JUDGMENT
Cornish, J.
1. The appellants are defendants 4 and 8 in a partition suit brought by respondent 1. The plaintiff is the son of one Ramanna, who is the father of defendant 5 and the grand-father of defendants 2 and 3 who are the grandsons by a deceased son. Ramanna is the brother of one Sanyasi deceased, whose adopted son is one Gaddayya who was a natural born son of Ramanna. Defendant 4 is Gaddyya’s son. Defendant 8 is Gaddayya’s widow, Gaddayya having died in 1926 before suit. The plaint makes it perfectly clear that the right to partition claimed by the plaintiff was founded upon the position that the plaintiff and these defendants were members of a joint Hindu family. At the trial the principal issue was whether Ramanna and Sanyasi had become divided. Both the trial Court and the lower appellate Court have found that these two men became divided in 1912. The trial Court therefore holding that plaintiff and defendants were not members of a joint family dismissed the suit. It appears that at the trial a document Ex. L-l was by permission of the Court allowed to be given in evidence. This document had not been produced with the plaint or mentioned in the list of documents annexed by the plaintiff to his plaint as required by Order 7, Rule 14. But the Court in the exercise of its discretion Under Rule 18 allowed the document to be received in evidence on the plaintiff’s request. In fact, the only ground contemplated by Rule 18 for allowing a document which has not been produced in accordance with Rule 14 to be produced at a later stage is that it may be used as evidence. Ex. L-1 is an agreement which was entered into between the plaintiff’s father and his deceased son Jagannadham (father of defendants 2 and 3) and Gaddayya in 1916. This document provides that certain properties to be acquired or which might be acquired by the parties to it should be divisible between them; and the document also refers to them as being members of a joint Hindu family. Undoubtedly this document was produced for the purpose of supporting the plaintiff’s case that he, his father and brothers and Gaddayya were members of a joint family. The suit having been dismissed by the trial Court there was an appeal to the Subordinate Judge’s Court. The learned Subordinate Judge upheld the finding of the trial Court that Ramanna and Sanyasi had become divided and that consequently there was no joint family in existence at the time of the plaintiff’s suit. He, however, decided that the plaintiff, though not entitled to a partition as a member of a joint Hindu family, was entitled to a share on the strength of the agreement evidenced by Ex. L-1. What he says in his judgment is as follows:
Exhibit L-1 has been proved to be a genuine document. Effect has to be given to it. From the evidence I am satisfied that the plaintiff is not entitled to a share as a member of a joint Hindu family but is entitled to a share under the agreement Ex. L-1.
2. In other words, the learned Subordinate Judge has given a decree to the plaintiff not on the cause of action laid in the plaint but on a different cause of action, viz., contract. The learned Subordinate Judge has set up an entirely new case for the plaintiff to that which the plaintiff put forward in his plaint. I am unable to agree with the lower appellate Court that the reference contained in paras. 3 and 5 of the plaint to this agreement is any foundation for treating it as a cause of action upon which the plaintiff has sued. It is clear that the only purpose for which permission of the Court was obtained to produce Ex. L-1 was for the purpose of evidence of the parties being joint. It has been ruled by their Lordships of the Privy Council in Sulaiman v. Biyaththumma AIR 1916 PC 217 that a plaintiff cannot be allowed to put forward as creating rights a document on which he has not in terms sued. Again, in Official Trustee of Bengal v. Krishna Chunder Mozoomdar, (1884) 12 Cal 239 at p. 170 their Lordships have laid down as a general principle that an appellate Court cannot decide a case upon a matter which has not been raised as part of the case in the pleadings nor been the subject of an issue in the trial Court. The learned Subordinate Judge’s judgment cannot therefore be upheld. An application has been put forward on behalf of the respondent for leave to amend the plaint. This has been objected to by the appellants because the amendment at this time of day would deprive them of the right which they have to set up, a plea of limitation. I think that the principle stated in Weldon v. Neal (1887) 19 QBD 394, which is cited in the Full Bench decision in Official Assignee of Madras v. Kuppuswami Naidu AIR 1936 Mad 785 is applicable to the circumstances of this case. There, Lord Esher said:
We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments . . . . Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.
3. In my opinion there are no such peculiar circumstances here which would justify me in departing from the general rule. The plaintiff could have applied for amendment in 1929 when the suit came on for hearing. The result is that the appeal is allowed with costs throughout against respondent 1. The decree of the first Court will be restored and the order of remand set aside.
4. C.M.P. No. 5310 of 1933 is dismissed. Leave to appeal is refused.
