Full Judgment Text
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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.