Judgment :- 1. Plaintiff in O.S. No. 42 of 1947 of the Subordinate Judge's court, Kozhikode is the appellant in this second appeal. He is a forest contractor at Coimbatore, and, according to him, a sum of Rs. 14,050/- kept by him in his house at Coimbatore was stolen by defendant 2 on the 11th May 1945. Immediately after the alleged occurrence he made a complaint to the Police, and in due course they apprehended defendant 2 who is a habitual offender. At the time of his arrest for this theft he was living with a girl in a lavish style, and it was this circumstance which first roused the suspicion of the police officers. During the search following the arrest the police recovered a sum of Rs. 2,000/- from defendant 2. Part of this amount, namely, Rs. 1,800/-, was in one rupee notes and was kept stitched up in a pillow and the rest, namely, Rs. 200/-, was in hundred rupee notes and was kept in a trunk. The police also recovered from the trunk a deed (Ext. Al) taken in the name of defendant 2's mother, defendant 1, for the assignment of a kanam right in respect of the plaint property for Rs. 3,100/-. They also recovered numerous other articles which are not material for the present case. At the time of his trial for the theft defendant 2 pleaded guilty to the charge and he was convicted under S.457,380 and 75, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months. According to the plaintiff, the consideration for Ext. Al was paid by defendant 2 with part of the amount stolen from him and defendant 2 took that deed in defendant 1's name benami for him, and so the plaintiff is entitled to get the benefit of that assignment, and he had been asking defendants 1 & 2 to transfer the right thereunder to him and they were also promising to execute an assignment in his favour. But some time after the release of defendant 2 from the jail, defendant 1 executed an assignment (Ext. B10) in favour of defendant 3 conveying to the latter the rights under Ext. Al. This assignment, the plaintiff alleges, was executed without consideration and at the instigation of defendant 2 and in order to defeat him. Plaintiff alleges further that, at the time he took Ext. B10) in favour of defendant 3 conveying to the latter the rights under Ext. Al. This assignment, the plaintiff alleges, was executed without consideration and at the instigation of defendant 2 and in order to defeat him. Plaintiff alleges further that, at the time he took Ext. B10, defendant 3 was fully aware of the fact that Ext. Al was taken with the funds belonging to the plaintiff and stolen from him. On these allegations plaintiff brought the suit for a declaration that he is the true and beneficial owner of the plaint property and for directing the defendants to surrender possession of the same with mesne profits. Defendant 4 is a person who has taken an assignment from defendant 3 after the institution of the suit. He was impleaded in the rase after the assignment in his favour, and after he was impleaded the plaintiff also claimed damages from him for quarrying and removing stones from the plaint property. Defendants 1 to 4 contested the suit. They denied that the consideration for Ext. Al was paid with the money stolen from the plaintiff and contended that the plaintiff was trying to take undue advantage of the fact that defendant 2 was convicted for the theft. According to them, Ext. Al was not taken with defendant 2's funds or benami for him and it was really taken by defendant 1 for her own benefit and with her own funds. Defendants 3 and 4 contended that they had taken the assignments in their favour for valuable consideration and bonafide and that, therefore, the plaintiff was not entitled to get any decree as against them. Defendant 4 also disputed the claim for damages and he claimed in his turn that he was entitled to get Rs. 7,000/- as value of improvements in case of the plaintiff being found entitled to recover possession of the property. The learned Subordinate Judge repelled the contentions of the defendants and gave a decree to the plaintiff for recovery of possession of the plaint property with mesne profits at Rs. 100/- per year payable by defendants 1 and 3 from the date of plaint till the date of surrender of possession and for recovery of Rs. 341-4-0 from defendant 4 as damages. He also dismissed defendant 4's claim for value of improvements. 