Louis P. Russell, Acting C.J.
1. Plaintiff herein one Mahamad Amin son of Mahamad Ibrahim filed a suit against his brother Hasan, the first defendant, the second defendant, wife of the first defendant and the third defendant the wife of a deceased brother of the plaintiff and defendant No. 1, named Kamal, to recover possession of a house and grounds in the plaint described. The said house and land belonged to the father of the plaintiff and defendant No. 1 and the deceased Kamal.
2. The plaintiff's case was that by a registered sale-deed in the year 1885 he purchased the property from his father. In 1886 certain mortgagees filed a suit against the plaintiff and his said father and mother on a mortgage bond executed by the father. The Court of first instance as also the District Court, held that sale to be a sham transaction and there is no doubt that the plaintiff herein paid off that mortgage deed. The father died in 1888. The first Court held that the plaintiff was entitled to succeed, the material issues raised therein being (1) whether the property in suit belongs to the plaintiff and (2) whether the sale to plaintiff, if any be proved, is fraudulent, colourable and collusive as alleged by the defendants.
3. The first Court, however, appears not to have gone into the question of whether the plaintiff actually paid any consideration for the sale and seems to have assumed that the deed dispensed with proof thereof. As is well-known however, the law in India differs from that in England on this point and previous to the Contract Act the Privy Council held that the fact of an instrument being under seal does not of itself, in India, import that there was a sufficient consideration. Raja Sahib Prahlad Sen v. Baboo Budhu Sing (1869)2 B.L.R. P.C. 111. Under that Act the fact of the agreement being in writing dispenses Avith consideration only in the cases mentioned in cls. 1 and 3 of Section 25. Neither of these clauses, however apply; the latter being quite inapplicable and the former only referring to an instrument in writing registered and made on account of natural love and affection between parties standing in a near relation to each other, which does not appear to have been the consideration for the deed in question. The first Court rightly held that the onus of proving the second issue as aforesaid was on the defendant and holds that there was not a tittle of evidence to prove that plea in this respect. But unfortunately the lower Court proceeds to discuss the evidence for the plaintiff on the question of consideration; and the reasoning of that Court does not appear to mo to be satisfactory. It is unfortunate that the first Court had not before it the proceedings and decree in the suit of 1886, which I have above referred to. The case accordingly went up on appeal, but the appellate Court has not dealt with it, to my mind, in the way in which it should have been dealt with because in the first place it is evident from the judgment of the lower appellate Court that the learned Judge had in his mind and dealt with the case upon the principles applicable to a purchase by one member of a joint Hindu family from another, whereas the parties herein being Mahomedans the law applicable to Hindus cannot in any way apply to this case. That this is so is evident from many expressions of the lower appellate Court at pages 3 and 4 of the record. Moreover, the lower appellate Court has not considered the question whether any consideration for the deed was actually proved and if so what it was and I have no hesitation in saying that it is impossible upon the face of the judgments of either of the lower Courts to say what the consideration for the deed really was and it may fairly be said, I think, that the judgment of the lower appellate Court is based entirely upon the judgment in the said suit of 1886.
4. We have had addressed to us very lengthy arguments upon the question of whether that judgment is admissible at all or not and in my opinion it is impossible to hold that the judgment in that case comes within either the word 'transaction' in Section 13 or 'particular instances' in that section. But in my opinion although this is so the proceedings in that suit would come within the words 'particular instances in which the right was claimed' etc., for I think that we arc bound by the decision of Sir Charles Sargent in Ranohhoddas Krishnadas v. Bapu Narhar ILR (1886) 10 Bom. 432 where he says that ' rights and customs in Section 13 must be understood as comprehending all rights and customs recognized by law and, therefore including a right of ownership.'
5. Further, for my part I cannot distinguish the present case from the case of Lakshman v. Amrit (1900) 2 Bom. L.R. 386 which was followed in Govindji v. Ghhotalal) and see also the case of Dharnidhar v. Dhundiraj (1903) 5 Bom. L.R. 230, decision of the Chief Justice and Mr. Justice Batty.
6. It appears to me, therefore, that the proceedings in the Suit of 1886 should be admitted as relevant evidence in the present suit, for it must be remembered that the present plaintiff and the defendants, either by themselves or their predecessors, wcro parties to that suit of 1886. I would therefore remand the case to the lower appellate Court for a finding on the issue whether there was any ad if so what consideration for the sale deed of August 1885 ?
7. No further evidence except the record of the suit of 1886 to be given and finding to be remitted to us within two months.
