Case: Surinder Kumar and Ors Vs. Gian Chand and Ors

1. This appeal by Special Leave is brought from the judgment and decree of the High Court of the Punjab, dated 16th August 1949 reversing the decree of the trial Court which had decreed the plaintiffs suit on a mortgage.2. The plaintiffs who are the appellants in this appeal claim to be the legatees under a registered will of their mothers father Lala Guranditta Mal executed on 6th SeptemberOne of the items bequeathed to them was the rights in a mortgage executed by the defendants in favour of the testator on 24th October 1932, for Rs. 60000. On 25th October 1944 they brought a suit in the Court of the Senior Subordinate Judge, Gurdaspur for the recovery of Rs. 5392-2-0 on the basis of thealleged that they were the "representatives and heirs" of Lala Guranditia 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 Guruanditta 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?3. The 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 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 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 now before us. As this requirement of law has not been satisfied the plaintiffs had no locus standi to maintain the suit."4. A prayer made for the admission of addition of evidence under O. 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 21st OctoberIn the meanwhile the probate of the will of Lala Guranditta Mal was granted by the District Judge of Gurdaspur on 11th July 1951, in favour of the present appellants and their mother Mt. 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 Mt. Har Devi as a respondent in the appeal.

Reasoning:
7. 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 appellants case due to the want of proper attestation of the will under S. 63(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 Court on this point is therefore reversed.