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PETITIONER: T. VENKATA NARAYANA & ORS.

       Vs.

RESPONDENT: SMT.VENKATA SUBBAMMA (DEAD) & ORS

DATE OF JUDGMENT:       29/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1807            1996 SCC  (4) 457  JT 1996 (4)   425        1996 SCALE  (3)689

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard the counsel on both sides.      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.  Venakata  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.      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 covenants contained therein. What is the effect  of that  decree is  the subject  matter  in  the

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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.      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.