The admissibility of evidence and the relevance of statements made by privies in determining reversionary heirs.

1. The only question in dispute in this appeal is whether defendants 1 to 3 are the nearest reversionary heirs of the late Narayana. It is a question of fact and the lower appellate Court has found that defendants 1 to 3 are the nearest reversioners. It is urged, however, for the appellants that though it is a rinding on a question of fact this Court could interfere in second appeal as irrelevant evidence has been relied upon for the finding. It is also stated that the learned Judge had brushed aside evidence furnished by previous statements without proper reasons. Ex. D-1 is a statement made by the fourth defendant on which the learned Subordinate Judge has relied. It is a statement made before the Revenue Inspector, D.W. 8, at the time when an enquiry was held by the Revenue authorities regarding the heirs of Narayana. He has definitely stated there that " Kutagulla Munayya, China Gangayya and Gangi Reddi residents of Sankatipalli are the principal heirs and dayadis to the deceased. There are no others except these." It is true that the fourth defendant is alive and the statement is not admissible under Section 32 of the Indian Evidence Act. But then it is said that it is relevant under Section 18(1) of the Evidence Act being a statement-made by a privy. In Meajan Matbar v. Alimuddi Mia I.L.R.(1916)Cal. 130, it was held that:

When several persons are jointly interested in the subject-matter of a suit, an admission of any one of them is receivable in evidence not only against himself but also against the other defendants, whether they be all jointly suing or sued, provided that the admission relates to the subject-matter in dispute and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered.

In this case the fourth defendant is the brother of the plaintiffs. He is therefore jointly interested in the subject-matter of this litigation along with the plaintiffs and this statement of his affects the title to the property which is the subject-matter of this litigation, for, if that statement is true then he will have no right to this property, as also these plaintiffs. In Halsburys Laws of England, 2nd edition, volume 13, at page 580, this is what is stated:

Not only may a partys own statement be thus given in evidence against him; but those also of other persons who were at the time in privity with him. The term, " privity " implies mutual or successive relationship to the same interests, and the admissions of privies are receivable because they are identified in interest with the party against whom they are tendered. Such admissions are admissible, even though the privy by whom the admission was made is alive and present in Court when the admission is sought to be put in evidence.

Admissions made by person so connected with a party are, however, only prima facie evidence against him, and may be contradicted or explained in the same manner as if made by himself.

Ex. D-1 was therefore relevant evidence.

2. Further, it does not appear that any objection was taken to the admissibility of this evidence at the time the document was marked. It was proved through D.W. 8. In Ambar Ally. Lutfe Ali I.L.R.(1917)Cal. 159 , after referring to Miller v. Madho Das it was stated that it was equally well settled that the Court Would not entertain for the first time in appeal an objection that a document, which per se was not inadmissible in evidence had been improperly admitted in evidence. All tht can be stated here is that the fourth defendant had not been examined. If he had been examined it would be admissible in evidence and if the objection had been taken they would have examined the fourth defendant and then this document would be relevant evidence. In these circumstances I do not think I would be justified in allowing this objection to be taken in the second appeal on the relevancy of the document. "

3. The next objection taken is that the learned Judge was wrong in ha