SURINDER KUMAR AND OTHERS versus GIAN CHAND AND OTHERS

Citation: [1958] 1 S.C.R. 548 · Decided: 24-09-1957 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 applica-
tion 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 unsustain-
able 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 Guran-
ditta 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 pro-
bate 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 l

Excerpt shown. Read the full judgment & AI analysis in Lexace.