Madras High Court
D.Govindarajulu vs Lakshmi Bai on 27 January, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2010 CORAM THE HON'BLE MR. JUSTICE G.RAJASURIA Rev.Application No.63 of 2009 and M.P.No.1 of 2009 1. D.Govindarajulu 2. N.G.Sureshchandra Kumar 3. N.G.Premila Devi 4. N.G.Nirmala Devi ... Review Applicants/ Appellants vs. 1. Lakshmi Bai 2. Swarna Latha 3. Hemalatha 4. Gajendran 5. P.Vasantha 6. P.Rajendiran 7. Jaikrishnan 8. Adhikesavalu 9. Neela 10. Saroja Padma (deceased) Kamala (deceased) 11. P.Renuka 12. P.Nirmala ... Respondents/ Respondents Respondents 5 to 12 set exparte in the lower court and as such notices are not necessary Review Application filed under Order 47 Rules 1 and 2 r/w Section 114 of CPC praying for review of the order dated 09.04.2009 passed in S.A.No.91 of 2006. For Applicant 1 ... Mr.D.Govindarajulu party-in-person Applicant 2 ... Mr.P.Chandrasekaran Applicants 3 & 4 ... No appearance For Respondents ... Mr.V.Baskaran for R1 No appearance for RR2 to RR4 R5 to R12 given up. ORDER
A 'resume' of facts, absolutely necessary and germane for the disposal of this review application would run thus:
This court vide judgment dated 09.04.2009 disposed of S.A.No.91 of 2006 partly modifying the judgments passed by both the courts below and virtually enhancing the share of the review applicant herein including certain consequential modifications. The review petitioner herein Govindarajulu, being one among the four appellants in the second appeal preferred this review application on various grounds, without strictly adhering to Section 114 of the Code of Civil Procedure r/w Order 47 Rule 1 of the Code of Civil Procedure and the review applicant being an Advocate by profession appearing on his own behalf in his personal capacity set out various factual grounds. However, the gist and kernel, the pith and marrow of the grounds of review petition would run thus:
a. As per section 30 of the Hindu Succession Act, the undivided co-parcener in a joint family had no right to execute a Will prior to 1956.
b. As per Section 211 of the Indian Succession Act, based on Letters of Administration granted in favour of a person in respect of a joint family co-parcenery property in the year 1948 by the High Court, the undivided share in a co-parcenery property of the deceased would not vest in the administrator or in the executor and the concept survivorship is alien to Section 211 of the Indian Succession Act.
c. In the judgment passed in the second appeal, the Will executed by Pandari in the year 1946, which came into effect in the year 1948 on the death of Pandari and the subsequent grant of the Letters of Administration by this court in CMP No.31 of 1990 of OSA No.344 of 1989 based on the Will, were relied on for deciding the matter but the said Will and the Letters of Administration would not in any way enure to the benefit of the plaintiff.
d. After the death of Pandari, during the year 1948 itself, the half share of Pandari in the joint family property devolved on Duraisamy Naidu and his sons who formed part of the co-parcenery.
e. As per Section 6 of the Hindu Succession Act, Duraisamy Naidu died during the year 1972, whereupon his share in the co-parcenery property devolved upon the review applicant herein Govindarajulu and his son Sureshchandra Kumar, even though Duraisamy Naidu died leaving behind his daughters.
Accordingly, the review applicant prayed for reviewing the earlier judgment of this court.
2. At this juncture, it is just and necessary to point out that the review application itself is not in order. Even though in the cause title, the review applicants/appellants are shown as 1. D.Govindarajulu, 2. N.G.Sureshchandra Kumar,3. N.G.Premila Devi and 4. N.G.Nirmala Devi in commensurate with the cause title in the Second Appeal, the review application was signed only by Govindarajulu, who is the first appellant in the Second Appeal. For the second appellant Advocate Mr.P.N.Chandrasekaran appeared and the third and fourth appellants did not appear and they were not represented by any one. For R1 Lakshmi Bai, the learned counsel Mr.V.Baskaran appeared. Here, the learned counsel Mr.P.Chandrasekaran appeared in person and made his submissions that he is sailing with the first applicant Govindarajulu and he has not made any other submission and there is also nothing to indicate that except the first applicant, the others shown as applicants in the review application are really applicants in the review application.
