JUDGMENT

K. Ramaswamy, J.

1.Special leave granted.

2. This appeal by special leave is filed against the order dated November 16, 1994 of the Division Bench of the Kerala High Court in CRP No. 547 of 1994. One V. S. Annama, sister of the appellant was alleged to have executed a Will on September 15, 1976, and said to have bequeathed her properties to respondent Nos. 1 and 2. The appellant is one of her brothers. Respondent No.1 is the sister and the second respondent is the son of the first respondent. On sudden demise of Annamma, respondent Nos. 1 and 2 filed L. A. O. P. No. 143 of 1980, in the Distric Court, Ernakulam under Section 276 of the Indian Succession Act, 1925 for grant of letters of administration in respect of the estate of deceased Annamma and annexed the copy of the Will thereto.

3. The appellant had objected to the grant of letters of administration disputing the validity and genuineness of the Will and also for failure to implead necessary and proper parties therein. One of the testators, by name Kurian, was examined as P. W. 1. Though the trial Court dismissed the application on merits holding that the Will was not genuine and also on the ground of non-joinder of the necessary parties, in appeal, the High Court vacated the findings of the District Judge on the first point and upheld that the petition was not maintainable for non-joinder of necessary parties. Consequently, it dismissed the appeal. Respondents thereafter filed another application being L. A. O. P. No. 149 of 1988 for grant of letters of administration which, on caveat being entered, was converted into a suit, namely, O.S.No 2 of 1990. The appellant sought to rely on the deposition of Kurian and he sought to bring on record that evidence under Section 33 of the Indian Evidence Act (for Short, the Act), the reception of which was objected to by respondent Nos. 1 and 2 and was upheld by the trial Judge. On revision, it was affirmed by the High Court. Hence this appeal pursuant to leave granted by us.

4. The crux of the question raised is the interpretation of the second proviso to Section 33 of the Act. The learned counsel Shri T.V.L. Iyer contended that the High Court was not right in its interpretation that the adverse party" referred to in the proviso, must be one like the respondents who had the right and opportunity to cross-examine the witness in the first proceeding. Respondents having had the right and opportunity to examine Kurian as their witness and since Kurian is dead, his evidence in the previous proceeding become relevant evidence and admissibe under Section 33 of the Act. What is relevant is that the party against whom the evidence is sought to be used in the previous proceeding must have had the right and opportunity to cross-examine the witness. Since the appellant had that right and opportunity, the evidence of Kurian is admissible under Section 33 of the Act. The second proviso requires to be interpreted in that perspective. He has placed reliance on the judgment in Poonamchand v. Motilal, (AIR 1955 Raj 179), Makhan Khan s/o Nawazali v. Emperor, AIR 1948 Sind 122, and also on Sarkars commentary on the Act (14th Edn.) p.656.

5. Shri P.S. Poti, learned senior counsel for respondents, on the other hand, contended that what is relevant is that the party against whom the evidence sought to be admitted must be a party in the previous proceeding. He must have had a right and opportunity to cross-examine that witness examined in the earlier proceeding. Since the respondents had no right and opportunity to cross-examine Kurian, his evidence under Section 33 of the Act is not admissible. In support thereof, he has placed reliance on the decisions in Dal Bahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79, Sundara Rajali v. Gopala Thevan, Polyplex 1934 Mad 100, and Brajaballav Ghose v. Akhoy Begdi AIR 1926 Cal 705. He also contended on merits regarding the effect of the evidence of Kurian in these proceedings.

6. We make it clear that in this a