Surinder Kumar And Ors. vs Gian Chand And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 24 September 1957

Coram: B.P. Sinha, P. Govinda Menon, J.L. Kapur

In this matter, the Supreme Court considered an appeal filed by special leave against a judgment and decree issued by the High Court of Punjab on 16 August 1949. The High Court had set aside the decree of the trial court, which had previously granted relief to the plaintiffs in a suit concerning a mortgage. The appeal was presented by the plaintiffs, who were also the appellants before this Court.

The appellants asserted that they were the legatees named in a registered will of their maternal grandfather, Lala Guranditta Mal, which had been executed on 6 September 1944. According to that will, a specific right that had been bequeathed to them was the entitlement to a mortgage that the defendants had executed in favour of the testator on 24 October 1932 for a principal amount of six thousand rupees. Relying on this mortgage, the plaintiffs instituted proceedings on 25 October 1944 before the Senior Subordinate Judge at Gurdaspur, seeking the recovery of five thousand three hundred ninety‑two rupees and two annas. In their pleading, the plaintiffs declared that they were “representatives and heirs” of Lala Guranditta Mal and specifically stated, “We are heirs and representatives of Lala Guranditta Mal mortgagee deceased.”

The defendants, on the other hand, contested the plaintiffs’ claim on several grounds. They contended that they had no knowledge of any such will made by Guranditta Mal and denied that the plaintiffs were the rightful heirs or representatives of the mortgagee. Consequently, the defendants argued that the plaintiffs lacked any locus standi to maintain the suit. The learned trial judge identified five questions for determination, but the sole issue that remained pertinent for this appeal was the first one: whether the plaintiffs possessed the locus standi to proceed with the suit as successors‑in‑interest of the deceased Guranditta Mal.

The trial judge concluded that the will carried a presumption of correct execution because it had been duly registered. He further held that the absence of probate of the will did not constitute a bar to the plaintiffs obtaining a decree, and accordingly, he passed a preliminary decree in favour of the plaintiffs on the mortgage. When the matter was taken in appeal, the High Court reversed the trial judge’s decree, dismissed the suit, and ordered each party to bear its own costs. The High Court’s reasoning was set out in the following observation: “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.”

Subsequent to the High Court’s decision, the plaintiffs made a request for the admission of additional evidence under Order 41, Rule 27 of the Civil Procedure Code. The High Court rejected this prayer. It also declined to grant leave to appeal under Article 133, although a special leave petition was entertained and granted on 21 October 1952. In the interval, the probate of the will of Lala Guranditta Mal was obtained from the District Judge of Gurdaspur on 11 July 1951. The probate was granted in favour of the present appellants together with their mother, Mussammat Har Devi. Following the probate, the appellants proceeded to file further applications in this Court, seeking to admit the probate as additional evidence and to treat it as a judgment in rem, and also to include Mussammat Har Devi as a respondent in the appeal.

In this proceeding the appellants filed an application before this Court seeking permission to adduce additional evidence and specifically prayed that the probate be placed on the record, contending that the probate of the will functioned as a judgment in rem. The appellants further sought to have Mussammat Har Devi joined as a respondent in the appeal.

The respondents raised an objection to the admission of such additional evidence at this late stage. Their objection was founded on several grounds: first, that the probate had been obtained without the respondents’ knowledge; second, that the application was made after an undue delay and thereby deprived the respondents of a valuable right which vested in them, particularly because the claim had become statute‑barred; and third, that there was no rule in the Supreme Court Rules that authorized the admission of additional evidence at this point. It was pointed out that the probate was applied for and secured only after the judgment of the High Court, and consequently it could not have been produced before that Court. The judgment of the Probate Court, however, must be presumed to have been issued in conformity with the procedure prescribed by law, and it is a judgment in rem. Therefore, the objection that the respondents were not parties to that judgment could not be sustained, given the nature of a judgment in rem.

Regarding the authority of this Court to admit further evidence, there is no specific provision expressly permitting such admission. Nevertheless, Rule 5 of Order 45 of the Supreme Court Rules acknowledges the inherent power of the Court to make any order necessary for the ends of justice or to prevent an abuse of its process. The Privy Council, in Indrajit Pratap Sahi v. Amar Singh (L.R. (1923) 50 I.A. 183, 191), observed that there is no limitation on the Board’s power to admit evidence when, at the initial stage, sufficient grounds for its non‑production have been established.

The Court’s inherent powers in relation to the admission of additional evidence are therefore not inferior to those of the Privy Council. Moreover, when deciding an appeal, the Court must consider the circumstances existing at the time the appeal is determined. Since a judgment in rem has been entered in favour of the appellants, the Court must take that additional fact into account. This principle was affirmed by the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri ([1940] F.C.R. 84), where Gwyer C.J. endorsed Chief Justice Hughes’s observation in Patterson v. State of Alabama (1934) 294 U.S. 600, 607, stating that appellate jurisdiction includes not only the power to correct errors in the judgment under review but also the power to make such disposition of the case as justice requires, and that the Court is bound to consider any change in fact or law that has supervened since the judgment was entered.

Varadachari J. was of the opinion that the hearing of an appeal is, under the procedural law of this country, a rehearing, and consequently an appellate court, in shaping the relief to be granted, may consider facts and events that have arisen after the decree being appealed was passed.

In this matter the Court observed that the procedure for hearing an appeal under the law of this country is essentially a rehearing and that, consequently, when the appellate court fashions the relief to be granted, it may consider facts and events that have arisen after the decree that is being appealed was entered. The Court noted that this principle has been supported by numerous Indian decisions, by the practice of the Judicial Committee of the Privy Council and by certain English authorities. The Court further held that the grant of probate, which occurred after the impugned decision and was now placed before this Court, must be taken into account in determining the appeal. If that probate is considered, the defect in the appellant’s case – namely the lack of proper attestation of the will required by section 63(1)(c) of the Indian Succession Act – would be cured. Because the Court adopted this view, the other objection raised by the respondents became entirely ineffective and the finding of the High Court on that point was set aside. Accordingly the Court allowed the appeal, set aside the judgment and decree of the Punjab High Court and remitted the matter back to that High Court for determination of the remaining issues that had not been decided. The Court also addressed costs, observing that the appellants had obtained probate only after filing the appeal and had sought admission of additional evidence at a very late stage; therefore the appellants were ordered to pay Rs 500 as costs of this Court to the respondents within two months. The Court further directed that if the appellants failed to make the payment, the appeal would be dismissed with costs of Rs 500. In conclusion the appeal was allowed.