JUDGMENT
Mullick, J.
1. We are satisfied after perusing the record and the judgment that the judgment of the Additional District Judge cannot be maintained and that the case must go back on remand.
2. The question is whether the registered mortgage-deed propounded by the plaintiff is genuine and valid. The burden of proof was heavily on the defendants and the learned Additional District Judge, agreeing with the Trial Court, has come to the conclusion that the deed was a benami document executed by defendant No. 1 and his deceased brother, the father of defendant No. 2, for the purpose of protection against the evil designs of one Ramgir. It was open to the learned Additional District Judge to believe the defendant No. 1, who gave his testimony in Court denying that there was any consideration for the bond. It was also open to the learned Court to decline to believe that direct evidence and to rely upon the circumstantial evidence, that is to say, upon the relationship and the conduct of the parties, and to draw legitimate inferences from the facts established by such circumstantial evidence. Or again it was open to him to rely both upon the evidence of defendant No. 1 and the circumstantial evidence, in order to come to a finding as to the genuineness of the mortgage bond. My difficulty, however, is that it is not clear which of these courses the learned Additional District Judge has adopted. Has he believed defendant No. 1 ? If he has, then his finding that there was no consideration and that the transaction was benami must be final in second appeal. But from the tenor in which he has expressed himself it is extremely difficult to say that the learned Additional District Judge has definitely believed the defendant. Nor am I certain that the learned Judge has relied upon the circumstantial evidence. That there was some confusion in his mind is quite clear from that passage in his judgment in which he explains how the bond came into the possession of the plaintiff. The plaintiff relied upon her possession of the bond as showing that there was consideration. The defendant No. 1 explained the plaintiff’s possession by saying that the. bond was in the possession of his brother and then passed into the possession of defendant No. 2, the daughter of his brother, and through her into the possession of the husband of defendant No. 2, who having quarreled with defendant No. 1 delivered the bond to the plaintiff. The learned Judge emphatically characterizes the defendant’s evidence upon this point as neither convincing nor satisfactory but immediately afterwards proceeds to accept the story on the ground that the probabilities are in its favour.
3. It is not clear whether to some extent the learned Judge has not been influenced by mere suspicion and therefore the course that we will take is to set aside his judgment and decree and to remand the appeal in order that the findings may be distinctly stated.
4. The law as to how far a Court of Appeal can interfere with the findings of the First Court upon a question of benami or fraud has been stated in many decisions in our Courts, of which Mr. Hasan Imam has to-day placed the following before us: Ranga Ayyar v. Srinivasa Ayyangar 21 M. 56 : 7 Ind. Dec. (N.S.) 396, Upendra Nath Nag v. Bhupendra Nath Nag 32 Ind. Cas. 267 : 21 C.W.N. 280, Mina Kumari Bibi v. Bijoy Singh 40 Ind. Cas. 242 : 21 C.W.N. 585 at p. 588 : 32 M.L.J. 425 : 1 P.L.W. 425 : 5 L.W. 711 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 44 C. 662 (P.C.), Nivath Singh v. Bhikki Singh 7 A. 649 : A.W.N. (1885) 151 : 4 Ind. Dec. (N.S.) 830 and Nil Madhub Mahta v. Raj Kishore Das 21 Ind. Cas. 413 : 18 C.L.J. 220.
5. The question is not one of pure fact; it is a mixed question of fact and law, and if a Court proceeds on mere suspicion and draws inferences from facts proved such as no reasonable man would draw, then the Court commits an error of law. It follows therefore, that while a Court of Second Appeal cannot interfere with findings of fact based on legal evidence, it is fully competent to correct the inferences drawn from those facts.
6. The appeal will, therefore, be remanded to the District Judge of Gaya in order that it may be re-heard. If the officer who heard the appeal is still in the District and is competent to hear it, he will hear it on remand. If he is not, then the learned District Judge will make whatever arrangement seems suitable to him for the hearing, which should be expedited. Costs will abide the result.
Atkinson, J.
7. I agree.