100/- per year payable by defendants 1 and 3 from the date of plaint till the date of surrender of possession and for recovery of Rs. 341-4-0 from defendant 4 as damages. He also dismissed defendant 4's claim for value of improvements. From the decree of the subordinate judge defendant 4 filed an appeal in the District Court of South Malabar, and the learned District Judge allowed that appeal and dismissed the plaintiff's suit holding (1) that it had not been proved that defendant 2 had committed theft of plaintiff's money, (2) that there was no proof that Ext. Al was taken with the stolen money belonging to the plaintiff or even with defendant 2's funds, and (3) that defendant 3 had taken the assignment, Ext. B10, bonafide and for valuable consideration and without notice of any invalidating circumstance. This second appeal is filed against the appellate decree of the learned District Judge. 2. To prove the theft of Rs. 14,050/- belonging to him by defendant 2 and the recovery of a part of the stolen money and Ext. Al from defendant 2, the plaintiff mainly relies upon Ext. A2 which is the judgment in the criminal case in which defendant 2 was convicted for the said theft and the evidence of Pw. 3, a retired police constable who assisted the Sub-Inspector in arresting defendant 2 and conducting the search and recovering the money and document from him; and it was relying on Ext. A2 and Pw. 3's evidence that the learned Subordinate Judge found that the amount had been stolen by defendant 2 from the plaintiff and that Ext. Al was recovered from him at the time of his arrest for the theft. In the appeal the learned District Judge has discarded both these items of evidence, Ext. A2 on the ground that the conviction of defendant 2 by the criminal court is no evidence of the theft so far as the civil court is concerned, and the evidence of Pw. 3 on the ground that he had no direct knowledge of the theft and was not therefore competent to say whether defendant 2 had stolen the money belonging to the plaintiff or not. 3 on the ground that he had no direct knowledge of the theft and was not therefore competent to say whether defendant 2 had stolen the money belonging to the plaintiff or not. Plaintiff himself was not examined in the trial court, and the learned District Judge has emphasised the omission to examine him as a circumstance tending to cast suspicion on his case of theft of the money. 3. It may be said at once that so far as the factum of theft was concerned the learned District Judge was perfectly right in refusing to act upon the evidence of Pw. 3 since he had no direct knowledge of the theft and could only speak to the recovery of Rs. 2,000/- and Ext. Al and the other articles from defendant 2 at the time of his arrest. The recovery of these articles by itself is insufficient to prove the theft, and Pw. 3's statement that defendant 2 had stolen the money from the plaintiff can only be regarded as his opinion based on the recovery of the money. Such opinion is perfectly irrelevant and inadmissible. But the learned District Judge was not right in brushing aside Ext. A2 as irrelevant and in considering that the omission to examine the plaintiff was suppression of material evidence tending to cast suspicion on his case of theft. No doubt, it is a well recognised principle of law that a conviction in a criminal case is no evidence of the facts on which that conviction was based in a civil case in which those facts are in issue or form the subject matter of the suit. But the authorities are clear that, when the conviction is based on a plea of guilty, that plea is relevant and to prove it the judgment in the criminal case is admissible in evidence in the subsequent civil suit in which the facts giving rise to the charge are in issue or form the subject matter of the suit. In Taylor's Treatise on the law of Evidence, volume II, 1931 Edition, it is said in Para.1694: "A record of judgment in a criminal case, upon a plea of guilty, is admissible in a civil action against the party as a solemn judicial confession of the fact". Even in Hollington v. F. Hewthorn & Co. In Taylor's Treatise on the law of Evidence, volume II, 1931 Edition, it is said in Para.1694: "A record of judgment in a criminal case, upon a plea of guilty, is admissible in a civil action against the party as a solemn judicial confession of the fact". Even in Hollington v. F. Hewthorn & Co. Ltd., 1943 (2) All England Law Reports 35, relied upon in support of the contention that a conviction cannot be tendered in evidence in civil proceedings, it has been observed by Goddard, L. J., who delivered the judgment of the court in that case: "It may frequently happen that, where bigamy or any other crime has to be proved in a civil proceeding, the prisoner on his trial had pleaded guilty. Proof by a witness present at the trial of the confession is admissible, because an admission can always be given in evidence against the party who made it In the present case, had the defendant before the Magistrates pleaded guilty, or made some admission in giving evidence that would have supported the plaintiff's case, this could have been proved, but not the result of the trial." In Shumboo Chander Chowdhury v. Modhoo Kyburt (10 Weekly Reporter 56) it has been held: "A plea of guilty in the criminal court might be considered in evidence but not a verdict of conviction in the criminal court." 