1. The plaintiff's case is founded upon the Will of Papi Reddi, and the plaint alleges that the testator gave only a life-interest to his daughter, and that upon her death the plaintiff took an absolute interest in her share, and prays that his right may be declared and for recovery of property in the possession of the husband of the deceased's daughter. The cause of action is alleged to have arisen on her death.
2. No evidence was called by either party, and the District Munsif gave judgment upon the construction of the Will. The Subordinate Judge has remanded the case for evidence as to whether the testator intended to give an absolute interest to his daughter or merely a life-interest.
3. The learned Vakil for the respondent was unable to specify what evidence he wished to adduce, and apparently it is oral evidence of the testator's intention simply. This is clearly inadmissible. Evidence would, no doubt, be admissible as to all the surrounding circumstances of the testator and the beneficiaries, but no such evidence was tendered at the trial of the suit, nor was it a ground of appeal to the lower Appellate Court that the District Munsif improperly refused to take evidence on behalf of the plaintiff no reason has been given why the parties should be allowed to adduce further evidence, and have a re-trial of the suit. We cannot allow the plaintiff now to amend his plaint, and allege that the Will does not affect the suit property because it is ancestral, and passed to the plaintiff by survivorship; that would be to set up a totally different title and cause of action.
4. The order of remand must be set aside, and the District Judge of Kurnool will dispose of the appeal on the evidence before him. The appeal is allowed with costs.