1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8957/2009 Pryagabai H.Jadhav since deceased through heirs and ors. Petitioners Vs. M/s Abhijat Equipment Pvt.Ltd. And Ors. Respondents Mr.P.B.Gujar for the petitioners CORAM: MRS.MRIDULA BHATKAR,J. DATE : 4th NOVEMBER,2009. P.C. . This Writ Petition is filed challenging the order passed by the III Jt.Civil Judge,S.D.Satara dated 16/9/2009 allowing the application Exh.131 filed by the original defendants 1-A,1-C and 6/ Respondent nos.4( 1 & 3) and 5 to lead the evidence to prove the Will . The defendants/ respondents have earlier filed Reg.Civil Suit no.469/2004 for declaration as an exclusive legal heir on the basis of the Will. However she was allowed to withdraw the said suit without granting any liberty. It was contended that in view of the relief claimed on the basis of the Will ,after withdrawal of the suit ,any other relief on the basis of the Will if claimed will amount to res judicata. 2 2] The learned counsel has relied upon the following two rulings. 1] T.Venkata Narayana and Others Vs. Smt. Venkata Subbamma (dead) and others reported in AIR 1996,Supreme Court,1807. 2] Babasaheb Yeshwant Anandrao Patil Vs.Manjulabai Balwant Gaikwad, reported in 2001(3) Bom.C.R. 245. In T.Venkata Narayana and Others (supra) it has been observed that - “ 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. “ 3] There is an interse dispute between the defendants in respect of their rights in the property. The plaintiff has filed 3 the suit for specific performance against the legal heirs of late Khashaba as late Khashaba was the party to the agreement. The defendants cannot demand any relief in the suit filed by the plaintiff. They have to defend their right and for which the original defendant nos.1-A, 1-C and 6 were rightly permitted to adduce the evidence on the point of the Will. However, it is made clear that on the basis of the said evidence the learned Judge can neither grant any relief to the said defendants nor go beyond the scope of the prayers in the plaint. The Court will have to restrict itself to the reliefs prayed in the plaint. To adduce evidence of the Will as a document and to prove the truthfulness of the Will in the Court having competent jurisdiction are two different issues, so no question of res judicata arises. 4] Order passed by the learned Trial Judge is legal. No interference is required. Dismissed. (MRS.MRIDULA BHATKAR,J.)