M NARAYANA Vs. M SURYAKANTHAM

JUDGEMENT

(1.) The defendants in OS.No. 550/92 on the file of the II Additional District Munsif at Kakinada are the petitioners herein. They have preferred this revision petition against the order refusing to receive and mark in evidence a Will dt. 13-2-1992 on their behalf. The suit filed by the respondent is one for bare injunction against the petitioners in respect of plaint schedule properties. The main defence of the petitioners is that they are the absolute owners of the suit properties by virtue of the Will dt. 13-2-1992 said to have been executed by one Veerraju, the husband of the respondent, bequeathing the suit properties in their favour and no injunction can be granted against true owners. When the petitioners sought to mark the said Will during the course of trial, the respondent objected to the same on the ground that the Will has to be proved only by way of Probate and a suit for injunction cannot be converted into one for Probate. The learned District Munsif, having upheld the respondent's objection, refused to receive and mark the Will dt. 13-2-1992. Hence, this revision petition.

(2.) It is apparent from the impugned order that the learned District Munsif rested her decision solely on the basis of the following observations made by the Supreme Court in T.Venkata Narayana vs. Smt. Venkata Subbamma. "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 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."

(3.) Execution of Wills, grant of probate therefor, legal obligation of the legatee to obtain probate and the Court competent to grant probate etc., are governed by the provisions of the Indian Succession Act, 1925 (for short 'the Act'). Section 2 (h) of the Act defines 'Will' as "the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death." Section 59 provides that "every person of sound mind not being minor may dispose of his property by Will". Section 213, which prescribes procedure for establishment of right as executor or legatee under a Will, reads as: