Raghava Rao, J.
1. The subject-matter of the suit out of which this second appeal arises is a tiled house and site sought to be recovered by the plaintiff (the appellant before me) on the basis of a sale deed in favour of his father executed by one Suranna, the original owner, on 30th August, 1924. The defendants-respondents resisted the action on the ground of a sale deed in their favour by the decree-holder auction purchaser in a suit instituted by a creditor of Suranna, who had obtained an attachment before judgment of the property in question on the very date of Suranna's sale deed in favour of the plaintiff's father. The main issue for trial in the present suit was whether the sale deed in favour of the plaintiff was nominally executed in fraud of the. creditors of Suranna, as alleged by the defendants. The trial Court and the lower appellate Court both having held against the plaintiff on this issue, he has preferred this second appeal in which having heard arguments on 18th January, 1949, I reserved judgment. I have since considered the matter over again in order to satisfy myself whether I can give effect to the contentions of the learned advocate for the appellant. Mr. Bhimasankaram contended firstly that due weight was not given by the learned Subordinate Judge to the rule of onus probandi applicable to the case, and secondly that Ex. D-18 (b), the affidavit of a living person not called into the box, ought not to have been accepted and. acted upon.
2. As regards the first contention I have no hesitation in repelling it. The learned Subordinate Judge is, in my opinion, right in holding that the burden of proof, if it lay on the defendants, according to the decision of the Privy Council reported in Mina Kumari Bibi v. Bijoy Singh Dhudhuria (1916) 32 M.L.J. 425 : L.R. 44 IndAp 72 : I.L.R. 44 Cal. 662., ceased to be a matter of any particular importance after adduction of evidence of both sides, as ruled by the Privy Council in the case reported in Mohamed Aslam Khan v. Khan Sahib Mian Feroz Shah (1932) 63 M.L.J. 694 : L.R. 59 IndAp 386 : I.L.R. 13 Lah. 687 (P.C.). The learned Subordinate Judge was entitled to accept the case of the defendants as proved, not merely on the positive evidence adduced by them but also on the discrepancies and lacuna in the evidence on the side of the plaintiff adverted to in paragraphs 4, 5, 9 and 10 of the appellate judgment. Dealing with a case in which the question for consideration was whether the onus under Section 118 of the Indian Negotiable Instruments Act was discharged by the defendant in that case, Varadachariar, J., makes the following observations in the decision reported in Marayana Rao v. Venkatappayya : (1937)1MLJ543 , with which I respectfully agree:
It has to be borne in mind that when evidence has been adduced on both sides, the question of onus is a material or deciding factor only in exceptional circumstances (cf. Yellappa Ramappa Naick v. Tippanna (1928) 56 M.L.J. 287 : L.R. 56 IndAp 13 : I.L.R. 53 Bom. 213 (P.C.) and that even the onus under Section 118, Negotiable Instruments Act, need not always be discharged by direct evidence adduced by the defendant: Mohamed Shariff Khan v. Muhamad Moozzum Alikhan (1922) 79 I.C. 464. Singer Kunwar v. Basdeo Prasad (1930) 124 I.C 717 and Bishambar Das v. Ismail A.I.R. 1933 Lah. 1029.. Not merely can the Court base its conclusion on the effect of the evidence taken as a whole but it may also draw adverse inference against a party who being in a position to adduce better evidence deliberately obtains from doing so; Murugesa Pillai v. Gnana Sambanda Pandarasannadhi (1917) 32 M.L.J. 369 : L.R. 44 IndAp 117 : I.L.R. 40 Mad. 402 (P.C.) Gurusami Nadar v. Gopalasami Odayar : (1919)36MLJ568 and Raghavendrarao v. Venkatasami Naicken (1929) 30 L.W. 966.
The second of Mr. Bhimasankaram's contentions, is, however, in my judgment at any rate to a certain extent correct. Ordinarily, the evidence of any person must be given orally in open Court in the presence and under the personal direction and superintendence of the Judge under Order 18, Rule 4 of the Civil Procedure Code except in cases of examination by interrogatories under Order 11, Civil Procedure Code or on commission under Order 26, Civil Procedure Code. Affidavit evidence is not permitted except (a) where there is an agreement between parties that evidence may be taken by affidavit, Warner v. Mooses (1880) 16 Ch. 100., Marayana v. Lakshmayya : AIR1939Mad927 . or (b) where under Order 19 Rule 1,Civil Procedure Code, there is an order of Court that particular facts may be proved by an affidavit, or that the affidavit of any witness may be read at the hearing. Section 1 of the Indian Evidence Act no doubt says that the Act is not applicable to the affidavits presented to Courts, but that does not mean that any affidavit of any person can go in as evidence proprio vigore without necessity for him to enter the witness box. The only basis, therefore, on which Ex. D-18 (b) can be acted upon as admissible evidence is that it should be capable of being regarded as a statement in writing complying with the conditions prescribed by Section 32 of the Evidence Act. In fact, the matter contained in Ex. D-18 (b) is not of the relevant kind falling within any of the clauses of Section 32; nor is there any proof of circumstances such as would render it admissible. It may be that an objection as to admissibility is susceptible of waiver but not so an objection as to relevancy. Even if Ex. D-18 (b) went in without any demur at the trial the question of the relevancy of its contents, according to the requirements of Section 32 of the Evidence Act, would still be a matter open to consideration here. Judged by such requirements, Ex. D-18 (b) ought to have been ruled out of consideration by the lower appellate Court.
3. The question involved in the case--whether the sale of the original owner in favour of the plaintiff's father was real and operative or nominal and fraudulent--is however in root analysis a. question of fact, on which the Courts below concurred in their conclusion against the plaintiff. I am not satisfied that their conclusion is so far vitiated by material error as to merit reversal or re-consideration.
4. The second appeal is accordingly dismissed with costs.
5. The appellant will have to pay the court-fee on the memorandum of second appeal. No leave.