IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.322 of 2009 1.Chintamani Devi wife of Late Avinash Kumar Singh @ Mantu Singh 2.Swetamber Singh son of late Avinash Kumar Singh @ Mantu Singh 3.Neelamber Singh son of late Avinash Kumar Singh @ Mantu Singh 4.Digamber Singh, son of late Avinash Kumar Singh @ Mantu Singh, under the guardianship of mother Chintamani Devi. All residents of Mohalla-Paschhim Tola Dine Tank, Ara, P.S. Ara Town, District Bhojpur, Ara …..Petitioners Versus 1.Ramesh Kumar Singh son of Late Shyama Singh, resident of Village-Ranipur, P.O. Kodra, P.S. Paliganj District Patna & Ors …….Respondents With Civil Review No.323 of 2009 1.Chintamani Devi wife of Late Avinash Kumar Singh @ Mantu Singh 2.Swetamber Singh son of late Avinash Kumar Singh @ Mantu Singh 3.Neelamber Singh son of late Avinash Kumar Singh @ Mantu Singh 4.Digamber Singh, son of late Avinash Kumar Singh @ Mantu Singh, under the guardianship of mother Chintamani Devi. All residents of Mohalla-Paschhim Tola Dine Tank, Ara, P.S. Ara Town, District Bhojpur, Ara ……..Petitioners Versus 1.Ramesh Kumar Singh son of Late Shyama Singh, resident of Village-Ranipur, P.O. Kodra, P.S. Paliganj District Patna & Ors ……….Respondents For the Petitioners: Mr. Shivaji Pandey, Sr. Advocate M/s Rajiv Ranjan, Arvind Kumar Pandey For the Respondent no.1:Mr.Jagannath Singh, Advocate 15 09.2.2011 Both Civil Review Nos. 322 of 2009 and 323 of 2009 are taken up together as they arise from common order dated 29.7.2009 passed in C.W.J.C.No.7297 of 2009 (Ramesh Kumar Singh Vs Zonal Manager, Allahabad Bank & anr) heard analogous with C.W.J.C.No.7673 of 2009 (Ramesh Kumar Singh Vs Zonal Manager, State Bank of India & anr). 2. The review applications are based on the ground that the writ petitioner Ramesh Kumar Singh has played fraud upon the court by suppressing material facts causing grave miscarriage of 2 justice. 3. At the out set, I will take up the issue of maintainability of these petitions as the same has been raised both by office and learned counsel appearing for Opposite party 1st set, (the sole petitioner in writ applications). 4. Petitioner no.1 in both the review petitions is mother of petitioner nos.2 to 4 and wife of sole deceased son of Late Ram Pal Bahadur Singh, the deceased account holder. The Opposite party 1st set in both review petitions is Ramesh Kumar Singh, the son-in-law of late Ram Pal Bahadur Singh. The Opposite party 2nd set is respective Banks. 5. The facts of the case lies in a narrow compass. One Ramesh Kumar Singh filed two writ applications bearing C.W.J.C.Nos.7297 of 2009 and 7673 of 2009 with an identical prayer for a direction to the respondent Bank to make payment to him, as he is the nominee of the Bank Account of his late father-in-law, Ram Pal Bahadur Singh @ Mohanjee, who died on 28.12.2004. 6. In C.W.J.C.No.7673 of 2009, the writ petitioner Ramesh Kumar Singh sought mandamus to the respondent State Bank of India, Ara branch to make payment to him, a sum to the tune of Rs.5,13,799.00 from S.B. Account No.01190013799 which stand jointly in his name and his father-in-law, Late Ram Pal Bahadur Singh. 7. C.W.J.C.No.7297 of 2009 was filed for a direction to the respondent Allahabad Bank at Ara to make payment of a sum of 3 Rs.2,61,228.40 paise to him, as he is sole nominee of S.B. Account No.16328, which he held jointly with his late father-in- law, Ram Pal Bahadur Singh. 8. In both the writ applications, the writ petitioner Ramesh Kumar Singh stated in paragraph 5 that he was not being allowed to withdraw the amount for the reasons best known to the concerned respondent Banks. In both the writ petitions, the review petitioners were not made party respondents. The writ petitioner also did not state that a Succession Case filed by the review petitioners who is wife of late Avinash Kumar Singh deceased son of Account holder late Ram Pal Bahadur Singh is pending adjudication. However, the facts regarding filing of the Succession case was brought on record by the respondent State Bank of India in C.W.J.C.No.7673 of 2009 its counter affidavit. 9. The review petitioners in paragraph 2 of the Civil Review No.323 of 2009 has stated that the writ petitioner wrongly stated in C.W.J.C.No.7297 of 2009 that a sum of Rs.2,61,228.40 is lying in Allahabad Bank. In fact he had already withdrawn a sum of Rs.2 lacs on 3.1.2005 before filing of the writ petition and only a sum of Rs.61,228.40 was lying in the Bank, which fact has been suppressed. This fact was even not brought to the notice of the court by the respondent Allahabad Bank. In Civil Review No.322 of 2009, it has been revealed that the writ petitioner had also moved the District Consumer Forum at Ara vide Case No.42 of 2008 which was withdrawn. However the aforesaid fact was too not stated in the 4 writ petitions. 