3. Mr.Govindarajulu, who is an Advocate by profession, made his submissions reiterating the contentions of the review application.
4. By way of refuting and remonstrating, denying and impugning the averments in the review application, the learned counsel Mr.Baskaran would submit that there is no ground at all for reviewing the judgment passed by this court on 09.04.2009 in the second appeal.
5. The points for consideration are as to:
1. Whether the application satisfies the requirements of Section 114 r/w Order 47 Rule 1 of the Code of Civil Procedure?
2. Whether there is any discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the review applicant or could not be produced by him at the time when the judgment in Second Appeal was made or Whether there is any mistake or error apparent on the face of the record or whether there is any other sufficient reason based on which the earlier judgment dated 09.04.2009 has to be reviewed?
Point Nos.1 & 2:
6. Both these points are taken together for discussion as they are inter-linked and inter-woven with each other.
7. A bare perusal of the judgment dated 09.04.2009 passed by this court would amply make the point clear that this court threadbare discussed the points and materials concerned in the light of the substantial questions of law framed in the Second Appeal and ultimately partly modified the judgment and decree of both the courts below and granted certain additional benefits to the review applicant. However, without understanding the proper provisions of law, this review application has been filed. In fact, a mere poring over and perusal of the review application would indicate that the applicant calls upon this court to once again to take a different view from the one taken by this court, which is not at all permissible under Section 114 of the Code of Civil Procedure r/w Order 47 Rule 1 of CPC. In this connection, I would like to cite the following decision of the Hon'ble Apex Court concerning the scope of review.
AIR 1995 SC 455 (Meera Bhanja vs. Smt.Nirmala Kumari Choudhury). Certain excerpts from it would run thus:
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3):
"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
9. In the light of this settled legal position let us try to see whether in the present case the latter Division Bench while dealing with the review petition had overstepped the limits of jurisdiction under Order 47, Rule 1, and whether it had resorted to re-appreciation of evidence by almost sitting in appeal over the decision reached by the earlier Division Bench.
12. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1, C.P.C. by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the review Bench has re-appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench findings regarding C.S. Plot No.74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers....................."
Based on the aforesaid proposition, the following other decisions were also emerged:
(i) AIR 1998 Rajasthan 302 (Ishwar Dutt vs. Gyan Chand) and an excerpt from it would run thus:
"23. ................. The scope of the power of review as envisaged under Order 47 Rule 1, C.P.C., is very limited and the review must be confined strictly only to the errors apparent on the face of record. Re-appraisal of the evidence on the record for finding out the error would amount to exercise of appellate jurisdiction, which is not permissible by the statute. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 C.P.C. The scope for exercise of power by this Court while dealing with and deciding a review petition is very limited confined within the four-corners of the statute as referred to above.
24. Keeping in view the facts and circumstances of the case, I am of the opinion that this is not a case, which calls for any interference by this Court in exercise of it's either the inherent powers under Sections 114 and 151 CPC or within the ambit of the powers conferred on this court by the Statute under Order 47, Rule 1 C.P.C.
25. As a result, I find no merit in the review petition and the same is dismissed................."
(ii) (2000) 9 SCC 366 (Susheela Naik and another vs. G.K.Naik) and
(iii) (2005) 13 SCC 450 (T.Vijaya Laxmi and others vs. United India Insurance Co.and another).
As such, a mere perusal of those precedents would clearly indicate and exemplify that absolutely, there is no substance in the review application. It would not also be out of place to recollect and call up the scope of Second Appeal. An excerpt from certain precedents would run thus:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its would run thus:-
"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ."
18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . .
21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari).
24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus-
9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
It is therefore crystal clear that the Second Appeal is having restricted scope and review on Second Appeal is having further restricted scope. But ignoring all those salient legal features, the review applicant simply prays this court to re-appreciate the evidence relating to the entire facts and take a different view and such a course is totally untenable as per law. However, for the purpose of comprehensively dealing with this review application, I would like to refer to the facts of the case in brief.
