IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2010 CORAM THE HON'BLE MR. JUSTICE G.RAJASURIA Rev.Application No.63 of 2009 and M.P.No.1 of 2009 1. D.Govindarajulu 2. N.G.Sureshchandra Kumar 3. N.G.Premila Devi 4. N.G.Nirmala Devi ... Review Applicants/ Appellants vs. 1. Lakshmi Bai 2. Swarna Latha 3. Hemalatha 4. Gajendran 5. P.Vasantha 6. P.Rajendiran 7. Jaikrishnan 8. Adhikesavalu 9. Neela 10. Saroja Padma (deceased) Kamala (deceased) 11. P.Renuka 12. P.Nirmala ... Respondents/ Respondents Respondents 5 to 12 set exparte in the lower court and as such notices are not necessary Review Application filed under Order 47 Rules 1 and 2 r/w Section 114 of CPC praying for review of the order dated 09.04.2009 passed in S.A.No.91 of 2006. For Applicant 1 ... Mr.D.Govindarajulu party-in-person Applicant 2 ... Mr.P.Chandrasekaran Applicants 3 & 4 ... No appearance For Respondents ... Mr.V.Baskaran for R1 No appearance for RR2 to RR4 R5 to R12  given up. ORDER A 'resume' of facts, absolutely necessary and germane for the disposal of this review application would run thus: This court vide judgment dated 09.04.2009 disposed of S.A.No.91 of 2006 partly modifying the judgments passed by both the courts below and virtually enhancing the share of the review applicant herein including certain consequential modifications. The review petitioner herein Govindarajulu, being one among the four appellants in the second appeal preferred this review application on various grounds, without strictly adhering to Section 114 of the Code of Civil Procedure r/w Order 47 Rule 1 of the Code of Civil Procedure and the review applicant being an Advocate by profession appearing on his own behalf in his personal capacity set out various factual grounds. However, the gist and kernel, the pith and marrow of the grounds of review petition would run thus: a. As per section 30 of the Hindu Succession Act, the undivided co-parcener in a joint family had no right to execute a Will prior to 1956. b. As per Section 211 of the Indian Succession Act, based on Letters of Administration granted in favour of a person in respect of a joint family co-parcenery property in the year 1948 by the High Court, the undivided share in a co-parcenery property of the deceased would not vest in the administrator or in the executor and the concept survivorship is alien to Section 211 of the Indian Succession Act. c. In the judgment passed in the second appeal, the Will executed by Pandari in the year 1946, which came into effect in the year 1948 on the death of Pandari and the subsequent grant of the Letters of Administration by this court in CMP No.31 of 1990 of OSA No.344 of 1989 based on the Will, were relied on for deciding the matter but the said Will and the Letters of Administration would not in any way enure to the benefit of the plaintiff. d. After the death of Pandari, during the year 1948 itself, the half share of Pandari in the joint family property devolved on Duraisamy Naidu and his sons who formed part of the co-parcenery. e. As per Section 6 of the Hindu Succession Act, Duraisamy Naidu died during the year 1972, whereupon his share in the co-parcenery property devolved upon the review applicant herein Govindarajulu and his son Sureshchandra Kumar, even though Duraisamy Naidu died leaving behind his daughters. Accordingly, the review applicant prayed for reviewing the earlier judgment of this court. 2. At this juncture, it is just and necessary to point out that the review application itself is not in order. Even though in the cause title, the review applicants/appellants are shown as 1. D.Govindarajulu, 2. N.G.Sureshchandra Kumar,3. N.G.Premila Devi and 4. N.G.Nirmala Devi in commensurate with the cause title in the Second Appeal, the review application was signed only by Govindarajulu, who is the first appellant in the Second Appeal. For the second appellant Advocate Mr.P.N.Chandrasekaran appeared and the third and fourth appellants did not appear and they were not represented by any one. For R1 Lakshmi Bai, the learned counsel Mr.V.Baskaran appeared. Here, the learned counsel Mr.P.Chandrasekaran appeared in person and made his submissions that he is sailing with the first applicant Govindarajulu and he has not made any other submission and there is also nothing to indicate that except the first applicant, the others shown as applicants in the review application are really applicants in the review application. 3. Mr.Govindarajulu, who is an Advocate by profession, made his submissions reiterating the contentions of the review application. 4. By way of refuting and remonstrating, denying and impugning the averments in the review application, the learned counsel Mr.Baskaran would submit that there is no ground at all for reviewing the judgment passed by this court on 09.04.2009 in the second appeal. 5. The points for consideration are as to: 1. Whether the application satisfies the requirements of Section 114 r/w Order 47 Rule 1 of the Code of Civil Procedure? 2. Whether there is any discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the review applicant or could not be produced by him at the time when the judgment in Second Appeal was made or Whether there is any mistake or error apparent on the face of the record or whether there is any other sufficient reason based on which the earlier judgment dated 09.04.2009 has to be reviewed? Point Nos.1 & 2: 6. Both these points are taken together for discussion as they are inter-linked and inter-woven with each other. 