1. The plaintiff sued on a lost pronote which he said had been executed in his favour by the two defendants in June-July 1923. Defendant 2 is the mother of defendant 1. The parties are related in the following way: The plaintiff's wife is the daughter of a sister of defendant 2. Defendant 1 contested the suit. His mother, defendant 2, remained ex parte. Originally a decree was passed against both defendants ex parte on 22nd May 1929, but the suit was restored to file on 8th June 1929 on the application of defendant 1. Then plaintiff died and steps not having been taken to bring his legal representative on record the suit abated and was dismissed on 10th August 1929. On 26th October 1929 it was restored to file and plaintiff 2 added as the legal representative of plaintiff 1.
2. Defendant 1 admitted the execution of the pronote, the amount of which, according to both parties was Rs. 100, but he said that only Bs. 80 was received, the other Rs. 20 being credited as a payment on the note on the day after its execution. Of the money, whether Rs. 100 or Bs. 80 actually advanced, both sides agree that there was a repayment of Rs. 35 in July 1924. The plaintiff's case was that the only other payment was one of Rs. 15 'in May 1926 or thereabouts' (vide plaint) and it is on this that he must rely to save limitation (the plaint being presented on 23rd January 1929.) Defendant l's case is that he paid Rs. 50 about the end of September 1924 which payment was endorsed on the pronote; that there was still an amount of Rs. 10 due on the note which plaintiff refused to remit and that be (defendant l) went away to the Isles a year afterwards. He was not in India at the time of the alleged payment of Rs. 15. Plaintiff's wife, he says, ran away from plaintiff and there were ill-feelings between plaintiff and himself in connexion with this matter, and hence this suit, which is barred by limitation, has been vexatiously brought. The lower Court says:
The points for determination are (1) is the loss of the promissory note true? (2) Is the discharge pleaded by defendant 1 true
3. The Court found both issues in plaintiff's favour and granted him a decree. This Civil Eevision Petition is filed against the decree. With regard to issue 1 the finding rests on no evidence at all. The plaintiff's case had been in the plaint that when his wife ran away she took the pronote with her, and he appears to have given evidence to this effoot in the ex parte trial, the decree in which was subsequently set aside. In the present trial plaintiff l's father-in- law, P.W. 2, was put into the box, evidently to support this story of theft or loss, but he failed miserably, for having made a statement-in-chief that his daughter ran away with the pronote executed by defendant 1, he stated in cross-examination that he did not personally know of his daughter running away, and his information that she took the suit pronote was only derived from plaintiff 1. His account of some alleged complaint to the police by the plaintiff is utterly useless, for he says that plaintiff 1 did not complain against anyone in particular, and that the plaint was to the Mannargudi Police, while D.W. 2, the Village Munsif, says the village is in the jurisdiction of the Nidamangalam Police and he was not challenged on this point. No copy of the complaint is produced and the police admittedly made no inquiries. I have had to detail these facts at some length to show that there is not a scrap of evidence adduced at this trial to show the pronote was lost. The learned District Munsif has arrived at his finding on this point in a most extraordinary way. He starts by saying, quite rightly, that the evidence of plaintiff 1 recorded in the previous trial.
ought not to be used against the defendants as the defendants had no opportunity of cross-examining the plaintiff when the statement was made.
4. As there is absolutely no other evidence except his, one would have thought that this would at once settle the first question against the plaintiff. But the learned District Munsif goes on:
But still there is the fact that he has sworn to the fact that the pronote was lost ten months before that by his wife having taken it away.
5. If the evidence itself is not relevant how can the fact that the plaintiff gave it make it any more relevant? He proceeds then to say that P.W. 2 says that his son-in-law complained to him that his wife had taken away the note and that a complaint was filed to the police. What plaintiff told P.W. 2 is hearsay and therefore not evidence. P.W. 2 expressly denies personal knowledge of theft or loss. As to the complaint, P.W. 2 says it was not against anyone in particular and he does not even allege that the complaint stated that plaintiff's wife ran away with any pronote let alone the one executed by the defendant. The learned District Munsif, after noting several of the deficiencies in the evidence of P. W. 2 about this complaint to the police, and acknowledging that the burden of proof of the loss of the note is on the plaintiff, goes completely back on his correct view expressed earlier that the evidence of plaintiff 1 in the former trial is not admissible, and says that since plaintiff 1 'who had the best knowledge of the matter' did so depose and 'his evidence has to be accepted with some caution and care.' He then goes on to say that as the defendants have admitted the execution of the note the loss is not very material except with reference to the endorsement, which matter will be considered under the second point. In the circumstances I have to take it that the loss bas been sufficiently proved.
