(1) Is the gift by means of mutation dated 28th May, 1951 valid ? (2) Is the suit land not ancestral qua the parties ? (3) What is the effect of the judgment of the Honourable High Court on the present suit ? 2. It appears that in another proceeding in which a gift made by Tulla Ram plaintiff in favour of his daughter was contested, this Court held that Daljit, Bed Rem and Kanwal Singh (the three defendants in the present litigation) were not proved to be the sons of Duli Chand and that they were the sons of Sher Singh and, therefore, not entitled to challenge the gift by Tulla Ram in favour of his daughter. 3. The trial Court held the land to be ancestral and the earlier judgment to be conclusive with the result that the donees in the present case were held not to be the sons of Duli Chand. On these findings the gift was held to be bad as against the plaintiff and his suit was accordingly decreed. 4. On appeal, the learned District Judge upheld the conclusions of the Court of first instance and dismissed the appeal. It was also urged before the Court of first appeal that the gift had been made by Duli Chand in lieu of services rendered by the donees but since there was no such plea in the written statement, the lower Appellate Court declined to entertain it. The Court also in passing observed that the property in dispute being ancestral property no gift could be made to a stranger. 5. On second appeal, after reading the judgments of the two Courts below, Shri Hoshiarpuri has concentrated on the prayer that the written statement should be allowed to be amended and the plea of gift in lieu of services to be allowed to be included in the written statement. The counsel has referred to the earlier decision by a learned Single Judge of this Court in Tulla Ram v. Bhartu etc., RSA 377 of 1956, decided on 24.11.1960, where this Court on second appeal held Bed Ram, Daljit Singh and Bharte alias Kamla not to be the sons of Duli Chand. According to the findings given in the earlier case, Duli Chand had abducted one Smt. Daryai and that during the period of her abduction the present donees were born to her. From this fact, the learned Single Judge declined to conclude Smt. Daryai's children to be the sons of Duli Chand "because admittedly Sher Singh with whom Smt. Daryai was lawfully married before she was abducted by Duli Chand was not only alive when the plaintiffs were born but he was also living in the same house as Smt. Daryai and Duli Chand. The marriage between Sher Singh and Smt. Daryai had never been dissolved." No custom suggesting validity of marriage between Duli Chand and Smt. Daryai was pleaded in prior litigation. 6. It is contended that the gift appears to have been made in favour of the donees by Duli Chand because they were in fact born from his loins and that it was on account of the technicalities of law that in the previous litigation they were held not to be the sons of the donor. It is emphasised that the donees used actually to serve Duli chand and the gift was also made in lieu of services. It is on this basis prayed that the written statement should be allowed to be amended and trial of the additional issue directed. In support of the plea, following authorities have been cited on behalf of the appellants. Kartar Singh Hira Singh v. Mal Singh Surjan Singh etc., AIR 1954 Pep. 39, in which a Division Bench of Pepsu High Court laid down that rules of procedure are meant to enable Courts to do justice between the parties and not to stand in their way and that, therefore, a party should be allowed to amend the plaint or retract an amendment already allowed to be made even at the stage of second appeal when the Court is satisfied of its necessity. There, a suit for declaration was allowed to be amended to be converted into a possessory suit. Finding that a suit for possession was barred by them, it was prayed in the High Court that the prayer should be confined to declaration only. On these facts the prayer was allowed. I do not think there is any analogy between the facts and circumstances of the case cited and of the case in hand. The relief by way of possession being a larger relief even without a formal amendment the Court might legitimately grant relief by way of declaration simpliciter. The observations of the rules of procedure being intended to promote the cause of justice are unexceptionable and I respectfully agree with them. Mohummud Zahoor Ali Khan v. Mussamat Thakoo Ranee Rutta Koor, 11 Moore's Indian Appeals, 468, shows that the Privy Council allowed a prayer for amendment and remanded the case to the High Court with a direction to allow the appellant there to amend his plaint. It may here be observed that it is not disputed that the power of amendment is very wide and can be exercised at any stage of the litigation but it is equally indisputable that this power must be exercised on well recognised