Chandeasekhara Aiyar, J.

1. The pltf. Arjan Singhalias Puran, brought a suit in the Ct. of the Subordinate Judge, Jullundur, against Inder Singh, Kartar Singh and five others, for a declaration that a will executed by deft. 1, Inder Singh, in favour of deft. 2, Kartar Singh, about 14 years ago was null and void as against the pltf., who was deft, 1s reversionary heir after his death. The plaint comprised a half share of land measuring 395 kanals in the village of Kadduwal, another half share of land measuring 837 kanals and 11 marlas in the village of Pattar Kalan, and four houses in the latter village. In the pedigree attached to the plaint showing the relationship of the parties, the pltf, claims Sehja Singh as his 4th ancestor. Jodha Singh and Jai Singh are shown as Sehja Singhs sons. Defendant 1, Inder Singh, is Jodha Singhs grandson. It is alleged that the parties are Jat agriculturists governed by the customary law in matters of alienation of ancestral property and succession and that as a sonless proprietor under this law is not competent to make a will in respect of his ancestral property, when there are collaterals up to the 5th degree, and as the entire property mentioned in the plaint was ancestral, the will made by deft. 1 in favour of deft. 2 who claimed to have been adopted by deft, was invalid and ineffectual. Plaintiff was born on 22-7-1919, and was a minor when the will was made, and so the suit was within time.

2. The suit was contested mainly by deft. 2, Kartar Singh, who set up his adoption and pleaded that the properties were not at all ancestral as regards the pltf. Defendants 3 to 7 remained exparte.

3. At the trial, it was admitted that the land situated in Kadduwal was not proved to be ancestral. The Subordinate Judge held that even the land in Pattar Kalan was not shown to be ancestral by the evidence adduced on the side of plts., as it was found that the common ancestor, Sehja Singh, had not only two sons called Jodha Singh and Jai Singh, but a third son named Pohlo, and that from the mere fact that the two sons enjoyed the land in equal shares, no presumption could arise that the property was ancestral and descended by inheritance from the common ancestor, when nothing was known about the share of the third son. He recorded findings in favour of the pltf. on the issues as to adoption and limitation, but be also held that the pltf, had nolocus standito contest the validity of the adoption as the period of limitation had expired long before be was born. In the result, the suit was dismissed.

4. The pltf. preferred an appeal to the Ct. of Dist. J. He filed an appln. under O. 41, R. 27 and S. 151 Civil P. C. for leave to adduce additional evidence. The document be wanted to be taken on record and considered, and of which it was alleged that be was not aware at the trial, was akami-beshi statement relating to Mauza Pattar Kalan, which contained a note that the third son, Pohlo, gave up his interest in the ancestral property in favour of his brothers. A copy of the statement was filed along with the appeal memo. The appln. was naturally opposed on behalf of the contesting defts. who urged that the pltf. applt, had ample opportunity to produce all his evidence in the lower Ct. to prove that the property was ancestral and that the entry on which reliance was now sought to be placed appeared on the face of it to be a forged one. The Dist. J. posted the appln. to be heard along with the appeal itself. On 17-3-1942, that is, even before he heard the appeal, the Dist. J. allowed the apptn. Referring to the two entries found in thenaqsha kami beshi prepared in 1849-50 and themuntakhib asami-war prepared in 1852, which stated that Pohlo had relinquished his ancestral share, he observed :

"These two entries taken together if found genuine, would enable the Ct. to arrive at a just conclusion. It is, therefore, in the interest of justice that the additional evidence should be let in. I have taken action under O. 41, R. 27 (1)(b), Civil P. C. This additional evidence would supply material to remove the defect pointed out in the judgment of the Ct. below, why two of the sons of Sehja Singh came to own equal shares of land of Pattar Kalan in the presence of their 3rd brother."

He permitted the parties to call evidence relating to the two documents. Two witnesses were examined on the side of the applt. Munshi Pirthi Nath is the clerk in the D.Cs office, Jullundur City, and he brought the record of rights for the village Pattar Kalan prepared at the time of the settlement of 1849-50. Munshi Niaz Ahmad is the office Qanungo in the Jullundur Tahsil and he brought themuntakhib asamiwarof the record of rights preserved at the Tahsil Office. Both of them gave evidence about the relevant entries found in the registers.

