Ernest Fletchre, J.
1. This is an appeal preferred by the defendants Nos. 4 to 8 against the decision of the learned District Judge of Midnapur, dated the 27th September 1917, affirming the decision of the Second Subordinate Judge of the same place. The suit was brought by one Srimati Tulsi Monjori Dasi, who is the wife of the second defendant, to recover, possession of certain property, or alternatively to recover the amount paid as the purchase-money at a sale in execution. The facts are perfectly simple. One Madhab Chandra Mondal held an under tenure under the defendants Nos. 4 to 8, the appellants before us. Madhab sold, his interest to the defendants Nos. 1 and 2. The defendant No. 2 and his co-sharer, the defendant No. 1, apparently failed to register their names in the landlords' sherista and two suits were brought by the co-sharer landlords for rent against Madhab. In execution of the decree obtained, the property was put up to sale and purchased by the plaintiff, the wife of the defendant No, 2. The learned Judge in the lower Appellate Court remarks that in the appeal before him none of the parties has attacked the finding of the Subordinate Judge that the sale at which the plaintiff purchased the under tenure was of no effect inasmuch as the judgment debtor, that is, Madhab, had no saleable interest in the property. The learned Judge then went on to consider the alternative case, namely, as to whether the plaintiff could recover back the money which she paid for, the purchase of the property at the sale in execution and he arrived at a conclusion which, I suppose, was satisfactory to himself, but which seems to me to he obviously wrong. What he says is this: That the plaintiff is the benamdar of the defendant No. 2 and that she is entitled to recover back the money. Of course, that cannot be accurate where the beneficial owner of the money is present before the Court. The Court might, by making the defendant No. 2 a co-plaintiff, order payment. But then one cannot get out of the equity that may subsist between the plaintiff and the defendant No. 2 by putting the money in the hands of the benamdar. The case does not stop there. The learned Judge does not say that on the evidence he finds that the plaintiff is the benamdar for her husband but he says that there cannot be much doubt. Of course that may or may not amount to a finding. But the evidence has been read to us and, as appears from the record, that is no evidence on which the learned Judge was entitled to say that this money did not belong to the plaintiff. The fact remains that no evidence was called on behalf of the appellants on this question and, in that view, the learned Judge having no evidence which he could believe was bound to give effect to what the presumption under the law was. The learned Judge's view on that part of the case cannot be supported.
2. The next point is that the evidence that has been given in this case is obviously un-satisfactory. A good portion of it would not be admissible under the provisions of the Indian evidence Act such as the statement that an old lady of the village was told by somebody else that Tulsi Monjori was a benamidar of her husband. A Base like this obviously ought to be decided on the best evidence available. I think we ought to give the parties a farther opportunity of providing what evidence there is proper and relevant for the purpose of establishing whether the plaintiff was or was not a benamdar in respect of the money with which the under-tenure was purchased on behalf of her husband, the defendant No. 2. The case will be remitted to the lower Appellate Court in order to have the appeal re heard on that matter without disturbing the other conclusions arrived at in the case. Both patties will be entitled to adduce any evidence which is relevant to that issue. The learned Judge of the lower Appellate Court may either himself record the evidence on that issue or may remit the case to the first Court for that purpose. Costs will abide the result of the re hearing in the lower Appellate Court.
3. The appeal will stand dismissed with costs as against the defendant No. 1.
4. I agree.