Case Note & Summary
This was an appeal by special leave against an order of the Andhra Pradesh High Court in a civil revision petition. The underlying suit was for perpetual injunction filed by the appellants to restrain the respondent from alienating property. The dispute arose from a compromise decree in a partition suit between a mother and her son. In 1969, a compromise decree was passed in a partition suit between T. Ramesh Chandra Chowdhry and his mother Smt. T. Venkata Subbamma by the District Court, Khammam. Thereafter, when Venkata Subbamma attempted to alienate properties allotted to her under the decree, the appellants filed O.S. No.313/89 in the Court of the District Munsif at Khammam for a perpetual injunction. The core issue in that suit was whether Venkata Subbamma acquired an absolute estate or a limited estate under Section 14(2) of the Hindu Succession Act, 1956. During the pendency of the suit, Venkata Subbamma died. The respondents came on record as legal representatives under Order 22 Rule 4 CPC claiming that Venkata Subbamma had executed a will in their favour. They also contended that the original will was lost and sought to adduce secondary evidence under Section 65 of the Indian Evidence Act. The District Munsif refused to permit secondary evidence. The High Court, in revision, directed adduction of secondary evidence. The Supreme Court considered whether a respondent could adduce secondary evidence to prove an alleged will in a suit for perpetual injunction. The Court noted that whatever rights Venkata Subbamma had under the compromise decree would devolve on the legal representatives. However, a mere suit for injunction cannot be converted into a suit for probate of a will. If the will is to be proved, it must be by way of probate in a court of competent jurisdiction under the Indian Succession Act. The Supreme Court held that the High Court committed an error of law and jurisdiction in directing secondary evidence. The Supreme Court allowed the appeal, set aside the High Court order, and confirmed the District Munsif order. The respondent was permitted to establish rights under the will in accordance with law, but the trial in the suit was limited to interpretation of the compromise decree. No costs were awarded.
Headnote
A) Civil Procedure - Secondary Evidence - Will Not Proved in Injunction Suit - Indian Succession Act, 1925; Code of Civil Procedure, 1908, Order 22 Rule 4; Indian Evidence Act, 1872, Section 65 - The dispute pertained to whether a respondent claiming under an alleged will of a deceased party could adduce secondary evidence to prove the will in a pending suit for perpetual injunction. The court held that a suit for injunction cannot be converted into a suit for probate; proof of a will must be by way of probate in a court of competent jurisdiction under the Indian Succession Act. Held that the High Court erred in directing secondary evidence, and the trial would be limited to interpretation of the compromise decree (Paras 1-2).
Issue of Consideration
Whether the respondent is entitled to adduce secondary evidence to prove the alleged will executed by Venkata Subbamma in her favour in a suit for perpetual injunction, and whether the High Court was correct in directing such evidence.
Final Decision
Appeal allowed; order of High Court set aside; District Munsif order confirmed; respondent may establish rights under the will in accordance with law, but trial in the suit limited to interpretation of the compromise decree. No costs.
Law Points
- A suit for perpetual injunction cannot be converted into a suit for probate
- proof of a will must be by way of probate under Indian Succession Act
- secondary evidence to prove a will cannot be permitted in an injunction suit
- High Court erred in directing adduction of secondary evidence
- trial limited to interpretation of compromise decree
