JUDGMENT Gridt, J. - The contest in the suits out of which these two appeals arise was whether certain lands and an orchard standing thereon held by the Respondents under the Plaintiffs were nakdi as asserted by the Respondents or bhaoli as asserted by the Appellants. The Subordinate Judge has found that the land and the orchard are nakdi and the point taken in this appeal is that he has arrived at this decision on evidence which was not legally admissible. 2. The Subordinate Judge has based his finding on a hebanama executed by the tenant-Respondents' grandfather. Prima facie this document cannot be evidence against the landlord; but it is argued on behalf of the Respondents that the executant of the hebanama being dead, the statement contained therein as to the nakdi character of the holding was relevant under cl. (7), sec. 32of the Evidence Act. That clause says that a statement of relevant facts made by a person who is dead is itself a relevant fact if the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in sec. 13, cl. (a). The transactions which are referred to in cl (a), sec. 13 are " transactions by which a right or custom in question was created, claimed, modified, recognised, asserted, or denied." For the Respondents it is argued that the nakdi right in the holding was asserted in the hebanama and therefore becomes relevant under sec. 32, cl. (7) read with sec. 13 (a) of the Evidence Act. 3. But the words of cl. (a), sec. 13 are not" any transaction in which or in the course of which a right or custom is asserted or denied." "The words are any transaction by which the right or custom was asserted or denied;" that is to say, the right must be asserted by the transaction itself. 4. Now, in the present case, the nakdi nature of the holding was not asserted by the deed of gift though it was asserted in the deed of gift. It makes no difference to the gift whether the land was nakdi or bhaoli, it was equally effective in either case. 5. I am, therefore, of opinion that the Subordinate Judge was wrong in admitting the hebanama as evidence. It appears to me clear that the hebanama is really the basis of his finding. It makes no difference to the gift whether the land was nakdi or bhaoli, it was equally effective in either case. 5. I am, therefore, of opinion that the Subordinate Judge was wrong in admitting the hebanama as evidence. It appears to me clear that the hebanama is really the basis of his finding. In one part of the judgment he says, "It is sufficient to say, relying on the hebanama, executed by Plaintiffs' grandfather in the year 1885, that the land in suit is nakdi with trees thereon." It is true that he refers to other evidence but he refers to the other evidence as corroborating the statements contained in the hebanama; and it is difficult to say from the terms of the judgment recorded that the Subordinate Judge would have come to the same finding if the hebanama had not been in existence; or if the hebanama had not been considered by him as relevant. In this condition of uncertainty as to what the finding of the Subordinate Judge would have been if he had confined himself to evidence which was legally admissible, I must set aside in order and remand the cases to him that he may try them on evidence which is legally admissible.