Andhra HC (Pre-Telangana)
V.S.H.Babu vs V.Savithri And Others on 2 June, 2014
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO
Rev.A.S.M.P.No.2518 of 2013 and batch
02-06-2014
V.S.H.Babu...APPELLANT
V.Savithri and others. ...RESPONDENT
Senior Counsel for the Petitioner::Sri Koka Raghava Rao representing
Sri K.Lakshmana Sastry.
Counsel for the 1st respondent :Sri P.V.Vidya Sagar
<GIST:
>HEAD NOTE:
?Cases referred:
(2000) 6 S.C.C. 359
2 AIR 2005 S.C. 592
3 AIR 2000 S.C. 1623
4 2012 (7) SCJ 613 = 2012 (12) S.C.C. 291
5 2004 (1) An.W.R. 67 (D.B.) (A.P.)
6 AIR 1962 S.C. 567
7 AIR 1990 S.C. 396
8 (1998) 7 S.C.C 386
9 (2001) 5 S.C.C. 37
10 (2009) 16 S.C.C. 657
11 (2011) 8 S.C.C 679
12 (2011) 4 SCC 602
13 Lily Thomas Vs. Union of India.AIR 2000 S.C. 1650;
Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius.AIR 1954
S.C. 526
14 (2008) 8 SCC 612
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Rev.A.S.M.P.No.2518 of 2013 in A.S.No.2401 of 1998
&
Rev.A.S.M.P.No.2780 of 2013 in A.S.No.138 of 1999
COMMON ORDER :
These two applications are filed under Order 47 Rule 1 CPC by the petitioner herein to review the common judgment dt.12-02-2013 in AS.No.2401 of 1998 and A.S.No.138 of 1999.
2. Heard the learned Senior Counsel Sri Koka Raghava Rao, representing Sri K. Lakshmana Sastry, learned counsel for the petitioner and Sri P.V. Vidya Sagar, learned counsel appearing for the 1st respondent in these review petitions.
3. The petitioner in the review petitions is the brother of 1st respondent. They along with respondent Nos.3, 4, 6 and 7 are the children of 2nd respondent and her husband V. Siddaiah Chetty. The 5th respondent is the son of 4th respondent.
4. The 1st respondent herein had filed OS.No.235 of 1989 on the file of the Principal Sub-Ordinate Judge, Tirupathi for the partition of the plaint schedule properties into six shares and for allotment of one share to her apart from mesne profits and costs. She contended that she is the daughter of Siddaiah Chetty; that he died intestate on 10.09.1985; on his death, the respondents 1 to 4, 6 and 7 along with the petitioner jointly succeeded to the plaint schedule properties in equal shares and are in joint possession thereof; consequently she is entitled to 1/6th share in the plaint schedule properties which belonged to Siddaiah Chetty.
5. The petitioner herein filed a written statement admitting the relationship between the parties but contending that under a Will Ex.B.33 dt.11.08.1985, executed by Late Siddaiah Chetty in a sound and disposing state of mind, the plaint schedule properties were bequeathed to himself and respondent Nos.11 and 12 ,who are his sons, in equal share; that he did not give any property to his six daughters since they were married and were also given 50 ankanams of site each; Ex.B.3 dt.19.09.1979 is the registered Settlement Deed executed by Siddaiah Chetty in favour of the 1st respondent settling Ac0.50 cts on her; Ex.B.4 dt.06.03.1968 is the registered Settlement Deed in favour of 4th respondent; the 1st respondent is therefore not in joint possession and enjoyment of the plaint schedule properties and is not entitled to 1/6th share therein.
6. Subsequently, he filed an additional written statement contending that his sons, respondent Nos.11 and 12, are also legatees under the Will and stating that certain plaint schedule properties were sold by him during the pendency of the suit; and item No.4 of the plaint A schedule was finally lost to the family as per the judgment of the Supreme Court of India in SLP (Civil).No.16725-27/85 and the same cannot be the subject matter of the suit.
7. The suit was subsequently transferred to the Court of III Addl. District Judge, Tirupathi and renumbered as OS.No.5 of 1996.
