1. This appeal relates to a house situate in Purwa Hirawan in the city of Cawnpore which has been valued at Rs. 7,000.
2. This house admittedly belonged to one Ishridas who died leaving a widow, Mt. Bhagni, and a daughter Mt. Bhakni. The daughter, who was married to one Gharibe, predeceased her mother without leaving any issue. Gharibe married Mt. Sukhia who was impleaded as defendant 1 in the suit as originally brought. She died during the pendency of the suit in the trial Court.
3. Mt. Bhagni executed a simple mortgage of the house in controversy in favour of Debidin on 6th June 1921. She died on 27th April 1924.
4. One Chokhey filed a suit in forma pauperis on 26th May 1924, for recovery of possession of the house and certain moveables on the allegation that he was the reversionary heir of Ishridas, that the mortgage executed by Mt. Bhagni was without legal necessity, that upon her death Mt. Sukhia, the widow of Gharibe, and Mt. Rukia, defendant 2, who was the daughter of one Bans, uncle of Ishridas, had taken possession of the property unlawfully, as they were not the heirs of Ishridas under the law of inheritance
5. The parties to the suit are Raidas Chamars. Chokhey, the original plaintiff, died at a very early stage of the suit. The exact date of his death is not known.
6. On 3rd January 1915, an application was presented by Mt, Mulia for self and as the next friend of Mewa Lal for substitution of names in place of Chokhey in which it was stated that Mulia was the widow and Mewa Lal the son of the deceased. This application was opposed by Debidin, who stated that Mewa Lal was not the son of Chokhey, but of one Khushali by Mt. Mulia and that Mt. Mulia was not married to Chokhey. The learned Subordinate Judge directed by his order dated 31st March 1925, that both Mt. Mulia and Mewa Lal be substituted in place of Chokhey and that it was not necessary to decide at that stage if these two or either of them had a title to the property claimed.
7. The application to sue in forma pauperis was granted.
8. The defendant, Debidin contested the suit on the ground that Chokhey was not the reversionary heir of Ishridas, that Mulia was not his widow, that Mewa Lal was not the son of Chokhey but was a lambera who came to live with Chokhey when he brought Mt. Mulia to his house and that the mortgage was for legal necessity.
9. The Subordinate Judge passed a decree in favour of Mewa Lal for the house. He dismissed the claim of Mt. Mulia who submitted to the decree and preferred no appeal. He disallowed the claim as to movables. No appeal or cross-objection has been filed by Mewa Lal as to the moveables.
10. The Subordinate Judge recorded the following findings: (11 Chokhey was a collateral of Ishridas and was entitled to inherit his property on the death of Mt. Bhagni. (2) Mt. Mulia was married to Chokhey in the Gaonahi form of marriage which was valid according to the custom of the caste. (3) Mewa Lal was the son of Mt. Mulia by Khushalia, her former husband, but as he was brought to the house of Chokhey at the time of her remarriage, he became the son of Chokhey according to the custom of his caste. (4) The plaintiffs had failed to establish the claim as to the moveables. (5) The mortgage in favour of Debidin was without legal necessity. Debidin appeals.
11. It was contended that Chokhey was not the reversionary heir of Ishridas.
12. According to the plaintiff, Bhawani Din, the grandfather of Ishridas had a brother of the name of Gajjan and Chokhey was the son of Kanhai who was the son of Gajjan. (After considering the evidence the judgment proceeded.) We find on the evidence that the pedigree set up by the plaintiffs is proved and that Chokhey was the reversionary heir of Ishwaridas on the date when his widow Mt. Bhagni died.
13. It is not necessary to make a detailed review of the evidence relating to Mt. Mulia's marriage with Chokhey. The custom of widow re-marriage is admitted by the defendant's witnesses. It is also admitted that Mt. Mulia lived with Chokhey for a long number of years right up to the death of Chokhey. The plaintiffs' witnesses in proof of her marriage with Chokhey have been believed by the Court below and no sufficient reason has been shown to put a different view upon this evidence.
