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2007 DIGILAW 235 (GAU)

Surya Begum v. Amina Ahmed

2007-03-21

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This is an appeal, made under Section 384 of the Succession Act, 1925, against the judgment and order, dated 26.3.2003, passed, in Succession Case No. 51/2007, by the learned District Judge, Nalbari, partly allowing the petitioner-appellant's prayer for grant of succession certificate. 2. The material facts and various stages, which have led to filing of this appeal, may, in brief, be stated as follows: (i) The appellant herein made an application, under Section 372 of the Succession Act, 1925, praying for issuance of Succession Certificate in respect of the debts and securities mentioned in the Schedule 2 of her petition, left by deceased Amar Faruk, the petitioner's case being, briefly stated, thus : Deceased Amar Faruk was the petitioner's husband, he used to live separately from his other relatives and, soon after his marriage with the petitioner, he started living with the petitioner as his wife. The said deceased had taken loans of diverse sums of money from different persons and he was indebted to them to the tune of Rs. 80,000, these loans having been incurred for the purpose of, inter alia, construction of house and also for meeting the expenses for his brother's study to become a doctor. The said deceased left, apart from other securities, a sum of Rs. 87,245, as the sum assured, in an insurance policy, obtained from the Life Insurance Corporation of India (in short, 'the said LIC policy'). (ii) The respondents herein resisted the prayer for Succession Certificate by contending, inter alia, that the petitioner had no right to claim Succession Certificate in her name alone as they too were, being relatives of the said deceased, entitled to succeed to the debts and securities left behind the said deceased. (iii) In course of time, both sides adduced evidence and, upon consideration of the same, the learned court below came to the conclusion that the petitioner had not been able to prove that her husband had debts to the tune of Rs. 80,000. At the same time, this learned court below also concluded that under the provisions of the Mohammedan Law, petitioner as well as the opposite party were entitled to share the debts and securities left behind by the said deceased. 80,000. At the same time, this learned court below also concluded that under the provisions of the Mohammedan Law, petitioner as well as the opposite party were entitled to share the debts and securities left behind by the said deceased. Based on the conclusions, so reached, the learned court below apportioned, in accordance with the provisions of Mohammedan Law, the amount, claimed under the said LIC policy, amongst the petitioner and the opposite party. Feeling aggrieved by this judgment and order, dated 26.3.2003, the petitioner filed a review application under Order XLVII Rule X of the CPC. The learned District Judge, however, rejected the prayer for review. It is thereafter that the present appeal has been preferred against the judgment and order, dated 26.3.2006, aforementioned. 3. I have heard Mr. S. Dutta, learned Counsel for the petitioner-appellant, and Mr. A.M. Mazumdar, learned Senior counsel, appearing on behalf of the opposite party-respondents. 4. Challenging the maintainability of this appeal, it has been contended, on behalf of the respondents, that a party to an order or a decree has two options, either to apply for review or to prefer an appeal, if the decree or order is appealable, but if such a person decides to apply for review and his review application is rejected, no appeal can be filed against the original order or decree, for, the original order or decree would merge into the order, whereby the prayer for review might or might not have been allowed. 5. For the purpose of correctly appreciating the submissions made as regards the maintainability of the present appeal, it is apposite to take note of order XLVII of the CPC, which deals with the subject of review of an order or a decree. It is Order XLVII, Rule 1, which makes provisions for making of application for review of an order or decree. Order XLVII, Rule XLVII shows that a person, who considers himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or, when a person, who considers himself aggrieved by a decree or order, from which no appeal is allowed, may, in either case, apply for review of the decree passed or order made. I may hasten to point out that I am not concerned, in the present case, with the grounds on which a review of a decree or order may be allowed. 6. What is, now, of immense importance to note is that order XLVII shows that when a court declines or rejects the application for review, such an order is not appeasable; but an order granting an application for review may be objected to, at once, by an appeal from the order granting the application for review or in an appeal from the decree or order, which may be Finally passed or made in the suit. The provisions contained in Sub-rule (1) of Rule 7 of order XLVII make it clear that when a person, aggrieved by a decree or order, which is appealable, applies for review and his application for review is not granted, he cannot prefer an appeal against the order of rejection; but if the review application is granted, the person, adversely affected by grant of the application for review, may, by way of an appeal, at once, object to the very order granting the application for review or by way of an appeal from the decree or order, which may be finally passed or made in the suit. Order XLVII, Rule 8 makes it further clear that when an application for review is granted, a note thereof shall be made in the register and the court may, at once, re-hear the case or make such order in regard to the rehearing as it thinks fit. This indicates that when an application for review is granted, a note has to be made in the relevant register and the court may, at once, re-hear the case or make such order(s) as regards the hearing of the decree or order, which, in consequence of the order granting the application for review, has to be heard. 