8. The petitioner herein and his sons, respondent Nos.11 and 12, filed OS.No.15 of 1993 on the file of the Principal Sub-Ordinate Judge, Tirupathi for a perpetual injunction against the respondent Nos.1 to 5 and others restraining them from interfering with the possession and enjoyment of the plaint schedule properties which were bequeathed to them under the Will Ex.B.33 dt.11.08.1985.
9. The 1st respondent opposed the said suit denying the execution of the Will and contending that they are in joint possession and enjoyment of the plaint schedule properties along with the plaintiffs in OS.No.15 of 1993 and praying that the suit be dismissed.
10. OS.No.15 of 1993 was transferred to the Court of III Addl. District Judge, Tirupathi and renumbered as OS.No.16 of 1997.
11. Both OS.No.5 of 1996 and OS.No.16 of 1997 were tried together.
12. The 1st respondent was examined as PW.1 and she marked Exs.A.1 to A.3. The petitioner and his sons examined DWs.1 to 6 and marked Exs.B.1 to B.48.
13. By common judgment dt.31.08.1998, the trial court dismissed OS.No.5 of 1996 and decreed OS.No.16 of 1997. It held that Ex.B.33 Will is genuine and there are no suspicious circumstances surrounding its execution and so the plaint schedule properties cannot be partitioned at the instance of the 1st respondent.
14. Challenging the common judgment in OS.No.5 of 1996 and OS.No.16 of 1997, the 1st respondent filed AS.No.2401 of 1998 and AS.No.138 of 1999 in this Court.
15. Both these appeals were heard together. By common judgment dt.12.02.2013, this Court allowed AS.No.2401 of 1998 and decreed the relief of partition in favour of the 1st respondent. It also allowed AS.No.138 of 1999 partly granting a decree for perpetual injunction in favour of the petitioner only till passing of final decree in OS.No.5 of 1996.
16. This Court held that the Will Ex.B.33 is not true and valid and was set up by petitioner to defeat the rights of other legal heirs of Late Siddaiah Chetty. It held that Late Siddaiah Chetty was hale and healthy prior to his death and he was only suffering from Asthma for some time, but he was not bed-ridden and there was no sudden expectation of death which forced him to execute it. It held that the 2nd respondent who is the wife of Siddaiah Chetty was also present according to DW.3 but her attestation was not taken and two persons, who were associated with Tirumala Tirupathi Devasthanams where the petitioner was working, were taken as attestors even though they were not residents of the village of the testator. It also held that the exclusion of the 2nd respondent/wife of testator from any benefit by him under the said Will is a suspicious circumstance and it is unnatural for a reasonable and responsible person like the testator to leave her without providing her any livelihood.
17. Special Leave Petitions in SLP (Civil) Nos.19127-19128 of 2013 were filed against these judgments in the Supreme Court of India. They were dismissed on 15.07.2013 by the Supreme Court without any reasons.
18. Thereafter, Rev.ASMP.No.2518 of 2013 is filed to review the judgment in AS.No.2401 of 1998 and Rev.ASMP.No.2780 of 2013 is filed to review the judgment in AS.No.138 of 1999.
19. The counsel for the Review petitioners contended that the judgment of this Court in the appeals is vitiated by error apparent on the face of record and is liable to be reviewed; that the trial court had accepted the genuineness of the Will Ex.B.33 after considering the evidence of the attestors DWs.2 and 3 and the son of the scribe DW.4; DWs.2 and 3 are not related to the testator and merely because they are co-employees with petitioner, their evidence could not have been rejected as biased in favour of the petitioner ; that the 1st respondent got married on 26.03.1961 and she had been given property under Ex.A.1=B.3 Settlement Deed dt.19.09.1979; the 2nd respondent, who is the wife of Siddaiah Chetty had not complained of being excluded by her husband of any property under the Will; no suggestion was given to the petitioner when he was in the witness box as DW.1 that exclusion of the 2nd respondent from inheritance under the Will is a suspicious circumstance; that no argument was advanced before the trial court that her exclusion from inheritance under the Will is a suspicious circumstance; that under the Will the obligation to maintain the 2nd respondent was given to the petitioner; and therefore, the judgment of this Court in these appeals be reviewed, set aside and the appeals be dismissed. He contended that even after dismissal of SLPs by Supreme Court of India, Review Petitions can be filed seeking review of the judgments in the appeals. He relied upon the decisions in Kunhayammed and Others Vs. State of Kerala and Another , Board of Control for Cricket India and Another Vs. Netaji Cricket Club , V.M.Salgaocar and Bros. (P) Ltd. Vs. CIT , and Khoday Distilleries Ltd. and Others Vs. Mahadeshwara S.S.K. Ltd .
