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Judgment
The Court : Though the review application has been filed along with an application under Section 5 of the Limitation Act, this Court invited the learned
Advocate for the petitioner to formulate the points on which the application for review is based upon. Though the learned Advocate appearing for the
respondent vehemently opposes the application for condonation of delay and prays for a direction to file affidavit-in-opposition, yet this Court feels that
it would merely postpone the disposal of the review application on merit. There is no doubt in my mind that the application for review came to be filed
after enormous delay. Yet after considering the averments made therein, this Court feels that the petitioner must be give an opportunity to place the
application for review on merit. There is no hesitation in my mind that the meritorious matter should not be dismissed on the anvil of the limitation but
the encouragement must be shown to get the matter disposed of on merit. After perusing the averments made in the application for condonation of
delay this Court finds that the petitioner was prevented by sufficient cause in filing an application for review within the statutory period provided
therefor. The application for condonation of delay is, thus, allowed.
The review application is taken up for hearing. The review is sought for a judgement and order dated 19.06.2008. It would be relevant to narrate the
salient facts necessary for the purpose of disposal of the review application. An application for probate was filed by the applicant as executor to the
Will of the testator. A caveat was filed in support thereof. The affidavit was affirmed challenging the veracity, legality and authenticity of the Will.
The objector says that the testator was not capable to alienate or made any disposition by virtue of such Will and there is a suspicious circumstances
surrounding the execution of such Will. It is not in dispute that the Will in question was registered with the Sub-registrar of the Registering Authority
on commission. The application for probate was converted into contentious cause and was decided on the basis of an evidence to be adduced by the
respective witnesses.
The learned Judge of the Testamentary Court dismissed the application for probate with the categorical finding that the said Will was shrouded by a
suspicious circumstances. The said judgement and order was carried to a Division Bench in APD No. 556 of 1994. The learned Judges constituting
the Division Bench deferred on the factual matrix as the resultant effect the reference was made to a Third Judge to decide the same. The Third
Judge concurred in favour of the learned Judge who did not find any merit in the appeal and dismissed the same. As a consequence whereof, the
order of the Testamentary Court stood affirmed. The present review application is filed challenging the judgement and order of the learned Third
Judge on various grounds including that the said judgement contains erroneous findings and/or the finding based on no material.
The learned Advocate appearing for the petitioners submits that there are the patent errors in the impugned judgement and order in relation to taking
active part in execution of the purported Will and also residing at the same premises that of the testator. It is ardently submitted that the learned Third
Judge went wrong in recording that the testator was incapable and was, in fact, bed ridden thereby ignoring the evidence of the learned Advocate who
drafted the Will wherein he said that the testator was having sound mind for alienation and/or disposition of his properties by executing the Will. A
reliance has been placed by the learned Advocate for the petitioner to a judgement of the Apex Court in the case of Rabindra Nath Mukherjee and
Another -versus Panchanan Banerjee and Others reported in (1995) 4 SCC 459. In support of his contention that if a registered Will is made by aged
person depriving the natural heir can not lead to a suspicious circumstances.
The learned Advocate appearing for the respondent submits that the application for review is not entertainable as no grounds set forth under Order 47
Rule 1 of the Code of Civil Procedure has been made out in the said application. It is further submitted that the petitioner is trying to re-open the entire
case which is impermissible under the law. It is, thus, submitted that the findings recorded by the learned Third Judge is based upon the materials
available on the record and the correct interpretation of the statements made on oath at the time of deposition and, therefore, the Court could not
interfere with the application for review .
At the very outset, this Court must remind itself that the provision for review is never meant to be exercised as a Court of appeal. The review
jurisdiction is to be exercised within limited compass and cannot be stretched further for re-assessing, rehearing and/or re-writing the judgement.
