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Judgment
Per Hon‟ble Sri Justice A. Hari Haranadha Sarma)
Introductory:
This application is filed invoking Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 (CPC), seeking review of the judgment dated 13.03.2025 passed by this Court in S.A.No.456 of 2024.
The Second Appeal is directed against the decree and judgment dated 08.05.2024 passed in A.S.No.63 of 2018 by the learned VI Additional District Judge, Kurnool.
The appeal in A.S.No.63 of 2018 is directed against the decree and judgment dated 03.07.2018 passed in O.S.No.573 of 2011 by the learned Principal Senior Civil Judge, Kurnool
For the sake of convenience, parties will be hereinafter referred to as per their rankings in the suit as plaintiff and defendant.
Factual matrix:
The plaintiff filed the suit in O.S.No.573 of 2011 for partition contending that he is the son of the defendant and a coparcener along with the defendant in respect of the suit schedule properties, which constitute Hindu undivided joint family properties and he is entitled to half share in the properties. His grandfather, Sambhasiva Reddy, died in the year 1990, and the properties came into the possession of his children. The plaintiff is unwilling to continue the joint status. The suit for partition and allotment is filed, as the efforts made for settlement and division of the property before the elders became futile.
The case of the defendant is that plaintiff has been residing with his mother and that plaintiff is neither in joint possession nor in notional possession of the properties. The mother of the plaintiff deserted the defendant without any reason. The defendant had two sons through his kept mistress, who got share in the properties.
The issues considered by the Trial Court are:
1)Whether the plaintiff is entitled for partition of the schedule mentioned property into two equal shares and to allot one such share to the plaintiff as prayed for?
2)Whether the schedule mentioned property is the exclusive property of Sakunthalamma @ Rameswaramma as contended by the defendant in his written statement?
Findings of the learned Trial Court:
Upon considering the pleadings and evidence adduced by the plaintiff through P.Ws.1 to 3 and by the defendant through D.W.1 together with the documents marked as Exs.A1 and A2 and Exs.B1 to B7, the learned Trial Judge observed that:
1)There was no dispute about the relationship between the parties.
2)The documents indicated the possession of Sambhasiva Reddy, the grandfather of the plaintiff.
3)The properties are ancestral in nature.
4)The defendant did not produce any evidence to establish that children were born to him through his mistress and the stand of the defendant is not found to be believable.
5)Accordingly, a preliminary decree was granted, directing division of the properties into two equal shares.
Findings of the First Appellate Court:
After referring to the pleadings, evidence and judgment of the Trial Court, the First Appellate Court formulated are answered the following points:
1). Whether the plaintiff is entitled for partition of the suit schedule properties and separate possession of his share, as prayed for?
2). Whether the judgment under challenge requires interference in any manner?
By assigning the reasons of its own, the First Appellate Court partly allowed the appeal observing that:
(i). Plaint scheduled item Nos.1 and 2 properties are self-acquired properties of the father of the defendant, by virtue of Exs.B1 and B2. The item Nos.1 and 2 of the plaint schedule properties cannot be considered as ancestral properties. The recitals in Ex.A3/No.3 Adangal for Fasli 1420 indicated that the grandfather of the plaintiff is in possession and that the defendant is the enjoyer of the property. There is no evidence to show that item Nos.3 and 4 of the plaint schedule properties are exclusive properties of the defendant.
(ii). Further, the entitlement of other sons of the defendant through Shakuntalamma is not established. Hence, the plaintiff is entitled to a half share in respect of item Nos.3 and 4 of the schedule properties and that the suit is liable to be dismissed insofar as of item Nos.1 and 2 are concerned.
This Court, by judgment dated 13.03.2025 in S.A.No.456 of 2024, which is now sought to be reviewed, dismissed the Second Appeal. While addressing the substantial questions of law, this Court assigned the following reasons for dismissing the appeal.