20. The learned counsel for 1st respondent on the other hand contended that exclusion by the testator of his wife from inheritance under Ex.B-33 Will is unnatural and a suspicious circumstance; that the trial Court did not appreciate this point and dismissed the suit erroneously; but the appellate Court correctly granted relief to 1st respondent; that the judgment of the appellate Court cannot be reviewed merely because another view is possible on the evidence; that a review is not a rehearing of the appeal on merits; in fact after the Special Leave Petitions Nos.19127 19128 of 2013 are dismissed by the Supreme Court on 15-07-2013 and this Court is not competent to entertain the review petitions. He relied upon judgment in Spl. Deputy Collector, Land Acquisition, Steel Plant, Visakhapatnam and Another Vs. Narla Gopalakrishnaiah and others , Rani Purnima Debi Vs. Kumar Khagendra Narayan Deb and Kalyan Singh Vs. Chhoti .
21. On the basis of the above contentions, the following points arise for consideration:-
a) Whether the review petitions could have been filed by the petitioner after the dismissal of the S.L.P.Nos.19127-28/2013 by the Supreme Court of India on 15-07-2013?
b) If yes, whether there is any error apparent on the face of the record warranting review of the judgment in A.S.Nos.2401 of 1998 and 138 of 1999?
Point No.(a):-
22. There is no dispute that the common judgment dt.12-02-2013 in A.S.No.2401 of 1998 and 138 of 1999 was challenged before the Supreme Court by the petitioner in S.L.P.Nos.19127-19128 of 2013 but they were dismissed on 15-07-2013 and thereafter these applications were review of the said judgment have been filed by the petitioner.
23. In Abbai Maligai Partnership Firm and Another Vs. K.Santhakumaran and Others , a Three Judge Bench of the Supreme Court was of the opinion that after the dismissal of Special Leave Petitions by it on contest, no review petitions could be entertained by the High Court against the same order and that the very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of the Supreme Court. It expressed its strong disapproval for the same and held that it is subversive of judicial discipline.
24. In K.Rajamouli Vs. A.V.K.N.Swamyi , a Two Judge Bench of the Supreme Court agreed with the above view. It observed:
The dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable.
25. However, in Kunhayammed (1 supra), another Three Judge Bench of Supreme Court after considering the view in Abbai Maligai Partnership Firm (8 supra), held that where a Special Leave Petition was dismissed by a non-speaking order and the applicant approaches the High Court by moving a petition for review, it is not just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out. The dismissal of the Special Leave Petition by a non-speaking order, it observed, only indicated that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136. It approved the decision in Abbai Maligai (8 supra) and explained it as one where the S.L.P. was dismissed after contest after hearing counsel for both sides. It held that if the order of dismissal of S.L.P. by the Supreme Court is not supported by reasons, the doctrine of merger would not get attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal nor would it be a declaration of law by it under Article 141 of the Constitution of India. But where the S.L.P. is dismissed by a speaking or reasoned order, although there is no merger, the rule of discipline and Article 141 would get attracted. It held that a doctrine of merger and the right of review are concepts which are closely linked; if the judgment of the High Court has come up to the Supreme Court by way of a Special Leave, and Special Leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court; and in that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of the Supreme Court. But where the Special Leave Petition is dismissed- there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it and the review Court may or may not interfere depending upon the law and principles applicable to interference in the review. It held that as per the language of Order 47 Rule 1 (a) CPC, a review can be preferred in the High Court before Special Leave is granted, but not after it is granted.
26. This view in Kunhayammed (1 supra) was followed in Palani Roman Catholic Mission Vs. S.Bagirathi Ammal and in Bakshi Dev Raj (2) Vs. Sudheer Kumar .
