Surinder Kumar and others Vs Gian Chand and others- 24/09/1957

KEYWORDS:-PROBATE PROCEEDING-admission of addition of evidence under O. 41, R. 27 of the Civil Procedure Code –

DATE:- 24-09-1957

AIR 1957 SC 875 : (1958) SCR 548


Surinder Kumar and others Appellant
Gian Chand and others Respondent

(Before : B. P. Sinha, P. Govinda Menon And J. L. Kapur, JJ.)

Civil Appeal No. 49 of 1954, Decided on : 24-09-1957

Evidence Act, 1872—Section 41—Judgment in rem—Probate of Will—Judgment of the court granting probate of Will is presumed to have been granted in accordance with the procedure prescribed by the law and is a judgment in rem—The judgment is binding even on the persons not party to the probate proceedings.

Counsel for the Parties:

M/s. H. J. Umrigar and K. L. Mehta, Advocates, for Appellants

Mr. R. S. Narula, Advocate, for Respondents (except No. 2).


Kapur, J.—This appeal by Special Leave is brought from the judgment and decree of the High Court of the Punjab, dated 16th August 1949 reversing the decree of the trial Court which had decreed the plaintiffs’ suit on a mortgage.

2- 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 6th September 1944. One of the items bequeathed to them was the rights in a mortgage executed by the defendants in favour of the testator on 24th October 1932, for ` 60000. On 25th October 1944 they brought a suit in the Court of the Senior Subordinate Judge, Gurdaspur for the recovery of ` 5392-2-0 on the basis of the mortgage.

They alleged that they were the “representatives and heirs” of Lala Guranditia 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 Guruanditta 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?

3. 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 probate 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 plaintiffs dismissed but the parties were left to bear their own costs. The High Court held:

“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.”

4. A prayer made for the admission of addition of evidence under O. 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 21st October 1952. In the meanwhile the probate of the will of Lala Guranditta Mal was granted by the District Judge of Gurdaspur on 11th July 1951, in favour of the present appellants and their mother Mt. 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 Mt. Har Devi as a respondent in the appeal.

5. 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.

6. As to the power of this Court, there is no specific provision for the admission of additional evidence but R. 5 of O. 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 an abuse of process of the Court. The Privy Council in Indrajit Pratap Singh vs. Amar Singh, 50 Ind App 183 said:

“that there is no restriction on the powers of the Board to admit such evidence for the non-production 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 appellant 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 vs. Keshwar Lail Chaudhari, 1940 FCR 84, where Gayer C. J., quoted with approval the following observation of Chief Justice Hughes in Patterson vs. State of Alabama, (1934) 294 U S 600(C).

“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 supervend since the judgment was entered.”

Varadachariar J., was of opinion that the hearing of an appeal is under the procedural law of this country in the nature of a rehearing and therefore in moulding 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.

7. 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 case due to the want of proper attestation of the will under S. 63(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.

8. 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.

9. 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., ` 500.