The admission of a document in evidence without judicial determination of its admissibility constitutes an order admitting the document as not requiring a stamp, and the appellate court has jurisdiction to impound the document under Section 61 of the Stamp Act.

R.K.Choudhary, J.

1. This appeal by the plaintiff is directed against the judgment and decree of the Additional District Judge of Monghyr, reversing the judgment and decree of the Additional Subordinate Judge there. The appellant instituted a suit for declaration of his title to and confirmation of possession over 4-37 acres of land which admittedly belonged to Chulho Singh and others, who executed a registered sale deed in respect thereof on 30-5-1943, in the name of the plaintiff.

Defendants first party asserted in certain criminal proceedings that the plaintiff was their farzidar with respect to the above land and as such he instituted the suit for the reliefs stated above. Defendants second party are the co-sharers of the plaintiff and the case of the plaintiff is that the suit land on partition between them was allotted to his share and a khista memorandum of partition was executed in support of the partition. The suit was contested by the defendants first party who pleaded that they had acquired the suit land in the farzi name of the plaintiff and that they were in possession thereof. The trial Court accepted the case of the plaintiff and decreed the suit. On appeal, the lower appellate court reversed the findings of the trial court and held that the defendants had purchased the suit land by the sale deed, referred to above in the farzi name of the plaintiff. Accordingly, it dismissed the suit.

2. The khista memorandum of partition was admitted by the trial court in evidence, and, though the trial court accepted the case of the plaintiff as regards the partition, no reference was made to this document for coming to that conclusion. The lower appellate court, while considering the question of partition, referred to this document but did not place any reliance on it and held the story of partition to be an afterthought. It also came to the conclusion that the, being unstamped, should not have been admitted in evidence without having been impounded. It, therefore, started a proceeding for impounding the document.

3. In this appeal two points have been raised, namely, (1) that the decision of the court of appeal below that the sale deed in question was taken by the defendants in the farzi name of the plaintiff was wrong and (2) that the lower appellate court had no jurisdiction to start a proceeding for impounding the document. So far as the first point is concerned, Mr. Mahabir Prasad has argued the case for the appellant. His contention is that the court of appeal below has committed an error in coming to the conclusion that the plaintiff was a benamidar for the defendants. He has drawn our attention to the fact that the sale deed in question was produced from the custody of the plaintiff and, had he been a benamidar, the sale deed could not have been produced by him. The court of appeal below has considered that aspect of the case and has accepted the story put forward by the defendants that the sale deed was lost and somehow or other it came in possession of the plaintiff. I need not refer to the circumstances which the court of appeal below has found as to how the document came into possession of the plaintiff. In determining the question of benami, motive for the transaction, relationship between the parties, payment of consideration, custody of the document land possession over the property are the main tests. The court of appeal below has considered all these aspects and has held on all these points, in favour of the defendants. It is admitted that the parties are closely related. It has been held that there was motive for the defendants first party for acquiring the property in the farzi name of the plaintiff; consideration has been found to have been paid by the defendants and they have been held to be in possession of the property. With respect to the custody of the documents, the defendants first party have been found to be in possession of those documents which on redemption out of the consideration mone