Karnataka High Court
Sri S. Narahari vs Sri S R Kumar on 15 July, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REVIEW PETITION No.365/2022
IN
R.F.A.No.392/2012
BETWEEN:
1. SRI S.NARAHARI
S/O LATE SRI VITTAL RAO SUTRAVE
AGED ABOUT 59 YEARS
RESIDING AT NO.271
"RADHAKUNJ"
No.271, 5TH MAIN
IV BLOCK, JAYANAGARA
BENGAULRU - 560 011.
2. M/S. DEVANAND TYRES
No.24-C, 38TH CROSS
8TH BLOCK, JAYANAGARA
BENGALURU-560 011
BY ITS MANAGING PARTNER
MR. NARAHARI.
3. M/S. DEVANAND SILKS
No.402, RAJASHREE MARKET
AVEUE ROAD, BENGALURU
BY ITS MANAGING PARTNER
MR.NARAHARI.
4. M/S. DEVANAND STEEL
No.24-C, 38TH CROSS,
8TH BLOCK, JAYANAGARA
2
BY ITS MANAGING PARTNER
MR.NARAHARI. ... PETITIONERS
(BY SRI VENKATESH S. ARBATTI, ADVOCATE A/W.
SRI MASOOD KHAN MECCI, ADVOCATE)
AND:
1. SRI S.R.KUMAR
S/O LATE S.N.SUBBA RAO
AGED ABOUT 76 YEARS
No.211, 5TH CROSS
3RD BLOCK, KALYAN NAGAR
BENGALURU-560 043
2. SRI S.MAHENDRA
S/O SRI S.N.SUBBA RAO
AGED ABOUT 81 YEARS
No.20, 2ND PHASE
SBI STAFF COLONY
DEVARACHIKKANAHALLY
BTM 4TH STAGE, BANNERGHATTA ROAD
BENGALURU-560 076.
3. SRI R. SADANANDA ROAD
AGED ABOUT 62 YEARS
S/O V. RAMACHANDRA RAO
RESIDING AT No.39/4
5TH MAIN ROAD, TATA SILK FARM
BASAVANGUDI
BENGALURU-560 004
4. SRI R. SUDHAKAR RAO
AGED ABOUT 46 YEARS
S/O LATE V.RAMACHANDRA RAO
RESIDING AT No.16
(RAMAKAMALA BIVAS)
JAIN TEMPLE STREET, V.V.PURAM
BENGALURU-560 004.
3
5. SRI G.R.DURGOJI RAO
AGED ABOUT 68 YEARS
S/O SRI A. NINGOJI RAO
PROPRIETOR,
M/S. CARGO TARPALINES
INDUSTRIES, No.29/1,
J.C.ROAD, BENGALURU.
6. SMT. SUMAN NARAHARI
W/O SRI S.NARAHARI
AGED ABOUT 56 YEARS
7. SMT. N.VISHAKA
D/O SRI S.NARAHARI
AGED ABOUT 37 YEARS
8. SMT. N.VANITHA
D/O SRI S.NARAHARI
AGED ABOUT 35 YEARS
9. N.VARSHA
D/O SRI S.NARAHARI
AGED ABOUT 35 YEARS
RESPONDENT Nos.6 TO 9 ARE
RESIDING AT No.271, "RADHAKUNJ"
No.271, 5TH MAIN, IV BLOCK
JAYANAGARA, BENGALURU-560 011.
10. SRI S. CHANDRASHEKAR
S/O SRI GURUNATH S.,
AGED ABOUT 36 YEARS
RESIDING AT No.1-4
SWAMY VIVEKANANDA NAGAR
KHUBA PLOTS, GULBARGA-585 101.
11. SRI AMBIKESHWAR
S/O SRI TUKARAM SUTRAVE
AGED ABOUT 44 YEARS
4
RESIDING AT No.29, 34 AND 36,
2ND FLOOR, SUPER MARKET
GULBARGA-585 101.
12. SRI ANIL KUMAR
S/O SRI PREM KUMAR
AGED ABOUT 41 YEARS
RESIDING AT No.29, 34 AND 36
2ND FLOOR, SUPER MARKET
GULBARGA-585 101.
13. SRI GOPAL
S/O SRI SUBASH
AGED ABOUT 34 YEARS
No.6-708/1,2,3,4 AND
6-706/1,2,3, PUTANI GALLI
GULBARGA-585 101.
14. SRI VITTAL S/O SRI S.SUBASH
RESIDING AT No.29, 34 AND 36
2ND FLOOR, SUPER MARKET
GULBARGA-585 101. ... RESPONDENTS
(BY SRI Y.K.NARAYANA SHARMA AND
SRI Y.V.PRAKASH, ADVOCATES FOR R1 AND R2;
R5 AND R6 ARE SERVED AND UNREPRESENTED;
NOTICE NOT ORDERED IN R/O R3, R4 AND R7 TO R14)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 R/W. SECTION 114 OF CPC PRAYING TO CALL FOR RECORDS
IN O.S.NO.10260/1990 AND REVIEW THE ORDER DATED
20.12.2019 PASSED BY THIS COURT IN R.F.A.No.392/2012 AND
CONSEQUENTLY RESTORE R.F.A.No.392/2012 FOR DECIDING
THE CASE ON MERITS.
THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.06.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
This review petition is filed praying this Court to review the order dated 20.12.2019 passed by this Court in R.F.A.No.392/2012 and consequently restore R.F.A.No.392/2012 for deciding the case on merits and pass such other orders as this Court deems fit in the facts and circumstances of the case.
2. The factual matrix of the case of the prosecution is that the review petitioners, who are the appellants had filed R.F.A.No.392/2012 challenging the Judgment and Decree passed in O.S.No.10260/1990 dated 29.10.2011, the same was heard and disposed of vide order dated 20.12.2019 by this Court and confirmed the judgment of the Trial Court; considering the point for consideration that whether the lease deed executed by defendant No.1 in favour of defendant Nos.8 to 17 are binding on the plaintiffs and whether the Trial Court has committed an error in directing the defendants to quit and vacate the premises and answered the point as negative. Being aggrieved by the judgment of this Court, the petitioners had filed SLP(c) No.8212/2020 before the Apex Court. The Apex Court upon 6 hearing the respective counsel dismissed the Special Leave Petition as withdrawn with liberty as sought by the review petitioners to file a review petition before this Court and accordingly the review petitioners have approached this Court by filing the present review petition.
3. The main grounds urged in the review petition are that this Court failed to appreciate the effect of admission of compromise decree between the mother of plaintiff and others. Since, the compromise being admitted, the plaintiffs at most could have prosecuted the case, before the Trial Court as legal representative's of their mother's and failed to take note of the recitals of the Will executed by the executant - Arsoji Rao. This Court failed to appreciate the various Development Agreements executed by Smt. Anusuya Bai with several persons including the petitioner to augment the income cannot be said to be illegal acts and waste of the estate. This Court erred in holding that the transaction made between Smt.Anusuya Bai and the appellant was void and illegal as she could not have executed a Lease Deed in favour of the petitioner beyond her lifetime. 7
4. The learned counsel appearing for the review petitioners in support of his arguments he has filed synopsis, wherein, he vehemently contended that the Trial Court as well as this Court failed to take note of Section 88 of the Indian Succession Act, 1925 that the Will at Ex.P1 confers absolute interest in the schedule property to the daughters of Late Sri Arsoji Rao. As per Section 88 of the Indian Succession Act, 1925, the two inconsistent clauses in a Will and later would prevails.
5. The learned counsel appearing for the review petitioners in support of his arguments relied upon the judgment in the case of Kaivelikkal Abunhi v. H. Ganesh Bhandary reported in (1995) 5 SCC 444, and brought to the notice of this Court paragraph Nos.3, 4 and 5 regarding the Rules of Interpretation of the "Will" are different from the rules which govern the interpretation of other documents. For Example: Sale Deed, Gift Deed or Mortgage Deed or any other instrument by which interest in immovable property is created. While in these documents if there is any consistency between the earlier or the subsequent part or specific clauses inter se contained therein, 8 the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of 'Will', the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or an earlier occasion.
6. The learned counsel appearing for the review petitioners also relied upon the judgments in the case of Uma Devi Nambiar & Ors. v. T.C. Sidhan (Dead) reported in (2004) 2 SCC 321, and brought to the notice of this Court paragraph Nos.10, 11, 12, 13 and 14 of the said judgment and so also in the case of Balwant Kaur & Anr. v. Chanan Singh & Ors. reported in (2000) 6 SCC 310, and brought to the notice of this Court paragraph No.9 of the judgment.
