Limit of the power of Courts to amend pleadings.

Sir Lionel Leach.-The parties in this appeal are Dadra Rajputs, an agricultural tribe of the Montgomery District of the Punjab. The appeal arises 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 the 17th December, 1938, by Mussammat Rajan, the first defendant, in favour of her grandson, the second defendant, who is the respondent in the appeal.

The first defendant is the widow of one Amira, who died in or about the year 1913. The respondent is 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 the 9th November, 1939, with her consent, the Court passed a decree in the terms of the prayer in the plaint.

Two days later, the appellants, who are collateral members of the respondent’s family, filed in the Subordinate Judge’s Court the suit which has 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 the 9th November, 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 Mohammedan law, under which there were no restrictions on the donor’s 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 respondent’s 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 bearing on the question whether the land was ancestral. Order 13, rule 1, of the Code of Civil Procedure, requires the parties or their pleaders to produce at the first hearing of the suit all documentary evidence on which they intend to rely, and rule 2 provides that no documentary evidence in the possession or power of a party, which should have been, but has not been, produced in accordance with the requirements of rule 1, shall be received at any subsequent stage of the proceedings, unless good cause is 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 a widow could not give her deceased husband’s property to her daughter’s son, that the land was not ancestral, that in the absence of custom Mohammedan law governed the case and that under such law the gift was valid. In accordance with these conclusions he dismissed the suit with costs. The appellants appealed to the District Court. In addition to challenging the findings of the Subordinate Judge they said that he had erred in refusing to admit the further evidence. The Dist