1. We think that this appeal is concluded by the findings of fact.
2. The plaintiff brought a suit for a declaration that the goods in the shop of his brother really belonged to him and, as such, were not liable to attachment and sale in execution of a decree obtained by a creditor of his brother.
3. The First Court dismissed the suit, but on appeal the learned Additional District Judge of Cawnpore has allowed it. It is really purely a question of fact whether the alleged sale by one brother to another was a real sale and not a sham transaction in order to defraud or delay the creditors. Now the learned Judge has noted some very suspicious circumstances in the case which would lead one ordinarily to infer that the transaction was not a genuine one, but, bearing all these circumstances in mind, he has come to a very definite conclusion that the sale was a perfectly valid transaction. What happened was this; one brother agreed to buy the property of his brother and to pay all his creditors six-annas in the rupee and did, as a matter of fact, pay them that amount with the exception of one of the creditors who refused to accept it. This was the defendant-respondent.
4. Objection is taken to the procedure adopted by the learned Judge in appeal. It appears that the trial Court refused to accept certain accounts which the plaintiff tendered in evidence while he was under examination on the ground that they had not been tendered at the proper time. The learned Judge held that these documents which had been tendered originally in the execution department ought, under the circumstances, to have been received in evidence by the trial Court and he decided in his discretion to admit them. He also admitted certain passbooks and so forth. He admitted these not with the object of assisting the plaintiff, but with the object of giving the defendants material, from which they could test the genuineness of the plaintiff's case, It seems to us that the appellate Court has a wide discretion in the matter as has been recently pointed out by the Privy Council, and in this ease we think that that discretion was rightly exercised. In our opinion there was nothing illegal in the procedure of the learned Judge. It is true that he did not record at the time when he admitted the additional evidence the reasons why he was admitting it but he did record those reasons very fully, in his judgment. We think this is a substantial compliance with the law which requires that the appellate Court, when admitting fresh documents, should give its reasons. In our opinion the appeal fails and is dismissed with costs including in this Court fees on the higher scale.