T, VENKATA NARAYANA AND ORS,

SMT. VENKATA SUBBAMMA (DEAD) AND ORS.

MARCH 29, 1996

B fK. RAMASWAMY AND G.B. PATIANAIK, JJ.j

Evidence Act, 1872:

S.65--Secondary evidence-Suit for injunction by plaintiff restraining defendant from alienating the prope1ty--Defendant claiming the suit C the property as her absolute estate got under a conzprOn1ise decree between the pa1ties in an earlier sllit-Pending suit defendant died-Legal representatives came on record claiming throllgh a Will alleged to have been executed by the defendant-Tliey alleged that 01igina/ Will had been lost and sougl!t to adduce seconda1y evidenc~T1ial court refused pennission to adduce seconda1y D evidence-High Court allowed adduction of secondmy evidence-Held, High

 Colat conunitted e1ror of law and ju1isdiction in directing adduction of secondmy evidence in suit for injunction to prove Will alleged to have been executed by defendant-Effect of the compromise decree fa the subject matter of the pending suit-'-Whatever 1ights were available to the defendant there-

! '

E under would be available to the legal represe/lfatives-lt would be open to y

respondent to establish her rights, if any, under the Wilf-But the trial in the suit would be li111ited to the jnterpretation of the con1pro1nise decree.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7107 of 1996.

From the Judgment and Order dated 5.11.93 of the Andhra Pradesh High Court in C.R.P. No. 1935 of 1992.

Ms. Gunwant Dara and P. Gaur for the Appellants.

G P.S. Narasimah and V.G. Pragasam for the Respondents.

The following Order of the Court was delivered :

Leave granted.

H We have heard the counsel on both sides.

A "'

T.V. NARAYANAv. VENKATASUBBAMMA 1043

Admittedly, T. Ramesh Chandra Chowdhry and his mother Smt. T. A Venkata Subbamn1a 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.

Vcnakata Subbamma was attempting to alienate the properties given to her under the compromise decree, the appellants filed 0.S. No. 313/89 in the B Court of the District M unsif at Khammam for a perpetual injunction restrainng her from alienating the property. The contest in the suit centers round the question whether Yenkata 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.

C Respondents have come on record under Order 22 Rule 4 CPC claiming that Venkata Subbama 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 and refused to permit her to adduce secondary evidence. Thereon D the matter was carried in revision. The High Court of AP. 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 E Venkata Subbainma 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 convents 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 legl 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. Thal procedure cannot be G 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.

SUPREME COURT REPORTS

[1996} 3 S.C.R.

A 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 \vilI, in accordance \vith law, but the trial in the suit \Vlltild, as state<l earlier, be litnited lo the inter- "f pretation of the compromise decree. No costs.

B R.P.

Appeal allowed.