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TMI Blog1949 (1) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 deliberatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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