1. This is an appeal by the defendant in a suit for recovery of possession of land commenced against him by his father. The disputed property stands in the name of the appellant and the question in controversy was, whether he was the beneficial owner or whether it had been acquired by Ho father in his name. The Courts below have decided against the appellant and it is now contended that the decision of the Subordinate Judge is erroneous inasmuch as he has acted upon evidence inadmissible in law.
2. The defendant alleged that, although he was a boy, thirteen years old at the time when the property was acquired, the consideration was provided by his paternal grand-father. The plaintiff answered that his father died before the property had been acquired, and he produced a mortgage-bond which had been executed by him on the 28th October 1892 in which he is described as the son of Khan Mahomed Akonda, deceased. The Courts were thereupon required to consider, whether the mortgage bond was admisssible in evidence as against the appellant. The Subordinate Judge has held that it was admissible by virtue of Section 32, Clause (2) of the Indian Evidence Act, read with Section 21 Clause (1). The appellant has contended that this view cannot be supported. The respondent has not placed reliance upon Section 32, Clause (2), but has invoked the assistance of Section 32, Clause (5). We are of opinion that the statement made by the plaintiff in the mortgage-bond executed by him on the 28th October 1892, namely, that his father had died previously may be made admissible in more than one way.
3. It is clear that Section 159 might have been utilized for the purpose. The plaintiff went into the witness-box and stated that his father died in 1892. At a subsequent stage, when he was asked whether his father had died before the disputed property was acquired, he answered that he did not remember. He might then have been permitted to refresh his memory by reference to the mortgage-deed. This, however, was not done for the obvious reason that no exception was taken to the reception of the mortgage-bond in evidence. We may here point out that, although, as ruled by the Judicial Committee in Miller, Official Assignee of the Estate of Ramkishen Das v. Babu Madho Das 23 I.A. 106 : 19 A. 76 : 7 Sar. P.C.J. 73 : 9 Ind. Dec. (N.S.) 50 (P.C.), an erroneous omission in the Trial Court to object to an admission which was irrelevant did not make it relevant and admissible in evidence; still, as explained in Girindra Chandra Ganguli v. Rajendra Nath Chatterjee 1 C.W.N. 530, an objection that a document, which per se is not admissible in evidence, has been improperly admitted in evidence, cannot be entertained in the Court of Appeal, when, if the objection had been taken in the Trial Court it might have been met and the proceeding regularised.
4. Apart from Section 159, we are of opinion that the document might have been made admissible under Section 21, Clause (3), read with Section 11, Clause (2) of the Indian Evidence Act. Section 21, Clause (3), provides that an admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an admission, Section 11, Clause (2), provides that facts not otherwise relevant are relevant if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The question in issue was whether the father of the plaintiff had died in 1892. The existence of the fact in issue was made highly probable by the fact that the plaintiff had made an assertion to that effect immediately after his alleged death in 1892 when there was no controversy on the subject. In such circumstances, the document may be admissible, as was ruled in Gyannessa v. Mobarakannessa 25 C. 210 : 2 C.W.N. 91 : 13 Ind. Dec. (N.S.) 142.
5. Finally, the respondent has relied upon Section 32, Clause (5), which, read with Illustrations (b) and (e), points to the same conclusion. That section as interpreted by the Judicial Committee in the case of Mahomed Syedool Ariffin v. Yeoh Ooi Gark 39 Ind. Cas. 401 : 21 C.W.N. 257 : (1917) M.W.N. 162 : 19 Bom. L.R. 157 : (1916) 2 A.C. 575 : 86 L.J.P.C. 15 : 115 L.T. 564 : 32 T.L.R. 678 : 43 I.A. 356 (P.C.) clearly admits of use against the appellant.
6. Whichever of these views is taken, is plain that the document is admissible in evidence. It is consequently needless for us to consider whether the conclusion of the Subordinate Judge was in fact based on the admission by the plaintiff.
7. The result is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with costs.