8. I shall confine myself to one point. The facts which give rise to it are, that the plaintiff alleges that he purchased the property in suit while the defendant alleges that although that may have been so nominally, in fact the sale was void for want of consideration, even if it ever took place. Inl886 there was a suit against The father of The plaintiff and the decree-holder attached and sought to sell the property which is now in suit. The plaintiff pleaded that the property was his own and alleged The same sale on which he now relies. As between him and the judgment-creditor the sale was held to be invalid and the plaintiff had to pay the decretal debt. The present defendant has put in the judgment in that suit with the object of course of proving that the sale to the plaintiff on which the present suit is based was then held to be invalid. The question is whether, that judgment not being inter partes is admissible and if so, what is its precise probative value? I should add that the plaintiff alleges that the sale was made to him by his father who was the judgment-debtor in the suit of 1886. The relevancy of judgments of Courts of justice is regulated by Sections 40 43. Indian Evidence Act, Section 40, merely enacts that the existence of any judgment order or decree which by the provisions of Section 13 Civil Procedure Code constitutes res judicata is a relevant fact. Section 41 without attempting any precise or exhaustive definition aims at and probably does let in all judgments in rem proper. Section 42 provides that judgments, orders, or decrees other than those mentioned in Section 41 are relevant if they relate to matters of a public nature relevant to the enquiry. Section 43 declares all judgments, orders or decrees, other than those specified in Sections 40, 41,42 to be irrelevant unless the existence of the judgment is itself a fact in issue, or is relevant under some other section of the Act. The judgment which the defendant offered and the Court below admitted is not relevant under Section 40; because that Section is admittedly limited to judgments etc. which constitute a res ju-dicata and to do that they must be inter partes. It is not admissible under either Section 41 or 42, that too is admitted; and therefore unless it can be brought in under the last words of Section 43 it is admittedly excluded by express enactment. It is not contended that the fact of the judgment is itself a fact in issue, but it is contended that 'the existence of the judgment is relevant under some other provision of the Act'. In order to bring it in, defendant has recourse to Section 13 which says that 'where the question is as to the existence of any right or custom the following facts are relevant (a) any transaction etc. (b) particular instances etc. It is hardly necessary to say that there is a formidable array of authority for the general proposition, that judgments not inter partes are admissible under this Section and it would be as tedious as unprofitable to examine the hundred or so of leading cases in order to extract if possible a definite and consistent principle from them. In order to get a clear view of all that is involved in the materials available for argument on this recurring point, I should like here to approach the facts of the case we have to deal with, as though the case were for a moment res integra and then apply the law disencumbered of authority to it. Here is a plaintiff suing on a deed of sale, which a defendant alleges to be void for fraud and want of consideration. The issue to be tried between the parties is 'whether as appearing on the face of the registered instrument the plaintiff paid consideration'? The burden of 'proving that he did not, is of course on the defendant. The defendant adduces no evidence but refers the Court to a judgment twenty years old between the plaintiff of the one part and another person of the other, in which an issue was raised touching the validity of this sale and the Court came to the conclusion that it was void for want of consideration, or fraud on the creditor and so forth. Upon this the first question is whether the judgment falls within the definitions of judgments which are expressly admissible and the answer is that it does not; the next question is whether it falls within the concluding part of Section 43, whether in other words its existence is a fact in issue or relevant under some other provision of the Act. It certainly is not a fact in issue, but it is contended that it is relevant under Section 13. To satisfy the requirements of that section the question must be as to the existence of a right or custom. The existence of the judgment must be relevant as a transaction by which the right was claimed modified etc. etc., or as a particular instance in which the right was claimed etc. etc. I think that, were there no case law on the subject no one would hesitate for a moment upon being asked to bring a judgment of that kind in evidence to prove that a sale deed was void, to reply that neither the language nor the object of Section 13 served the purpose. What class of cases the section was intended to meet is as plain as possible not only from its language but from the illustration. And those are cases in which the right or custom in question is regarded as capable of surviving repeated instances of its assertion and denial, where transactions may be supposed to have gone on modifying, assent-ing, denying, creating, recognizing it, or being inconsistent with its existence leaving it after all that has been given in evidence, fair matter for judicial consideration, as to whether the Court should or should not decree it. I confess I do not find it easy to understand how that language can without absurdity be applied to such a case as this. Let us substitute it for the ill-ustration. The question is whether a sale-deed is fraudulent, particular instances in which the Courts had previously held that the same sale deed was fraudulent although not between the same; parties; and particular instances in which the vendee had declared that his deed was