14. In the application presented by Mewa Lal through his mother Mulia on 3rd January 1925, he claimed to be the son of Chokhey. The defendant in his application dated 31st January 1925 denied that Mewa Lal was the son of Chokhey and stated that he was the son of Khushali, resident of Mauza Girsi. The statement was not contested by Mewa Lal. In his application dated 14th March 1925, Mewa Lal set up a new case based upon a custom by which he claimed to have a right to succeed to the estate of his step-father Chokhey. After narrating the fact that his mother, Mt. Mulia was married to Chokhey in the Gaonahi form of marriage customary amongst the chamars, he pleaded a custom in the following terms:
Moreover the custom is also observed by the members of the brotherhood of these petitioner that if any one takes any woman as his wife according to the gaonahi form of marriage and if such a woman has any son by her first husband, he may adopt such a son also and may keep and maintain him and bring him up like his own son. Such a son shall be and is treated as his, begotton son and acquires the property of his father. Thus Mewa Lal became the son of Chokhey deceased and has full right to his property according to the custom and Hindu law. There are many such examples in the brotherhood of these petitioners and cases have also been fought whereby all the above particulars can be proved.
15. No distinct issue was framed as to this custom, but the parties have not been prejudiced by this. Both the parties produced evidence of this point.
16. The plea as to the existence of this custom appears to us to be an afterthought.
17. It was stated in the petition dated 14th March 1925 that this custom had received judicial recognition. Samaldas who is the principal witness for the plaintiffs, deposes that there have been cases in Courts in which such sons were recognized as the sons of their new father. We have been referred to a judgment based upon an award dated 11th March 1919 and another judgment dated 20th November 1924 in support of the custom. There is not a word to be found in these two judgments about the custom in issue and, therefore, these two documents are absolutely of no help to the plaintiffs.
18. There is no evidence whatsoever on the record to show that Chokhey adopted Mewa Lal as his son or brought him up like his own son.
19. Samaldas, Hanuman, Sewak and Wazirdas have given a few instances of a lambera son inheriting the estate of his step-father. Not one of these lambera sons has been put into the witness-box to corroborate the above-named witnesses. Nanhu deposes as to the existence of the custom in general terms and cites no instances. When a parson marries a widow who has a son or sons by her first husband he may wall expect to have sons of his own by this marriage. It is very difficult to hold that from the date of his marriage the lambera son becomes his son by force of a caste custom of such a very peculiar character.
20. The alleged custom, if it exists at all, must be of very recant growth. Samaldas cannot quote a single instance prior to 25 years. According to Maiku a lambera inherits the property of his natural father as well.
21. It is argued that the existence of the custom is admitted in substance by two of the defendant's witnesses, namely, Kalka and Dabi. All that Kalka states is that his third wife brought a son to him by her first husband and he supports him. Debi states that Ramdas and Durga got the property of their stepfather as the latter had no heir. Here there was no one to dispute the title or possession of the stepsons.
22. A custom in derogation of the ordinary law of succession must be proved by clear and cogent evidence. We disbelieve the evidence produced by the plaintiff and hold that the alleged custom has not been established.
23. It may be added here that Mr. Crooke in his standard book. 'Tribes and Castes of the North-Western Province and Oudh, 1896, Vol. 2, p. 77, makes the following observation about chamars:
If the widow be young and her younger brother-in-law of a suitable age, they usually arrange to live together; if this cannot be arranged, she usually marries some widower of the tribe by the sagdi of Karao form. In this case the brother and father of her late husband have a right to the custody of the children of the first marriage; this rule is relaxed in the case of a baby, which accompanies its mother. In some cases the widow is allowed to take with her to her new home all the children of the first marriage.
24. This is all that is said by Mr. Crooke. He does not record the existence of a custom as has been pleaded by the plaintiffs.
25. No serious attempt has been made to impugn the finding of the Court below that the mortgage made by Bhagni in favour of Debidin appellant was without legal necessity. We hold that the view of the trial Court on this point was undoubtedly correct.
26. On the above finding the appeal ought to succeed against Mewa Lal and his suit claiming to be the legal representative of Chokhey, the original plaintiff, ought to be dismissed.'
27. It is argued, however, that although Mt. Mulia did not file an appeal against the dismissal of her claim as the widow of Chokhey this Court ought to pass a decree in her favour under Order 41, Rule 33, Civil P.C. Order 41, Rule 33, Civil P.C., provides that
The appellate Court shall have power to pass any decree and makes any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all ot any of the respondents or parties, although such respondents or parties may not have Sled any appeal or objection.
