Surinder Kumar & Ors Vs. Gian
Chand & Ors  INSC 74 (20 September 1957)
Supreme Court, Inherent Power of-Admission of
additional evidence-Supreme Court Rules, O. 45, r. 5.
Under a registered will, mortgagee rights in
certain property were bequeathed to the appellants. They filed a suit to
recover the money on the basis of the mortgage without obtaining probate of the
will. The respondents challenged the locus standi of the appellants to sue. The
trial Court decreed the suit holding that the will being registered there was a
presumption of due execution. On appeal the High Court dismissed the suit on
the ground that attestation of the will by two witnesses had not been proved.
Thereafter probate of the will was obtained in favour of the appellants and
their mother. In appeal before the Supreme Court appellants made an application
for the admission of the probate as additional evidence and for making their
mother a party. The respondents opposed the application.
Held, that the Supreme Court has the power to
admit additional evidence in appeal. In deciding an appeal the Supreme Court
has to take the circumstances as they are at the time when the appeal is being
decided, and the probate being a judgment in rem must be taken into
consideration. The objection that the respondents were not parties to the
probate proceedings is unsustainable because of the nature of the judgment
Inderjit Pratap Sahi v. Amar Sinah, L. R.
(1923) 50 I. A. 183, Lachmeshwar Prasad Shukul v. Kishwar Lal Chaudhuri, 
F.C.R. 84, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 49 of 1954.
Appeal by special leave from the judgment and
order dated the 16th August, 1949, of the Punjab High Court in Regular First
Appeal No. 57 of 1949 arising out of the judgment and order dated the 30th November, 1945, of the Court of Senior Sub-Judge, Gurdaspur, in Suit No. 298 of
H. J. Umrigar and K. L. Mehta, for the
B. S. Narula, for the respondents.
549 1957. September 24. The following
Judgment of the Court was delivered by KAPUR J.-This appeal by Special Leave is
brought from the judgment and decree of the High Court of the Punjab, dated August 16, 1949, reversing the decree of the trial court which had decreed the plaintiffs'
suit on a mortgage.
The plaintiffs who are the appellants in this
appeal claim to be the legatees under a registered will of their mother's
father Lala Guranditta Mal executed on September 6, 1944.
One of the items bequeathed to them was the
rights in a mortgage executed by the defendants in favour of the testator on October 24, 1932, for Rs. 6,000. On October 25, 1944, they brought a suit in the court of
the Senior Subordinate Judge, Gurdaspur for the recovery of Rs. 5,392-2-0 on
the basis of the mortgage. They alleged that they were the "
representatives and heirs " of Lala Guranditta Mal under the will and in
their replication they just stated:
" We are heirs and representatives of
Lala Guranditta Mal mortgagee deceased. " Inter alia the defendants
pleaded that they had no knowledge of the will alleged to have been made by
Guranditta Mal and they denied that the plaintiffs were heirs and representatives
of the mortgagee and therefore had no locus standi to sue. Five issues were
stated by the learned trial judge out of which the issue now relevant for the
purpose of this appeal is the first one:
(1) Have the plaintiffs a locus standi to
maintain the present suit as successors-in-interest of Guranditta deceased ?
The learned Subordinate Judge held that the will had the presumption of its
correct execution " because it was registered and also that not obtaining
the pro. bate of the will was no bar to the. plaintiffs obtaining a decree and
passed a preliminary mortgage decree. On the matter being taken in appeal to
the High Court the decree of the trial court--was reversed and the suit of the
plaintiffs dismissed but the parties were left to bear their own costs. The
High Court held;
550 It is thus clear that attestation by two
witnesses was necessary in order to validate the will now before us. As this
requirement of law has not been satisfied the plaintiffs had no locus standi to
maintain the suit. " A prayer made for the admission of additional
0. 41, r. 27 of the Civil Procedure Code was
rejected. The High Court refused leave to appeal under Art. 133 but Special
Leave was granted on October 21, 1952. In the meanwhile the probate of the will
of Lala Guranditta Mal was granted by the District Judge of Gurdaspur on July
11, 1951, in favour of the present appellants and their mother Mussammat Har
Devi. The appellants made an application in this court for the admission of
additional evidence and prayed that the " probate be placed on the record
" as the "probate of the will operated as a judgment in rem ".
They also applied to add Mussammat Har Devi as a respondent in the appeal.
An objection to the admission of additional
evidence at this stage, is taken by the respondents on the ground that the
probate was obtained without their knowledge and that the application was made
at a late stage, it deprived the respondents of the valuable right which vests
in them because the claim has become statute barred and that there is no
provision in the Rules of this court for the admission of additional evidence.
It is clear that the probate was applied for and obtained after the judgment of
the High Court and therefore could not have been produced in that court. The
judgment of the Probate Court must be presumed to have been obtained in
accordance with the procedure prescribed by law and it is a judgment in rem.
The objection that the respondents were not parties to it is thus unsustainable
because of the nature of the judgment itself.
As to the power of this court, there is no specific
provision for the admission of additional evidence but r. 5 of 0. 45 of the
Supreme Court Rules recognises the inherent power of the court to make such
orders as may be necessary for the ends of justice or to prevent 551 an abuse
of process of the court. The Privy Council in Indrajit Pratap Sahi v. Amar
" that there is no restriction on the
powers of the Board to admit such evidence for the non-productior, of which at
the initial stage sufficient ground has been made out.
The powers of this Court in regard to the
admission of additional evidence are in no way less than that of the Privy
Council. Moreover in deciding the appeal we have to take the circumstances as
they are at the time when the appeal is being decided and a judgment in rem
having been passed in favour of the appellants it is necessary to take that
additional fact into consideration. It was so held by the Federal Court in
Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (2) where Gwyer C.J. quoted
with approval the following observation of Chief Justice Hughes in Patterson v.
State of Alabama(3):
" We have frequently held that in the
exercise of our appellate jurisdiction we have power not only to correct error
in the judgment under review but to make such disposition of the case as
justice requires. And in determining what justice does require, the court is
bound to consider any change, either in fact or in law, which has supervened
since the judgment was entered. " Varadachari j. was of the opinion that the
hearing of an appeal is under the procession law of this country in the nature
of a rehearing and therefore in molding the relief to be granted in appeal an
appellate court is entitled to take into account even facts and events which
have come into existence since the decree appealed from was passed. He referred
to many Indian cases and to the practice of the Judicial Committee of the Privy
Council and to some English cases.
In our opinion the fact of the grant of the
probate which has supervened since the decision under appeal was given and
which has been placed before this court must be taken into consideration in
deciding the appeal. In that event the infirmity in the appellant's (i) LR.
(1923) 50 I.A. 183, 19r.
(2)  F.C.R, 84 (3) (1934) 294 U.S. 600, 607 552 case due to the want of proper attestation of the will inder s. 63(1)(c)
of the Indian Succession Act would be removed.
Because of the view we have taken the other
objection raised by the respondents becomes wholly inefficacious. The finding of
the High Court on this point is therefore reversed.
We, therefore, allow this appeal, set aside
the judgment and decree of the Punjab High Court and remit the case to the High
Court for decision of the other issues which had not been decided.
As the appellants did not obtain the probate
till after the appeal was filed in this court and made the application for the
admission of additional evidence at such a late stage, they will pay Rs. 500 as
costs of this court to the respondents within two months. In default of such
payment the appeal shall stand dismissed with costs, i.e., Rs. 500.