7. The learned counsel appearing for the review petitioners further relied upon the judgment in the case of Madhuri Ghosh & Anr. v. Debobroto Dutta & Anr. reported in (2016) 10 SCC 805, and brought to the notice of this Court 9 paragraph Nos.11 to 13, wherein, an interpretation was made with regard to rules of interpretation of the Will.
8. The other count of argument of the learned counsel for the review petitioners that without prejudice to the contention relating to Section 88 of the Indian Succession Act, 1925, the daughters become absolute owners by virtue of Section 14(1) of the Hindu Adoptions & Maintenance Act, 1956, ('HAMA Act' for short) in relation to the property bequeathed under the Will and not applicable under Section 14(2) of the HAMA Act.
9. The learned counsel for the review petitioners also vehemently contend that the Lease executed by Late Smt. Anusuya Bai, beyond her lifetime even if the daughters of Late Sri Arsoji Rao are found to be having only limited interest in the schedule property, as the lease was executed in favour of the petitioners by defendant No.2 for the benefit of the estate, the same would be valid and the Reversioners would be bound by the same.
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10. The learned counsel appearing for the petitioners also relied upon the judgment in the case of Jagadindra Nath Chowdhury and another v. Ulangini Dasi reported in 1954 SCC OnLine Cal 90, and brought to the notice of this Court paragraph Nos.4, 7 and 8, with regard to question of "justifying causes" or "bonafide enquiry", but they have concurrently held that, the plaintiffs lease being, at the worst, not void but only voidable in law. The learned counsel also brought to the notice of this Court paragraph No.7, where an observation is made that the lease was justified by "legal necessity", or on the theory of 'benefit of estate". The learned counsel further brought to the notice of this Court paragraph Nos.8 as well as 14 of the judgment reiterating with regard to justifying cause for the disputed lease and also for the benefit of the estate if it is executed for legal necessity whether it has acquired validity and immunity from challenge.
11. Per contra, the learned counsel appearing for the respondents would vehemently contend that the scope of review is limited in view of Order 47 Rule 1 of CPC. Here is a case of 11 urging the ground under Section 88 of the Indian Succession Act, 1925, and Section 14(1) of the Hindu Succession Act, 1956 as well as HAMA Act and no ground is made out that the mistake is apparent on the face of the record to exercise the review jurisdiction. The learned counsel also would vehemently contend that in a Review Petition, the Court cannot re-hear the matter and the grounds which have been urged amounts to an appeal grounds, the same has been urged before the Apex Court in SLP and the Apex Court did not admit the appeal. When the Court about to dismiss the SLP, a liberty was sought to approach this Court for filing the review petition. Hence, there is no any merit in the review petition also.
12. The learned counsel would vehemently contend that if the mistake is not apparent on the face of the record, question of exercising the review does not arise. The learned counsel also would vehemently contend that an erroneous finding cannot be questioned in this review petition. The learned counsel also would vehemently contend that the Will is very clear that the executant having two daughters, wherein, he has categorically 12 recited in the Will that the two daughters having life interest and thereafter male grand children are entitled to enjoy the property. No misunderstanding by this Court and this Court considered the exhibits and passed the appropriate order. The recitals of the Will also very clear that 'enjoy equally' and not they are the absolute owners. This Court also discussed in paragraph Nos.29 to 32 regarding merits of the case. Section 14(2) is very clear that the terms of the documents to be given effect and accordingly this Court has considered the same while passing the order on merits. It is a self-acquired property and the same has been bequeathed by the executant. Later part is 'equally'. It means only limited life interest and enjoy the property equally in terms of the limited interest. Hence, there is no any merit in the review petition.
13. Having heard the arguments of the respective counsel and the grounds which have been urged in the review petition, the points that would arise for consideration of this Court are:-
(i) Whether the review petitioners have made out a ground to invoke the review jurisdiction to 13 set aside the judgment of this Court and restore the appeal as sought?
(ii) What order?
