1996 0 AIR(SC) 1807 ; 2007 Supp AIR(SC) 231 ; 1996 0 AIR(SCW) 2082 ; 1996 2 AllCJ 1219 ; 1996 28 AllLR 70 ; 1996 3 AWC 1264 ; 1996 2 CCC(SC) 188 ; 1996 2 CLT(SC) 256 ; 1996 4 CLT(SC) 287 ; 1996 2 CurCC(SC) 188 ; 1996 2 CurLJ 226 ; 1996 1 GLH 934 ; 1996 1 HinduLR 510 ; 1996 4 JT 425 ; 1996 2 MLJ 81 ; 1996 2 RRR 320 ; 1996 3 Scale 689 ; 1996 4 SCC 457 ; 1996 3 SCR 1042 ; 1996 3 Supreme 765 ; 1996 0 Supreme(SC) 695 ; 1996 0 WBLR 274
1996(3) Supreme 765
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ
T. Venkata Narayana & Ors. -Appellants
versus
Smt. Venkata Subbamma (dead) & Ors. -Respondents
Civil Appeal No.7107 of 1996
(Arising out of SLP (C) No. 1477/94)
Decided on 29-3-1996
IMPORTANT POINT
Mere suit for injunction can not be converted into a suit for probation of a Will and direct parties to adduce evidence, be it primary or secondary.
Evidence Act-Section 65-Perpetual injunction suit-Pending suit defendant died-Respondents came on record under Order 22 Rule 4 CPC claiming that defendant had executed a Will her favour-Permission sought to adduce secondary evidence to prove the Will-Suit involving question for determination as to what rights defendant got in a compromise decree-Injunction suit can not be converted into a suit for probation of Will-High Court committed error of law directing adduction of secondary evidence to prove the Will. (Para 3)
Act Referred :EVIDENCE ACT : S.65SPECIFIC RELIEF ACT : S.38SUCCESSION ACT : S.222
.
ORDER
Leave granted.
We have heard the counsel on both sides.
2. Admittedly, T. Ramesh Chandra Chowdhry and his mother Smt. T. Venkata Subbamma had a compromise in a suit for partition between them. Compromise decree came to be passed on August 28, 1969 by the District Court, Khammam. It would appear that thereafter when Smt. Venkata Subbamma was attempting to alienate the properties given to her under the compromise decree, the appellants filed O.S.No. 313/89 in the Court of the District Munsif at Khammam for a perpetual injunction restraining her from alienating the property. The contest in the suit centers round the question whether Venkata Subbamma got an absolute estate under the compromise decree so as to enable her to alienate the properties to third parties or she had a limited estate thereunder covered under Section 14(2) of Hindu Succession Act, 1956. Pending suit, she died. Respondents have come on record under Order 22 Rule 4 CPC claiming that Venkata Subbamma had executed a Will in her favour. It was also further contended that she had lost the original will and sought to adduce secondary evidence under Section 65 of the Evidence Act. The District Munsif had refused to permit her to adduce secondary evidence. Thereon the matter was carried in revision. The High Court of A.P. in the impugned order made in C.R.P. No.1935/92, dated November 5, 1993 directed adduction of secondary evidence. Thus, this appeal by special leave.
3. The only question is: whether the respondent is entitled to adduce secondary evidence to prove the alleged will said to have been executed by Venkata Subbamma in her favour? The admitted position is that in partition suit, after the Succession Act came into force, namely, August 28, 1969 Venkata Subbamma had compromised with her son and obtained a decree with covenents contained therein. What is the effect of that decree is the subject matter in the pending suit. Whatever rights that were available to her thereunder would be available to the respondent who has come on record as legal representative. The mere suit for injunction cannot be converted into a suit for probation of a will whereat the will is to be proved. If the will is to be proved according to law, it has to be by way of probate in the court having competency and jurisdiction according to the procedure provided under the Indian Succession Act. That procedure cannot be converted in a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant. The High Court has committed error of law and jurisdiction in directing adduction of secondary evidence in the suit for injunction to prove the will alleged to have been executed by Venkata Subbamma.
4. The appeal is accordingly allowed. The order of the High Court is set aside and that of the District Munsif is confirmed. It would be open to the respondent to establish her rights, if any under the will, in accordance with law, but the trial in the suit would, as stated earlier, be limited to the interpretation of the compromise decree. No costs.
Appeal allowed.
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