Patna High Court - Orders
Rakesh Bihari Sharan vs Alka Sharan & Ors. on 9 May, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Review No.128 of 2014
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Rakesh Bihari Sharan
.... .... Petitioner/s
Versus
Alka Sharan & Ors.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Praveen Kumar
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
5 09-05-2014(1) Heard the learned counsel, Mr. Sandeep Kumar for the petitioner, the learned counsel, Mr. R.K.P.Singh and the learned counsel, Mr. L.N.Das for the opposite parties.
(2) This review application has been filed by the petitioner, Rakesh Bihari Sharan for review of the order dated 27.03.2014 passed by this Court in Testamentary Suit No.1 of 2010 while considering the I.A. No.8704 of 2010 filed by the petitioner which has been rejected, as a result of which, the testamentary suit was dismissed.
(3) It appears that Savitri Devi filed the aforesaid Testamentary Suit No.1 of 2010 for the grant of probate. When the N.Rs. appeared and contested, the probate case was converted to title suit in view of the provision contained in Section 295 of the Indian Succession Act. The said plaintiff, Savitri Devi died and thereafter, the defendant, Rakesh Bihari Sharan filed the Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 2 application for being transposed as the plaintiff in the testamentary suit. This is the I.A. No.8704 of 2010. This I.A. was heard at length and after considering the various decisions, by terms of order dated 27.03.2014, the I.A. has been rejected following the Division Bench decision of this Court i.e. AIR 1917 Patna 209(Bihari Lal Mahton Tatak Gayawal v. Ganga Dai Tatkain and others) wherein it has been held that in no case, the probate case can be converted to a case for letters of administration. This Court also relied upon Division Bench decision of the Bombay High Court, AIR 2007 Bombay 103(Thrity Sam Shroff v. Shiraz Byramji Anklesaria and Anr) wherein also, it has been held that on the death of executor, the probate proceeding itself dies its natural death.
(4) The petitioner has filed this review application for review of this order passed by this Court on two grounds. Firstly, that while rejecting the I.A. by terms of order dated 27.03.2014, this Court has not taken into consideration the decision of the Hon'ble Supreme Court in the case of Shambhu Prasad Agarwal and others v. Bhola Ram Agarwal, (2000) 9 Supreme Court Cases 714. Secondly, that the decision of the Bombay High Court, AIR 2007 Bombay 103 has subsequently been considered by the same High Court in another Division Bench wherein it was not relied upon on the ground that the Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 3 Bombay High Court in AIR 2007 Bombay 103 has not considered the decision of the Hon'ble Supreme Court, Shambhu Prasad Agarwal(supra). Therefore, the order passed by this Court is error/mistake apparent on the face of the record. So, the order is liable to be reviewed.
(5) On the other hand, the learned counsels appearing on behalf of the opposite parties submitted that on the ground that the decision/order passed by the Court is erroneous and that another view is possible, review is not maintainable. The defect/error should be apparent from the face of the record and for finding out the said error apparent on the face of record, long drawn argument is not required to be advanced. The learned counsels further submitted that the Division Bench decision of this Court in AIR 1917 Patna 209(supra) is binding precedent and so far the decision of the Hon'ble Supreme Court in (2000) 9 Supreme Court Cases 714 is concerned, it is not applicable in the present case because in that case also, same view has been taken which is in support of the opposite parties and that is the view of Patna High Court in AIR 1917 Patna 209(Bihari Lal Mahton Tatak Gayawal v. Ganga Dai Tatkain and others) as well as in 1967 BLJR 326(Sheo Narain Prasad v. Santoo Sao and another). The learned counsel submitted that the said decision of the Hon'ble Supreme Court which is being relied upon by the Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 4 petitioner is not applicable/is not supporting the petitioner here. Therefore, on the ground of non-consideration of this decision of the Apex Court, the order cannot be reviewed. So far the Bombay High Court decision i.e. AIR 2011 Bombay 76(Smt. Vatsala Srinivasan v. Narisimha Raghunathan & Anr.), it is submitted that it is not a binding precedent. While considering the question, the subsequent Division Bench decision of the Bombay High Court differs with the earlier Division Bench i.e. AIR 2007 Bombay 103(supra) on erroneous view that while deciding the question, the Bombay High Court has not considered the Supreme Court decision in the case of Shambhu Prasad Agarwal(supra). Moreover, this decision also lays down the same view that in place of the executor, the heirs cannot be substituted. Further, in AIR 2011 Bombay 76, the orders were passed on concession considering the facts of that particular case, therefore, it is not a binding precedent. Further, even if the decision of Bombay High Court i.e. AIR 2011 Bombay 76 has decided this issue then also it will be in direct conflict of the Division Bench decision of the Patna High Court, AIR 1917 Patna 209. This Court is bound to follow the Division Bench decision of this Court and not the Bombay High Court because in such circumstances, the binding precedent will be the decision of this Court. The learned counsel further submitted that the Hon'ble Supreme Court in various Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 5 decisions has held that when a decision has been rendered by High Court then subsequently the said decision will be binding on the Coordinate Bench also and if the Coordinate Bench differs with the earlier decision then in such circumstances, the matter should be referred to the larger Bench. But, in the present case, the subsequent Division Bench neither held the earlier decision of the Bombay High Court as per incurium nor it referred to the larger Bench nor it has decided the question as to whether the decision is binding precedent or not and only has referred the decision and differed with it. In such circumstances, that decision is also not binding. In support of the contentions, the opposite parties have relied upon various decisions.
