Seshagiri Aiyar, J - (1.)In this case, a subsidiary question, out of all proportion to the point involved in the Civil Miscellaneous Appeal has arisen for decision. The suit out of which the Civil Miscellaneous Second Appeal has arisen was brought by Vishnu the then head of a mutt to evict a tenant. The amount of compensation payable to the tenant on eviction was the subject matter of the appeal. Vishnu died after he preferred the appeal. Rival claimants to the headship of the mutt which possesses extensive properties have presented petitions to this Court to be added as legal representatives of the deceased plaintiff. These petitions were referred to the District Judge for report. It has been pointed out to us that a report or a finding of the District Judge is not contemplated by Order XXII, Rule 5 of the Code of Civil Procedure. There is force in this contention. The rule requires the Court to which the petitions are presented to decide the question. Although it is anomalous that we should exercise the functions of a Trial Judge on a matter of this description, the language of the rule gives us no option in the matter. At the same time, it is clear that the Code does not compel us to record evidence ourselves. Under Section 107, Clause (1) (d), it is open to us to direct the lower Court to take evidence and to submit the same to us The learned Vakils who appeared on both sides agreed that the evidence taken by the learned District Judge might be acted upon in this light. I shall, therefore, proceed to give my decision on that evidence, without taking into account the findings of fact at which the learned Judge has arrived.
(2.)Before proceeding further, I shall dispose of the objections taken to the admissibility of evidence recorded by the District Judge, and to the reception of documents tendered in this Court. As regards the latter, Mr. Rangachariar sought to put in a certified copy of what purports to be a judgment of a District Munsif in support of his contention that a sanyasin ordained by a junior swami can attain the headship of the mutt in dispute. No affidavit has been filed before us to explain why the copy was not tendered earlier, whether the judgment was set aside on appeal, and whether any reasonable attempt was made to procure it earlier. Even in this Court, no notice of an application to file it in evidence was given to the other side. The copy of the judgment is in Malayalam and no translation was appended to it. We have no hesitation in rejecting this document.
(3.)Both Mr. Rangachariar and Mr. Ramachandra Aiyar relied on portions of the answers obtained to interrogations served in the case. They are apparently admissible as against the party answering them under Order XI, Rule 22. The answers are given on oath (vide Appendix C, form III of the Code of Civil Procedure). Although great caution should be exercised in using them as evidence, as pointed out by the Master of the Rolls in Nash v. Layton (1911) 2 Ch. 71 ; 80 L.J. Ch. 636 ; 104 L.T. 834, they are clearly admissible under the Code. As regards the answers to interrogatories in Original Suit No. 14 of 1901, on the file of the Court of the Subordinate Judge of Palghat it was doubted in Queen-Empress v. Ramchandra Govind Harshe 19 B. 749 ; 10 Ind. Dec. (N.S.) 502 whether under Section 33 of the Evidence Act, the fact that cross-interrogatories were administered would satisfy the requirement that the opposite party "had the right and opportunity to cross-examine." We think it safe to admit these interrogatories also in evidence. But these answers are open to the objection that they are not ante litem motam. In Original Suit No. 14 of 1901, on the file of the Court of the Subordinate Judge of Palghat the question whether a junior can ordain was one of the facts in issue. That is also the question in this suit. The answers elicited show that while all the heads of the mutt who were interrogated were against any ordination by a junior, the junior swamis were in favour of such right. These answers were, therefore, given on a question which was the subject of active controversy at the time. Mr. Ramachandra Aiyar suggested that the words "before any controversy as to such right, custom or matter had arisen," only referred to the dispute in the suit. This is clearly opposed to the decision in the Burkley Peerage case (3). The section does not speak of the specific controversy in the suit. We must, therefore, hold that Exhibits IV, V and VI are not of any evidentiary value. Then as regards Exhibits V and W and other documents sought to be relied upon by Mr. Rangachariar, we have the statement of Mr. Ramachandra Aiyar who conducted the case before the District Judge that although they appear as Exhibits in the case, they were filed on the understanding that proof of the execution would be given at a later stage of the case. This statement is uncontradicted and we accept it. There is no proof, in the records, of their execution. We must, therefore, reject them. The practice of exhibiting documents before they are proved should not be encouraged.