1. Appellant in this case takes the preliminary ground that the judgment cannot be supported in view of the provisions of Section 165 of the Indian Evidence Act.
2. The suit was brought under Section 77 of the Registration Act to enforce registration of a will which both the Sub-Registrar and District-Registrar had declined to register. The Subordinate Judge says (paragraph 4 of his judgment)...'The parties filed the evidence adduced before the registering authorities as evidence in this case by mutual consent. None of them wanted any further evidence to be adduced in this Court. They were content to argue the case on the evidence adduced before the registering authorities.'
3. The evidence in question on a consideration of which the case was decided included the statements of 9 witnesses for plaintiff and 8 witnesses for defendant recorded by the Sub-Registrar. These statements could duly become relevant evidence in the present case, if the conditions prescribed by Section 33 of the Indian Evidence Act were found by the Subordinate Judge to exist. There is nothing even to suggest and it cannot be contended, that the Subordinate Judge applied his mind to the question decided (for instance) that the presence of the witnesses could not be obtained without unreasonable delay and expense; his judgment shows that he proceeded solely on the ground of the consent of parties. That is to say, the statements recorded by the Sub-Registrar were not relevant under Section 33 of the Indian Evidence Act; and the learned vakil for respondent is unable to suggest any other section under which they would be relevant. But Section 165 of the Indian Evidence Act lays down that the judgment must be based upon facts declared by this Act to be relevant and duly proved; and the consent of parties cannot take the place of a declaration of the Evidence Act.
4. Our attention has been drawn to a decision of this court m Sri Rajah Prakakasarmyanim Varu v. V. Venkata Row I.L.R. (1912) M. 160 in which it might appear that the consent of parties was held to be sufficient. But the attention of the learned Judges does not seem to have been drawn to the stringent provisions of Section 165 of the Indian Evidence Act above quoted; and with all respect, we think we are justified in declining to follow their decision.
5. We must therefore set aside the decree and judgment of the Lower Court and direct that the suit be restored to file and disposed of according to law.
6. In view of the fact that appellant has raised this plea after consenting to the course adopted by the Subordinate Judge, we direct him to bear his own costs in this Court. Respondents' costs in this Court will be costs in the cause as well, as all costs hitherto incurred by both sides in the lower Court.