# SURINDER KUMAR AND OTHERS v. GIAN CHAND AND OTHERS

- **Citation:** [1958] 1 S.C.R. 548
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Case number:** Civil Appeal No. 49 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surinder-kumar-and-others-v-gian-chand-and-others-1480
- **Pages:** 5

## Headnote

19S1
Sept•mbu 24.
548
SUPREME COURT REPORTS
(1958)
SURINDER KUMAR AND OTHERS
v.
GIAN CHAND AND OTHERS
(B. P. SINHA, GOVINDA MENON AND J. L. KAPUR, JJ) ..
Supreme Court, Inherent Power of-Admission of
additional evidence-Supreme Court Rules, 0.45, 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 iii.
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 itself.
lnderjit Partap Sabi v. Amar Singh, L.R. (1923)
50 I.A. 183.
Lachmeshwar Prasad Shukul v. Kishwar Lal
Chaudhuri, (1940) F.C.R. 84, followed.

## Text

19S1
Sept•mbu 24.
548
SUPREME COURT REPORTS
(1958)
SURINDER KUMAR AND OTHERS
v.
GIAN CHAND AND OTHERS
(B. P. SINHA, GOVINDA MENON AND J. L. KAPUR, JJ) ..
Supreme Court, Inherent Power of-Admission of
additional evidence-Supreme Court Rules, 0.45, 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 iii.
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 itself.
lnderjit Partap Sabi v. Amar Singh, L.R. (1923)
50 I.A. 183.
Lachmeshwar Prasad Shukul v. Kishwar Lal
Chaudhuri, (1940) 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,
<Jurdaspur, in Suit No. 298 of 1944.
S.C.R.
SUPREME COURT REPORTS
549
H. J. Umrigar and K. L. Mehta, for the appellants.
t9S7
R. S. Narula, for the respondents.
s"'lnlW Kumar
1957. September 24. The following Judgment of
and 011ters
the Court was delivered by
· Gian vcha1:d
KAPUR J.-This appeal by Special Leave is brought
and 01w3
from the judgment and decree of the High.Court of the
Punjab, dated August 16, 1949,. reversing the decrc::e of
Kapur J.
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 ·
mothef s fa th er 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?
.
1he 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 t9
~he plaintiffs obtaining
a decree and passed a prehmmary mortgage decree.
On the matter being taken in appeal to the High Court
the decree of the trial court was reversed and the suit
1951
SurlnMr Kumar
andOtlrus
v.
Gian Chand
and Otlters
Kapur J.
550
SUPREME COURT REPORTS
(1958]
of the 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 not 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
evidence under 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 probat 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
S.C;R.
SUPREME COURT REPORTS
551
may be necessary for the ends of justice or to prevent
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-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 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 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
(1) L.R. (1923) 50 I.A. 183, 191.
(2) [19401 F.C.R. 84.
(3) ( 1934) 294 U.S. 6oo, 6o7.
19S7
Sw/llller Kumar
ON/ Others
v.
Gian Chand
and Others
Kapur J.
1951
Surlnder X-ar
and OtMrs
v.
Gltlll~haNI
andOtlwr1
Kapvr J.
1951
Septembtr 25.
552
SUPREME COURT REPORTS
[1958}
appeal. In that event the infirmity in the appellant's
case due to the want of proper attestation of the will
under s. 63(l)(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 Cpurt
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.
Appeal allowed.
KHUSHAL RAO
v.
THE STATE OF BOMBAY
(B. P. SINHA, GOVINDA MENON and J. L. KAPUR JJ).
Supreme Court, Criminal Appellate Jurisdiction of-Certificate
of fitness, if can be granted by High Court on a question of factDying declaration, evldentiary value of-If must be corroborated in
order to sustain conviction-Constitution of India, Art. 134(1)(c)-
Indlan Evidence Act (I ofl872), s. 32 (!).
The Supreme Court does not ordinarily function as a Court of
criminal appeal, and it is not competent for a High Court under
Art, 134(l)(c) of the Constitution to grarit a certificate of fitness
for appeal to this Court on a ground which is essentially one of
fact.
Haripada Dey v. The State of West Bengal, (1956) S.C.R. 639,
followed.
There is no absolute rule of Jaw, not even a rule of prudence
that has ripened into a rule of Jaw, that a dying declaration in
order that it may sustain an order of conviction must be cor·
roborated by other independent evidence. The observations made