Madras High Court
Govindan vs Jothi Manickam on 5 March, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
REV.APLC(MD)No.91 of 2013
Govindan ...Petitioner/Appellant
Vs.
Bommakkal (died)
Bakkiammal (died)
S.Rajasekaran (died)
1.Jothi Manickam
Rajeswari Ammal (died)
2.Muthulakshmi
3.Leelavathi (died)
4.Parameswari
5.Chandrakala
6.Sundareswari
7.Rajasundari
8.Rajasunder
9.Shyam Sundar
10.Jeyaraj
11.J.Jawahar Santharaj
12.J.Jagatheswara Raj
13.M.Vairammal
14.R.Shyamala Sundari
15.R.Raja Sundar
16.R.Sundar Raj
17.R.Jeyakumar ..Respondents/Respondents
(R17 is brought on record as legals heir of the deceased third respondent)
PRAYER: This Review Application has been filed under Section 114 of the
Civil Procedure Code r/w order 47 Rule 1 of the Civil Procedure Code,
1/11
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against the judgment and decree dated 19.04.2013 made in S.A.No.1615 of
1998 in S.A.No.1615 of 1998 on the file of this Court.
For Petitioner : Mr.A.Arumugam
For R1 : No Appearance
For RR5 - 9 &
13 - 16 : Mr.D.P.Sundararaj
JUDGMENT
This application has been filed to review the judgment of this Court
in the Second Appeal
2. The grounds, on which the review application has been filed,
are:-
(1) The judgment reported in AIR 1932 Madras 361 [Narasimha
Rao vs. Narasimhan], ought not to have relied upon to hold that the
divided son is not entitled inherit the property of the deceased father.
(2) This Court ought to have seen that the appellant is entitled to
1/28th share in 'A' and 'B' schedule properties. If the settlement deed in
favour of the Bommakkal and Ayyammla is true and valid and the Court has
come to the conclusion that it has blossomed into an absolute estate, the
appellant is not entitled to any share on the date of plaint. The Court has
come to the conclusion that in 'C' schedule property, the appellant is
entitled to 5/28 share.
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(3) This Court ought to have seen that seen that the divided son
was not excluded by daughter of the deceased and widow of the deceased.
(4) This Court ought to have seen that the female setlees under
settlement deed did not have any pre-existing right of maintenance in the
settled property ever as per settlement and absolutely no evidence is
available to show that they had any pre-existing interest in the settlement
suit property.
3. The learned counsel appearing for the review petitioner mainly
contended that though the suit was filed for partition, 'A' schedule property
is a separate property of one Sangiah. He has settled the same under Ex.A4
to one Sundararajan, father of the plaintiff herein. The said Sundaraj had
four wives, namely, Valliammal, Bommakkal/first defendant, Ayyammal and
Packiammal/ fourth defendant. Valliammal is the mother of the plaintiff.
The first defendant had two sons, who are arrayed as third and fourth
defendants. The grandfather of the plaintiff died on 09.10.1978.
Thereafter, Valliammla executed a Will in favour of the plaintiff. The said
Vallimmal also died in the year 1981. Hence, it is the contention that the
plaintiff born through the first wife is certainly entitled to a share from his
father's property. The other legal heirs, who were added as parties, are also
entitled to 1/7 share jointly, remaining 6/7 share goes to three sons and
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three daughters. Hence, it is the contention that the plaintiff is entitled to
5/28 share in the 'A' schedule property and the alleged release deed in
Ex.B4 executed by the plaintiff in favour of his father does not extinguish
the right of the plaintiff, subsequent to the father's death. 'C' schedule
property were settled to one Bommakkal and Ayyammal by sundarajan and
his father Sangiah. The said Bommakkal and Ayyammal along with
Rajeswari and Muthulakshmi executed a release deed in favour of the
defendants 2 to 4. 'D' schedule property is concerned, it is purchased by
Sundararajan under Ex.A7 dated 10.07.1968. Therefore, the plaintiff is
entitled to a share in the property.
4. The Court has non-suited the appellant, relying upon the
judgment in AIR 1932 Madras 361 [Narasimha Rao vs. Narasimhan] to
hold that the divided son is excluded in the matter of succession to the
estate of the deceased father. Hence, it is the contention that in respect of
separate property of his father, the principles of coparcenary does not apply.
Under Section 8 of the Hindu Succession Act, 1956, there is no distinction
between the divided son and undivided son in the matter of succession to
the estate of the deceased male Hindu died after 1956. Hence, it is the
contention that he is the only legal son and other sons of Sundararajn are
not coparceners. Hence, it is prayed that the decree has to be passed in
favour of the petitioner when there is a mistake of law.
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5. The learned counsel appearing for the respondents submitted
that the points urged in this review application were already canvassed in
the second appeal. This Court has considered the entire submissions and
disposed of the second appeal. Therefore, this review application filed on
the same grounds is not maintainable when there is no error apparent on
the face of the record. Even the judgment of the Court is erroneous, that
itself cannot be a ground to review the judgment, which was rendered on
merits. Hence, prayed for dismissal of the review application.
6. The second appeal was disposed on 19.04.2013 by this Court.
Thereafter, this application has been filed by engaging other counsel. The
present second appeal was disposed of along with S.A.(MD)Nos.1615 and
1616 of 1998. Originally, O.S.No.246 of 1989 was filed by three plaintiffs
for the relief of declaration that the plaintiffs have vested remainder rights
jointly with the defendants 3 to 8 in the suit properties as per the registered
settlement deed dated 15.03.1952. In the two suits, one suit was filed by
the review petitioner herein claiming partition, other by the respondents
herein seeking relief of declaration that they have vested remainder rights.