Point Nos.(i) and (ii):
14. Before considering the grounds urged in the review petition, this Court would like to make it very clear that the scope of review is limited. Order 47 Rule 1 of CPC., is very clear and the relevant portion reads as follows:
"(1) Any person considering himself aggrieved__
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."14
15. Having read the proviso, it is very clear that if discovery of new and important matter or evidence, after due exercise of due diligence which was not within his knowledge or on account of some mistake or error apparent on the face of the record, review can be considered. But in the case on hand, it is not the case of the review petitioners that this Court has committed mistake or error apparent on the face of the record, but only the main contention urged before the Court is that in view of Section 88 of the Indian Succession Act, will contains earlier part and later part, inconsistency and ambiguity, the same can be pressed into service giving importance to later part.
16. On perusal of the document, particularly, Ex.P1, which relies upon by the review petitioners, their main contention is that the property has been divided equally and the learned counsel mainly brought to the notice of this Court that point No.VIII in the Will, wherein, it is mentioned that equally given the property to both the daughters and the said contention cannot be accepted and the document has to be read in toto as held by the judgment referred by the learned counsel for the 15 review petitioners itself and in the document-Ex.P1, particularly, referring schedule 'A' in respect of the property, which is in question categorically held that both daughters should be divided equally and also out of the returns, they have to give Rs.250/- to their mother for her expenses and the remaining 50% they should use the same for repair and white wash. Immediately, the word is used that both the daughters have to enjoy the property during their lifetime and thereafter their male legal heirs should acquire the property. Even mentioning in respect of point No.II(b), once again specifically stated that equally given to them in respect of 'A' schedule property and once again reiterated that both of them have to enjoy the property during their life time and thereafter the property should vest with their male legal heirs. When such intention is reiterated in the Will, the same has been considered by this Court while considering the appeal. The very contention referring VIII available in page 10, equally divided not the same is divided absolutely as contended by the learned counsel for the review petitioners and the intention has to be looked into while taking into the entire contents of the document and stray sentence that equally given 16 to them does not mean that absolute right given to them and the same is only limited interest and hence Section 88 of the Indian Succession Act, 1925, will not come to the aid of the petitioner.
17. The other contention is that in terms of Section 14(1) of the Hindu Succession Act, 1956, the women become absolute owners, cannot be accepted. The Court has to conjointly read Sections 14(1) and 14(2) of the Hindu Succession Act, 1956. Section 14(2) of the Hindu Succession Act, 1956, is very clear that the same should be in terms of the document i.e., Testamentory document executed by the executant. No doubt, the principles laid down in the judgments referred supra by the learned counsel for the review petitioners, wherein also, it is categorically held that the document should be read in full not in part and the same has to be considered in toto. Hence, the judgments which have been relied upon by the learned counsel for the review petitioners is not comes to the aid of the review petitioners.
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18. I have already pointed out that no error has been committed by this Court in passing the judgment on merits. As rightly pointed out by the learned counsel for the respondents that this Court while framing point for consideration in paragraph No.23, discussed in detail with regard to the Will as well as the suit filed by the parties and obtained the decree and also subsequent challenge made before this Court in R.F.A.No.885/2002 and taken note of point Nos.1 and 2 in detail, particularly, in paragraph No.29 onwards and given a finding that the terms of the Will is very clear that the life interest has been created and not given any absolute right. Hence, the Trial Court has not committed any error in decreeing the suit and ordering the delivery of possession in coming to the conclusion that the Will does not confirm the absolute right in favour of two daughters.
19. The main contention of the learned counsel for the review petitioners is that this Court failed to take note of the earlier compromise decree. The decree will not come to the aid of the review petitioners and the decree cannot be obtained as 18 against the intent of the executant of the Will. If anything is acted upon against the terms and conditions of the Will and the same also not comes to the aid of the review petitioners herein. That apart this Court also in paragraph No.37, held that the Court has to take note of the fact that the petitioners are the tenants and the status of the review petitioners is only the tenant in respect of the suit schedule property, which had come to the share of the plaintiffs in terms of the Will and the executants of the Lease Deed cannot exercise their powers beyond the right what has been conferred in terms of the Will. Hence, I do not find any merit in the review petition. The very contention of the learned counsel for the review petitioners is that Section 88 of the Indian Succession Act and Section 14(1) of the Hindu Succession Act, 1956, will come to the aid of the learned counsel for the review petitioners and it requires reviewing the order cannot be accepted. Hence, the review petition is devoid of merits and I answer point No.(i) as negative.
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20. In view of the discussions made above, I pass the following:
ORDER The review petition is dismissed.
Sd/-
JUDGE cp*