genuine, but other persons had denied thaii it was, are relevant facts. A right which is created by and inseparably bound up in a document does not admit of proof or disproof by particular instances of assertion and denial and is therefore plainly and essentially distinguishable from all the rights which are denoted in Section 13. The deed is the only proof as it is the sole foundation of the right; that has to be proved, nothing else; any attack upon its genuineness, if made good is fatal once and for all to the right founded on it and if such an attack had really been made in another suit inter alia and had proved successful, it is plain that allowing the judgment in that suit to go in, would if the judgment were really evidence of what it purports to be, instantly decide the matter. The Court would have to accept or reject the judgment. If it accepted it. as in ninety-nine cases out of every hundred it probably would, there would be nothing left to adjudicate upon. The single successful denial of the right, must have killed it for ever. The rights con. templated by Section 13 are plainly conceived as admitting of proof by cumulative instances and transactions and not by a single and decisive and final way, namely the terms of a document. The only question being Avhether a registered sale-deed was genuine or/fraudulent it is conceivable that the language of Section 13 can reasonably and logically be fitted to the case. That was the view taken of the meaning and intention of the words right and cus-tom in Section 13 by a majority of the Calcutta Pull Bench. But it has since been dissented from and at present it must be conceded that the balance of authority favours the extension of the term right, to include any and every right known to the law. Against that opinion, might well be advanced the section itself. Had that really been the intention it is difficult to understand why the legislature enacted the opening words which certainly are of a limiting and defining character. It Avould have been just as easy, had the intention been to make the section applicable to every legal right to omit the words ' Where the question is as to the existence of any right or custom.' But then the section Avould have altogether lost its distinctive character. The whole context indicates that the section is dealing with continuing rights Avhich may be interrupted Avithout being necessarily destroyed. Still we must take it as settled for the present by the weight of judicial authority, that the term right, in the section comprehends every fright known to the law. The next question is Avhat is the effect of so extending the concluding Avords of Section 43 read Avith Section 13(I) think Ave need not seriously discuss the attempts here and there made in the cases, to avoid the aAvkward consequences of an analytical examination of this rule and its contents by a recourse to Section 11, a step which I feel materially increases rather than lessens the difficulty) as to make all judgments though not in rem and not inter paries and not upon questions of public right, relevant transactions or instances, of the assertion or denial of the right in question, where one party to the subsequent was also a party to the prior litigation. An examination of the voluminous case-law on the point will I think disclose this result. Although in every case the Courts have been most particular to disclaim the doctrine of res judicata in respect of judgments so admitted, the effect of admitting them has been to conclude the point to prove which they are admitted. That is to say that while the Courts have in theory declared consistently that these judgments are not res judicatd and are not oven conclusive of the points to which they are directed, they practically, as judgments proprio vigore and incapable of any rebuttal, do conclude those points. It is indeed extremely difficult to understand what other effect they could have. It is true that in the case of public rights a judgment not inter paries Avhile relevant may not be conclusive but it is still conclusive of its own subject matter. To take the commonest illustration, in a suit for trespass B the defendant puts in a judgment recovered by C a defendant in a like suit on the same ground namely that C had as B alleges himself to have public right of way over A's land. Now Avhile that judgment is relevant, it is not conclusive against A that B also has a right of way, because, whether or not there is a public right of way in these circumstances is not to be finally settled by a single judgment between A and C in an action for trespass. But the judgment I apprehend is absolutely conclusive of its own subject matter which is that in the action which A brought against C, C's defence was held! good. And so where the subject matter of the judgment coincides with and is identical with the entire right in issue, or that ever can be in issue, on the same state of facts, it becomes a matter of the utmost nicety to distinguish between the relevance and the conclusiveness of the judgment. And that is the case here. If we are to take the judgment qua judgment as relevant, to the extent of its subject matter and contents, then cadet questio, for in that judgment it was held that the sale deed was colourable fraudulent and void, saying that while a judgment is relevant it is not conclusive, the commonest phrase in all the leading cases, must I think mean one of two things: either that the judgment is not conclusive of the whole case in part proof of which it is adduced, or that while relevant it is not conclusive of itself. The first proposition is comparatively simple and intelligible, although on a closer scrutiny it will be seen to impair the integrity of the salutory and well established principle of res judicata, namely that no man is to be concluded by a judgment in a cause to which he was not a party, casuistry vs. might of course step in here and point out, that that principle really does not apply to cases of this kind where the verdict was against the very man, against whom it is now sought to use it a second time.
9. But that implies that the verdict was in rem which ex hypo-thesi for the purposes of this discussion we have taken it not to be upon that refinement I will not dwell here; it is sufficient to note it and indicate, that in some connexions it might have more than merely academic value. The proposition amounts to this that while a previous judgment not inter partes may not conclude the whole, it may conclude a part of the case. Pro tanto then it would notwithstanding all verbal disclaimers, be res judicata and commonly, in this indirect way would operate to be res judicata of the entire matter. But turning to the second proposition, it is obvious that the judgment if its subject matter is coextensive with the subject matter of the suit in which it is offered as evidence must be altogether or not at all res judicata. And that I suppose is what is meant by the rather vague phrase that while relevant it is not conclusive. But if it is strictly and accurately speaking admissible, as a judgment, it can only be treated as conclusive of its own contents. Less than that and what is it? Nothing more of course than the mere opinion of a person, whether a judge or not, does not matter as soon as you Strip it of its special attributes as a judgment, who is not before the Court to be cross-examined upon the grounds of that opinion. And that never has been deemed good evidence.There is I believe no logical escape from this dilemma. If you treat the thing as a judgment and admit it on that footing, then the whole of its contents must be pro tanto res judicata; if you deny them that effect, then the thing is mere opinion and does not appear admissible, as to its contents, under any section or provision or known principle of evidence or the Evidence Act. Leaving the cases which have occasioned the immediately preceding remarks and returning to the statute it becomes I think fairly plain, that adopting the most comprehensive view and allowing to right, the amplest possible meaning, judgments brought in under Section 43 and Section 13 must be either 'transactions' or 'instances.'All the best authorities I think agree that a judgment qua judgment and in respect to its contents, certainly is not such a 'transaction' or 'instance' but it may be the simplest and most convenient proof of the transaction, namely the litigation, or the instance, namely the assertion by the plaintiff and the denial by the defendant of the right. So limited, there would be no great objection or difficulty in the way of admitting the judgment. Its probative effect would then be no more than this, to establish that at the time it was given, there had been a transaction between the parties to it in which the right in question had been asserted or denied or so forth. But here comes in the fallacy which interpenetrates an extremely loose and questionable principle and connects it with a much more questionable practice. It does not need a very rigorous logic to expose it. It being conceded as I think on a correct reading of the best authorities, it must be conceded, that if judgments of this kind are admissible at all under Sections 43 and 13 they are admissible only as a simplest proof of a transaction, or an instance within the meaning of the latter section, it follows of course that the proof cannot be taken beyond the thing to be proved and the thing to be proved is no more than that there was an assertion or a denial, not the grounds upon which a judge held that the assertion or the denial, was good or bad in law. But the inveterate habit of the Courts and advocates seems to be to confound the proper with the improper use of a judgment so admitted in evidence. And for a very good reason, restricted to its proper use, by reason of the defect of the principle under Avhich it is brought in under Section 13 the judgment cannot of course be of the slightest value to the party relying on it. He does not want to prove what he pretends that he wants to prove namely that on a former occasion the right in question was asserted and denied; but he wants to prove that a Court of law adjudicated on all that was implied in that assertion and denial, in other words to use a judgment not inter partes as res judicata.
10. Here for example what the defendant desires to prove by the judgment and struggle how he would to conceal it in a cloud of phrases, his pleader always had to come back to it, was not the mere transaction or the instance but the findings of the Court on the issue of fraud. Now if that material be admissible at all, it must be res judicata or mere opinion; there is no alternative but this. In the former case it is admittedly excluded by the perfectly well understood and legislatively enacted rule, that there can be no res judicata, except inter partes; in the latter I own that I do not understand upon what principle it can be evidence at all. But in another way I think that if judgments are admissible only under Sections 43 and 13, then they must be rigidly restricted to proving the transaction or the instance meant by the section. Where the case is not of the kind really contemplated by that section, their use thus logically restricted is innocuous; it does no good but neither can it do any harm ; for a transaction or an instance of that kind in such a case, cannot possibly be of any probative value. But I am most strongly of. opinion that a party who has been allowed to put in a previous judgment not inter partes, for the purposes of Section 13 cannot be allowed to use contents qua judgment virtually thereby converting it into a res judicata. That is the distinction which I have set myself to bring out clearly and I hope simply and intelligibly. Applying it in the present case the result is this, that while we may, deferring to the authorities concede that the judgment was admissible to prove that in 1886 there was a dispute about the genuineness of this sale deed, we cannot use it for any ulterior purpose. We certainly cannot look at the issues in the judgment and the findings which the judge came to upon them and then treat those findings as of any legal probative value in this suit. I am therefore prepared to allow on the strength of that judgment that the genuineness of the sale deed was questioned in 1886, but that alone is not enough I think in the total absence of all other proof given by the defendant to discharge the onus which was admittedly on him.
11. This is meant for the guidance of the Court in dealing with this piece of evidence on the remand.