrogatories should be submitted in the form of an affidavit; and an affidavit is ordinarily not evidence, unless the party seeking to use it complies with the requirements of Order XIX. We find from the affidavit of the plaintiffs in support of his application for serving interrogatories that he merely intended to elicit information. It is clear that the second defendant was not examined as a witness in the case. Under these circumstances his affidavit embodying his answers to the interrogatories should not have been used as evidence in the case. In fact, it is clear that until the appeal was before the Subordinate Judge on remand, no one thought that these interrogatories can be used as independent evidence. A6 no time were they exhibited in the case. Mr. Madhavan Nair drew our attention to Narayana Bharatigal v. Ittuli Amma(8). In that case the interrogatories were properly served on the opposite party and the answers were used as admissions under the Evidence Act. That case does not support the procedure followed by the Subordinate Judge in the present case. We are, therefore, unable to accept the finding.
6. We must set it aside and direct the Subordinate Judge to return a fresh finding on the question propounded by us on the last occasion, basing his judgment on admissible evidence. The above remarks apply with greater force to the answers of the fifth defendant. The findings will be submitted within six weeks from date of receipt of record and seven days will be allowed for filing objections.
[The Subordinate Judge returned a finding to the effect that the mortgage was binding on the Tarwad.]
[On receipt of the finding the following judgment was delivered by their Lordships]
JUDGMENT
7. We accept the findings. The same Subordinate Judge who heard the appeal originally and who wrote a considered judgment on two occasions, is not likely to have shut his eyes to the documents and the other material evidence adduced in the case. The failure to refer to them specifically does not vitiate his finding.
8. Mr. Menon argued that as no sanction was recorded for the previous compromise on behalf of the minor plaintiffs, it should have been held invalid as against them. The Courts below and this Court proceeded on the view that the razi decree as such was not enforceable against the plaintiffs and considered whether the razi, treating it as an alienation, was binding on them. Therefore, the fact that there was no sanction does not conclude the case in favour of the plaintiff.
9. In the result the decree of the lower Appellate Court must be reversed and that of the District Munsif restored with costs here and he the Court below.
10. Appeal allowed.