Item Nos.1 and 2 of the schedule properties were devolved upon the defendant from his father under Section 8 of the Hindu Succession Act, whereby the properties ceased to be joint family properties. In support of the said conclusion, this Court referred to the decision of the Hon’ble Supreme Court in Satish Vishanji Fatnani vs. Mohanlal Dungarmal Futnani and Others1, wherein, in paragraph 4, it is held as follows:
4.So far as the first contention is concerned, it is not in dispute, that the appellant is the son of the caveator and the grand-son of the testator. However, so long as the caveator is alive, his son, the appellant, cannot be claimed to be an heir at law, even if the deceased had died intestate. u/s 8 of the Hindu Succession Act, it is only the son who can claim to succeed to the father as Class I heir and the grand-children of the deceased cannot claim to be class I heirs. Therefore, the fact that the appellant is a son of the caveator and a grandson of the testator will not clothe him with a caveatable interest.
(ii). Item Nos.1 and 2 of the plaint schedule properties cannot be characterised as ancestral properties. Accordingly, the plaintiff / appellant had no right to claim in respect of those properties and that the findings of the First Appellate Court are fit to be concurred as to dismissal of suit in respect of item Nos.1 and 2 and the grant of a decree in respect of item Nos.3 and 4.
Arguments in the present Review Petition:
Sri J. Janakirami Reddy, the learned counsel for the review petitioner, urged the following grounds:
Defendant No.1 in the suit died during the pendency of the First Appeal. Hence, the plaintiff / appellant is entitled to a half share in all the properties.
The Hon’ble Apex Court in Rohit Chauhan vs. Surinder Singh and others2, it was held that a son acquires a right by birth in joint family property. A similar position was considered by the Hon’ble Apex Court in Sk. Bhikan S/o. Noor Mohd. Vs. Mehamoodabee W/o. Sk. Afzal and others3.
Per contra, Sri Varun Byreddy, learned counsel for the respondents submitted that no grounds were made out for review of the judgment. Review jurisdiction cannot be confused with appellate powers / jurisdiction, as the scope of review is entirely different from that of an appeal. In support of his submissions regarding the scope of review, learned counsel relied on the observations of the Hon’ble Apex Court in Malleeswari vs. K. Sugana and Another4.
Perused the material available on record, the judgment sought to be reviewed, the observations made therein and the authorities relied upon by both sides. Thoughtful consideration is given to the arguments advanced by both sides.
The points that arise for determination in this application are:
Whether the grounds contemplated under Section 114 read with Order XLVII Rule 1 of the CPC are made out to warrant exercise powers of review in respect of the judgment dated 13.03.2025 passed by this Court in S.A.No.456 of 2024 ?
What is the result of the application?
Point No.1:
Statutory Guidance:
Section 114 of the CPC reads as follows:
114.Review.— Subject as aforesaid, any person considering himself aggrieved—
(a)by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b)by a decree or order from which no appeal is allowed by this Code, or
(c)by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Order XLVII of the CPC reads as follows:
ORDER XLVII
REVIEW
1. Application for review of judgment.—
(1)Any person considering himself aggrieved—
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b)by a decree or order from which no appeal is allowed, or
(c)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.
2. [To whom applications for review may be made.]—
xxxx
3. Form of applications for review.—
xxxx
4. Application where rejected.—
(1)Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.
(2)Application where granted.—Where the Court is of opinion that the application for review should be granted, it shall grant the same:
Provided that—
(a)no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and
(b)no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.
5. Application for review in Court consisting of two or more Judges.—
xxxx
6. Application where rejected.—
xxxx
7. Order of rejection not appealable. Objections to order granting application.—
xxxx
8. Registry of application granted, and order for re- hearings.—
xxxx
9.Bar of certain application.—No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.
Jurimetrics of Review jurisdiction:
The law on review is well settled. It is relevant to refer the observations of the Hon’ble Supreme Court made in (i) Government of NCT of Delhi Through its Secretary, Land and Building Department and another vs. K.L. Rathi Steels Limited and others5, wherein it is held as follows:
40.The first and foremost condition that is required to be satisfied by a party to invoke the review jurisdiction of the court, whose order or decree, as the case may be, is sought to be reviewed, is that the said party must be someone who is aggrieved by the order/decree.
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42.Order 47 does not end with the circumstances as Section 114CPC, the substantive provision, does. Review power under Section 114 read with Order 47 CPC is available to be exercised, subject to fulfilment of the above conditions, on setting up by the review petitioner any of the following grounds:
(i)discovery of new and important matter or evidence; or
(ii)mistake or error apparent on the face of the record; or
(iii)any other sufficient reason.