7. From the scheme of Order XLVII, what emerges is that when a decree or order is appealable, but no appeal has been preferred, or where a decree or an order is not appealable, the person aggrieved may apply for review in either of these two cases; but if he applies for review of the decree or order, he cannot maintain an appeal against the decree or order, which he has sought to get reviewed. Moreover, when an application for review is not granted, the person, applying for review, cannot prefer an appeal against the order declining to allow the application for review. If, however, the review application is granted, necessary not shall be made in the register and the court may, at once, re-hear the case. In such circumstances, the person, who may feel aggrieved by the order granting the application for review, may object, at once, by way of an appeal against the order, whereby the application for review has been granted, or he may choose not to prefer appeal against the order granting application for review and, in such a case, he would still be free to prefer an appeal from the decree or order, which may be finally passed or made in the suit. 8. What also emerges from the above discussion is that when an application for review is rejected, the original judgment remains intact and there is no modification. Logically, therefore, the judgment, which is declined to be reviewed by the court, does not merge into the order, whereby the review application is rejected. There is, therefore, no legal impediment, on the part of the person, whose application for review is rejected, to prefer appeal against the original order or decree, which he had sought to get reviewed, but did not succeed. If, however, the original orders or decree is modified, the original order or the decree, as the case may be, will not survive and will merge into the order or decree, which may be finally made or passed in terms of the order of review. In such a case, the person, who had applied for review, may not be able to maintain an appeal; but the person, who opposes the application for review, shall have the right to prefer an appeal against the modified order or decree. 9. The doctrine of merger is not a doctrine of universal or unlimited application. It will, rather, depend on the nature of the jurisdiction exercised by the court. The logic, underlying the doctrine of merger, is that there cannot be more than one decree or operative part of order governing the same subject-matter at a given point of time. (State of Arunachal Pradesh and Ors. v. Nefa Udyog and Ors. 2004 II GLT 724). 10. In B. Suryanarayana Murthy v. Sr. Divisional Mechanical Engineer/L.S.C. Rly. Vijayawada and Ors.2002 LAB IC. (State of Arunachal Pradesh and Ors. v. Nefa Udyog and Ors. 2004 II GLT 724). 10. In B. Suryanarayana Murthy v. Sr. Divisional Mechanical Engineer/L.S.C. Rly. Vijayawada and Ors.2002 LAB IC. 453 (AP), a Full Bench of the Andhra Pradesh High Court has held that having regard to the provisions of Order XLVII Rule 7, when a review petition is dismissed, the doctrine of merger will not apply. In this context, the decision of the Apex Court, rendered in Rekha Mukherjee v. Ashish Kumar Das AIR 2005 SC 1944 , may be referred to. The relevant part of the said decision is reproduced below: 18. The suit filed by the Respondents for grant of specific performance of contract was dismissed. The said decree although was appealable but in view of the order dated 15.7.2002, the said decree in its entirety ceased to operate. Order XLVII, Rule 1, CPC postulates filing of an application by a person considering himself aggrieved, by a decree or order from which an appeal is allowed but from which no appeal has been preferred, to file an application if he desires to obtain a review from a decree passed against him. An appeal during the pendency of the review petition was, therefore, not maintainable. In terms of order XLVII, Rule 4, the court may either reject or grant an application for review. In case a review is rejected, the order would not be appealable whereas an order granting an application may be objected at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Rule 8of order XLVII of CPC postulates that when an application for review is granted, a note thereof shall be made in the register and the court may at once re-year the case or make such order in regard to the re-hearing as it thinks fit. 32. The right of review is a statutory right. Such right can be invoked if the conditions therefore are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may to overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be reviewed upon setting aside the decree granting review. 11. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may to overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be reviewed upon setting aside the decree granting review. 11. What, thus, crystallizes from the above discussion is that when an application for review, made by a person aggrieved by a decree or order, is rejected, the doctrine of merger is not attracted and the original order or decree remains intact and can be challenged by way of appeal. In the case at hand, therefore, when the appellant's application for review had been rejected, there was no limitation imposed by law, on the right of the appellant, to prefer an appeal against the original order, dated 26.3.2003, aforementioned. This appeal cannot, therefore, be held to be not maintainable in law. 12. Turning to the merit of the appeal what needs to be noted is that Witness No. 1 for the petitioner has clearly deposed that he along with some other persons, including the said deceased, had started a cooperative society, in their village, under the name and style of Nalbari Co-Operative Credit Society and that he was the Secretary of the said society and one Mujubur Rahman was its president. It is the evidence of PW1 that the said deceased took an amount of Rs. 33,000, as loan, from the said society, Exhibit 1 being the certificate regarding the loan and Exhibit 1(1) being his signature. Though this witness was put to cross-examination by the respondents, nothing was really elicited, which could show that this witness's evidence was incorrect or false. The learned court below has rejected the evidence of the witness merely on the ground that the office of the said Society was situated at the house of this witness. When the evidence, given by this witness, had, otherwise, remained unshaken, it could not have been rejected merely on the ground that the office of the said Society was situated at the house of the witness, particularly, when there was no categorical suggestion from the respondents to this witness, at the time of his cross-examination, that the said deceased had not borrowed any money from the said Society and/or that the said Society did not exist at all. 13. 13. What logically follows from the above discussion is that though the appellant had not been able to prove that her husband had incurred a debt of Rs. 80,000, she had successfully proved that he was, at least, indebted to the tune of Rs. 33,4000, which was payable to the said Society. In such circumstances, while granting Succession certificate in respect of the sum of money, which was payable to the heirs of the said deceased under the said insurance policy, the said amount of Rs. 33,4000 ought to have been deducted. To the extent, therefore, that the impugned judgment and order do not take into account the debts of the said deceased of an amount of Rs. 33,400, the judgment and order must be held to be suffering from serious infirmity, factual as well as legal. 14. Considering, therefore, the matter in its entirety and in the interest of justice, this appeal is partly allowed. While the entitlement of the respondents to receive a share in the amount, which has been left under the said policy by the said deceased, is not disturbed, the learned court below is hereby directed to modify the sum or sums, which would be available to the parties to the appeal, after making room for the amount of Rs. 33,400, which was payable by the said deceased. The Succession certificate shall, accordingly be modified by the learned court below. 15. With the above observations and directions, this appeal shall stand disposed of. 16. No order as to cost. 17. Send back the LCR.