10. Learned counsel appearing on behalf of the review petitioners submits that review applications are fully maintainable. In support of his contentions, he relies upon Constitution Bench decision of this court in the case of Shivdeo Singh Vs State of Punjab & Ors, reported in A.I.R. 1963 S.C. 1909 and Pohla Singh @ Pohla Ram (D) By LRS. & ors Vs State of Punjab & Ors, reported in (2004) 6 SCC 126. 11. Learned Counsel appearing on behalf of the writ petitioner Ramesh Kumar Singh, who is Opposite party 1st in both the review petitions, states that the review petitions are not maintainable. He further contends that in any view of the matter, no prejudice would be caused to the review petitioners, as this court had allowed him to withdraw the amount on depositing matching sureties as well as bond. He contends that now as he has already withdrawn the amount, the order has taken its effect and thus review applications have become infructuous. In support of his contentions that the review applications are not maintainable, learned counsel has relied upon decisions in the case of Moran Mar Bassellos Catholicos and anr. Most. Rev.Mar Poulose Athanaslvs & ors, reported in 1954 SC 526; Parsion Devi & Ors Vs Sumitri Devi & Ors, reported in (1997)8 SCC 715 particularly paras 9 and 10; M/s Northern India Caterers (India) Ltd. Vs Lt. Governor of Delhi, reported in 1980 SC 674 and Rajesh Kagra & Ors Vs State of M.P. & Ors, reported in 2010(7) Supreme 1003. He submits that the decision in the case 5 of Shivdeo Singh (supra) would not be applicable in the facts of the case as in the aforesaid case, a writ application was filed for reviewing the earlier order passed by the High Court in absence of the aggrieved party. 12. Heard counsel for the parties on the point of maintainability of the review petitions. 13. The review petitioners in Civil Review No.323 of 2010 has stated that in C.W.J.C.No.7297 of 2009, the writ petitioner by suppressing the material facts had sought for a direction to the respondent Allahabad Bank at Ara to make payment to him of a sum of Rs.2,61,228.40 being nominee, when in fact he had withdrawn a sum of Rs.2 lacs on 3.1.2005 much before filing of the writ petition and only a sum of Rs.61,228.40 was lying with the Bank on the date of filing of the writ petition. This fact has neither been denied by the writ petitioner nor the respondent Allahabad Bank had brought aforesaid fact to the notice of the Court in the writ application. Similarly, in Civil Review No.322 of 2009 it has been stated that the writ petitioner Ramesh Kumar Singh in C.W.J.C.No.7673 of 2009 did not state that he had also moved the District Consumer Forum at Ara vide Case No.42 of 2008 which was withdrawn. Further the writ petitioner also did not state that a Succession Case bearing 19 of 2005 was filed by the review petitioner in Ara Court though the aforesaid fact was brought to the notice of the court by the respondent State Bank of India. 14. The Constitution Bench of the Apex Court in the case of 6 Shivdeo Singh (supra) observed in paragraph 8 as follows” “8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla,J., which, in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla,J; was without jurisdiction. It is sufficient to say that there is nothing any Art.226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J; affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J; entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review”. 15. The Apex Court in the case of Pohla Singh (Supra) relied upon by review petitioners observed that where an aggrieved person is not made a party and the order passed in the earlier writ petition adversely affects him, he can file writ petition for recall of it, as the same was rendered without affording an opportunity of hearing to the aggrieved side. In my view the decision in case of Pohla Singh would not come in aid of review petitioners on point of sustaining the main availability of review petitions. 