43.Insofar as (i) (supra) is concerned, the review petitioner has to show that such evidence
(a)was actually available on the date the court made the order/decree,
(b)with reasonable care and diligence, it could not be brought by him before the court at the time of the order/decree,
(c)it was relevant and material for a decision, and
(d)by reason of its absence, a miscarriage of justice has been caused in the sense that had it been produced and considered by the court, the ultimate decision would have been otherwise.
44.Regarding (ii) (supra), the review petitioner has to satisfy the court that the mistake or error committed by it is self-evident and such mistake or error can be pointed out without any long-drawn process of reasoning; and, if such mistake or error is not corrected and is permitted to stand, the same will lead to a failure of justice. There cannot be a fit-in-all definition of “mistake or error apparent on the face of the record” and it has been considered prudent by the courts to determine whether any mistake or error does exist considering the facts of each individual case coming before it.
45.With regard to (iii) (supra), we can do no better than refer to the traditional view in Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : AIR 1922 PC 112] , a decision of a Bench of seven Law Lords of the Judicial Committee of the Privy Council. It was held there that the words “any other sufficient reason” means “a reason sufficient on grounds at least analogous to those specified immediately previously”, meaning thereby (i) and (ii) (supra). Notably, Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : AIR 1922 PC 112] has been consistently followed by this Court in a number of decisions starting with Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42 : AIR 1954 SC 526] .
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106.Moving on further, we find that the attempt of the review petitioners has been to draw inspiration from the ground “any other sufficient reason” appearing in Rule 1. There have been decisions of this Court which have construed the words “any other sufficient reason” expansively, like Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] and Jagmohan Singh [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38] , whereas there are decisions, including Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42 : AIR 1954 SC 526] , Shatrunji [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200] , Kamlesh Verma [Kamlesh Verma v. Mayawati, (2013) 8 SCC 320 : (2013) 3 SCC (Civ) 782 : (2013) 4 SCC (Cri) 265 : (2014) 1 SCC (L&S) 96] and S. Madhusudhan Reddy [S. Madhusudhan Reddy v. V. Narayana Reddy, (2022) 17 SCC 255 : 2022 SCC OnLine SC 1034] , that have followed Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : AIR 1922 PC 112] explaining that the ground “any other sufficient reason” means “a reason sufficient on grounds at least analogous to those specified immediately previously”.
107.However, with utmost respect, we do not find any of those decisions, which have taken an expansive view, looking at such ground in the manner we propose to look, for recording our concurrence with the view in Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : AIR 1922 PC 112] that has unhesitatingly been followed over the years. If indeed “any other sufficient reason” were to take within its embrace any situation not analogous to “discovery of new matter or evidence” and “on account of some mistake or error apparent on the face of the record”, we wonder why the legislature chose to keep “any other sufficient reason” immediately after the aforesaid two grounds. If “any other sufficient reason” were to be read independent of the said two grounds, we believe the long line in Rule 1 after clauses (a) to (c) need not have been drafted in the manner it presently reads. In lieu of referring to the said two grounds as grounds on which a review could be sought, the legislature could well have kept it open-ended as in Section 5 of the Limitation Act, 1963 where it is provided, without any strings attached, that any appeal or any application may be admitted after the prescribed period of limitation if the appellant or applicant satisfies the court that he had “sufficient cause” for not preferring the appeal or the application earlier. If the intention of the legislature were to give an expanded meaning, Order 47 Rule 1 would have read somewhat like this : any person considering himself aggrieved by a decree or order or decision of the nature indicated in clauses (a), (b) and (c) for any sufficient reason desires to obtain a review of the decree or order made against him, may apply for a review. But that is not what the provision says and means. Reading Order 47 Rule 1 in juxtaposition to Section 5 of the Limitation Act drives us to accept the view in Chhajju Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : AIR 1922 PC 112] as having interpreted the law correctly and acceptance of the same by this Court and High Courts over the years, coupled with the fact that Parliament did not consider it necessary to amend Rule 1 when it inserted the Explanation in 1976. Giving a wider meaning to the ground “any other sufficient reason” in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] and Jagmohan Singh [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38] , therefore, must have been intended and necessitated by this Court because the justice of the cases so demanded but the same would have no application in a case of this nature.