28. There was no section is Act 14, 1882, corresponding to Order 41, Rule 33, Act 5,1908. This rule has been copied with a few alterations, which are purely verbal, from the concluding portion of Order 58, Rule 4, Rules of the Supreme Court of Judicature in England. The effect of the rule can, therefore, be illustrated by cases in which the corresponding part of the English rule has been applied by the Court of Appeal in England or in Ireland. Though the decisions of these Courts do not bind us, we think we can use them to assist us in applying Rule 33. The first of these cases is Purnell v. Great Western Ry. Co. and Harris 10 Q.B.D. 363 That was an action for damages for negligence in which one of the questions was whether the persons who had caused injury to the plaintiff were acting as servants of the railway company or of Harris at the time when the accident happened. The jury found against the company and in favour of Harris. The company then moved for a new trial and by order of the Court served notice of motion upon Harris. The Queen's Bench Division refused to grant a new trial and the company appealed to the Court of appeal but did not serve notice on Harris. The Court of appeal ordered service on Harris and after hearing him, set aside the verdict in his favour, although the plaintiff had not asked for a new trial as against him and had allowed the time for doing so to elapse.
29. This decision followed and applied the practice at common law in England before the Judicature Act that if one defendant successfully applied for a new trial the Court would grant a new trial against all the defendants. A similar course was taken by the Court of appeal in Sandford v. Porter  2 Ir. Rule 551. Porter was Waine's solicitor. Acting as such he had marked judgment against the plaintiff and proceeded to levy execution. The judgment was set aside and the plaintiff then sued Porter, and Waine for damages for illegal seizure. At the trial the Judge who presided directed a verdict for Waine, and the jury found against Porter, moved for a new trial and served notice of motion upon Waine. When the case came before the Court of appeal it held that there was a misdirection in favour of Waine and that although the plaintiff had not asked for a new trial against him, the verdict in his favour should be set aside and a new trial should be ordered. In delivering judgment O'Connor, M.R. said:
I hold that the justice of this case is that the defendant, Waine, who wrongfully obtained a verdict at the trial and was the sole, author of a miscarriage of justice to the serious prejudice of both the plaintiff and his co-defendant, should be admitted with them to the same position in which they were originally placed. In other words, both verdicts should be set aside and there should be a new trial as between the plaintiff and both the defendants.
30. All the members of the Court quoted and relied upon Purnell's case 10 Q.B.D. 363. The difference between the two cases of course is that in Purnell's case (1), the action was against the defendants alternatively, whereas in the Irish case the defendants were sued as joint wrongdoers. The next case in order of time is that of A.G. v. Simpson  2 Ch. 671 which was quoted by a Full Bench of this Court in Rangam Lal v. Jhandu  34 All. 32. That was a suit by the Attorney General on behalf of the public for a declaration that the public was entitled to use a certain canal, which ran through the defendant's lands and in which there were several looks belonging to the defendant. The trial Court held that the public was entitled to use the canal without paying tolls, but that the defendant, was not bound to maintain and work the locks. The plaintiff appealed from the whole of the judgments except so much as declared that he was not bound to maintain and work the locks. The Court of appeal varied the judgment by allowing the plaintiff reasonable tolls on boats passing through the canal when carrying merchandise or other goods; but; although the plaintiff had not appeared from that part of the order which relieved him of any obligation to maintain and work the looks, the Court declared that he was bound to do so. This decision was re versed by the House of Lords under the name of Simpson v. A.G.  A.C. 476, but the jurisdiction of the Court of appeal to alter part of the judgment, although no appeal against that part of it had been taken, was not questioned in the House of Lords. The next case is Huntly (Marchioness) v. Goskell  2 Ch. 656, in which a Judge of the King's Bench Division struck out certain paragraphs from the plaintiff's writ on the ground that they were embarrassing and an abuse of the process of the Court. The plaintiff appealed, and the Court of appeal struck out all the endorsements on the writ on the ground that the writ was an abuse of the process of the Court, but this was done without prejudice to the right of the plaintiff to bring a trash suit. The last case is that of Rutherford v. Rutherford  A.C. 144 affirmed by the House of Lords under the name of Rutherford v. Richardson  A.C. 1. That was a wife's petition for divorce, which was granted by the trial Court. The adultery alleged and relied on at the trial was adultery on a single occasion with a lady who had obtained leave to intervene. She appealed and the Court of appeal was satisfied that in fact she had not committed adultery at all with the respondent. The respondent had not appealed, being at the time confined during His Majesty's pleasure as a criminal lunatic. The Court of appeal directed that the papers should be sent to the King's Proctor, who appeared and contended before the Court of appeal that the petition for divorce should be dismissed on the ground that, since the Court of appeal had found, not merely that the evidence against the intervener was inadequate, but that, as a matter of positive fact, she had not committed adultery with the respondent, the respondent could not possibly have committed adultery wish her, and so the decree nisi could not be upheld. The petition for divorce was accordingly dismissed and a decree for judicial separation was granted. The petitioner appealed to the House of Lords, but the decision of the Court of appeal was affirmed.