27. No doubt a Division Bench of this Court in Special Deputy Collector, Land Acquisition (5 supra) considered only Abbai Maligai (8 supra), Kunhayammed (1 supra) and K.Rajamouli (9 supra) and held that in a situation where there is a direct conflict between decisions of the Supreme Court of co-equal Benches, the High Court has to follow the judgment which appears to it to state the law better and more elaborately and accurately and date of rendering of judgment by Supreme Court cannot be a guiding principle. The Division Bench in that case preferred to follow the view in Abbai Maligai (8 supra) and K.Rajamouli (9 supra) in preference to the view in Kunhayammed (1 supra) and held that after SLPs are dismissed in the Supreme Court, the High court is precluded from entertaining a review petition and it would be an abuse of law and an affront to the order of the Supreme Court.
28. In Gangadhara Palo v. Revenue Divisional Officer , a Two judge bench of the Supreme Court held :
4. The aforesaid order of this Court dismissing the special leave petition simply states The special leave petition is dismissed. Thus, this order gives no reasons. In support of his submission, the learned counsel for the respondent has relied upon a decision of this Court in K. Rajamouli v. A.V.K.N. Swamy and has submitted that there is a distinction between a case where the review petition was filed in the High Court before the dismissal of the special leave petition by this Court, and a case where the review petition was filed after the dismissal of the special leave petition by this Court.
5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.
6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court.
Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in Kunhayammed v. State of Kerala, S. Shanmugavel Nadar v. State of T.N., State of Manipur v. Thingujam Brojen Meetei and U.P.SRTC v. Omaditya Verma.)(emphasis supplied)
29. Recently in Khoday Distilleries Ltd. (4 supra), a Two Judge Bench of Supreme Court was of the view that the judgment in K.Rajamouli (9 supra) had followed Kunhayammed (1 supra) and distinguished Abbai Maligai (8 supra); that in the later judgment Gangadhara Palo (12 supra), the Supreme Court had not accepted the view in K.Rajamouli (9 supra); there is a conflict between the judgments in Gangadhara Palo (12 supra) and K.Rajamouli (9 supra) on the issue whether the filing of the review petition in the High Court before the dismissal of the S.L.P. or after the dismissal of the S.L.P. would have different consequences or the same consequence. It therefore referred the said issue to be considered by a Larger Bench.
30. Be that as it may, subsequent to the Division Bench judgment in Special Deputy Collector, Land Acquisition (5 supra) rendered on 21-11-2003, the Supreme Court in Palani Roman Catholic Mission (10 supra) and in Bakshi Dev Raj (2) (11 supra), followed the decision in Kunhayammed (1 supra) and held that after dismissal of an SLP by a non-speaking order, aggrieved party can approach the High court to review the order under Or.47 Rule 1 CPC. In these two cases, it did not follow the decision in Abbai Maligai (8 supra) (where it was held that review petition cannot be filed after dismissal of the SLP by non-speaking order) and which was followed by the Division Bench.
31. Also the Division Bench in para 16 of its judgment erroneously noted that the decision in Kunhayammed (1 supra) did not notice the decision in Abbai Maligai (8 supra). In fact the said decision was referred to and considered in para 26 of the judgment in Kunhayammed (1 supra) and the Court treated it as a case of dismissal of SLP after contest.
32. The correctness of the decision of K.Rajamouli (9 supra), which was followed by the Division Bench is now being reconsidered by the Supreme Court by a Larger Bench.
33. I feel that the judgment in Kunhayammed (1 supra) is the more elaborate and well considered one and states the law better and more accurately and since it has been followed even subsequent to the decision of this Court in Special Deputy Collector, Land Acquisition (5 supra) and most recently in Gangadhara Palo (12 supra), and since in the present case the SLP was dismissed without contest, the decision in Abbai Maligai (8 supra) is not applicable.
34. So I am not inclined to follow the decision of the Division Bench in Special Deputy Collector, Land Acquisition (5 supra). I therefore hold that after dismissal of the S.L.P. by a non-speaking order, without any contest by the respondents at the stage of admission of S.L.P., a review petition in the High Court is maintainable. Point No.(a) is answered accordingly in favour of the petitioner.
Point No.(b):-
35. Under this point, I will consider whether there is an error apparent on the face of the record in the common judgment rendered by this Court on 12-02-2013 in the appeals.