7. A bare perusal of the judgment dated 09.04.2009 passed by this court would amply make the point clear that this court threadbare discussed the points and materials concerned in the light of the substantial questions of law framed in the Second Appeal and ultimately partly modified the judgment and decree of both the courts below and granted certain additional benefits to the review applicant. However, without understanding the proper provisions of law, this review application has been filed. In fact, a mere poring over and perusal of the review application would indicate that the applicant calls upon this court to once again to take a different view from the one taken by this court, which is not at all permissible under Section 114 of the Code of Civil Procedure r/w Order 47 Rule 1 of CPC. In this connection, I would like to cite the following decision of the Hon'ble Apex Court concerning the scope of review. AIR 1995 SC 455 (Meera Bhanja vs. Smt.Nirmala Kumari Choudhury). Certain excerpts from it would run thus: "8. It is well settled that the 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, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3): "It is true there is nothing in Article 226 of the Constitution to preclude the 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and 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; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court." Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: "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. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ." 9. In the light of this settled legal position let us try to see whether in the present case the latter Division Bench while dealing with the review petition had overstepped the limits of jurisdiction under Order 47, Rule 1, and whether it had resorted to re-appreciation of evidence by almost sitting in appeal over the decision reached by the earlier Division Bench. 12. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1, C.P.C. by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the review Bench has re-appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench findings regarding C.S. Plot No.74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers....................." Based on the aforesaid proposition, the following other decisions were also emerged: (i) AIR 1998 Rajasthan 302 (Ishwar Dutt vs. Gyan Chand) and an excerpt from it would run thus: "23. ................. The scope of the power of review as envisaged under Order 47 Rule 1, C.P.C., is very limited and the review must be confined strictly only to the errors apparent on the face of record. Re-appraisal of the evidence on the record for finding out the error would amount to exercise of appellate jurisdiction, which is not permissible by the statute. The 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 C.P.C. The scope for exercise of power by this Court while dealing with and deciding a review petition is very limited confined within the four-corners of the statute as referred to above. 24. Keeping in view the facts and circumstances of the case, I am of the opinion that this is not a case, which calls for any interference by this Court in exercise of it's either the inherent powers under Sections 114 and 151 CPC or within the ambit of the powers conferred on this court by the Statute under Order 47, Rule 1 C.P.C. 25. As a result, I find no merit in the review petition and the same is dismissed................." (ii) (2000) 9 SCC 366 (Susheela Naik and another vs. G.K.Naik) and (iii) (2005) 13 SCC 450 (T.Vijaya Laxmi and others vs. United India Insurance Co.and another). As such, a mere perusal of those precedents would clearly indicate and exemplify that absolutely, there is no substance in the review application. It would not also be out of place to recollect and call up the scope of Second Appeal. An excerpt from certain precedents would run thus: (i) (2006) 5 Supreme Court Cases 545  HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its would run thus:- "17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ." 18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . . 21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari). 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (ii) 2008(4) SCALE 300  KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." It is therefore crystal clear that the Second Appeal is having restricted scope and review on Second Appeal is having further restricted scope. But ignoring all those salient legal features, the review applicant simply prays this court to re-appreciate the evidence relating to the entire facts and take a different view and such a course is totally untenable as per law. However, for the purpose of comprehensively dealing with this review application, I would like to refer to the facts of the case in brief. 8. Admittedly and unassailably the suit properties along with other properties originally belonged to one Parthasarathy Naidu who died leaving behind his two sons, viz., Perumal Naidu and Doraisamy Naidu. Doraisamy Naidu died in the year 1972, leaving behind his son D1-Govindarajulu (the review applicant herein) and his five daughters. The five daughters of Duraisamy Naidu are the plaintiff and D2 to D5. During the pendency of the suit, D2 died whereupon D8 to D12 her legal heirs were impleaded. D7 is the son of D1. D6 is the deceased Perumal Naidu's deceased daughter's son, so to say, the maternal grand son of Perumal Naidu. The contention of the parties were detailed in my earlier judgment dated 09.04.2009 and it is extracted here under for ready reference: " The plaintiff's contention is that, as per Ex.A1-the registered partition deed dated 07.10.1929, the said Perumal Naidu and Doraisamy Naidu got partitioned their various coparcenary properties and got divided their coparcenary status and in that the suit property house herein was also divided, so to say, each was allotted half share in the suit house; as such, they became divided coparceners; Perumal Naidu had three sons and they died in unmarried state; however, in that line of Perumal Naidu, out of his three sons, Pandari happened to be the last sole surviving coparcener, who executed the 'Will' in favour of D6. At this juncture, it is worthwhile to highlight that D6 obtained a letter of administration from this Court relating to the said Will. The plaintiff would contend that regarding Doraisamy Naidu's line is concerned, Doraisamy Naidu enjoyed his portion and died during the year 1972, leaving behind his one son D1 and five daughters, namely, the