108.Having regard to the aforesaid distinction in the exercise of review power and the power that inheres in every court, we are unable to be ad idem with the decision in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] as well as the decision in Jagmohan Singh [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38] , which followed the former decision. The said two decisions are by Benches of two Hon'ble Judges, with a common author. With the deepest of respect and reverence we have for his Lordship, we find limiting the application of the principles regarding exercise of the power of review, as expounded in Moran Mar Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42 : AIR 1954 SC 526] (a decision rendered by a Bench of three Hon'ble Judges, which has stood the test of time), to be against established principles flowing from Article 141 of the Constitution by which the Supreme Court is also bound. Also, laying down as a matter of principle that subsequent events could be considered while hearing a review petition, is unprecedented. The Court in Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] and Jagmohan Singh [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38] read something in the statute which apart from being unnecessary, is seen to run contrary to the terms of Order 47CPC as expounded in A.C. Estates [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC 295 : (1966) 1 SCR 235 : AIR 1966 SC 935] (decision of a Bench of three Hon'ble Judges) and Shatrunji [Shatrunji v. Mohd. Azmat Azim Khan, (1971) 2 SCC 200] . To save Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] and Jagmohan Singh [Jagmohan Singh v. State of Punjab, (2008) 7 SCC 38] from being declared as decisions rendered per incuriam, we prefer to hold, as the Hon'ble Companion Judge on the said Division Bench did, that such decisions turned on the very special facts and circumstances of the cases and cannot guide us in the present endeavour.
(ii). Malleeswari vs. K. Suguna and Another (4 supra), wherein paragraphs 15 to 18, it is held as follows:
15.It is axiomatic that the right of appeal cannot be assumed unless expressly conferred by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of CPC deal with the power of review of the courts. The power of review is different from appellate power and is subject to the following limitations to maintain the finality of judicial decisions:
15.1The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC.
15.2Review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.
15.3In exercise of the jurisdiction under Order 47 Rule 1 of 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.
15.4The power of review can be exercised for the correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits specified in the statute governing the exercise of power.
15.5The review court does not sit in appeal over its own order. A rehearing of the matter is impermissible. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage of justice or to correct grave and palpable errors.
16.To wit, through a review application, an apparent error of fact or law is intimated to the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at the first blush enables the court to correct apparent errors instead of the higher court correcting such errors. At both the above stages, detailed reasoning is not warranted.
17.Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows:
17.1The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed.
17.2Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record. Such an error is a patent error and not a mere wrong decision. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
17.3Lastly, the phrase „for any other sufficient reason‟ means a reason that is sufficient on grounds at least analogous to those specified in the other two categories.
18.Courts ought not mix up or overlap one jurisdiction with another jurisdiction. Having noted the appellate and review jurisdiction of the Court, we will apply these principles to the impugned order to determine whether the High Court was within its power of review jurisdiction or had exceeded it by reversing the findings, as if the High Court were sitting in appeal against the order dated 23.09.2022. We appreciate the above tabulated summary of the view taken in the impugned order while doing so.
Analysis, reasoning and findings:
As per the plaint, the properties are undivided Hindu joint family properties and the plaintiff and his father are having half share each. As per the written statement, the properties are not liable for partition. As per evidence, it is elicited that P.W.1 that the father of the defendant purchased Ac.1.75 cents of land in Sy.No.198 and that he has also sold an extent of Ac.0.15 cents of land out of Ac.1.75 cents and that the defendant has three brothers, they got the properties partitioned and that the defendant has got an extent of Ac.0.41 cents in Survey No.198 in the partition. This Ac.0.41 cents appears to be item No.2 of the plaint schedule property. There is also an admission that land in Sy.No.337, item No.4, is ancestral property.
The defendant, as D.W.1 relied on Exs.B1 and B2, under which his father purchased the properties and Exs.B3 to B7, which are allotment letters, tax demand notices etc. issued by the Gram Panchayat with reference to one Rameswaramma.
