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TMI Blog1949 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. 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. 7. In their appeal to His Majesty in Council the appellants maintain that the Subordinate Judge wrongly refused to admit the additional evidence and that the District Judge was right in framing the new issue and in remanding the ease to the trial Court for further hearing. They ask that leave be granted to them to amend the plaint in order to cover the new issue. 8. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit additional evidence and their Lordships are not prepared to say they were wrong in so holding. 10. Their Lordships agree with the learned Judges of the High Court that the District Court erred in framing the new issue and in sending the case back to the trial Court for further hearing. As already indicated the question embodied in the additional issue was not raised in the pleadings. The appellants founded their claim on the ground that the land was ancestral and it was on that ground that they challenged the right of the widow to make the gift. Not once during the proceedings in the trial Court did they suggest that even if the land was found to be non-ancestral, the widow would still be incompetent to dispose of it. In Eshen-chunde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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