judicial principles and it does not depend on the whim or caprice of the Court. Weldon v. Neal, 1887(19) QBD 394 is however, an authority for the proposition that the plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the issue of the writ have become barred by the Statute of Limitations. This ratio is obviously of no assistance to the appellants. The observations of Lopes, L.J. that Court ought to give all reasonable indulgence with regard to amending, notwithstanding the first negligent or careless omission can only be attracted in a fit case. In the reported decision it is instructive that the amendment sought was not allowed. In Tildeslov v. Harper, L.R. 1878(79) 10 Ch.D. 393 leave to amend the statement of defence was given on appeal and it was observed by Bramwell, L.J. that it was always his practice to give leave to amend unless he was satisfied that the party applying had acted mala fide or that his blunder had done some injury to his opponent which could not be compensated for by costs or otherwise. I have referred to these cases of their having been cited at the bar. The position has been considered by the Supreme Court more than once. Pirgonda Patil v. Kalgonda Patil etc., AIR 1957 SC 363 approved the following observations of Batchelor, J. in Kisandas Rup Chand etc. v. Rachappa Vithoba Shilwant etc., ILR 33 Bombay 644 :- "All amendments ought to be allowed which satisfy the conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties, but I refrain from citing further authorities, as, in my opinion they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused, to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test, therefore, still remains the same, can the amendment be allowed without injustice to the other side, or can it not ? This being the true test, let me see if the case in hand the amendment claimed can be allowed. 7. It is asserted that the defendants-appellants are the sons of Duli Chand and were brought up by him and it is they alone who have been cultivating the land in dispute and supporting Duli Chand in all respects, and rendering him service. The finding against the defendants being the sons of Duli Chand has been passed on a prior judgment between the parties in which marriage between Duli Chand and Smt. Daryai was held to be invalid because Smt. Daryai's husband Sher Singh was alive and that marriage had not been dissolved. It appears that Duli Chand had abducted Smt. Daryai and the donees were born during the period of abduction. On this premise, it appears to me that the amendment sought would promote the cause of justice because even though the defendants may not be the legitimate sons of Duli Chand, having been begotten from a woman whom Duli Chand had abducted and kept her as his mistress or de-fect wife during the existence of her previous husband. The real controversy in this litigation is whether the gift made by Duli Chand in favour of the children born from his loins from Smt. Daryai is supportable under custom so as to disentitle the plaintiffs from challenging it. It is true that they could have putforth this alternative claim in support of the gift, but is only where a party fails to put-forth all the pleas that the necessity of amendment arises. Their plea of their being the legitimate sons Duli Chand has failed on account of prior litigation where they had contested the gift made by Tulla Ram in favour of his daughter. Smt. Bhartu Tulla Ram and Duli Chand, it may be stated, were brothers. In my opinion therefore, it is fit case in which this Court should exercise its discretion in permitting the amendment sought and the plaintiffs can be amply compensated by awarding costs. 8. The application filed on behalf of the appellants does not seem to me to be strictly in accordance with the formalities prescribed by the rules framed by this Court, though the substance is quite clear. I should in the circumstances direct the appellants to put in the plea to be amended in the written statement in conformity with the rules. This should be done within one week from today. Order dated 28th February, 1963 Inder Dev Dua, J. - This order may be read in continuation of my order dated 22nd January, 1963. Shri Hoshiarpuri put in the amended written statement on 29th January, 1963 to which Shri Sarin objected on the ground that it did not comply with the amended Rule 17, order 6, Civil Procedure Code, as added by this Court. According to sub-rule (2) of Rule 17, as added by this Court every application for amendment has to be in writing and it shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleadings. Though on behalf of the appellants these objections have been controverted, there is little doubt that the amended written statement does not in form comply with this rule. Another objection raised is that the amended written statement also purports to be on behalf of Kanwal Singh who was not an appellant in this Court and who did not apply for amendment. 