A) ABSTRACT / HEADNOTE

The case Surinder Kumar and Others v. Gian Chand and Others (1958 SCR 548) revolves around a suit for mortgage recovery filed by legatees under a registered will. The plaintiffs, claiming under the will of their grandfather Lala Guranditta Mal, sued to recover mortgage dues without obtaining probate. The trial court ruled in their favor, presuming due execution of the will. However, the Punjab High Court reversed the decision, holding that the will lacked the attestation by two witnesses as mandated under law. While the matter was pending before the Supreme Court, probate of the will was granted. The appellants then sought admission of this probate as additional evidence and to implead their mother as a party. The apex court recognized its inherent power to admit such evidence under Rule 5 of Order XLV of the Supreme Court Rules and held that a probate being a judgment in rem overrides objections regarding non-joinder or lack of notice. Importantly, the court ruled that an appeal must be decided based on the legal and factual situation as it exists at the time of adjudication. It reversed the High Court’s judgment and remitted the matter for adjudication on remaining issues. The decision is significant in reiterating the Supreme Court’s inherent powers and elucidating the legal implications of probate in civil suits.

Keywords: Probate, Judgment in rem, Locus standi, Inherent powers, Additional evidence, Attestation of will, Registered will.

B) CASE DETAILS

i) Judgement Cause Title
Surinder Kumar and Others v. Gian Chand and Others

ii) Case Number
Civil Appeal No. 49 of 1954

iii) Judgement Date
24 September 1957

iv) Court
Supreme Court of India

v) Quorum
B.P. Sinha, Govinda Menon, and J.L. Kapur, JJ.

vi) Author
Justice J.L. Kapur

vii) Citation
(1958) SCR 548

viii) Legal Provisions Involved
Order 45 Rule 5 of the Supreme Court Rules, 1950,
Order 41 Rule 27 CPC,
Section 63(c) of the Indian Succession Act, 1925

ix) Judgments overruled by the Case
None explicitly overruled, but Punjab High Court’s judgment reversed.

x) Case is Related to which Law Subjects
Civil Law, Succession Law, Law of Evidence, Appellate Procedure

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The case concerns the rights of legatees under a will to sue without obtaining probate. The will in question was registered, creating a rebuttable presumption of validity under Indian law. The appellants instituted a mortgage suit as beneficiaries of the will. However, they faced opposition due to the lack of probate and the absence of proof of attestation by two witnesses. The trial court upheld their standing, but the High Court overturned this on legal grounds. The central legal conflict thus concerns procedural sufficiency in proving testamentary succession in civil proceedings and the inherent powers of the Supreme Court to admit additional evidence like probate during appeal, especially when it materially affects the legal status of the parties.

D) FACTS OF THE CASE

Lala Guranditta Mal had executed a registered will on 6 September 1944, bequeathing, among other properties, mortgage rights worth ₹6,000, created by the respondents on 24 October 1932. The plaintiffs, as grandsons of the testator, filed Suit No. 298 of 1944 on 25 October 1944 in the court of Senior Sub-Judge, Gurdaspur for recovery based on this mortgage. They described themselves as “heirs and representatives” of the deceased. The defendants denied knowledge of the will and challenged their locus standi.

The trial court held that the registration of the will raised a presumption of valid execution, decreed the suit, and rejected the argument that lack of probate was fatal. The High Court on 16 August 1949 reversed the decree, holding the will invalid due to lack of attestation by two witnesses under Section 63(c) of the Indian Succession Act, 1925.

During pendency of the appeal before the Supreme Court, the appellants secured probate from the District Judge of Gurdaspur on 11 July 1951 in favour of themselves and their mother, Mussammat Har Devi. They sought admission of this probate as additional evidence under Order 41 Rule 27 CPC, and also requested to add Har Devi as a party to the proceedings. The respondents objected on grounds of procedural delay and prejudice due to limitation.

E) LEGAL ISSUES RAISED

i) Whether the appellants had locus standi to institute the suit in the absence of probate?
ii) Whether the registration of a will suffices to presume its due execution and attestation?
iii) Whether the Supreme Court possesses inherent powers to admit additional evidence in appeal?
iv) Whether a probate obtained post-High Court judgment can be admitted in appeal as a judgment in rem?