The Second Appeal is filed by the plaintiff. In respect of allowing partition as far as item Nos.3 and 4 properties, It is not the case that there is Second Appeal by the defendant. The evidence of D.W.1 / defendant is that plaintiff is the only son. It was suggested to D.W.1 / defendant on behalf of the plaintiff that he has having Ac.0.47 cents in Sy.No.156 and Ac.0.40 cents in Sy.No.198, which were purchased defendants father. It was also suggested to D.W.1 that the house in Ac.0.02 cents of land was purchased by his father. This appears to be item No.1. From the evidence, it is clear that item Nos.1 and 2 of the properties were purchased by the father of the defendant. Any theory that there was a joint family nucleus and that the properties were purchased from such joint family nucleus is not even whispered. The right of a coparcener in coparcenary property is different from the right over separate property. Section 8 of the Hindu Succession Act deals with succession to the property of a male Hindu dying intestate. Devolution of interest in coparcenary property, covered by Section 6, is different from succession to the property of a male Hindu dying intestate in terms of Section 8 of the Hindu Succession Act, 1956. Reference to the judgments of the Trial Court, the First Appellate Court made by Second Appellate Court, including the pleadings, makes it clear that the interest of the father of the defendant and its devolution alone is the basis.
If the property is ancestral or coparcenary held by the father of the defendant the same heritable. But, when the father of the defendant has purchased the property without there being any reference to an ancestral nucleus, such property falls within the ambit of Section 8 is the observation of the First Appellate Court and this Court in Second Appeal. It is also relevant to note that there is a reference to the division of the property among the defendant and his brothers in respect of the property of their father.
The First Appellate Court, after addressing the nature of properties, particularly whether item Nos.1 and 2 are ancestral or separate properties of the defendant, found that item Nos.1 and 2 of the plaint schedule properties are the self-acquired properties of the father of the defendant/ 1st appellant by name S. Samba Siva Reddy and that the reliance placed by the Trial Court on Exs.B1 and B2 to conclude all the properties are ancestral is incorrect.
When a propositus dies interstate leaving behind his son, the son alone will become a Class-I heir be entitled to succeed to his self acquired property in view of Section 8 of the Hindu Succession Act and the grandson cannot claim the legal heir status.
Further, it is also observed all through that, when item Nos.1 and 2 of the properties devolved upon the defendant / 1st appellant from his father under Section 8 of the Hindu Succession Act, the properties ceases to be a joint family properties. Whereas, in respect of item Nos.3 and 4 of the properties are concerned, it is not the case of the defendant / 1st appellant that they are not ancestral properties.
Section 8 of the Hindu Succession Act, 1956 reads as follows:
8. General rules of succession in the case of males.—
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—
(a)firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b)secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c)thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d)lastly, if there is no agnate, then upon the cognates of the deceased.
A plain reading of Section 8, along with the undisputed ownership of the father of the defendant / 1st appellant in respect of item Nos.1 and 2, without there being any further basis or material to establish the existence of a joint family nucleus or that item Nos.1 and 2 were acquired from such nucleus, the judgment sought to be reviewed is not disclosing any error apparent on the face of the record.
In this connection, this Court finds it proper to note the observations of the Hon’ble Apex Court made in: (i). Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and others6, vide para Nos.10, 11 and 15, which read as follows:
10.The question here, is, whether the income or asset which a son inherits from his father when separated by partition the same should be assessed as income of the Hindu undivided family of son or his individual income. There is no dispute among the commentators on Hindu law nor in the decisions of the court that under the Hindu law as it is, the son would inherit the same as karta of his own family. But the question, is, what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of the Schedule provides that if there is a male heir of Class I then upon the heirs mentioned in Class I of the Schedule. Class I of the Schedule reads as follows:
“Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son.”
11.The heirs mentioned in Class I of the Schedule are son, daughter etc. including the son of a predeceased son but does not include specifically the grandson, being, a son of a son living. Therefore, the short question, is, when the son as heir of Class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family?
15.It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is: is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.
(ii). Arshnoor Singh vs. Harpal Kaur and others7 vide para Nos.7, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6, which reads as follows:
7.With respect to the first issue, it is the admitted position that Inder Singh had inherited the entire suit property from his father Lal Singh upon his death. As per the mutation entry dated 16-1-1956 produced by Respondent 1, Lal Singh's death took place in 1951. Therefore, the succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when Inder Singh succeeded to his father Lal's Singh's property in accordance with the old Hindu Mitakshara law.