Unless, the statute provides for a review it is not open to a litigant to apply therefor. The review being a statutory remedy, it is a foremost duty of the
applicant applying for review to clearly set out the grounds recognized under Order 47 Rule 1 of the Code of Civil Procedure. If the learned Judge has
taken a view on the interpretation and logical inference drawn from the materials available on the record it does not invite any inference by way of
review. The contention of the petitioner that the propounder was not residing at the residence of the testator does not appear to be correct in view of
the answers to the questions put to him at the time of his deposition. The learned Third Judge categorically recorded that the logical inference is
inevitable in view of the answers to question Nos.126 to 130 given by the propounder in his evidence.
Further more, this Court has an occasion to peruse the answers to other questions put to the propounder and the other witnesses. There is no
hesitation, in my mind, that the conclusion arrived by the learned Third Judge that the petitioner was residing at the premises of the testator is correct.
The learned Third Judge held that the purported Will was shrouded by suspicious circumstances in view of a disparity and/or discrepancy in the
evidence of the witnesses deposed in the said matter. The propounder himself says that the testator was weak and was constantly lying on the bed
and even he was unable to sit on the bed. It is inconceivable and improbable that a submission is advanced before this Court that the evidence of the
lawyer who drafted the Will should have been taken as sacrosanct on the testamentary capacity of the testator. The lawyer who drafted the Will
himself said that he met the testator twice, but it was all along a consistent stand of the applicant that the said testator was bed-ridden . If the Court
has taken a view based upon its perception and legal inference, it cannot be said to be a ground for review of the said order as other inferences can
also be drawn and/or made.
The Apex Court in the case of Rabindra Nath Mukherjee and Another (supra) held that the idea behind the execution of will is to interfere with the
normal line of succession and, therefore, it cannot be said that in every case where the natural heirs have been deprived the Will shall be branded
having shrouded by suspicious circumstances. It is further held that if the testator has executed the Will voluntarily and got it registered, it ruled out the
proposition that the witnesses of the documents were interested in the such deposition. There is no hesitation to the proposition of law laid down
therein . It cannot be said nor can it be a uniform law that the moment the disposition is made in favour of an alien to the family depriving the natural
heir, it shall be presumed that such Will is shrouded by suspicious circumstances. Each case has to be considered on a peculiar fact. In the above
noted decision, it was not a case of either of the parties that the lady was of unsound mind or incapable of executing of the Will. In the instant case,
the learned Judges had relied upon the evidence adduced by the propounder himself and came to the finding that he is the best person to depose on the
medical fitness of the testator and capability to execute and alienate the property by executing the Will.
This Court cannot resist but to rely upon a judgement of the Apex Court in the case of Tamil Nadu Electricity Board and Another â€"versus- N. Raju
Reddiar and Another reported in AIR 1997 SC 1005 wherein the Apex Court deprecated the filling of a review after taking change from the erstwhile
advocate who argued the main matter. It was held that if such practice is allowed it would destroy the elementary features of the review. It is
profitable to quote the relevant extract from the said judgement which runs thus:-
“It is a sad spectacle that new practice unbecoming of worthy and conducive to the profession is cropping up. Mr. Mariaputham, Advocate-on-
Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V.
Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on April 24, 1996. Yet another advocate, Mr. S.U.K.
Sagar, has now been engaged to file the present application styled as “application for clarificationâ€, on the specious plea that the order is not clear
and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no
review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to note that Court spends
valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has
become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate
on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of
profession.â€
In the instant case, the learned Advocate for the applicant is trying to re-argue the matter taking a different path and/or route. In other words, this
Court finds that the learned Advocate is trying to make a new argument based upon the materials which was not argued at the time of hearing of the
main matter. If such practice is allowed it would never achieve the fundamental policy of India, that is, every litigation must attain finality. If the litigant
feels that the matter has not been argued properly by the erstwhile Advocate, it cannot be a ground for review of the said judgement by engaging a
new lawyer who intends to argue the matter from different angle. If allowed, it will give premium to an unscrupulous litigant and the matter, which is
set at rest, would remain pending eternally. This Court, therefore, does not find that it is a fit case for review of the impugned judgement.
The application is, thus, dismissed with costs assessed at Rs.50,000/- to be deposited with the State Legal Services Authority within two weeks from
date. Such deposit shall be kept in an account earmarked for juvenile.