(6) The main contention of the petitioner is that while rejecting the application, this Court did not consider the Supreme Court decision in the case of Shambhu Prasad Agarwal(supra). It is not the case of the petitioner that the Division Bench of the Patna High Court has been overruled subsequently by any larger Bench of this Court or even by the Supreme Court. The only case is that the view taken by this Court is contrary to the view taken by the Supreme Court in Shambhu Prasad Agarwal. Now, let us consider this decision of the Hon'ble Supreme Court. It appears that in that case, Maina Devi executed a Will in favour of nephew, Matadin Agarwal. No executor was Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 6 appointed by her. In other words, Matadin Agarwal was a legatee. Instead of filing letters of administration, Matadin Agarwal filed probate case under Section 276 of the Indian Succession Act. During the pendency of that probate case, Matadin died then substitution application was filed. The Hon'ble Supreme Court at paragraph 5 has held that it is true that Matadin Agarwal ought to have applied for issue of letters of administration and not for probate. Matadin Agrawal was a legatee and not an executor under the Will. It is true that where an executor dies, his heirs cannot be substituted because the executor possessed personal right, but this is not applicable where the heirs of a legatee apply for issue of letters of administration. Therefore, the decision of the Hon'ble Supreme Court is that, an executor appointed in the Will possessed personal right which is not heritable. Therefore, on his death, his heirs cannot be substituted. This is the ratio of the Hon'ble Supreme Court. In that case before the Supreme Court, Matadin Agarwal was a legatee and instead of filing letters of administration case, he filed the probate case. Therefore, on the death of Matadin Agarwal, the Hon'ble Supreme Court said that where the heirs of a legatee apply for issue of letters of administration, this principle will not be applicable. In other words, Matadin Agarwal by misconception filed the probate case although, he was not executor. Therefore, his application should Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 7 have been for letters of administration as he was legatee and on the death of legatee, the heirs can be substituted.
(7) So far AIR 2011 Bombay 76 is concerned, this decision has no doubt considered AIR 2007 Bombay 103 but has held that the earlier Division Bench has not considered the Supreme Court decision in the case of Shambhu Prasad Agarwal. In the present case at our hand, as stated above, the decision of the Hon'ble Supreme Court in the case of Shambhu Prasad Agarwal is in favour of the opposite parties in the case and the ratio decidendi decided by the Supreme Court is not helping the petitioner. In other words, it is not applicable in the present case. The Hon'ble Supreme Court never held that on the death of the executor, the defendant can be transposed or that the same should be converted to a proceeding for letters of administration. If this decision of the Hon'ble Supreme court is not applicable in the present case, then there is no question of relying on the Division Bench decision of Bombay High Court, AIR 2011 Bombay 76. So far the Division Bench decision of this Court, AIR 1917 Patna 209 is concerned, the question has been directly answered by the Division Bench and again been reiterated in 1967 BLJR 326. Therefore, before this Court, these are the binding precedent i.e. AIR 1917 Patna 209 and 1967 BLJR 326. Now, can it be said that for non- consideration of the decision of Hon'ble Supreme Court, the order Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 8 passed by this Court is erroneous or it is error apparent on the face of the record, as such, is liable to be reviewed.
(8) The Hon'ble Supreme Court in the case of Parsion Devi and others v. Sumitri Devi and others, (1997) 8 Supreme Court Cases 715 has held that under Order 47, Rule 1 C.P.C., a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 C.P.C. In exercise of the jurisdiction under Order 47, Rule 1 C.P.C. it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
(9) The Hon'ble Supreme Court in the case of Director of Settlements, A. P.. and others v. M. R. Apparao and another, AIR 2002 Supreme Court 1598 has held that "obiter dictum" as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 9 before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind effect as a precedent, but it cannot be denied that it is of considerable weight." In the present case, as stated above, the subsequent Division Bench decision of the Bombay High Court has only distinguished the earlier Division Bench on the question of non-consideration of the Supreme Court decision in the case of Shambhu Prasad Agarwal. I have already held that the fact of Shambhu Prasad Agarwal case is not applicable in the present case. However, the ratio decideni in that case is in favour of the view taken by this Court.
(10) The Hon'ble Supreme Court in the case of The Divisional Controller, K.S.R.T.C. v. Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 at paragraph 23 has held that "the decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never Patna High Court C. REV. No.128 of 2014 (5) dt.09-05-2014 10 be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative."
(11) In view of the above facts and circumstances of the case, the decisions relied upon by the petitioner are not applicable in the present case for the purpose of review and it cannot be said that the order passed by this Court is contrary to the decisions of the Hon'ble Supreme Court, as such, it is misconception law. As stated above, on the ground of merit, this Court cannot take another view particularly when no contrary decision of Hon'ble Supreme Court has been cited against the view taken by this Court.
(12) In the result, I find no merit in this review application and accordingly, the review application is dismissed.
Saurabh/- (Mungeshwar Sahoo, J)