4. In Ext. A2 which is a record of judgment of the criminal court it is stated that defendant 2 was charged for theft on the night of 11-5-1945 of an amount of Rs. 14,050/- belonging to the plaintiff and kept in a leather hand-bag and placed on a bench near one of the windows of his house and that defendant 2 admitted the offence and "he pleaded guilty to the charge". Ext. A2 is admissible in evidence in proving this solemn judicial confession of the theft by defendant 2, and the learned District Judge was wrong in brushing it aside as irrelevant. The omission to examine the plaintiff in the trial court was not due to any fault on his part. At the time of the trial plaintiff was suffering from blood-pressure, and therefore he applied to the learned Subordinate Judge for examining him on commission. The omission to examine the plaintiff in the trial court was not due to any fault on his part. At the time of the trial plaintiff was suffering from blood-pressure, and therefore he applied to the learned Subordinate Judge for examining him on commission. The learned Subordinate judge dismissed the application on the ground that he could not allow it as the suit was an old one, a reason which is by no means commendable. If the plaintiff was really ill and unable to come to court to give evidence the learned judge should have allowed the application in the interests of justice notwithstanding the fact that the suit was an old one. It is strange that the learned District Judge also who has adversely commented upon the omission to examine the plaintiff in the trial court did not think it proper to issue a commission to examine the plaintiff in spite of the fact of his illness and the prayer made to him also for examining the plaintiff if he considered his examination was essential. To me it appears that the plaintiff's evidence is not very material in this case, for all that the plaintiff can say is that he had kept Rs. 14,050 in his house and that the amount was stolen from there on 11-5-1945. That fact was clearly admitted by defendant 2 in his plea of guilty before the criminal court whereby he had admitted that it was he who had stolen that amount from the plaintiff's house. The oral evidence adduced in the case clearly proves that defendant 2 was a person of no means and that evidence has been accepted by the learned District Judge also in Para.8 of his judgment. Pw. 3's evidence proves conclusively that at the time of his arrest the accused was living with a girl in a very lavish style and that he had with him Rs. 2,000 in currency notes and various other costly articles. I have, therefore, no hesitation in accepting, on the strength of Ext. A 2, the finding of the learned Subordinate Judge that defendant 2 had stolen on 11-5-1945 Rs. 14,050 belonging to the plaintiff. 5. Like defendant 2, his parents also have no means. That fact is proved by Pws.1 and 2 who are neighbours and who know defendants 1 and 2 and defendant 2's father. The consideration paid under Ext. A 2, the finding of the learned Subordinate Judge that defendant 2 had stolen on 11-5-1945 Rs. 14,050 belonging to the plaintiff. 5. Like defendant 2, his parents also have no means. That fact is proved by Pws.1 and 2 who are neighbours and who know defendants 1 and 2 and defendant 2's father. The consideration paid under Ext. Al is Rs. 3,100, and although the document was taken in the name of defendant 1 it was being kept by defendant 2 in the place where he was living with his mistress and not by defendant 1. Defendant 2 committed theft of the plaintiff's money on 11-5-1945 and Ext. Al was taken on 8-7-1945. Pw. 2 is the second attestor to Ex. Al and, according to him, it was he who negotiated for the transaction and settled the price. He swears positively that the consideration was paid by defendant 2 and that defendant 2 also gave him a remuneration of Rs. 50 for his services in arranging the transaction. Pw. 4 was living for some time in the house in the plaint property. He swears that he was a tenant under defendant 2 and was paying rent to him and that defendant 2 had told him that he himself had purchased the property. The learned District Judge has