Lord Macmillan.—

This is an appeal against a decree of the High Court of Allahabad reversing a decree of the Additional Subordinate Judge of Allahabad. The question at issue is whether a deed of gift dated 2nd August 1919, and executed by Behari Lal, respondent 2, in favour of his wife, Mt. Ramdei, respondent 1, represented a genuine transaction or was fictitious and benami. The Subordinate Judge found that the transaction was benami. The High Court held that it was genuine. Their Lordships have now to determine which of these two decisions was right.

The circumstances which have given rise to the action may be briefly summarized. It appears that the respondent Behari Lal and his brother Lala Gaza Prasad at one time, owned in its entirety : a house, No. 15, situated in Chowk, Allahabad. Sometime previous to the date of the deed of gift under challenge the eight annas share of Lala Gaza Prasad was purchased by the plaintiffs, Lala Madho Prasad and his son Lala Manmohan Das alias Bachchaji, whom it will be convenient to call ' the appellants," although Lala Madho Prasad has died and is represented in the appeal by his heirs. On 1st August 1919, Behari Lal sold 4-annas of his 8 annas share to the appellants, who thereupon became the owners of a 12 annas share in the property. On 2nd August 1919, Behari Lal executed a deed of gift of his remaining 4 annas share in favour of his wife, whom he had married in the preceding May and who was then a minor. Notwithstanding that he had executed this deed of gift, Behari Lal on 28th April 1923, sold to the appellants at the price of Rs. 15,000 the 4-annas share which was the subject matter of the gift to his wife. The appellants in the present suit pray to be put in possession of their purchase and allege that the deed of gift which stands in their way is fictitious and invalid. The learned Subordinate Judge formulated a series of issues but it is now necessary to consider only the first, viz.:

"Is the deed of gift dated 2nd August 1919 a farzi, collusive and fictitious transaction; or was it executed out of natural love and affection, and what is its effect ?"

If the deed of gift is upheld there is an end of the case, as in that event Behari Lal had plainly no title to sell the 4-annas share in question to the appellants.

Before considering the case on its merits their Lordships desire to draw attention to the procedure which has been adopted in the taking of the evidence. At the trial before the Subordinate Judge the evidence first recorded is that of the defendant, Behari Lal, who is described as a " Court-witness " and appears to have been called into the witness-box by the Judge himself. The record before their Lordships discloses no justification for this unusual proceeding. No doubt under O.10, R. 2, any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in O. 18. Here the burden on the plaintiffs was to prove their case in ordinary course, yet the proceedings at the trial opened by the Court calling on one of the defendants to give evidence not on any specific points, but on the whole case, and the witness is then cross-examined at length, not through the Court, but by the other parties themselves. Doubtless Behari Lal, who was deeply implicated in the remarkable transactions which the Court had to investigate, knew most about the whole affair, and the Judge may have thought it useful to hear at the outset his account of the matter, but in the absence of some more cogent reason their Lordships cannot approve of such a deviation from normal and proper procedure.

From the evidence adduced