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 section 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 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 6000
On October 25 1944 they brought a suit in the court of the Senior Subor dinate Judge Gurdaspur for the recovery of Rs 5392 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 article 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 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 vs Amar Singh1 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 vs Keshwar Lal Chaudhuri 2 where Gwyer CJ quoted with approval the following observation of Chief Justice Hughes in Patterson vs State of Alabama3  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 IA 183 19r
2 3   607 552 case due to the want of proper attestation of the will inder section 631c 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 ie Rs 500
Appeal allowed


Summary:
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 vs Amar Sinah L R 1923 50 I A 183 Lachmeshwar Prasad Shukul vs Kishwar Lal Chaudhuri  followed