S. Barman, J.
1. Defendants 2, 5, 6 and 7 being purchasers from the original defendant No. 1 Hara Dei are appellants. The suit out of which this appeal arises was filed by plaintiffs Jadi Bewa and Bhalu Dei for partition and recovery of possession from defendants of the plaintiffs respective 1/3rd share each in the circumstances hereinafter stated.
2. One Bhikari Malik was the original owner of the suit property. He is said to have died 25 or 26 years ago leaving him surviving three daughters, namely plaintiffs Jadi Bewa, Bhalu Dei and defendant No. 1 Hara Dei. The plaintiffs' case is that during Bhikari's lifetime he got all his three daughters married. After Bhikari's death the three daughters are said to have divided the movables but not the immovables. The plaintiffs had been married at a place distant from the village while defendant No. 1 Hara Dei who was married near their village enjoyed the immovable properties. It is said that taking advantage of this position defendant No. 1 Hara Dei transferred to defendants 2 to 11 the properties by different sale-deed. On May 1, 1958 the plaintiffs filed the suit for partition.
3. The defence to the plaintiffs' suit for partition is this: Bhikari died 30 years ago, that is about 1930 by when the two plaintiffs only were married, at the time of Bhikari's death defendant No. 1 Hara Dei was unmarried. She as such unmarried daughter inherited the entire properties of her deceased father. Alternatively, it was pleaded in defence that defendant No. 1 Hara Dei and her alienees being in adverse possession for more than 12 years acquired title. During the pendency of the suit original defendant No. 1 Hara Dei died leaving her surviving her children including minors who were all substituted and made parties in the suit.
4. The trial Court dismissed the plaintiffs suit on the finding that the original defendant No. 1 Hara Dei was unmarried at the time of death of her father Bhikari and as such inherited his properties: that since the death of Bhikari, his daughter Hara Dei and her alienee have been in respective possession of the suit properties adversely. In appeal the learned lower appellate Court reverted the decision of the trial Court and decreed the suit in favour of the plaintiffs on the finding that the defendant Hara Dei was married during the life time of Bhikari: that the possession of Hara Dei and her alienees is not adverse as alleged. Hence this Second Appeal.
5. If Bhikari had died leaving Hara Dei as unmarried daughter, she would under the law exclude the plaintiffs from inheriting her father's properties. After Hara Dei's death the plaintiffs cannot get back the properties sold by Hara Dei unless the sales by Hara Dei were bad for want of legal necessity.
6. The main question therefore : Was defendant Hara Dei unmarried at the time of death of her father Bhikari Malik According to the written statement filed by defendant Hara Dei she was not married until 1940 while her father Bhikari had died long ago in about 1930. In the sale-deed Ex. B executed by Hara Dei, elated June 6, 1940 she is described as daughter of Bhikari. The sale-deed was executed in favour of plaintiff No. 1's husband. On the same date there was another sale-deed by Hara Dei Ex 1 where also Hara Dei is described as daughter of Bhikari. The significance of these two documents lies in the fact that apart from the description of Hara Dei as daughter of Bhikari in as late as 1940, Hara Dei was selling the properties to repay the debt of her father: unless she as unmarried daughter was sole heir there is no reason why she alone would sell the properties. It is further significant that under the sale-deed Ex. B plaintiff No. 1's husband was the purchaser of the properties. Presumably, therefore, the said sale was to the knowledge of plaintiff No. 1. Exs. A and B show that Kara was still unmarried in June 1940.
7. The sale-deed Ex. B, dated June 6, 1940 was proved by defendant No. 6 as D. W, 6. The learned lower appellate Court discarded Ex. B as according to him this document has not been properly proved for neither the scribe nor the identifier has been examined to prove the certified copy of the document. It, however, appears from record that the document was admitted as an exhibit without objection. The learned lower appellate Court made an error in law in so discarding the document. It is settled law as decided by their Lordships of the Privy Council that where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record: a party cannot lie by until the case comes before a Court of appeal and then complin for the first time of the mode of proof.
This the proper time to object to the admissibility of evidence is at the trial when the evidence is tendered and it is then that the Court should rule as to the admissibility or inadmissibility of the evidence: hence where a document is once admitted in evidence without any objection by a party in the first Court the party is precluded from objecting to the admissibility of the document in appeal: Gopal Das v. Sri Thakurji, AIR 1943 PC 83: Bindeshwari Singh v. Ramraj Singh, AIR 1939 All 61.
8. Then the sale-deed executed by Hara Dei on September 3, 1940, Ex. C recites that she executed the document as wife of Nalu Das. In the said document it is also recited that Hara Dei was given in marriage by her maternal uncle. In the document it is stated by Hara Dei that to repay the loan incurred by her maternal uncle for her marriage the said sale was effected This document is by itself conclusive that Hara Dei was given in marriage by her maternal uncle. It is not the case of the plaintiffs that Hara Dei was given in marriage by her maternal uncle during the lifetime of her father. In fact there is no reason why the maternal uncle would give Hara Dei in marriage if in fact her father Bhikari was alive. It is thus clear that Hara Dei was married between June 6, 1040 when sale-deeds Exs. A and B were executed by her describing herself as daughter of Bhikari and September 3, 1940 when she executed the sale-deed Ex. C describing herself as wife of Nalu Das
9. Thus Exs. A, B and C are conclusive proof of the fact that Hara Dei was unmarried at the time of her father's death. The decision of the learned lower appellate Court is based on wrong inference drawn by him from these material documents. Apparently he did not correctly construe the documents nor did he appreciate the implications of the recitals contained thereto.
10. Furthermore, the learned lower appellate Court did not at all consider another sale-deed, dated September 22, 1943, Ex. D executed by Hara Dei where it is recited that she is the only heir of Bhikari. This document was executed three years after her marriage in 1940. In the document she is described as wife of Nalu Das. Non-consideration of such a material document was rightly commented on behalf of the defendants appellants.
11. Considering all the aspects by reference to the material documents, I am of opinion that defendant Hara Dei was unmarried at the time of death of her father Bhikari.
12. Then arises the question of legal necessity for the sales by defendant Hara Dei. There was no issue on legal necessity. Ordinarily the Court cannot grant relief to the plaintiff in a case where there is no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. This is a simple suit for partition in which the question of legal necessity was not raised. Hence arises the necessity for remand, amendment of the plaint, payment of requisite Court-fee, consequential filing of additional written statement and taking of such other necessary steps as the trial Court may direct according to law.
13. While making the order of remand, I must make it clear about the finding that I have arrived in this appeal, namely that defendant Hara Dei was unmarried at the time of her father's death and the decision of the learned lower appellate Court on this point is accordingly set aside. With this finding I make an order for remand of the case to the trial Court in these terms. The question of legal necessity for the sales by Hara Dei will be decided by the trial Court. The plaintiffs will have liberty to amend the plaint and pay such additional Court-fee for the reliefs they may pray for according to law. The defendants may file additional written statements after the plaint is amended and additional Court-fee paid by the plaintiffs. The parties will have liberty to adduce fresh evidence on the question of legal necessity as they may be advised. The trial Court is directed to hear and decide the question of legal necessity and dispose of the entire suit all according to law.
14. In the result, therefore, the decision of the Court below is set aside and the case is directed to be sent back on remand to the trial Court for decision and disposal in terms aforesaid according to law. Costs of this appeal will abide the result of the suit after remand.