Judgement

Appeal (No. 42 of 1947) from a judgment and decree of the High Court (May 12, 1944) in a Letters Patent appeal, which affirmed two judgments and a decree of that High Court (July 16, 1942) which had set aside an order of the District Judge, Montgomery at Lahore (December 19, 1941) which in turn had reversed a judgment and decree of the Court of the Subordinate Judge, Montgomery (November 29, 1940), dismissing the appellants suit.

The following facts are taken from the judgment of the Judicial Committee. The parties in this appeal were Dadra Rajput, an agricultural tribe of the Montgomery District of the Punjab. The appeal arose out of a suit brought by the appellants in the Court of the Subordinate Judge, Montgomery, challenging the validity of a deed of gift, executed on December 17, 1938, by Mussammat Raj an, the first defendant, in favour of her grandson, the second defendant, who was the respondent in the appeal. The first defendant was the widow of one Amira, who died in or about the year 1913. The respondent was the son of a daughter of Amira and the first defendant. On the execution of the deed of gift the respondent applied for mutation of names in the records kept by the land revenue authorities, but the Assistant Collector refused the application on the ground that "a female has, under no circumstance, a right to alienate property by sale" or by way of charity under a will, oral or in writing, " and his decision was upheld by the Collector on appeal. Thereupon the respondent filed a suit in the Court of the Subordinate Judge, Montgomery, for a decree for the possession of the land.’ The only defendant was the donor, and on November 9, 1939, with her consent, the court passed a decree in the terms of the prayer in the plaint. Two days later the appellants, who were collateral members of the respondents family, filed in the Subordinate Judges court the suit which had given rise to this appeal. The appellants pleaded that the land was ancestral, that the gift of it to the respondent was contrary to custom, that the mutation of names had been rightly refused and that the respondent had obtained by fraud the decree passed in his favour on November 9, 1939. They asked for a decree declaring that the deed of gift was null and void as against them and, therefore, did not affect their reversionary rights. The respondent filed a written statement, in which he denied that the land was ancestral. He alleged that the parties were governed by Mahomedan law, under which there were no restrictions on the donors powers of alienation, that the revenue officers had erred in refusing mutation of names, and that the decree in the previous suit was good. In a separate written statement the donor supported the respondents case.

After the evidence had been closed and the case had been adjourned for the hearing of the arguments the first appellant applied for leave to file certified copies of two extracts from public records, which were said to have a bearing on the question whether the land was ancestral. Order XIII, r. 1, of the Code of Civil Procedure, required the parties or their pleaders to produce at the first hearing of the suit all documentary evidence on which they intended to rely, and r. 2 provided that no documentary evidence in the possession or power of a party, which should have been, but was not, produced in accordance with the requirements of r. 1, should be received at any subsequent stage of the proceedings, unless good cause was shown to the satisfaction of the court for its non-production. The court receiving such evidence must record the reasons for so doing. The Subordinate Judge rejected the application on the ground that it was no stage to accept additional evidence when the defendant had closed his rebuttal and the case had been adjourned for the hearing of arguments.

In his judgment, which was delivered later, the Subordinate Judge held that the appellants had failed to prove the custom alleged by which