8. Admittedly and unassailably the suit properties along with other properties originally belonged to one Parthasarathy Naidu who died leaving behind his two sons, viz., Perumal Naidu and Doraisamy Naidu. Doraisamy Naidu died in the year 1972, leaving behind his son D1-Govindarajulu (the review applicant herein) and his five daughters. The five daughters of Duraisamy Naidu are the plaintiff and D2 to D5. During the pendency of the suit, D2 died whereupon D8 to D12 her legal heirs were impleaded. D7 is the son of D1. D6 is the deceased Perumal Naidu's deceased daughter's son, so to say, the maternal grand son of Perumal Naidu. The contention of the parties were detailed in my earlier judgment dated 09.04.2009 and it is extracted here under for ready reference:
" The plaintiff's contention is that, as per Ex.A1-the registered partition deed dated 07.10.1929, the said Perumal Naidu and Doraisamy Naidu got partitioned their various coparcenary properties and got divided their coparcenary status and in that the suit property house herein was also divided, so to say, each was allotted half share in the suit house; as such, they became divided coparceners; Perumal Naidu had three sons and they died in unmarried state; however, in that line of Perumal Naidu, out of his three sons, Pandari happened to be the last sole surviving coparcener, who executed the 'Will' in favour of D6. At this juncture, it is worthwhile to highlight that D6 obtained a letter of administration from this Court relating to the said Will. The plaintiff would contend that regarding Doraisamy Naidu's line is concerned, Doraisamy Naidu enjoyed his portion and died during the year 1972, leaving behind his one son D1 and five daughters, namely, the plaintiff and D2 to D5. However, the plaintiff as per her own calculation of shares, claimed 1/6th share in the half share of Doraisamy Naidu.
8. Whereas, remonstrating and refuting, denying and challenging, but accepting the relationship, D1 and D7 would contend that the said partition deed, Ex.A1 was not in stricto sensu, a partition deed, but only a family arrangement, as per which, Doraisamy Naidu was expected to pay a sum of Rs.2,400/- to Perumal Naidu towards, Perumal Naidu's half share in the and become a full owner of the house; however, Doraisamy Naidu did not pay that amount to Perumal Naidu; the joint status of co-parcenery continued; consequent upon the death of Perumal Naidu and his three sons, the entire suit property came to the ownership of D1 and along with him D7- his son is also entitled to his share in the suit property. However, the five daughters of Doraisamy Naidu, including the plaintiff, are not entitled to the co-parcenary property; the letters of administration was challenged by him before this Court and he was permitted to agitate the said Will at the appropriate forum at the appropriate stage. D6 remained ex-parte and accordingly, D1 and D7 prayed for the dismissal of the suit."
This court in the Second Appeal pellucidly and palpably gave a finding to the effect that the trial court based on evidence arrived at the conclusion that the Ex.A1 Partition Deed, which emerged between the said Duraisamy Naidu and Perumal Naidu resulted in division of their co-parcenery status and option was given to Duraisamy Naidu to purchase the share of Perumal Naidu by paying a sum of Rs.2,400/- to him or to his heirs. But, admittedly, such amount was not paid either to Perumal Naidu or to his heirs and in such a case, both the courts below clearly held that as per the Partition Deed Ex.A1 division got effected in the joint family status between Duraisamy Naidu and Perumal Naidu and Perumal Naidu's all the three sons died issue less and his last son before his death executed the Will in favour of D6, who is none other than the maternal grand son of Perumal Naidu, bequeathing his said divided half share.
9. The contention of the review applicant relating to the letters of Administration has already been dealt with by me in the previous judgment dated 09.04.2009 and in para No.14, I have observed as under:
"14. It is a trite proposition of Hindu law that a sole surviving co-parcener could dispose of his share by Will, even anterior to Section 30 of the Hindu Succession Act, 1956 coming into vogue and it is a trite proposition of law and it is found exemplified in the famous Treatise Mulla Hindu Law, Nineteenth Edition in page No.367 as under:
"A sole surviving coparcener could, however, bequeath the joint family property as if it was his separate property."
Here admittedly as per D1's version, Pandari executed the Will even in the year 1946 and that he died during the year 1948, whereby the Will came into effect even in the year 1948. Even though the defendant No.1 would contend in the grounds of appeal that in CMP No.31 of 1990 of OSA No.344 of 1989 before this Court, the letters of administration granted in favour of D6 relating to the said Will executed by Pandari was challenged, yet this Court as per the order directed D1 to prove his property rights in the appropriate proceedings. However, quite antithetical to D1's own stand, he has not chosen to agitate the Will by initiating appropriate proceedings and this fact also has been correctly considered by the trial Court and confirmed by the appellate Court."