36. It is settled law that a review is not an appeal in disguise and the scope of an application for review is much more restricted than that of an appeal.
37. The question is whether the view of the learned Single Judge that the exclusion of the widow of late Siddaiah Chetty from inheritance in the Will Ex.B-33 allegedly executed by him in favour of the petitioner and his sons is unnatural and would be a suspicious circumstance.
38. A Four Judge Bench of the Supreme Court in Rani Purnima Debi (6 supra), in a case where the executant of a Will did not give any property to his widow, but left her at the mercy of the respondent therein, found that such exclusion is unnatural. It observed:
Let us now turn to the facts relating to the execution of this will. We have already pointed out that the High Court was of the view that there were suspicious circumstances attending the execution of the will and that it was an unnatural will. The testator left behind him his widow and his married daughter (who are appellants before us) and an unmarried sister who was dependent upon him. Besides these, the testator had a number of other relations who were much nearer to him than the respondent. Even if we leave out of account the married daughter and the other nearer relations, the widow and the sister were certainly expected to be properly provided for by the testator. It is not in dispute that the relations between the testator and his wife and sister were good. In these circumstances we should have expected something better than what is provided in the will for these two. All that the will says is that the wife and the sister would be suitably maintained by the respondent during their lifetime. No amount is specified which should be given to these two ladies as maintenance and no charge is created on the properties left by the testator which were considerable. In effect, the two ladies were left to the tender mercies of the respondent in the matter of their maintenance. Further the result of this will is that the daughter would be completely disinherited. The testator had a number of children but all had died many years before and only one daughter was alive at the time of his death. She was married and on behalf of the propounder it is said that the relations between the testator and her husband were not very happy. The evidence, however, does not show that the relations between the testator and his son-in-law were particularly strained at the time of the execution of the will. In any case there is no satisfactory evidence to show that relations between the testator and his daughter were bad, even if the relations between him and his son-in-law were not of the best. In the circumstances we should have expected the testator to make some provision for the daughter, particularly when it is said that she was not well-off. There is no doubt therefore that the will is most unnatural and that is a suspicious circumstance which must be satisfactorily explained before the respondent can get letters of administration. (emphasis supplied)
39. In Kalyan Singh (7 supra), the Supreme Court took a similar view. In that case also the widow was not given any property and the entire property was given to the adopted son by the testator. It observed:
Even if we proceed on the plea that the plaintiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively in his favour. It is now not in dispute that Gaurilals wife was living at the time of execution of the will, but no provision was made for her maintenance. In the normal course, the wife would be the first to be thought of by the husband while executing a will. She should have been the first beneficiary of her husbands bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even the plaintiffs case that their relationship was strained. Why then she should be excluded altogether? It is indeed baffling since it runs counter to our societal values.
40. Therefore, the view of the learned Single Judge treating the exclusion of the 2nd respondent, who is the wife of late Subbaiah Chetty from inheritance under the Will Ex.B-33 as unnatural, is a possible view in view of the above two decisions.
41. I am unable to accept the contention of the counsel for the review petitioner that since 2nd respondent did not complain about not getting any property under the Will of her husband and since the said point was not urged in the trial Court, the learned Single Judge could not have allowed the appeals on the said ground.
42. In my opinion, the question is not whether the 2nd respondent accepted the terms of the Will, but whether the dispositions in the Will in favour of the petitioner and his two sons excluding his widow and leaving her at the tender mercies of the petitioner, is unnatural. Moreover, the appellate court, as a final court of fact, is not precluded from taking a view on an issue merely because the said issue was not noticed by/argued before the trial court.
43. It may be that under Ex.A1=B3 settlement deed some property was given to the 1st respondent, but that does not mean that she cannot make a claim for more.
44. In my opinion, this court, in the judgment under review, has given cogent reasons for holding in favour of the 1st respondent. Merely because a different view is possible, it cannot be said that the judgment of the learned Single Judge should be reviewed. In State of W.B. v. Kamal Sengupta , the Supreme Court held:
22. .To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.
45. For the above reasons, I do not find any merit in both the Review petitions in both the appeals and the same are accordingly dismissed. No costs.
__________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 02-06-2014