Surinder Kumar And Others vs Gian Chand And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 49 of 1954

Decision Date: 20 September 1957

Coram: KAPUR J

In this matter the petitioners, identified as Surinder Kumar and others, brought a suit against the respondents, identified as Gian Chand and others, seeking recovery of a sum of money on the basis of a mortgage. The mortgage was created by the respondents in favour of the testator, Lala Guranditta Mal, on 24 October 1932 for a principal amount of six thousand rupees. The petitioners claimed that under a registered will dated 6 September 1944, executed by Lala Guranditta Mal, the mortgagee rights in the said property were bequeathed to them. Acting upon this claim, the petitioners commenced suit on 25 October 1944 for the recovery of five thousand three hundred ninety‑two rupees and two annas, alleging that they were the lawful representatives and heirs of the deceased mortgagee. The defendants denied any knowledge of the alleged will and contested the petitioners’ standing to sue, asserting that the petitioners were not the heirs or representatives of the mortgagee. The trial court, after considering the fact that the will was registered, held that a registered will carried a presumption of proper execution and therefore granted a decree in favour of the petitioners despite the absence of probate. The appeal against this decree was heard by the Punjab High Court, which reversed the trial court’s decision on the ground that the petitioners had failed to prove the attestation of the will by two witnesses. Subsequently, probate of the will was obtained in favour of the petitioners and their mother. The petitioners then applied before this Court for admission of the probate document as additional evidence and for the inclusion of their mother as a party to the proceedings, an application that was opposed by the respondents.

The Supreme Court, acknowledging its inherent power under Order 45, Rule 5 of the Supreme Court Rules, held that it may admit additional evidence on appeal when such evidence is material to the determination of the issues. In exercising this power the Court emphasized that the matter must be decided based on the circumstances existing at the time the appeal is heard, and that a probate decree, being a judgment in rem, is relevant and must be taken into account. The Court rejected the contention that the respondents’ lack of participation in the probate proceedings rendered the probate document inadmissible, observing that the nature of the probate judgment itself suffices to establish its evidentiary value. In support of its reasoning the Court referred to the decisions in Inderjit Pratap Sahi v. Amar Sinah, L. R. (1923) 50 I. A. 183, and Lachmeshwar Prasad Shukul v. Kishwar Lal Chaudhuri, [1940] F.C.R. 84, which respectively affirm the appellate Court’s authority to receive fresh evidence and to consider judgments that affect the rights of the parties. Consequently, the Court allowed the admission of the probate as additional evidence and ordered that the petitioners’ mother be made a party to the appeal.

The plaintiffs filed a suit before the Senior Subordinate Judge of Gurdaspur seeking recovery of Rs. 5,392‑2‑0 based on a mortgage. In their pleading they claimed to be the “representatives and heirs” of Lala Guranditta Mal under his registered will, and they simply stated, “We are heirs and representatives of Lala Guranditta Mal mortgagee deceased.” The defendants responded that they had no knowledge of any such will and denied that the plaintiffs were heirs or representatives of the mortgagee, contending that the plaintiffs therefore lacked any locus standi to sue. The trial judge framed five issues, of which the first—whether the plaintiffs possessed locus standi as successors‑in‑interest of the deceased—was the only one relevant to the present appeal. The Subordinate Judge held that the will enjoyed a presumption of correct execution because it was registered, and that the failure to obtain the probate of the will did not prevent the plaintiffs from obtaining a decree; consequently, he passed a preliminary mortgage decree in their favour. On appeal, the High Court reversed the trial judge’s decree, dismissed the plaintiffs’ suit, and ordered each party to bear its own costs. The High Court reasoned that, under law, a will must be attested by two witnesses to be valid; since this statutory requirement had not been satisfied, the plaintiffs were deemed to lack locus standi to maintain the suit. An application for the admission of additional evidence under Order 41, Rule 27 of the Civil Procedure Code was rejected, and the High Court also refused leave to appeal under Article 133, although Special Leave was later granted on 21 October 1952. Meanwhile, the probate of Lala Guranditta Mal’s will was obtained from the District Judge of Gurdaspur on 11 July 1951 in favour of the present appellants and their mother, Mussammat Har Devi. The appellants then applied to this Court for the admission of additional evidence, requesting that the probate be placed on record as a judgment in rem, and also sought to add Mussammat Har Devi as a respondent in the appeal. The respondents objected to the admission of that evidence, arguing that the probate had been obtained without their knowledge, that the application was filed at an untimely stage, that it deprived them of a valuable right because the claim had become statute‑barred, and that there was no provision in the Rules of this Court for admitting additional evidence. It was clear that the probate had been applied for and granted after the High Court’s judgment, and therefore could not have been produced in that earlier proceeding.

In this case the Court observed that the probate could not have been produced in the High Court because it was obtained after the judgment of that court. The Court held that the judgment of the Probate Court must be presumed to have been issued in accordance with the legal procedure prescribed by law and that such a judgment was a judgment in rem. Accordingly, the objection raised by the respondents that they were not parties to the probate judgment was unsustainable, given the nature of a judgment in rem. Regarding the authority of this Court to admit additional evidence, the Court noted that although there is no specific provision in the Rules for such admission, Rule 5 of Order 45 of the Supreme Court Rules recognises an inherent power of the Court to make orders necessary for the ends of justice or to prevent an abuse of process. The Court quoted the Privy Council decision in Indrajit Pratap Sahi v. Amar Singh, which stated that there is no restriction on the powers of the Board to admit evidence for a non‑producer when sufficient ground has been made out at the initial stage, and affirmed that the powers of this Court in regard to the admission of additional evidence are not inferior to those of the Privy Council. Moreover, the Court explained that when deciding an appeal it must consider the circumstances as they exist at the time the appeal is decided, and that a judgment in rem having been passed in favour of the appellants required the Court to take that additional fact into consideration. The Court referred to the Federal Court’s holding in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, where Gwyer C.J. quoted with approval Chief Justice Hughes’s observation in Patterson v. State of Alabama that an appellate court has the power not only to correct error in the judgment under review but also to make such disposition of the case as justice requires, and that the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. Varadachari J. expressed the view that the hearing of an appeal, under the procedural law of this country, is a rehearing; therefore, in moulding the relief to be granted an appellate court is entitled to take into account facts and events that have arisen after the decree appealed from was passed. He referred to many Indian cases, to the practice of the Judicial Committee of the Privy Council, and to some English cases. In the Court’s opinion the fact of the grant of probate, which had supervened since the decision under appeal, had been placed before the Court and 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 section 63(1)(c) of the Indian Succession Act would be removed.

In this case, the Court observed that the reference to the Succession Act must be removed from the record. The Court further explained that, in view of this approach, the other objection raised by the respondents loses any effect and cannot succeed. Consequently, the Court reversed the finding of the Punjab High Court on that particular point. Accordingly, the Court allowed the appeal, set aside both the judgment and the decree issued by the Punjab High Court, and ordered that the matter be sent back to that High Court for determination of the remaining issues that had not been finally decided. The Court noted that the appellants obtained probate only after the appeal was lodged before this Court and that they had sought to introduce additional evidence at a stage that was unreasonably late. Because of this delay, the Court directed the appellants to pay costs of five hundred rupees to the respondents, and specified that the payment must be made within two months from the date of this order. The Court further provided that if the appellants fail to make the prescribed payment within the stipulated period, the appeal would be deemed dismissed and the appellants would be liable to pay the same amount of five hundred rupees as costs. The final order therefore recorded that the appeal was allowed.