Dhanalakshmi and Others vs Packialakshmi Ammal and Others

The Civil Revision Petition is filed challenging the order passed by the first appellate Court dismissing the review application filed by the petitioners seeking review of the judgment passed in A.S. No.58 of 2002.

The petitioners herein filed a suit seeking redemption of mortgage. According to the petitioners, one Veerasangili Muppanar owned the suit properties, having purchased the same under a sale deed dated 25.12.1923. He died prior to the coming into force of the Hindu Succession Act. Hence, as per the law prevailing at that point of time, his two sons succeeded to the properties. One of his sons, namely Ilayaperumal, was the father of the petitioners. Ilayaperumal died, and thereafter the properties were looked after by his brother, Seeni @ Veeraiya, who was living as a bachelor.

It is the further case of the petitioners that Seeni @ Veeraiya executed a mortgage in favour of the first defendant. Thereafter, his whereabouts were not known. Since Seeni @ Veeraiya had not returned for more than fifteen years and had not been heard of by his close relatives and friends, according to the petitioners, he should be presumed to be dead. Therefore, the petitioners, being the legal heirs of Ilayaperumal, who was the brother of the said Seeni @ Veeraiya, claimed that they were entitled to redeem the suit property and, accordingly, filed the suit.

The second defendant filed a written statement contending that she was the sister of both Ilayaperumal and Seeni @ Veeraiya. According to her, Ilayaperumal, father of the plaintiffs, had executed a release deed in favour of Seeni @ Veeraiya, and consequently, Seeni @ Veeraiya became the absolute owner of the suit property. Thereafter, Seeni @ Veeraiya executed a mortgage in favour of the first defendant for a consideration of Rs.1,000/-. As per the terms of the mortgage, the first defendant enjoyed the property for some time. After the death of Seeni @ Veeraiya, who died as a bachelor, the second defendant succeeded to her estate. Subsequently, after discharging the mortgage amount due to the first defendant, the second defendant redeemed the property under a registered document. Therefore, according to the second defendant, the petitioners/plaintiffs had no right over the suit property and the suit was liable to be dismissed.

The trial Court dismissed the suit filed by the petitioners. Aggrieved by the same, they preferred an appeal in A.S. No.58 of 2002. The first appellate Court confirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the same, the petitioners filed the present review application.

In the review application, the petitioners contended that, under the law prevailing at the time of the death of Veerasangili Muppanar, both his sons succeeded to the suit property. Therefore, as the legal heirs of Ilayaperumal, the petitioners are entitled to redeem the mortgage. It was further contended that the second defendant had not produced any document to establish that she was the sister of both Ilayaperumal and Seeni @ Veeraiya. It was also contended that, even assuming that the second defendant was the sister of Seeni @ Veeraiya, under the law as it stood at the relevant point of time, she could not claim any right over the suit property.

It is seen from the judgment of the first appellate Court that the above-mentioned Seeni @ Veeraiya died as a bachelor on 11.02.1982, as evidenced by Ex.B7. Therefore, the death of Seeni @ Veeraiya occurred subsequent to the coming into force of the Hindu Succession Act. On the date of death of Seeni @ Veeraiya, his brother Ilayaperumal was not alive, and only his sister, the second defendant, was alive. Therefore, as a Class II heir, the second defendant was entitled to succeed to the estate of Seeni @ Veeraiya, in that capacity, she acquired the right of redemption and redeemed the suit property by paying the outstanding mortgage amount due to the first defendant.

The learned counsel appearing for the petitioners/plaintiffs would submit that the second defendant has not established that she is the sister of Seeni @ Veeraiya. It is pertinent to note that, at the time of hearing, the plaintiffs themselves specifically pleaded that the property originally belonged to Veera Sangili Mooppanar and that, after his death, the property devolved upon his legal heirs in accordance with the law then in force. If there had been no other female heir for the said Veera Sangili Moopanar, there was absolutely no necessity for the petitioners to plead that the property devolved upon his legal heirs as per the law prevailed at the relevant point of time. Further, after release of their share by Ilayaperumal and his descendants in favour of Seeni @ Veeraiyan under Ex.B1 dated 05.12.1996, the petitioners who are claiming right under Ilayaperumal, has no right to maintain the suit.

Taking into consideration the plea raised by the petitioners/plaintiffs and having regard to the fact that the first appellate Court has rendered a finding that the second defendant redeemed the property as the legal heir of Seeni @ Veeraiya, I do not find any error apparent on the face of the record. Even assuming that the judgment of the first appellate Court is erroneous, the appropriate remedy available to the petitioners was to file a second appeal challenging the decree of the first appellate Court. The scope of review is very limited, and unless there is an error apparent on the face of the record in the judgment sought to be reviewed, the power of review cannot be exercised.

In the case on hand, the petitioners invoked the review jurisdiction under Section 114 Code of Civil Procedure, but have failed to point out any error apparent on the face of the record. Therefore, the first appellate Court rightly dismissed the review application. I do not find any error or illegality in the impugned order.

Accordingly, the Civil Revision Petition stands dismissed. No costs.