5. The Dist. J. reversed the decision of the Subordinate Judge and decreed the pltf.s suit on the strength of this additional evidence. He held that the entries relied on for the applt. were genuine and not forged and that as Pohlo had relinquished his share, the land in Mauza Pattar Kalan was ancestral qua the pltf. He further found that the suit was not barred and was within time under Art.120, Limitation Act, but that the adoption set up by deft. 2 was not true. As the custom of the district did not permit a proprietor to will away any portion of his property, whether ancestral or self acquired, the pltf. had, in the opinion of the Dist. J., a right to contest the will. On the basis of these findings, he decreed the pltfs suit in its entirety, including the lands in the village of Kadduwal which were conceded to be non-ancestral and also an area of 4 bighas and 16 biswas of land in Pattar Kalan which, according to the record of rights, was not in the possession of Jodha Singh and Jai Singh, but with third parties.

6. Kartar Singh, deft. 2, took the matter on second appeal to the H. C. The learned Judges of the H. C. held that there was nothing to show that the land in Pattar Kalan was ancestral and that the Dist. J. was not justified in admitting additional evidence in the shape of thenaqsha kami beshiand themuntakhib asami-warrecords. They further pointed out that even a superficial observation of the original documents led one irresistibly to the conclusion that the entry regarding Pohlo giving up his share was a subsequent interpolation. They came to the conclusion, therefore, that the entire land situated in Pattar Kalan was also non-ancestral and that the suit should have been dismissed in toto, inasmuch as under S. 7 of Act II [2] of 1920, no person is empowered to contest any alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom. In view of this finding, no other question arose in the case for decision. Leave was, however, granted to appeal to His Majesty-in-Council and this is how this appeal is now before us.

7. It was strenuously argued by the learned counsel for the applt. that it was not open to the H. C. to interfere with the discretion exercised by the Dist. J. in allowing additional evidence to be adduced and that even assuming that there was an erroneous finding of fact, it must stand final as a second appeal can be entertained only on the specific grounds mentioned in S. 100, Civil P. C. There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R. 27, Civil P. C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. Under O. 41, R. 27, it is the appellate Ct. that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well-known case ofKessowji v. G. I. P. Railway,34 I. A. 115 : (31 Bom. 381(P. C.)),

"the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence and the appln. is made to import it;"

and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan,58 I. A 254 : (A. I. R. (18) 1931 P. C. 143). The true test, therefore, is whether the appellate Ct. is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

8. In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of thekami beshi and muntakhib asami-warregisters even before he heard the appeal. The order allowing the applt. to call the additional evidence is dated 17-3-1942.The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the Dist. J was not justified in admitting this evidence under O. 41, R. 27.

9. Even conceding that the reception of additional evidence was proper, the Dist. J. has failed to consider the inherent infirmities of the entries in the settlement registers relied on for the applt. and the several criticisms that could justify be levelled against them for showing that they were spurious. He took the entries to be genuine. The only reason assigned by the learned Judge for treating the entries to be genuine and not forged appears to he that the records had all along remained in proper custody. As against this rather perfunctory remark, we must set the following observations of the learned Judges of the H. C. :

"Even a superficial observation of the original documents leads one irresistibly to the conclusion that this entry was a subsequent interpolation. Innaqsha kama beshithere was already a remark in that column and the remark relied upon which has very awkwardly been inserted there is with a different pen and in a different ink. It is even impossible to read it clearly. Further, although there are 2 or 3 other places where the names of Jodha and Jai Singh appear, no such remark has been made against them. It may also be observed that though a corresponding remark appears in the column of sharah lagan in muntakhib asami-warwhere it is evidently out of place in the copy retained in the Tahsil Office, there is no such remark in the copy which is preserved at the Sadar Office. Even otherwise it does not stand to reason why a remark to this effect should have been made in this column. The way in which these entries were said to have been traced also throws a lot of suspicion on their genuineness."

10. We find ourselves in entire agreement with these observations of the learned Judges. It is no doubt true that a finding of fact, however erroneous, cannot be challenged in a second appeal, but a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness, cannot be accepted as a finding that is conclusive in second appeal

11. If the additional evidence is left out of account, the applt. has practically no legs to stand on. There is nothing to show that the common ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with nothing said about the share of the third son Pohlo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the name of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the pltf. There is nothing to show that the common ancestor owned the land and that his sons got it from him by inheritance in equal shares.

12. The Dist. J. was obviously wrong when he decreed the pltf.s suit even with reference to the lands in Kadduwal conceded to he non-ancestral and the land in Khasra No. 2408 measuring 4 bighas and 16 biswas, which was not in the possession of the two sons Jodha Singh and Jai Singh. He was equally wrong in holding that the customary law which governed the parties did not permit the owner to will away any portion of the property, whether ancestral or sell acquired; this is contrary to S.7 of Punjab Act II [2] of 1920, which is in these terms :

"Notwithstanding anything to the contrary contained in S. 5, Punjab Laws Act,1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such. property on the ground that such alienation or appointment is contrary to custom."

13. No other point arises in this appeal which fails and is dismissed with costs in all the Cts.

14. Appeal dismissed.