F) PETITIONER/ APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that

The will was registered, and hence, presumptively genuine. They argued that under Section 114 of the Indian Evidence Act, 1872, registration is a circumstance indicating due execution. They also contended that they filed suit bona fide under a valid testamentary document and were recognized legatees.

They asserted that probate, having been granted by a competent court, was a judgment in rem under Section 41 of the Indian Evidence Act, binding on all parties regardless of their participation in the probate proceedings. Thus, once probate had been granted, objections based on standing or attestation no longer survived.

They invoked the inherent power of the Supreme Court under Order 45 Rule 5 of the Supreme Court Rules to admit additional evidence and requested the court to exercise discretion in the interest of justice. They relied on Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, (1940) FCR 84 and Inderjit Pratap Sahi v. Amar Singh, L.R. (1923) 50 I.A. 183, to reinforce the proposition that appellate courts may consider subsequent events and facts which bear upon the rights of parties.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that

The appellants lacked locus standi as they failed to prove attestation of the will under Section 63(c) of the Indian Succession Act, which is mandatory. They emphasized that mere registration did not dispense with the requirement of attestation by two witnesses.

They objected to the admissibility of the probate document as additional evidence, arguing that the appeal must be confined to the record before the High Court. They highlighted that the probate was obtained ex parte, without notice to them, which deprived them of an opportunity to contest the testamentary disposition.

They also contended that since the suit was filed in 1944 and the probate was obtained in 1951, the right to sue had become barred by limitation. Further, they argued that admitting new evidence at the Supreme Court level would cause procedural prejudice and subvert settled principles of appellate review.

H) RELATED LEGAL PROVISIONS

i) Section 63(c), Indian Succession Act, 1925
Requires attestation of a will by two or more witnesses in the presence of the testator.

ii) Order 41 Rule 27 CPC
Permits additional evidence at appellate stage under exceptional circumstances.

iii) Order 45 Rule 5, Supreme Court Rules
Empowers the Supreme Court to make orders necessary for the ends of justice.

iv) Section 41, Indian Evidence Act, 1872
Provides that a probate granted by a competent court is a judgment in rem.

v) Section 114, Indian Evidence Act, 1872
Allows courts to presume the regularity of official acts, including registration of documents.

I) JUDGEMENT

a. RATIO DECIDENDI

i) The Supreme Court held that a probate, once granted, is conclusive evidence of the will’s validity and binds the world at large, regardless of who participated in the proceedings. The court observed that a judgment in rem cannot be ignored merely because some parties were not involved.

The court further ruled that appellate jurisdiction must be exercised based on the facts as they exist at the time of decision, relying on Patterson v. State of Alabama, 294 U.S. 600 (1934), and Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, (1940) FCR 84.

It affirmed that the Supreme Court possesses inherent powers to admit additional evidence, particularly where justice demands, even in the absence of an express statutory provision, citing Inderjit Pratap Sahi v. Amar Singh, L.R. (1923) 50 I.A. 183.

b. OBITER DICTA 

i) The court noted that delays in securing probate or procedural lapses by the appellants do not negate substantive rights once legally recognized. Procedural technicalities must yield to substantive justice when a judgment in rem has been delivered.

c. GUIDELINES 

i) Probate granted post-judgment may be admitted in appellate stage.
ii) Supreme Court may exercise inherent power under Order 45 Rule 5 to admit new evidence.
iii) Registered wills create a rebuttable presumption of proper execution.
iv) Lack of attestation may be cured if probate is subsequently granted.
v) A will’s authenticity may be recognized post-trial if supported by judicially noticed probate.

J) REFERENCES

a. Important Cases Referred

i) Inderjit Pratap Sahi v. Amar Singh, L.R. (1923) 50 I.A. 183
ii) Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, (1940) F.C.R. 84
iii) Patterson v. State of Alabama, 294 U.S. 600 (1934)

b. Important Statutes Referred

i) Indian Succession Act, 1925 – Section 63(c)
ii) Indian Evidence Act, 1872 – Sections 41 and 114
iii) Civil Procedure Code, 1908 – Order 41 Rule 27
iv) Supreme Court Rules, 1950 – Order 45 Rule 5