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PETITIONER: SURINDER KUMAR AND OTHERS

       Vs.

RESPONDENT: GIAN CHAND AND OTHERS

DATE OF JUDGMENT: 20/09/1957

BENCH:

ACT:        Supreme Court, Inherent Power of-Admission of additional        evidence-Supreme Court Rules, O. 45, r. 5.

HEADNOTE:        Under a registered will, mortgagee rights in certain proper-        ty 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.   Thereaf-        ter probate of the will was obtained in favour of the appel-        lants 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  addi-        tional  evidence in appeal.  In deciding an appeal  the  Su-        preme 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 itself.        Inderjit  Pratap Sahi v. Amar Sinah, L. R. (1923) 50  I.  A.        183,        Lachmeshwar  Prasad Shukul v. Kishwar Lal Chaudhuri,  [1940]        F.C.R. 84, followed.

JUDGMENT:        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 1944.        H.   J. Umrigar and K. L. Mehta, for the appellants.        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

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      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  testa-        tor  on  October 24, 1932, for Rs. 6,000.   On  October  25,        1944, they brought a suit in the court of the Senior  Subor-        dinate 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 Gurandit-        ta 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  representa-        tives 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  de-        ceased ?        The  learned  Subordinate Judge held that the will  had  the        presumption of its correct execution " because it was regis-        tered 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  plain-        tiffs had no locus standi to maintain the suit.  "        A prayer made for the admission of additional evidence under        0. 41, r. 27 of the Civil Procedure Code was rejected.   The        High  Court refused leave to appeal under Art. 133 but  Spe-        cial  Leave was granted on October 21, 1952.  In  the  mean-        while  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 Mussam-        mat  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  re-        spondents 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  objec-        tion  that  the respondents were not parties to it  is  thus

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      unsustainable because of the nature of the judgment itself.        As  to the power of this court, there is no specific  provi-        sion 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 Singh(1) said:        " 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 appel-        late 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 processual 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.        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)  [1940] 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  find-        ing 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 respond-        ents  within  two months.  In default of  such  payment  the        appeal shall stand dismissed with costs, i.e., Rs. 500.                                               Appeal allowed.

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