7 16. The decisions relied upon by the writ petitioner/Opposite party 1st in the case of Parsion Devi & Ors Vs Sumitri Devi & Ors, reported in (1997)8 SCC 715 particularly paras 9 and 10; M/s Northern India Caterers (India) Ltd. Vs Lt. Governor of Delhi, reported in 1980 SC 674 would equally not be of any help to him. 17. In case of Parison Devi (Supra), the Apex Court observed that there is distinction between an erroneous decision and error apparent on record. The correctness of order cannot be challenged in review and even if statement is wrong, it would not be error apparent on record. An error which is not self evident, but detected by process of reasoning cannot be an error apparent on record. It would be relevant to quote paragraph 9 of the judgment which is being produced herein below: “9. Under Order 47 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. The 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 it power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 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”. 18. In Northern India Caterers (India) Ltd (supra), the Hon’ble 8 Apex Court observed that court can review its judgment if there is an error apparent on the face of the record. The Hon’ble Court further held that no review is permissible on the ground that certain alternative situations were not placed before the court. The relevant extract of para 8 of judgment is quoted for reference: “8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so……………………….” 19. The writ petitioner had also relied upon a decision in the case of Rajesh Kagra (supra). In the aforesaid case, the appeal preferred by the petitioner therein was dismissed on the ground that the petitioner had no locus standi to prefer appeal. It was further observed that in case their rights in any manner were affected, they can agitate the same by filing separate writ petition. The review application preferred against the said order was also dismissed. In the aforesaid case, the review petitioner was admittedly junior to the writ petitioner and as such the relief of further promotion claimed by the latter did not affect the review petitioner. 20. However, the facts of the instant case are different. The 9 writ petitioner had not disclosed the vital facts regarding non- disclosure of withdrawal of case before the District Consumer Forum as well as the facts that though he had withdrawn major portion of the amount from the Bank, but still he prayed for withdrawal of the same. The writ petitioner up till now has not made over the money to the review petitioners who claim to be the main legal heirs of deceased Ran Pal Bahadur Singh. This court in its order under review has also observed as follows: “Nevertheless the nominee under the policy does not become the absolute owner of benefits pursuant to the nomination. He or she is there for the purpose of giving valid discharge to the banking company. The nominee holds the benefit for the true legal heirs of the deceased. A nomination does not operate as intestate succession but he merely holds the discharge for the heirs of the deceased as a mere trustee on behalf of the heirs who would eventually succeed to the estate of the deceased. The nominee would always remain accountable to the legal heirs”. “Where a nominee is a person to whom the bank accounts would have ultimately devolved being the legal heir in preference to others, the banks could deliver the amount without insisting for sureties or personal bond. However, if a nominee is a person who would not have been entitled to receive the amount on death of depositors, in view of inheritance 10 laws, the Bank may insist for furnishing bond of indemnity or sureties”. “Thus though the son-in-law being a nominee or Account holder would be entitled to receive deposited amount, he nevertheless would be accountable to the legal heirs, who will have preferential claim over him”. 21. Besides above observations, it is not in dispute that major portions of the amount were withdrawn earlier without depositing the matching sureties with the Bank. The review petitioner no.1 who is widow of sole deceased’s son and account holder Ram Pal Bahadur Singh has to fend for her self and three minor children (Review petitioner nos.2,3 and 4) and has to take legal recourse for rights which ought to have devolved on her in natural course. The suppressions of material facts have caused grave miscarriage of justice to the review petitioners. 22. In view of the discussions made above, I find that the instant applications would come within the parameters of ground of review laid down by the constitution Bench of Hon’ble Apex Court in case of Shirti Singh Vs. State of Punjab and Ors, reported in 1965 SC 1909, as such hold that the review applications are maintainable. 23. The writ petitioner in C.W.J.C.No.7297 and 7673 of 2009 Ramesh Kumar Singh is son-in-law of late Ram Pal Bahadur Singh and had his Bank account both in Allahabad Bank and the State Bank of India. Late Ram Pal Bahadur Singh had nominated the writ petitioner his nominee. The review 11 petitioner no.1 Chintamani Devi is the wife of deceased son of late Ram Pal Bahadur Singh. The review petitioner nos.2,3 and 4 are the minor sons of petitioner no.1. In other words, the review petitioner nos.2, 3 and 4 are grand sons of late Ram Pal Bahadur Singh. 