The review petitioner has filed a suit in O.S.No.67 of 1989 claiming 5/28
share in the 'A' and 'D' schedule properties and 1/76 share in the 'B'
schedule property and 3/15 share in the 'C' schedule property. The three
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second appeals have been filed as against the concurrent findings of the
Courts below. This Court has also elaborately discussed and dismissed the
second appeals.
7. The main ground urged on behalf of the review petitioner in the
second appeal is that he is entitled to claim shares from his father's interest
in the property, after the advent of Hindu Succession Act, 1956. However,
the above contentions were negatived by the Court by taking note of the
earlier partition suit filed by him as against his father. and this Court has
also held that the settlement deed executed in favour of the other
defendants by the father of the plaintiff, Sundararjan is enlarged to absolute
estate in favour of the female legal heirs, namely wives. This Court has also
held that in view of the pre existing right of maintenance, limited estate was
enlarged into absolute estate. Further, as the review petitioner has already
filed a partition suit as against his father's self acquired property, he has left
the family and his reunion has not been proved. Section 8 of the Hindu
Succession Act would come into effect only when a male dies intestate.
8. In this case, partition was already effected and there is no proof
for reunion and the property devolved in the wife's name has been enlarged
into a full estate in favour of other wives and they have sold the property.
Hence, the plaintiff cannot claim any right in the suit property. The points
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were already urged before this Court in previous occasion and this Court
has also elaborately discussed the matter and non-suited the plaintiff. This
Court has referred the judgment of the year 1932 reported in AIR 1932
Madras 361 [Narasimha Rao vs. Narasimhan] to show that the
proposition of reunion has not been proved and non-suited the plaintiff.
9. The second appeals were dismissed not only on that ground but
also on other grounds. This Court also took note of the fact that the
settlement also came to be executed in view of the maintenance and limited
extent granted to the wife of Sundararajan enlarged into the absolute estate
were also sold and non-suited. Admittedly, other sons born to Sundararajan
through other wives were also brought as parties to the suit. It is to be
noted that the entire property was not partitioned, only the property of the
plaintiff alone got divided by filing a partition suit as against his father.
These facts have been taken note by this Court. It is also to be noted that
the marriage of four wives is much prior to the Act, 1956 and all the sons
born through each of the wives were also living with him as joint family.
These facts cannot be ignored altogether. When the matter was already
canvassed before this Court, rehearing the same issue under the guise of
review is impermissible. Even assuming that the decision of the Court is
erroneous that itself is not a ground to review the entire judgment. The
judgment can be reviewed only when there is some mistake or error
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apparent on the face of the record or discovery of any new facts, which are
not within the knowledge of the parties at the relevant point of time. The
negatived points by this Court are urged in the review petition by engaging
a different Lawyer. Hence, this Court is of the view that while exercising
the jurisdiction to review, rehearing of the entire matter once again is not
permissible.
10. In the judgment reported in 2014 (3) MWN (Civil) 634
[M.Kamala Kannan and others vs. M.Manikandan], this Court has held
that the review petitioners cannot reargue the matter on merits and the
review proceedings are not by way of appeal and have to be strictly
confined to the scope and ambit of Order 47, Rule 1 of the Code of the Civil
Procedure and exercise of inherent jurisdiction is not invoked for reviewing
any order. In the said judgment, the following judgments are relied upon on
the side of the respondent therein:-
1.Meera Bhanja vs. Nirmala Kumari Choundhury [AIR
1995 SC 455], wherein the Hon'ble Supreme Court held that review
Court cannot re-appreciate the entire evidence and reverse the
finding of the Appellate Court. Further, the finding given by the
Appellate Court cannot be reviewed even though it was erroneous.
3.R.M.V.Karuppiah Ambalam vs. Sr.Govinda Iyer and two
others [1999 (3) CTC 129], wherein this Court has held that under
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Order 47, Rule 1 of the Code of Civil Procedure an error apparent
on the face of the record must be such as can be easily by one who
reads it an it must be an obvious and patent mistake. Anything
which is not patent or obvious but must be established by process of
reasoning would not amount to an error apparent on the face of the
record.
4. Lily Thomas etc., vs. Union of India others [AIR 2000 SC
1650], wherein the Apex Court held that the power of review can be
exercised for correction of a mistake and not to substitute a view.
Such powers can be exercised within the limits of the statute
dealing with the exercise of power. The review cannot be treated as
an Appeal in disguise. The mere possibility of two views on the
subject is not a ground for review. Further, once a Review Petition
is dismissed, no further petition to review can be entertained.
5.L.Jegannath and another vs. The Land Acquisition Officer
and Revenue Divisional Officer, Palani and others [2006 (2) CTC
809, wherein a Division bench of this Court held that Review
Petition cannot be allowed to be an Appeal in disguise and it is not
permissible for an erroneous decision to be reheard and corrected.
6. State of West Bengal and others vs. Kamal Sengupta and
another [AIR 2009 SC (Supp) 476]. in this judgment, the Apex
Court held that an order or decision or judgment cannot be
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corrected merely because it is erroneous in law or on ground that a
different view could have been taken by the Court on a point of fact
or law. Further, the Apex Court held that the Court cannot sit in
Appeal over the judgment in a review Application.
11. In the judgment reported in 1995(II) CTC 164 [Kandasamy
vs. Rathinambal and five others], this Court has held that the power of
review can be exercised to correct the accidental mistake, miscarriage of
justice, error of law to meet the ends of justice.
12. There is no dispute with regard to the above proposition. But
under the guise of review, entire matter cannot be re-agitated. Hence, this
Court do not find any merit in this petition. Accordingly, this Review
Application is dismissed. No costs.
05.03.2021
Index : Yes/No
Internet : Yes/No
ta
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N.SATHISH KUMAR, J.
ta
To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
REV.APLC(MD)No.91 of 2013
05.03.2021
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