Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover possession of the plaint property, Ks. 330-8-0 for arrears of rent, and future rent at Ha. 10 per month until possession, alleging that the property was ancestral property of the plaintiff; that it was almost completely built by his father Hari; that at the time of Hari's death building materials to the extent of Its. 800 were left; that Hari died on the 16th July 1904; that after Hari's death the affairs of the minor plaintiff were looked after by other persons; that Aumiji this deceased father of the defendants undertook to complete the plaint house on condition that the building materials were to be used; that the house was to be kept in repairs out of rent; that Annaji incurred expense to the extent of .Rs. 100 to 150 in completing the house, that after Annaji's death in 1912 although plaintiffs guardian demanded possession, possession was not delivered.
2. The trial Court decreed that the defendants should put the plaintiff in possession of the plaint property; that the defendants should pay to the plaintiff Rs. 110-8-0 and interest on Es. 110-8-0 at 6 per cent, per annum from the date of decree till satisfaction, and that the defendants should pay rent at Rs. 6 per mensem to the plaintiff from institution of the suit till the happening first of any one of the three events mentioned in Order XX, Rule 12(1)(c) Court directed that the plaintiff should recover possession of the house on payment of Rs. 664-0-0 to the defendants.
3. The main question in 'the suit is what was the amount spent by Annaji, the father of the defendants, in completing the building The defendants said that the amount was Rs. 730, and they relied upon Annaji's will and a memo of expenses prepared by Annaji which showed that Annaji had .spent that amount. It does not appear that any objection was taken in the trial Court to the admission of the will and the memo as evidence. The trial Judge held that the memo was a useless piece of evidence. There was nothing to support the version of the defendants that Rs. 730 were spent on the plaint house save the mention made in the will, and apparently the trial Judge did not rely upon the statement in the will. '
4. In appeal again it does not seem to have been argued that the will and the memo were inadmissible in evidence. The learned Subordinate Judge said that Annaji's relationship with plaintiff and Annaji's willingness to complete the house at the request of the Panchas led him to say that Annaji would not name a bogus Bum in his will. The memo was carefully examined by him which showed that all the items except the two items of Rs. 38-8-0 and Rs. 27-8-0 were-spent 'on the repairs of the house, and after taking an account he came to the conclusion that the plaintiff was to pay Rs, 664 to the defendants.
5. It has now been urged before us in second appeal that neither the will nor the memo was admissible under Section 32 of the Indian Evidence Act, and it seems quite clear to us that that contention is a sound one, as the statement in Annaji's will that he had I spent Rs. 730 in effecting the repairs of the house is not a statement made against the pecuniary or proprietary interest of Annaji, nor can it be said that the memo, said to be made by him, . was made in the ordinary course of business. The Legislature has provided that statements made by deceased persons shall only be admissible in evidence when certain conditions are fulfilled. We are satisfied that neither the will nor the memo are admissible under Section 32 of the Indian Evidence Act. Bui; it has been argued that in second appeal we should not consider the admissibility of this evidence as no objection was taken to its admission in either of the lower Courts. At first sight that seems a reasonable proposition, as if pleaders in the lower Courts do not take objections to the admission of evidence, then the Judges in the lower Courts do sot consider whether it is admissible or not, and we do not have the advantage of their opinion on that question. But it has been laid down by the Privy Council in Miller v. Babu Madho Das (1896) L.R. 23 IndAp 116 that the erroneous omission before the lower Courts to object to the admission of evidence does not make that evidence relevant, at their Lordships in the appeal before them laid down that they must, as the High Court ought, to have done, entirely disregard that evidence. Following that a decision, we must in this appeal entirely regard the will and the memo. The result follows that they are not evidence, and that they cannot be relied upon to prove what Annaji spent on this house. In our opinion, therefore, the appeal must succeed and the decree of the trial Court restored. The defendants must pay the plaintiff's costs in this Court and in the lower appellate Court