31. These cases appear to us to show three tidings, (1.) That the jurisdiction conferred by Order 58, Rule 4 is undoubtedly very wide. (2) That the power (in the words of the rule:
to give any judgment or make any order, which ought to have been made and to do so even when the appeal is only from part of the decision of the Court below or when all the parties to the original proceedings are not parties to the appeal, will be exercised in England or Ireland in cases where, as was said by the Attorney-General in the course of his argument in Rutherford v. Rutherford  A.C. 144, 'it is both logically and legally impossible' that the decision of the Court of appeal can exist side by side with that part of the decree of the lower Court from which there has not been an appeal or where the result of the conclusions at which a Court of appeal has arrived affect the legal rights of the parties to the appeal in such a way as to demand a more extensive re-adjustment of those rights than that for which any of them had asked. (3) The fact that since the passing of the Judicature Act there are so few reported cases in which the Court of appeal in England or in Ireland has exercised the jurisdiction conferred on those Courts by that part of Order 58, Rule 4 with which we are concerned shows that the jurisdiction is one which should be very sparingly exercised. We may add that the illustration to Order 41, Rule 33, Civil P.C., appears to be founded upon the decision of the English Court of appeal in Purnell's case already referred to.
32. Order 41, Rule 33, Civil P.C., empowers the Court of appeal to interfere with a portion of the decree passed by the primary Court against which no appeal or cross-objection has been preferred and is restricted to oases where without disturbing the grounds upon which the judgment of the trial Court proceeds the appellate Court considers that the decree should be modified in order to do justice to all the parties concerned including such as have not set the law in motion. If the appellant has failed to appeal from a portion of the decree which was against him or the respondent has not availed himself of his right to prefer a cross-objection the appellate Court is empowered to re-adjust the rights of the parties before it where the ends of justice call for such an adjustment. The powers conferred under this rule are very wide but they are to be resorted to with great care and circumspection and not as a matter of course but only where strong grounds exist for the exercise of such powers.
33. The word 'parties' in Order 41, Rule 33, was not intended to connote persons other than those who had been arrayed as appellants or respondents in the appeal. We must keep in view the entire scheme of Order 41. We must also consider the significance of the word 'parties' in Order 41, Rule 30, Civil P.C. Where one of the co-plaintiffs has failed to appeal from the dismissal of his claim and the time allowed by the Law of Limitation for the presentation of the appeal has expired, the necessary consequence is that an important substantive right has accrued in favour of the defendant. The unsuccessful co-plaintiff is not a party to the appeal which has been preferred by the unsuccessful defendant against the successful co-plaintiff. The determination of his right, title or interest in the property is not necessary for the grant of proper or adequate relief to the parties actually before the appellate Court. The Law of Limitation has completely run out against him and the decree against him has become final. He has not paid the necessary Court fee for an appeal on his behalf. In view of all these circumstances it would be extremely difficult to hold that the legislature could ever have intended to extend Order 41, Rule 33 to a person so situated as the co-plaintiff who did not appeal. The latter rule evidently applied to cases where no adequate relief could be granted to the appellant without allowing some consequential relief to the respondent even though the latter had not appealed or preferred a cross-objection. In Rangam Lal v. Jhandu  34 All. 32. Richards, C.J. remarked that the Court, in exercise of the powers conferred by Order 41, Rule 33, should not lose sight of the other provision of the Code of Civil Procedure itself, nor of the Court-Fees Act, nor of the Law of Limitation. He further observed that:
the object of Order 41, Rule 33 was manifestly to enable the Court to do complete justice between the parties to the appeal.
