Basil Scott, C.J.
1. This suit was instituted by the plaintiff to obtain an injunction, which would give to her undisturbed control of the properties of her deceased husband, as against the 2nd defendant claiming to be her adopted son and for a declaration that he was not the adopted son and that the adoption deed alleged to have been passed by the plaintiff to the 2nd defendant was null and void on the ground that its execution was obtained by fraud. The 5th paragraph of the plaint contains the particulars of the fraud alleged to the following effect:
The 1st defendant told me that pattas had to be got written for tenants in respect of lands of my ownership and took me to Athni four months ago and went with me to the, Sub-Registrar's Office and telling me he had papers prepared as mentioned by him and, asked me to sign my consent to registration. My mother being dead I had, since my infancy, lived in the 1st defendant's house and my marriage took place there and therefore relying on the 1st defendant's word I gave my consent in the office of the Registrar. Excepting the 1st defendant there was no one else to give me advice. Fifteen days ago I came to know the paper was an adoption deed in favour of the defendant No. 2. I never gave him in adoption.
2. The defendant No. 1 is father of the defendant No. 2, who is older than the plaintiff. She is alleged to have adopted him when she had just attained the age of nineteen years. The defendants put in separate written statements and alleged that the circumstances alleged to have existed regarding the adoption deed were false.
3. In the Trial Court an issue was raised upon the point as follows:
Are the circumstances mentioned in paragraph 5 of the plaint proved?
4. Much evidence was recorded on both sides and the learned Judge found the issue in the negative. He held that the fraud alleged to have been practised on the plaintiff in the matter of the alleged adoption was not established and that there was no evidence of misrepresentation as to the deed she was acknowledging before the Sub-Registrar or that she was defrauded or that she was the creature of the defendants. He proceeds to remark that:
5. The plaintiff might also contend that she was the ward of the 1st defendant and did not know what was meant by adoption, etc., and that the burden of proving absence of fraud rested on the defendants. To a certain extent this is quite true. The plaintiff was at the time of alleged adoption just nineteen years old as can be seen from the verification on the adoption-deed taken by the Sub-Registrar and she cannot, therefore, be called a minor. The defendants have, however; satisfactorily proved the absence of fraud in having the adoption deed from the plaintiff, though there was no necessity for them to do so as can be seen from the issues raised.'
6. The suit having been dismissed, an appeal was preferred which was disposed of by a remand order which is the subject of complaint on the part of the defendants.
7. It was urged in appeal that the adoption should be set aside on the ground of undue influence. The learned Assistant Judge recorded his opinion that on the face of it such a transaction was unconscionable and being of opinion that the whole burden of proof that the transaction was proper was on the defendant No. 1 gave the plaintiff's adviser a month's time to amend the plaint so as to bring it into accord with the case put forward in appeal. When the case was next called on he granted leave to amend and remanded the suit to the lower Court which should, after taking a supplementary written statement, frame the issues raised by the new pleadings and decide the case on the merits.
8. The defendants appealed against this order Objection being taken that no appeal from such an order is allowed by the Code we treated the application as under Section 115 of the Civil Procedure Code.
9. The Pleader for the respondents has been unable to refer us to any rule under Order XLI which would authorise such a remand order by the lower Court.
10. But reference has been made to Section 107 of the Civil Procedure Code and to the fact that Section 564 of the old Code has not been re enacted.
11. Section 107 says that an Appellate Court shall have power to remand a case subject to such conditions and limitations as may be prescribed (that is by the rules): but, the rules under Order XLI containing the conditions of remand do not permit of such an order as the Assistant Judge has passed.
12. That a general power of remand can be inferred from the disappearance of Section 564 is a proposition to which a Bench of this Court declined to accede: see Narottam Rajaram v. Mohanlal Kahandas 17 Ind. Cas. 891 : 37 B. 289 : 14 Bom. L.R. 1154 We think such a provision would be out of place in view, of the rule making power reserved to High Courts under the present Code. As the rules stand we are of opinion that the learned Judge has committed a material irregularity which requires correction. He could re-appreciate the evidence which appears to have been ample and could allow necessary amendments of pleadings consistent, with the case made in the lower Court but he could not require the lower Court to re-consider the whole case de novo and write another judgment: see Venkata Varatha Thatha Chariar v. Anantha Chariar 16 M. 299 : 3 M.L.J. 150 : 6 Sar. P.C.J. 364 and Mallikarjuna v. Pathaneni 19 M. 479
13. No amendment of the pleadings so as to make out a new and inconsistent case should be allowed. The proposed amendment indeed is not of that character. There was, in our opinion, nothing to prevent the Court from giving relief if it found a case of undue influence established. Such a case would not be inconsistent with the allegations in the pleadings and the case made for the plaintiff and although undue influence and fraud are dealt with under separate sections in the Indian Contract Act C Sections 19 arid 19A) (which perhaps the learned Judge had in mind) undue influence is a branch of fraud in equity and invites the same relief in such a case as the present under Section 38 of the Specific Relief Act.
14. We set aside the lower Appellate Court's remand order and direct that Court to dispose of the case on the evidence without prejudice to its power to act within the limits of Order XLI, Rule 25 or 27 if occasion should arise. Costs costs in this appeal.