24. The writ petitioner had filed the two writ applications for directing the respective Banks to allow him to withdraw the balance of sum of Rs.2,61,228/- lying in the Allahabad Bank and a sum of Rs.5,13,399/- from State Bank of India, Ara Branch. The review petitioners were not made parties in the writ petition. They alleged that the writ petitioner did not approach this court with clean hand. They stated that the writ petitioner was fully aware that so far as Allahabad Bank is concerned only, Rs.61,228/- was only lying in the account and he had already withdrawn a sum of Rs.2 lacs earlier, still the latter prayed for a direction to the Bank to allow him to withdraw the sum of Rs.2,61,228/-. Similarly, the writ petitioner had already withdrawn major portion of money from the State Bank of India standing in the account of late Ram Pal Bahadur Singh before filing of the writ application. The writ petitioner does not controvert the submissions so made by review petitioners. 25. It is well settled that nomination only indicates the hand which is authorized to receive the money as a nominee on behalf of the legal heirs governed by law of succession and payment to nominee is only a valid discharge of liability to the Bank, who in turn is accountable to the legal heirs of the account holder. In 12 this respect one can gainfully refer to the case of Challama Vs Tilaga & Ors, reported in (2009) 9 SCC 299. In the aforesaid case the Apex Court was considering the right of nominee who received money on death of the policy holder under section 39 of the Insurance Act. The Apex Court while deciding this aspect of such nomination, approvingly quoted para 10 of decision in case of Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, reported in (2000)6 SCC 724. The principle laid down in aforesaid case would apply as well in case of rights of nominee of an account holder, on his or her death. The relevant extract of Para 10 of judgment is quoted herein below: “10. …….The nomination only indicated the hand which was authorized to receive the amount on the payment of which the insurer got a valid discharge of its liability under the policy. The policy-holder continued to have an interest in the policy during his lifetime and the nominee acquired no sort of interest in the policy during the lifetime of the policy-holder. On the death of the policy-holder, the amount payable under the policy became part of his estate which was governed by the law of succession applicable to him. Such succession may be testamentary or intestate. Section 39 did not operate as a third kind of succession which could be styled as a statutory testament. A nominee could not be treated as being equivalent to an heir or legatee. The amount of interest under the policy could, therefore, be claimed by the heirs of the assured in accordance with the law of succession governing them”. 26. It is not in dispute that succession suit being Succession 13 KHAN Case No.19 of 2005 is pending in the court at Ara, wherein the wife of the writ petitioner is also a party. The writ petitioner has also been subsequently added as a party. A person cannot appropriate the money of Account holder merely being a nominee and has to apportion the same to the legal heirs having preferential claim over him, as former draws money from the Bank only on behalf of such legal heirs. A succession suit is going on between the parties. The money withdrawn by nominee has to be apportioned in terms of law of succession. The writ petitioner would not only be obliged to pay the money as per Law of Succession which he had withdrawn pursuant to the order of this court, but also the entire money that he had withdrawn from the account of the late Ram Pal Bahadur Singh after his death. In appropriate case, the legal heirs can stake claim to interest as well. It appears that the Succession Case bearing 19 of 2005 filed in the year 2005 is still pending in Ara Court. In the facts and circumstances of the case, this court directs the Sub Judge I, Bhojpur at Ara or the court in seisin of the case to dispose of the same expeditiously preferably within period of 9 months from the date of the receipt of a copy of this order. 27. In the result, the review applications are allowed to the extent indicated above. 28. Let a copy of this order be also forwarded to the District Judge, Bhojpur at Ara. (Samarendra Pratap Singh,J) 14