- (1.)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 December 17, 1938, by Mussammat Rajan, defendant No.1, in favour of her grandson, defendant No.2, who is the respondent in the appeal-Defendant No.1 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 defendant No.1. 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.
(2.)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 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 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, appellant No.1 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 XIII, 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 the absence of custom Mahomedan 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 District Judge held that the Subordinate Judge was perfectly justified in refusing to admit the documents at the time when the Court had only to hear the arguments, and that no case had been made out for their admission in appeal. He also agreed with the Subordinate Judge's finding that the land was not ancestral, but he held that the parties were governed by custom in the matter of alienation and he sent the case back to the trial Court for decision on a further issue which he framed in these words : The land in suit having been found to be non-ancestral, do the collaterals exclude the daughter's son according to the custom of the parties and is the gift, therefore, invalid ? This issue did not arise on the pleadings.

(3.)BOTH sides appealed to the High Court at Lahore. The appeals were heard by Bhide J. , who held that the Subordinate Judge had been right in not admitting the two documents in evidence, but that the District Judge had erred in framing a new case for the appellants, and in remanding the suit for trial on the new issue. He agreed that the land was non-ancestral. The result was that the learned Judge dismissed the appellants' appeal and accepted that of the respondent.
The appellants then filed an appeal under the Letters Patent of the High Court. This appeal was decided by Din Mohammad and Mehr Chand Mahajan JJ. , who upheld the judgment of Bhide J.