Case Note & Summary
The appeal before the Supreme Court arose from a mortgage suit filed by the appellants as legatees under a registered will of their maternal grandfather. The original suit was instituted in the Court of Senior Sub-Judge, Gurdaspur for recovery of money due on a mortgage executed in favour of the testator. The trial court decreed the suit on 30 November 1945, holding that the registered will carried a presumption of due execution and that probate was not necessary for maintaining the suit. The defendants appealed to the Punjab High Court, which reversed the decree on 16 August 1949, holding that attestation of the will by two witnesses as required under Section 63(1)(c) of the Indian Succession Act had not been proved and therefore the plaintiffs lacked locus standi. The High Court also rejected an application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure and refused leave to appeal under Article 133. Special leave was granted by the Supreme Court on 21 October 1952. In the meantime, probate of the will was granted by the District Judge, Gurdaspur on 11 July 1951 in favour of the appellants and their mother. Appellants then applied to the Supreme Court for admission of the probate as additional evidence and to add their mother as a respondent. Respondents opposed the application on grounds that probate was obtained without their knowledge, the application was late, the claim had become time-barred, and there is no provision in Supreme Court Rules for admission of additional evidence. The Supreme Court held that it has inherent power to admit additional evidence under Order 45 Rule 5 of Supreme Court Rules to secure ends of justice. The Court relied on Privy Council and Federal Court decisions to hold that an appellate court must consider supervening facts and events, and that probate is a judgment in rem which cures the defect of lack of attestation. Therefore, the High Court's finding on locus standi was reversed. The appeal was allowed, the judgment and decree of the High Court were set aside, and the case was remitted to the High Court for decision on the remaining issues. The appellants were directed to pay Rs. 500 as costs to the respondents within two months, failing which the appeal would stand dismissed with costs.
Headnote
A) Civil Procedure - Additional Evidence in Appeal - Inherent Power - Supreme Court Rules, Order 45 Rule 5; Code of Civil Procedure, 1908, Order 41 Rule 27 - The Supreme Court has inherent power to admit additional evidence to secure ends of justice even in absence of specific provision; the Privy Council recognized unrestricted power and the Federal Court held appeal is a rehearing; Held that probate placed on record despite being obtained after High Court decree. B) Succession - Probate and Locus Standi - Probate as Judgment in Rem - Indian Succession Act, 1925, Section 63(1)(c) - Probate granted by District Judge after High Court decree cured the defect of want of attestation of the will; probate being judgment in rem, absence of respondents in probate proceedings is immaterial; Held that High Court's finding on locus standi reversed. C) Appellate Review - Supervening Events - Consideration of Events after Decree - Code of Civil Procedure, 1908 - Appellate court must take circumstances as they exist at time of appeal and consider any change in fact or law supervening since decree; grant of probate is such a supervening fact; Held that case remitted to High Court for decision of other issues. D) Costs - Late Application - Costs Order - Supreme Court Rules - Appellants obtained probate after appeal filed and sought additional evidence late; they were directed to pay Rs. 500 costs within two months, failing which appeal would stand dismissed.
Issue of Consideration
Whether the Supreme Court has power to admit additional evidence in appeal, particularly probate granted after the High Court's decree, and whether such probate should be considered to cure the defect of locus standi caused by lack of proper attestation of the will.
Final Decision
Appeal allowed; judgment and decree of the Punjab High Court set aside; case remitted to the High Court for decision of the other issues which had not been decided; appellants to pay Rs. 500 as costs to the respondents within two months, in default the appeal shall stand dismissed with costs.
Law Points
- Legal points not extracted
- Supreme Court has inherent power to admit additional evidence in appeal
- appellate court must consider supervening facts and events
- probate is a judgment in rem
- grant of probate cures defect of want of attestation under Section 63(1)(c) Indian Succession Act
- hearing of appeal is in nature of rehearing
- no restriction on power to admit evidence for non-production at initial stage