As such, the contention of the review applicant relating to the Will and Letters of Administration also is untenable.
10. As such, as per the precedents relating to second appeal cited supra, in view of the concurrent findings given by both the courts below, the Second Appellate court cannot interfere with the factual findings and this court also while dealing with the Second Appeal considering that there had been no perversity or non application of law in appreciating the evidence on record by both the courts below, confirmed their findings relating to the division in the joint family status between Perumal Naidu and Duraisamy Naidu and also about the validity of the Partition Deed and the Will. Hence, in this review application, the review applicant is having no right at all to once again call upon this court to review the matter. As such, without adhering to the settled proposition of law, once again, in the review application, the following versions are found extracted set out ignoring the law of pleadings and throwing to winds the legal principles.
"c) As per ILR of 1906, the testator of the Will of 1946 which was got executed by the executor like Rajagopal, father of R.Adikesavalu, D6 in the partition suit O.S.No.4083 of 1983 was under undue influence of the executor as the executor was a defacto guardian as accepted by the testator of the Will late Pandari who was born on 17.4.1928, was below average intelligence and he was influenced to write a Will on 3.6.46 as he was staying in executor's house, barely within a month and 18 days after he became a major and as such when he recently attained majority and as a school going boy, suffering from tuberculosis disease, he was below average intelligence also as confirmed in a similar case ILR of 1906, page 170.
Under these circumstances will got written from late Pandari is invalid:
d) Further as per AIR 1959 SC page 452, profounders who had taken a prominent part in the execution of the Will and had received substantial benefit under it, that itself is generally treated as a suspicious circumstances, is required to remove the said suspicion by clear and satisfactory evidence. But the defendant-6 in 3rd Assistant Judges court got himself set exparte and never got restored either in 4th Addl.Judges Court or III Fast Track Court or in the 23rd High Court to remove such suspicion and as such burden is not on the defendant No.1 petitioner in O.S.No.4083 of 1983 as assumed by the III Asst.Judge, in his judgment page 27.
e) Further as per AIR SC 1956, page 165, the validity of compromise or family arrangement of the disputed rights in 1929 depends on the facts existing at that time and will not be affected by subsequent judicial determinations showing the rights of the parties to be different from what was supposed or that one party had nothing to give up. As such further judicial decisions in Letters of Administration of High Court in 1948, partition suit order in O.S.No.4083 of 1983 on 29.4.02 or A.S.268 order on 19.1.05 or second appeal of 91 of 2006 order on 9.4.09 cannot affect the family arrangement in order to retain the integrity of the family property.
Unfortunately in this case late Perumal Naidu and his three sons whom he represented in the family arrangement died before 1948 when the last son late Pandari died in tuberculosis deceased on 25.3.48, in mental hospital as confirmed in the Letters of Administration and the entire Perumal Naidu's family shares in this house property devolved in Duraisamy Naidu and D.Govindarajulu, the appellant No.1, in this appeal on 25.3.48, under Mitakshara Co-parcenery law by survivorship in 1948 and as such the question of payment of Rs.2400/- to the elder brother's family as per family arrangement in 1929 cease to exist in 1948 itself."
(extracted as such) and as such those versions are unwarranted in the review application.
11. The review applicant unnecessarily and baselessly tries to invoke Section 29 A and Section 30 of the Hindu Succession Act and canvass the point that Perumal Naidu had no right to execute the Will. This court while dealing with Second Appeal, clearly held that Perumal naidu being the last surviving co-parcener on Perumal Naidu's side, after such partition had the right to will away the divided share under Ex.A1 in favour of D6. As such, absolutely the decisions cited by the applicant are out of context.
12. The review applicant also tried to argue in a most untenable manner that despite Section 6 of the Hindu Succession Act, the female heirs would not be entitled to any share in the share of the deceased male ascendant in the co-parcenery property.
