1. The plaintiff and the 1st defendant are the widows of one Janakiramiah who died on the 6th of October 1919 at his village Pandithavalloor leaving property of considerable value. The plaintiff claims a partition of the property and delivery to her of a moiety thereof. The 1st defendant resists the suit on the ground that the late Janakiramiah left a Will, and the question to be decided in this suit is whether the document put forward was the last Will of the deceased. The learned Subordinate Judge has come to the conclusion that it was not executed by Janakiramiah and that it was brought into existence by the 1st defendant and others some time subsequent to his death. We have carefully gone into the evidence, and we are satisfied that Janakiramiah did not make the Will in question and that the 1st defendant is bound to fail.
2. The learned Vakil for the appellant commented on the judgment and suggested that it did not show that the Subordinate Judge applied his mind to the evidence before recording his finding. The judgment, no doubt is far from satisfactory, but on the evidence, and on the probabilities we, are clearly, of the opinion that, the 1st defendant has signally f ailed to make her case.
3. [After Discussing the evidence, their Lordships proceeded.]
4. There is one further matter which requires notice, Ex. VI is the depositor of the plaintiffs father in the enquiry held by the Sub-Registrar jn connection with the registering of the Will in question. That deposition was filed in the lower Court, on behalf of the defendant? and apparently without objection on the part of the plaintiff. Mr. A. Krishnaswami Iyer, the learned Vakil for the appellant, urged that he could rely upon this deposition and citify Jainab Bibi Sahiba v. Hyderally Sahib 86 Ind. Cas. 957 : 43 M. 609 : 88 M.L.J. 532 : 28 M.L.T. 28; (1920) M.W.N. 360 : 12 L.W. 64 (F.B.) in support of this contention. The argument is utterly untenable. Under Section 33 of the Indian Evidence Act, the evidence given by a witness in a former proceeding is admissible in a later proceeding if certain conditions prescribed by it are found to exist; and it was held in the case above cited that the person against whom the evidence is Sought to be used may waive the benefit of the provisions which are intended for his security and that the strict requirements of the section may be departed from by consent pf the parties. We fail to see how this case, can be of any use to the appellants. 'They do not seek to make the evidence given by the plaintiff's father in the previous proceeding substantive evidence in the case, indeed they do not desire to rely upon that deposition at all as on very essential points it is bund to be against them. But it is relied upon for the purpose of contradicting the plaintiff's statements in her deposition in the present case. Under Section 145 of the Jndiari Evidence Act the credit of a witness may be impeached by proof of his former incpnsistent statements, and before a witness can be so impeached he must be given an opportunity of making any explanation which is open to him. To hold that a witness may be contradicted by previous inconsistent statements not of himself but of a third party would be against principle and opposed to this section.
5. Next, Mr. Krishnaswamy Iyer argued that Ex. VI would be admissible under Section 11 of the Evidence Act. This section, in our opinion, is clearly inapplicable and the cases cited by him namely G. Yannessa v. Mobara Kannessa 25 C. 210 ; a C.W.N. 91 : 18 Ind. Dec. 142 and Nara Vinayak Patvardhan v. Narahari Bin Raggunalh 16 B. 125 : 8 Ind Dec. 559 do not seem to be any authority on the point.
6. It would appear that item 9 of Schedule A was alienated in the lifetime of Janakiramiah and it is excluded from partition by consent.
7. The extent of item 1 of B Schedule is not admitted by the appellant. But as the identity of the property is not disputed it is unnecessary to decide the extent of the land. We accept the Sub-Judge's finding as to the rate of mesne profits.
8. In the result, the appeal fails and is dismissed with costs.