34. Where, for example, it is essential in order to grant a relief to an appellant that some relief at the same time should be granted to the respondent, the Court may grant relief to the latter even though he has not filed an appeal or preferred an objection. The case of Mohammad Khaleef Shirazi & Sons v. Less Tanneries Lyonnaises A.I.R. 1926 P.C. 34 has been relied on by the appellant, but unfortunately it is not exactly in point. In that case the plaintiff's claim having been dismissed by the trial Court, and the plaintiff having submitted to the decree, the question arose whether the plaintiff was entitled to ask the Privy Council to grant him certain relief against the successful defendant, under Order 41, Rule 33, Civil P.C. It was held by the Judicial Committee that to give effect to the plaintiff's contention would be practically to allow an appeal to His Majesty-in-Council direct from the decree of the trial Judge and that Order 41, Rule 33, Civil P.C., was not intended to apply to such an appeal. In the present case the co-plaintiff could have appealed to this Court directly. He failed to do so. There is nothing in Order 41, Rule 33 to indicate that relief could he granted to a person who is not before the Court and whose rights are not the subject-matter of enquiry in the appeal and whose presence is not necessary for the final settlement of any dispute between the parties who are actually before the Court, and whose legal rights would not be in any way affected by any decision at which we might arrive after the hearing of this case.
35. In V.P.R.V. Chokalingam Chetty v. Seethai Ache the question arose whether the plaintiff was entitled to add as respondent certain defendants in the original suit against whom the claim had been dismissed and no appeal preferred. Their Lordships pointed out that the appeal against such respondents was prima facie barred by limitation and the respondents were entitled to hold the decree in their favour which was a substantive right of a very valuable character of which they should not lightly be deprived. It could not be said that such respondents were 'interested in the result of the appeal' within the meaning of those words in Order 41, Rule 20. Civil P.C.
36. Mt. Mulia is not interested in the result of this appeal qua the determination of the rights of the contestants actually before us. If she were to be impleaded, the result would be that she could then put forward a claim in direct opposition to the right of Debidin on the one hand and to that of Mewa Lal the so-called son and heir of Chokhey deceased. Her claim against Debidin having been dismissed, the latter has, by the finality of the decree, secured a very important substantive right against Mt. Mulia, which ought not to be lightly disturbed. Even on the assumption that the word 'parties' is of sufficient amplitude to include a party to the original suit who has not appealed within the statutory period, the presence of Mt. Mulia in the Court of appeal is not necessary to grant consequential relief to the plaintiff or the defendant now before the Court. She is sought to be introduced, not with a view to grant relief to the parties now before the Court but with the object that the decree of the Court below be reversed and discharged and a decree be substituted in her favour against the defendant respondent.
37. Mt. Mulia is not entitled to make a grievance of the fact that she has been deprived of her rights to the property of Chokhey which she undoubtedly has under the Hindu law. She deliberately came into Court with an untrue story, when, in her first application for substitution of names, she set up Mewa Lal as the son of Chokhey. When she was forced to abandon that position, she put forward the plea that, according to a custom prevailing amongst the chamars, a stepson is entitled to succeed to the estate of the stepfather. It is to be remembered that Mt. Mulia is not a pardahnashin lady and is not hampered by the disabilities peculiar to ladies of the purdah. Throughout the trial she acted as the guardian of her son Mewa Lal and she pleaded the custom already referred to whereby Mewa Lal, and not she, was heir to the estate of Chokhey.
38. She in fact does not appear to have ever cared to fight for the property for herself, and the real object of her suit was to install her son Mewa Lal in place of Ishwaridas to which he had not the shadow of a claim.
39. In view of all these circumstances, we do not think that we should be justified in passing a decree in favour of Mt. Mulia even if it were lawful to do so under Order 41, Rule 33, Civil P.C.
40. We accordingly allow the appeal, set aside the decree of the Court below and dismiss the plaintiff's suit. In view of the fact that both the parties had freely engineered false evidence we direct that they should bear their own costs both here and heretofore.