not even noticed the evidence of these witnesses. It is also significant that defendant 1 herself has not entered the witness box and sworn to her case that she had taken Ex. Al with her own funds and for her own benefit. In the circumstances, I accept as correct the learned Subordinate judge's finding that Ex. Al was taken by defendant 2 in the name of his mother with the money stolen from the plaintiff, intending to have it for his own benefit. The result of this finding is that defendants 1 and 2 must be deemed to have acquired their rights under Ex. Al and to have been holding the plaint property as trustees for the plaintiff, for the money with which Ex. Al was taken and the plaint property acquired belongs to the plaintiff and, at the time that money was utilised for the acquisition, the plaintiff had no intention to make a gift of it to the defendants or to allow them to use the same as a loan from him for acquiring the property. 6. Al was taken and the plaint property acquired belongs to the plaintiff and, at the time that money was utilised for the acquisition, the plaintiff had no intention to make a gift of it to the defendants or to allow them to use the same as a loan from him for acquiring the property. 6. The next question for consideration is whether defendant 3 is a bonafide transferee for valuable consideration without notice of the trust in favour of the plaintiff. The third defendant is a young student, and according to the defence witnesses, Ex. B10 was taken in his name by his father (Dw. 1) with the latter's funds. Dws.2 and 3 are the other witnesses who speak to the passing of the consideration for Ex B10 from Dw 1 to defendant 1. Dw.1 and defendant 3 are Muslims, and defendants 1 and 2 are Hindus. The learned District Judge seems to think that on account of this difference in religion it is not likely that there would have been collusion between Dw. I and defendants 1 and 2 and that, therefore, the evidence of Dws.1 to 3 can be safely accepted. No satisfactory reason has been given as to why Dw.1 who paid the consideration for Ex. B10 did not take the document in his own name and elected to have it taken in the name of his young son. It is also significant that when Ex. B10 was executed defendant 1 did not give to defendant 3 or Dw.1 the original assignment deed, Ex. Al, for it was at that time in the custody of the police officers who had recovered it from defendant 2's trunk. Defendant 1's inability to give the original document to them and her unsatisfactory explanation for the same should have put Dw.1 and defendant 3 on their guard and made them make further inquiries into the matter. Yet another circumstance which tells against the bonafides of Dw.1 and defendant 3 is the fact that soon after the suit was filed they assigned Ex. B10 in favour of defendant 4, and no reason has been given as to why that assignment was effected after the institution of the suit. Dw.1 admitted in his cross-examination that the payment of the consideration for Ex. B10 in favour of defendant 4, and no reason has been given as to why that assignment was effected after the institution of the suit. Dw.1 admitted in his cross-examination that the payment of the consideration for Ex. B10 does not find a place in his account and cash book and that be also took the assignment without making any inquiries worth the name. He says that he does not even remember if he asked how the original document was lost, nor does he remember who was acting for and on behalf of defendant 1 in the negotiations in connection with the execution of Ex. B10. The evidence of Dws. 2 and 3 is equally worthless and, on going through their depositions, I have no doubt that the appreciation of their evidence by the Subordinate Judge who had the opportunity to see and hear them giving evidence, has to be preferred to that of the District Judge. On a consideration of all the facts and circumstances of the case, I agree with the learned Subordinate Judge that Ex.B10 was not taken for valuable consideration and that Dw.1 and defendant 3 took Ex. B10 with full knowledge that Ex. Al was taken with the money stolen by defendant 2 from the plaintiff. So far as Defendant 4 is concerned he is only a transferee pendente, lite and the assignment in his favour is therefore subject to the result of the suit. His claim for value of improvements was not pressed in this court. Nor was anything said here about the award for damages made by the Subordinate Judge. 7. In the result, the second appeal is allowed with costs throughout. The decree of the lower appellat court is set aside and that of the trial court is restored. Allowed.