6. Now whatever may be the effect of the admission of the execution of the pronote by the defendants, (a point with which I shall deal later), it passes comprehension how an admission by the defendants, that it was executed by them, is an admission that it was loat by the plaintiff. The learned pleader for the respondent admits as ho must, that there is absolutely no evidence for loss except the evidence of plaintiff 1 in the first trial, so he has made a desperate attempt to show that this evidence is admissible. He has not been able to quote a single case where a deposition on which there was no opportunity at all to cross-examine has been held to be admissible under Section 33, Evidence Act. If authority were needed for the obvious proposition that it is not admissible, the Privy Council decision in Dal Bahadur v. Bijai Bahadur , may be quoted. The only case he can quote is Maharaja of Kolhapur v. Sundaram Ayyar : AIR1925Mad497 in which a witness died after being partly cross-examined. It is hardly necessary to canvass the correctness or otherwise of this decision. The evidence of the witness was not in the end accepted. Of the Indian Law Eeports there quoted, Man Govinda v. Shashindia Chandra (1908) 35 Cal 28 and Dhanu Bam v. Murli Mahto (1909) 36 Cal 566, do not appear to me to be relevant as they deal with quite another matter, the formal filing of evidence taken on commission. The other case then quoted, Rosei v. Pillamma (1910) 11 CrLJ 145, lends but slender support to the doctrine. It was there contended that in the case of a witness dying after being partly cross-examined the evidence was altogether inadmissible. Their Lordships say:
Without going so far as to hold that it is altogether inadmissible for any purpose because the cross-examination was not completed, we think it is clear that the principle underlying Section 33, Evidence Act, points to the conclusion that such evidence should not ordinarily be acted upon,
and in fact they did not act on it. There is on the other hand a ruling of the Allahabad High Court (Narasingh Das v. Gokul Chand : AIR1928All140 , that if a witness dies before cross-examination is complete, no part of his evidence can be made use of. As I said above there is not the shadow of an authority that where there has been no opportunity at all to cross-examine, even in part, such evidence would be admissible. The only possible finding therefore on the first question is that the loss was not proved. That being so the petitioner's learned advocate contends that the suit is not maintainable at all. For this he has the direct authority of Barn Saran Das v. Tulsi Bam A I B 1932 Lah 417. That was a very strong case, for the secondary evidence sought to be adduoed was of a photograph of the original note and of the photographer who took it. The execution of the pronote was also admitted by the defendants, yet it was held that the suit could not be maintained and that secondary evidence of the contents of the note was inadmissible. For the respondents is quoted Bahimathulla Sahib v. Kamaraja Pandiya (1930) MWN 417. But it will be seen that in that case the suit was dismissed on the evidence, and that the question of the maintainability of the suit was expressly left undecided as unnecessary. To treat the admission of defendant 1 that he and defendant 2 executed the pro-note, but to divorce it from his statement that the note was discharged except for Rs. 10 that this payment was endorsed and that the suit was time-barred would appear to contravene the principle laid down by the Privy Council in Motabhoy Mulla Essabhoy v. Mulji Haridas AIR 1915 PC 2, (of 39 Bom) where their Lordships say:
It is permissible for a tribunal to accept part land reject the rest of any witness's testimony. [But an admission in pleading cannot be so dissected and if it is made subject to a condition it must either be accepted subject to the condition 'or not accepted at all.
7. The defendants here do not admit that the lost pronote was the pronote as it is described to have been at the time of its loss by the plaintiff. The othar rulings quoted for the respondent on this point are irrelevant. Following the Lahore ruling quoted above, I must hold that the suit was not maintainable because no proof was adduced of the loss of the promote. The petition must be allowed with costs and the suit dismissed with costs. I must add that to my mind the judgment is confused and, what is much worse, perverse to an extraordinary degree.