7.1.Mulla in his Commentary on Hindu Law (22nd Edn.) has stated the position with respect to succession under Mitakshara law as follows: Page 129
“A son, a grandson whose father is dead, and a great-grandson whose father and grandfather are both dead, succeed simultaneously as single heir to the separate or self-acquired property of the deceased with rights of survivorship.” Page 327
“All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons, and son's son's sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property.” (emphasis supplied)
7.2.In Shyam Narayan Prasad v. Krishna Prasad [Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646 : (2018) 3 SCC (Civ) 702] , this Court has recently held that: (SCC p. 651, para 12)
“12.It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.” (emphasis supplied)
Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.
In Yudhishter v. Ashok Kumar [Yudhishter v. Ashok Kumar, (1987) 1 SCC 204] , this Court held that: (SCC p. 210, para 10)
“10.This question has been considered by this Court in CWT v. Chander Sen [CWT v. Chander Sen, (1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity.” (emphasis supplied)
After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property.
If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à-vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.
Therefore, the finding that item Nos.1 and 2 of the properties as separate property of the defendant cannot be found as any error apparent on face of record by any stretch of imagination for exercising the power of review, particularly when the same is seen in the light of the precedential guidance / jurisprudence relating to review referred above.
While deciding the Second Appeal, this Court, in the judgment now sought to be reviewed referred to the substantial questions of law urged:
1)Whether the First Appellate Court had properly appreciated the question of law in partition of ancestral properties of father of appellant and wrongly applied the General rules of succession in the case of males under Section 8 of the Hindu Succession Act, 1956?
2)Whether the coparcenary property acquired by male Hindu members of the family above four degrees of ascendants i.e. father, paternal grandfather, great paternal grandfather and ascendants property can be only treated as ancestral properties and appellant is not entitled for partition if the properties are purchased by grandfather i.e. item Nos.1 and 2 of plaint schedule properties?
This Court decided the matter after referring to the arguments on both sides and held that item Nos.1 and 2 of the properties devolved upon the defendant / 1st appellant from his father under Section 8 of the Hindu Succession Act. The properties ceased to be joint family properties and cannot be characterised as ancestral properties and that the findings of the First Appellate Court are correct as to the entitlement of the plaintiff for partition only in respect of item Nos.3 and 4 of the properties and denial of partition in respect of item Nos.1 and 2.
When there is clair reasoning either with regard to allowing or disallowing the relief, even if there is any error in appreciation, the same cannot be the subject matter for review. The grounds for review contemplated under Order XLVII, Rule 1 read with Section 114 of the CPC, which is a substantive provision, do not extend to reconsidering the merits and the entire evidence, including the appreciation of the legal position, as held in the precedential guidance in Malleeswari vs. K. Sugana and Another (4 supra) and Government of NCT of Delhi Through its Secretary, Land and Building Department and another vs. K.L. Rathi Steels Limited and others (5 supra).
If the appellant wants to rely on the subsequent development that the death of the defendant / 1st appellant pending litigation to claim that the properties are partitionable and that the plaintiff being the legal heir and entitled to a share in the property along with the other persons entitled thereto or even he is exclusively entitled all the properties, the cause of action is separate and subsequent one. The remedies in respect of the same are not within the purview of the litigation now under consideration. This observation is made incidentally only to answer the arguments of that Sri Janaki Ram Reddy, learned counsel for the appellant but does not mean to draw an inference that this Court has expressed any opinion as to the entitlement of the plaintiff either for partition or otherwise.
In view of the discussion made above, the point framed is answered against the petitioner concluding that there are no grounds contemplated in terms of Section 114 read with Order XLVII, Rule 1, CPC, warranting the exercise of the powers of review in respect of the judgment dated 13.03.2025 passed by this Court in S.A.No.456 of 2024. Accordingly, point No.1 is answered against the review petitioner.
Point No.2:
In the result, the review petition vide I.A.No.1 of 2025 is dismissed. There shall be no order as to costs.