10. In so far as the second objection goes, I find from the record that Kanwal Singh was a minor in the trial Court and a written statement had been filed by him through his guardian who was an ahlmad attached to the trial Court. As usually happens and was expected the written statement is very perfunctory sort of a document and, therefore, if his case is common with that of the appellants, I think he must also be allowed to modify his prior written statement and I order accordingly. 11. Though the written statement does not conform to the rule added by this Court, after having gone through the original as well as the amended written statement it appears to me that in substance it is in accord with the order passed by me on 22nd January, 1963. It would in the circumstances serve no useful purpose to direct the appellants to put in a written statement which in form strictly complies with the rule added by this Court. I would thus allow this written statement as amended to remain on the record and to constitute the amended pleading. 12. On the original pleadings in the light of the amendment permitted the only question which by now requires trial is whether the gift in question made by Duli Chand in favour of the children born from his loins from Smt. Daryai is supportable under custom so as to disentitle the plaintiff from challenging it and it is this issue which is being remitted to the trial Court for adjudication. The parties are entitled to lead evidence on the custom in question. The trial Court after recording the evidence produced should give its findings which should then be forwarded to the lower Appellate Court for its findings after notice to the parties and hearing them. The report with the finding of the lower Appellate Court should be submitted back to this Court within six months from today. As soon as the report arrives here the office should give notice to the parties who would be entitled to put in objections within a fortnight from the date of notice. 13. Parties are directed to appear in the trial Court (or the successor of the trial Court) on 25th March, 1963 when the Court will fix another date for production of evidence and then proceed to dispose of the case in accordance with law and in the light of the observations made above. 14. This amendment has been allowed conditionally on payment of Rs. 50/- as costs. Costs should be paid on or before 25th March, 1963 in the trial Court. Judgment Inder Dev Dua, J. - In this appeal, after following amendment, I sent the case down to the trial Court for recording evidence and giving its findings to be remitted back to this Court through the lower Appellate Court. 16. This order may accordingly be read in continuation of my orders dated 28th February, 1963 and 22nd January, 1963. The learned Additional District Judge has come to the conclusion that the general agricultural custom of the Punjab allows gifts in favour of relations who have rendered services to the donor and that such gift could be made to agnates and illegitimate sons are to be treated as agnates. The gift in question, therefore, made by Duli Chand in favour of the defendants, who are his illegitimate sons, is supportable under custom which the plaintiff is not entitled to challenge. It may be observed that the Court of first instance have come to a contrary conclusion. 17. Before me, on appeal, the learned counsel for the respondents has not been able seriously to assail this conclusion of the lower Appellate Court. He has, however, referred me to Exhibit P-8, which is a copy of a question and answer to custom from Riwaj-a-am of district Gurgaon and it has been submitted that this only refers to gift in favour of non-relations. I do not understand how on the basis of this contention, the conclusion of the learned Additional District Judge in his remand report can be reversed. The learned Additional District Judge has observed in his remand report that the rule mentioned therein applies when the legitimate sons of the donor are also alive; he has also held on reference to some decision of the Lahore High Court and to Singhai Ajit Kumar and another v. Ujagar Singh, AIR 1961 SC 1334, that the illegitimate sons of Duli Chand could not be considered as strangers. This conclusion has not been seriously assailed before me and nothing convincing has been urged to persuade me to disagree with the view of the lower Appellate Court. 18. The result, therefore, is that agreeing with the opinion of the lower appellate Court expressed in the remand report, I hold that gift in question is valid. So holding, I allow this appeal and setting aside the judgments and decrees of the Courts below, dismiss the plaintiff's suit, but the parties are directed, in the peculiar circumstances of the case, to bear their own costs throughout. Appeal allowed.