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2018 DIGILAW 1017 (GAU)

Baijanti Devi Agarwal v. Bimala Devi Goyal

2018-07-10

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. The petitioner sought review of the judgment and order passed by this court in RFA No. 7/2010 dated 27.2.2015 on the ground that the respondent is not entitled to any share in the estate left behind by her father in terms of Section 6(1)(3)(5) of the Hindu Succession (Amended) Act, 2005, as the suit property was partitioned prior to the filing of the title suit by the respondent. 2. Heard Mr. RC Sahcheti, learned counsel for the petitioner and Mr. BD Deka, learned counsel for the respondent. 3. Be it mentioned that the respondent filed a suit (TS No. 285/2005) before the court of Civil Judge No. 2, Kamrup (M) for partition and separate possession of the property left by her father Tikam Chand Bhajanka, measuring 37 are i.e. 2 bighas 3 khatas and ½ lechas covered by dag 937(old)/2429(new) of KP Patta 329(old)/198(new) of Japorigog village in Beltola in Guwahati. 4. The title suit was filed by the respondent against her five brothers and three sisters, and one sister-in-law and her minor children claiming that she is entitled to 1/10th share of the property left by her father and to have separate possession. 5. Initially the defendant No. 5 had filed written statement contending inter alia that the plaintiff (respondent herein) is already married off by incurring huge money and none of the married daughter have claimed any share of the property and they have settled since their marriage. None of the daughters including the plaintiff have shown any share of the suit property in their income tax returns which means that they have waived their right over the suit property. Further, it is stated that the land revenue and municipal taxes were paid by late Tikamchand Bhajanka during his lifetime and after his death by respondent No. 1 to 8 paid the revenue. But the said respondent No. 5 subsequently filing a petition admitted the claim of the plaintiff (respondent) and was ready to partition the scheduled property left by his father. 6. The other respondents (1 to 8 including the present petitioner), except respondent No. 5, did not appear and the suit was proceeded ex parte against them. Subsequently the prayer of the defendant No. 4(petitioner herein) to vacate the ex parte order was not allowed but he was allowed to cross-examine the witnesses. 6. The other respondents (1 to 8 including the present petitioner), except respondent No. 5, did not appear and the suit was proceeded ex parte against them. Subsequently the prayer of the defendant No. 4(petitioner herein) to vacate the ex parte order was not allowed but he was allowed to cross-examine the witnesses. No defence witness was adduced by the present petitioner as defendant No. 4. After examining the evidence on record the learned trial court decreed the suit declaring that the plaintiff is entitled to get 1/10th share of the property left behind by her father as described in the schedule and accordingly a preliminary decree was issued. The said finding was challenged by the petitioner in RFA No. 7/2010, which was dismissed on contest. The petitioner challenged the order of the appellate court before the Hon'ble Apex Court in Special Leave to Appeal (C) No. 16422/2015 and later withdrew the same with a view to file review petition. The Supreme Court passed the following order: "Application for substitution is allowed. Learned counsel for the petitioner seeks leave to withdraw this petition reserving liberty for the petitioner to approach the High Court with liberty to file review petition to urge that plaintiff-respondent No. 1 was not entitled to any share in the estate left behind by her father. The special leave petition is dismissed with the liberty prayed for. However we expressed no opinion on the merits of the contentions sought to be raised by the petitioner". 7. The present review petition is filed on the ground that the respondent is not entitled to any share of the suit property as per the provisions of Section 6(1)(3)(5) of the Hindu Succession Act, 2005 as the said Act came into force on 9.9.2005 and the suit property was partitioned on 12.7.2004. 8. 7. The present review petition is filed on the ground that the respondent is not entitled to any share of the suit property as per the provisions of Section 6(1)(3)(5) of the Hindu Succession Act, 2005 as the said Act came into force on 9.9.2005 and the suit property was partitioned on 12.7.2004. 8. Now, Section 6 of the 2005 Act, referred to, reads as follows: "6 Devolution of interest in coparcenary property.--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a predeceased daughter, as the case may be. Explanation.--For the purposes of this sub-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. Explanation.--For the purposes of this sub-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. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect-- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.--For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." 9. It is the ground of the petitioner that the said law point could not be raised at the time of the hearing of the RFA since the said provision of law was overlooked by the appellant and as such could not be argued before this court at the time of hearing of the appeal and due to such mistakes the petitioner desirous of reviewing the judgment and order. 10. 10. Petitioner contends that there is mistake or error apparent on the face of record and so the petitioner sought review of the judgment and order of RFA 7/10. 11. Mr. Sancheti, learned counsel for the petitioner, submits that although the respondent No. 4/husband and father of the present petitioner could not file WS before the trial court but did cross-examine the witnesses and as the partition was effected prior to the filing of title suit and prior to commencement the Hindu Succession Act, 2005, therefore the same can be acted upon by this court as a law point involved in this case. Placing reliance on the decision of (2016) 2 SCC 36 , Prakash & Ors. Vs. Phulabati & Ors., it is contended that the provisions of Section 6 of the 2005 Act is not retrospective in operation and it is prospective only. The proviso to Section (1) and sub-section (5) of Section 6, as amended, intended to exclude the transactions referred to therein which may have taken place prior to 20.12.2004. 