13. Indubitably and indisputably, admittedly and unassailably the review applicant's father Duraisamy Naidu died during the year 1972 leaving behind his said five daughters and the review applicant Govindarajulu. Govindarajulu also had at that time his son Sureshchandra Kumar, the second appellant in the second appeal and in such a case, it is quite obvious that the share of Duraisamy Naidu in the co-parcenery property which was allotted to Duraisamy Naidu's side as per Ex.A1, would devolve upon his son Govindarajulu and his five daughters. The review applicant despite he having been called upon to go through Section 6 of the Hindu Succession Act, which as it stood in the year 1956 to understand the real purport of it, he has chosen to argue that the proviso clause should not be read and only the first portion of Section 6 should be read and the female heirs should not be given any share. Even I took pains to draw the attention of the review applicant to go through the commentaries such as Raghavachari's Hindu Law and other commentaries, but, he is still unwilling to understand Section 6 in the proper perspective and he insisted for excluding the claim of the daughters in the share of their father, who died in the year 1972.
14. I would like to extract here under paragraph Nos.23, 24 and 25 of my earlier judgment passed in the second appeal dated 09.04.2009 for ready reference:
23. The then existed Section 6 of the Hindu Succession Act, is interpreted in (2007) 1 MLJ 799 [Sheela Devi v. Lal Chand] and it is extracted here under for ready reference:
"6. Devolution of interest in coparcenary property: - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."
(emphasis supplied) Explanation 1:- For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2:- Nothing contained in the proviso to this Section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy, a share in the interest referred to therein."
A bare perusal of the said provisions would clearly show that where the deceased had left him surviving a female relative specified in Class I of the Schedule, his interest in the Mitakshara coparcenary property shall devolve by intestate succession and not by survivorship."
24. I would like to extract here under an excerpt from the famous treatise N.R.Raghavachariar's Hindu Law (Principles and Precedents) Eighth Edition 1987 relating to the scope of Section 6 of the Hindu Succession Act.
"7. Proviso: Exception to rule of survivorship in the Mitakshara coparcenary :- This proviso says that so long as there is a female relative specified in clause (1) of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship. Under the Mitakshara coparcanery as it obtained prior to the Act, no Will left by a coparcener would be valid, the reason being that as between testamentary devolution and devolution by survivorship, the latter took precedence barring the operation of the testamentary disposition. This proviso provides that if any female relative or a male relative claiming through the female relative as specified in clause (1) of the Schedule survives the deceased, then the devolution is under this Act, whether the devolution is testamentary or by intestate succession. The words, "such female relative" found in the proviso to the section refers to a female relative who comes in the 1st class but who is dead but through whom the male relative claims (Ranganathan Chettiar v. Annamalai Mudaliar, 80 L.W.258: (1967) 1 MLJ 389; I.L.R.(1968)1 Mad 685: 1968 Mad.65)".
(emphasis supplied)
25. An excerpt from the famous Treatise Mayne's Hindu Law and Usage 16th Edition relating to Section 6 of the Hindu Succession Act would run thus:
Position prior to 9.9.2005 "2. Scope:- Prior to the commencement of this Act, codifying the rules of succession, the concept of a Hindu family under Mitakshara school of law was that it was ordinarily joint not only in estate but in food and worship. Coparcenary property, in contra-distinction with the absolute or separate property of an individual coparcener, devolved upon the surviving coparceners in the family, according to the rule of a devolution by survivorship. Thus the right of a male Hindu coparcener by birth was recognised and approved under the Hindu Law. With a view to confer certain rights on the female members of the joint family and to prefer certain near bandhus, or cognates to distant agnates in the matter of succession to the estate of a Hindu male dying without male issue, the Hindu Law of Inheritance (Amendment) Act, 1929 was passed and the order of intestate succession under Mitakshara was alerted by including a son's daughter, daughter's daughter, sister, and sister's son, in that order of succession, after the paternal grandfather and before the paternal uncle in the list of heirs. As a result there was a limited restriction on the rule of survivorship. The right of the coparcener under the rule of survivorship was further abridged, by conferring greater rights on women, under the Hindu Women's Rights to Property Act, 1937, which brought about revolutionary changes in the Hindu Law of all schools, and affected not only the law of coparcenary but also the law of partition, alienation of property, inheritance and adoption. The Act of 1937 conferred on the widow, the widow of a predeceased son and the widow of a predeceased son of a predeceased son, a right of inheritance to the deceased's property even when the deceased left male issue and were allowed to claim partition, though they would take only a limited estate in the property of the deceased.
