J. M. MALIK, J.

( 1 ) SMT. Bimla Devi, defendant died on 12. 12. 2006,she left behind him sh. Shivraj Kishan Gupta, Smt. Neena Jain and Smt. Neera Goel as her legal representatives. Counsel for the plaintiff therein filed an application under Order 22 rule 4 CPC for bringing on record the legal representatives of the deceased defendant. The above said legal representatives contested the above said application. According to them, Smt. Bimla Devi, on 26. 05. 2004, created a trust wherein her entire estate. e. , movable as well as immovable assets including all debts and claims due to her was to be held in a trust for the benefit of her two grand sons namely Nitin Gupta and namit Gupta both sons of Sh. Shiv Krishan Gupta to whom she had bequeathed her entire share. The Trust Deed further mentioned that it would be called "nitin and Namit Benefit Trust". Consequently, the said trust represents the estate of deceased Smt. Bimla Devi and her legal representatives. It was prayed that said trust be impleaded as legal representative of Smt. Bimla Dev.

( 2 ) THE plaintiff herein hotly contested the above said objections. It is alleged that the Will and the Codicil are forged documents and the trust was allegedly created to use it as a tool of obstruction in the process of partition. Petitioners are enjoying almost three-fourth part of the Amrita Shergil Marg property and have excluded other co-owners namely Avtar Krishan and balraj Krishan, The Will is not signed by Neera Goel, daughter of deceased about her share from the estate of deceased defendant. Both the Will and codicil are not registered documents. It is in another proceedings pending before this Court in RFA 51/2005, the counsel for these objectors who was the counsel for Smt. Bimla Devi, the deceased defendant herself, had brought to the notice of the Court that Smt. Bimla Devi had suffered a severe brain haemorrhage on 3. 5. 2004 and at the time of alleged execution of codicil, she was under coma.

( 3 ) LEARNED Trial Judge allowed the application under Order 22 Rule 4, cpc and dismissed the objections raised by defendants. Learned Judge also marked, "the story of so called execution of Will and Codicil by the deceased defendant and creation of Trust in favour of the alleged beneficiaries who are the major persons appears to be fabricated and motivated as a tool to create obstruction in the process of partition.

( 4 ) I have heard the counsel for the parties. Learned counsel for the respondents have placed reliance on an Apex Court's authority reported in t. Venkata Narayana and others v. Venkata Subbamma (Smt.) (Dead) and others, (1996) 4 Supreme Court Cases 457, wherein it was held that:

"4. 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 the partition suit, after the Succession Act came into force, namely, 28-8-1969 Venkata Subbamma had compromised with her son and obtained a decree with covenants 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 a probate in the court having competency and jurisdiction according to the procedure provided under the indian Succession Act, 1925. 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