12. Per contra, learned counsel for the respondent submits that there is no error apparent in the judgment and order under review and the petitioner is trying to project a new facet of the case in the guise of appeal which is not permissible. 13. Countering the submissions of learned counsel for the petitioner, learned counsel for the respondent has strenuously opposed the very contention of the petitioner that the petitioner failed to explain as to why they could not file written statement before the court nor could produce the so-called partition deed before the court nor could adduce any evidence on their part. Mere putting suggestion to a witness about execution of such partition deed is not enough to prove their case. In fact the partition deed was not brought on record before the trial court as well as the appellate court to prove the due execution of the same and in the sense it is a fictitious one. Any reference or reliance on such document is of no consequence, whereas the whole challenge in the review petition is based on the partition deed. On this score I find no substance in the submissions of learned counsel for the petitioner. 14. Any reference or reliance on such document is of no consequence, whereas the whole challenge in the review petition is based on the partition deed. On this score I find no substance in the submissions of learned counsel for the petitioner. 14. Next, the petitioner has not been able to show that after due diligence he was not able to produce the said document before the earlier forums. While the said document is stated to be a registered one, it could have been proved in due manner, which is not done. 15. Refuting the submission of the petitioner that the respondent is not entitled to get the share in the property left by her father, learned counsel for the petitioner also deliberated upon the scope and ambit of Section 6 of the 2005 Act. It is submitted that to get the benefit of the provision of Section 6 one has to prove that he is governed by the Mitakshara Law and the property is a coparcenary but there is no material to show that the said property was coparcenary. The word coparcenary property means the property which consists of ancestral property and coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor (as has been held in (2013) 9 SCC 419 , Rohit Chouhan Vs. Surinder Singh & Ors.). 16. It is the pleaded case of the respondent/defendant that the suit property was the exclusive estate of their father and the names of the sons were included in the jamabandi by dint of inheritance. Such a matter again cannot be appreciated in a review petition which is a subject matter of proper evidence. 17. Learned counsel for the respondent relied on the decision of (2006) 4 SCC 78 , Haridas Vs. Usha Rani Banik & Ors., and Rohit Chouhan (supra). 18. In Rohit Chouhan (supra) explaining the nature of coparcenary property, held as below: "Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act. 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act. 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. So long as on partition a share of ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property." 19. Elaborating on the scope and ambit of review in Hari Das (supra) the Hon'ble Supreme Court held as below: "In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. An error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. It is also pertinent to mention the observations of this Court in the case of Parsion Devi v. Sumiri Devi ( 1997 (8) SCC 715 ). Relying upon the judgments in the cases of Aribam's (supra) and Smt. Meera Bhanja (supra) it was observed as under: "Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." 20. It is settled position of law that the Court has inherent power of review and in fact every court has plenary power to prevent miscarriage of justice or to correct the grave and palpable errors committed by it by way of review petition. However, the condition precedent before invoking the review provision is that it must be shown that because of the judgment there is either miscarriage of justice or there is a grave and apparent error on the face of the record. Without invoking the condition precedent there cannot be an exercise of the power of review. Such power may be exercised on discovery of new, 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, but the review court cannot act as an appellate court. Such power may be exercised on discovery of new, 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, but the review court cannot act as an appellate court. Mere possibility of two views is not the ground for review. Similarly in review petition the reassessing of evidence without pointing out any defects in the order of the appellate court cannot be made. The scope of review is limited only to the errors apparent on the face of the record. The error must be such as would be apparent on mere looking on record without requiring any long-drawn process of reasoning. The redressal of the entire evidence on record for finding the error would amount to exercising the appellate jurisdiction which is not permissible. Only where there is glaring error apparent on the face of the record the court can exercise the power of review. It cannot convert itself to an appellate court in order to find out errors by delving deep into the entire records. 21. Coming back to the case at hand, it is found that the petitioner in the guise of review has tried to project a ground which was not asserted before the earlier two forums which they have themselves admitted in their review petition. The petitioners tried to rest their case on the basis of the partition deed which was never brought on record or proved but only to defeat the case of the respondent. Peculiar enough to mention here that the WS filed by the contesting respondent No. 5, the brother of the respondent No. 4 and is stated to be the signatory of the partition deed, is silent about execution of such partition deed. No glaring error apparent on the face of the record is reflected so to entertain the review petition. The mere fact that another view could have been taken on the basis of the material on record is no ground for review and the same cannot be dealt with in a routine manner. 22. In view of the findings and discussions made above the review petition is dismissed.