1. This is a second appeal by a plaintiff against a decree of the lower appellate Court holding that the decree of the Court of first instance so far as defendants 2 to 4 are concerned should be set aside, but the decree was maintained as against defendant 1. The plaintiff sued on three simple money bonds executed by defendant 1 in favour of the plaintiff. The plaint set out that after the execution of these simple money bonds defendant 1 made a gift of his entire property to defendant 2 in order to avoid payment of the amount due on the bonds and later defendant 2 made a gift of it to defendants 3 and 4. Therefore the plain. tiff sued defendants 2 to 4 on the bonds. The suit of plaintiff against defendants 2 to 4. was brought under the provisions of Section 128, T.P. Act, on the allegation that fchese defendants were universal donees of the property of defendant 1. The Court of first instance decreed the suit of the plaintiff in full against all the defendants. Defendants 2 and 3 appealed and the defendant 3 died and defendant 2 was entered as the legal representative of defendant 3. During the pendency of the appeal on 16th June 1930, an application was made to the lower appellate Court for the admission of a certain document. This document was an agreement by the donee defendant 2, to pay to the donor defendant 1, Rs. 5-p.m. per mensem during his lifetime. The agreement was executed on the same date as the deed of gift was executed defendant to defendant 2. The case for defendants which was put no before the lower appellate Court was that this document was a consideration for the alleged deed of gift and therefore that the deed of gift was really not a deed of gift at all, but was a transfer for consideration. The lower appellate Court passed an order on this application stating: I think however that the documents must be admitted in the interest of justice.' I consider that the lower appellate Court meant to say that the document was required 'to enable it to pronounce judgment' and therefore it acted under Order 41, Rule 27(1)(b). Learned Counsel referred to a ruling of their Lordships of the Privy Council reported in Parsotim Thakur v. Lal Mohan Thakur 1931 P.C. 143. In that ruling it was laid down on p. 514 in reference to Order 41, Rule 27:
Under (1)(b) it is only where the appellate Court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before) the appeal is heard a party pleases to adduce fresh evidence, but that on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
2. I consider that the present case comes within the dictum of their Lordships as laid down in this ruling and that the lower Court acted within the provisions of Order 41, Rule 27(1)(b). The next point which was argued was that this Court should consider whether the two documents executed on the same day the deed of transfer and the agreement to pay maintenance, are connected so that one is a consideration for the other. It appears to me that this question is not one of interpretation of these documents. There is no clause in the document to which learned Counsel desires to refer and which he suggests that the lower Court has improperly interpreted. The connexion between the two documents was ascertained by the lower Courts on evidence other than the documents themselves. I consider therefore that the finding of the lower appellate Court on this point is a finding of fact and that that finding of fact cannot be challenged in this Court in second appeal. The next ground of second appeal which was argued was No. 7 of the memorandum to the effect that the appellant was entitled to challenge the deed of gift on the ground of its being fraudulent and that the Court below erred in holding otherwise. The lower appellate Court framed an issue as follows:
Was the deed of gift in favour of Shyam Sunder Singh executed by Pahalwan Singh to defraud the plaintiff-respondent?
3. This issue was referred to the Court of first instance which returned a finding against the plaintiff. The lower appellate Court considered that this issue did not arise in the case and therefore it came to no decision on the point. The plaint does state in para. 4 that defendant 1 made a gift of the entire property to defendant A in order to evade payment of the amount due on the three simple money bonds. But if the plaintiff had desired to bring a case under the provisions of Section 53, T.P., Act, he should have asked for the relief of a declaration that the transfer in question was one which was void as regards him because he was defrauded, defeated or delayed. He did not sue for any such remedy. On the contrary he only asked for the relief that a decree for the amount due on the simple money bonds should be passed (against all the defendants. As the plaintiff treated the transfer as a valid transfer the lower appellate Court considered that lit would be improper to frame an issue under Section 53, T. P. Act, and therefore as no such issue arose on the pleadings it was not necessary for the lower appellate Court to give a decision on the point. I consider that that attitude of the lower appellate Court is correct.
4. No ground has been shown for interference in second appeal. This appeal is therefore dismissed with costs. On behalf of the respondents a cross objection has been taken to the part of the decree of the lower appellate Court which states that the defendant-appellant before that Court, defendant 2, should obtain costs incurred after 16th June 1930, and should pay costs to the plaintiff up to 16th June 1930 in both Courts as was ordered by the lower appellate Court when the additional evidence was admitted. This order is based on the ground that the defendant should have produced the agreement at an earlier date and because the defendant had been negligent on that point the lower appellate Court penalised the defendant in regard to costs. I see no reason for interference with this order. Accordingly the cross-objection is dismissed with costs. Leave is granted for a Letters Patent appeal.