The present section deals with the devolution of the interest of a male Hindu in coparcenary property and while recognising the rule of devolution by survivorship among the members of the coparcenary, makes further exceptions to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession under this Act and not by survivorship. Further under Section 30 a coparcener may make a testamentary disposition of his undivided interest in joint family property. Thus the rule of survivorship comes into operation only: (i) where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in Class I, who claims through such female relative in Class I, (ii) when the deceased has not made a testamentary disposition of his undivided share in the coparcenary property.
As the rule of survivorship under this section operates in respect of the interest of the deceased it becomes necessary to ascertain the share of the deceased coparcener in the Hindu Mitakshara coparcenary property. As to what constitutes Hindu Mitakshara coparcenary property as distinguished from separate property and the incidents, thereof, see Chapter 12 (paragraphs 292, 293, 294, 298,301, 310 and 312). The present section in its Explanation I states that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. Thus a notional partition of coparcenary property as if the property was partitioned immediately before the death o the succession and not by survivorship. While proceeding on the footing of a notional partition in a given case, one should not take into consideration a person who had separated himself from the coparcenary before the death of the deceased or the claim of any heirs of such a person as stated in Explanation 2."
An excerpt from the Apex's Court decision reported in J.T. 1993(5) SC 197 [Pavitri Devi and another v. Darbari Singh and others] would run thus:
"13. However, she is right in her contention that she is a successor in interest under Order 22 Rule 3 of CPC as is seen by operation of the proviso to section 6(1) of the Act and explanation I of which reads thus:
"Explanation 1.- For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."
A reading of S.6 thereof clearly provides that when a male Hindu dies, after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest by operation of the proviso devolves on his surviving members of the relatives specified in Class I of the Schedule. The interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. In other words interposition of a female class I heir in the family of the deceased coparcener interjects the operation of succession to coparcenary property by survivorship and opens up the intestate or testamentary succession under the Act among the heirs in the order specified in the Schedule. For the purpose of this section the interest of a Hindu coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It is, therefore, statutorily assumed that the partition had, in fact, taken place between the deceased and the other coparceners immediately before his death by fiction of law. The inevitable corollary being that Pavitri Devi, female class I heir as per schedule will get her share in the interest which the deceased had in the coparcenary property at the time of his death at a notional partition."
A mere perusal of it is sufficient to hold that the contention of the review applicant is totally against the well settled proposition of law.
15. In paragraph No.26 of my aforesaid judgment it is held as under:
26. A bare perusal of the above excerpts would leave no doubt that during the life time of Doraisamy Naidu, after he separated himself from Perumal Naidu, his half share in the suit property belonged to Doraisamy Naidu and his son D1 in equal moiety, so to say, each one was entitled to half share in the half share. In other words, Doraisamy and D1 had 1/4th share each in the entire suit property. D1's son D6 could claim under the principle of per stirpes or doctrine of representation only half share in the 1/4th share of D1. The 1/4th share of Doraisamy Naidu on his death in 1972 devolved upon D1 his son and his five daughters, viz., the plaintiff, D2, D3, D4 and D5. In fact, the children of Doraisamy Naidu became entitled to 1/6th share in the 1/4th share of Doraisamy Naidu in the entire suit property. Without understanding this method of division, both the Courts below committed error in holding as though the plaintiff is entitled to 1/6th share in the half share which belonged to Doraisamy Naidu.
In commensurate with the Hon'ble Apex Court decision, ultimately in paragraph No.28, I held as follows:
"28. In the result, the substantial question of law No.1 is answered to the effect that the plaintiff is not entitled to 1/6th share in the half share of the suit property, but she is entitled to 1/6th share in the 1/4th share of deceased Doraisamy Naidu in the suit property. Both the Courts below fell into error in allotting shares of the respective parties and hence this Court details here under the respective shares of the parties:
D6 : 12/24th share
D1 : 4/24th share
D7 : 3/24th share
Plaintiff " 1/24th share
Deceased D2(D8 to D12
her legal heirs) : 1/24th share
D3 : 1/24th share
D4 : 1/24th share
D5 : 1/24th share"
As such, absolutely, there is no iota or shred, shard or miniscule, jot or scintilla of evidence that are available for reviewing the earlier judgment of this court dated 09.04.2009 in S.A.No.91 of 2006 and both the points are decided as against the review applicant. Accordingly, the review application is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
.01.2010 vj2 Internet: Yes/No Index : Yes/No G.RAJASURIA,J., vj2 Pre-Delivery Order in Rev.Appl.No.63 of 2009 .01.2010