IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 FAO.No. 72 of 2008() ------------------------------ AGAINST THE ORDER DATED 21/01/2008 IN IA 5895/05 IN IA 5894/05 IN OS.286/1988 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/1ST RESPONDENT/PLAINTIFF -------------------------------------------------------------- SMT. KAMALA RAPHAEL, W/O. C.J.RAPHAEL, CHERIAPARAMBIL, AGED 61, RESIDING AT EARLS, XIII/519 A, CHUMKAM, FAROKE P.O., KOZHIKODE. BY ADVS. SRI.N.SUBRAMANIAM SRI.SHIJU VARGHEESE SRI.PRAMOJ ABRAHAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S): PETITIONER/RES. 2 & 3/DEFENDANTS --------------------------------------------------------------------------------- 1. EARNEST, S/O.LATE VARGHESE PANIKKASSERY, RESIDING AT PANIKKASSERY HOUSE, POWER HOUSE ROAD, ERNAKULAM, KOCHI-18. 2. VIJAYAN, S/O. LATE VARGHESE PANIKKASSERY, RESIDING AT PANIKKASSERY HOUSE, POWER HOUSE ROAD, ERNAKULAM, KOCHI-18. (DIED) 3. THAMPI, S/O. LATE VARGHESE PANIKKASSERY, RESIDING AT PANIKKASSERY HOUSE, POWER HOUSE ROAD, ERNAKULAM, KOCHI-18. 4. DR.ANNIE VIJAYAN, W/O. LATE VIJAYAN, AGED 60, BRENT WOOD MANNER (6TH FLOOR), NEAR POWER HOUSE, KOCHI-18. 5. VINCENT VIJAYAN, S/O. VIJAYAN, AGED 27, BRENT WOOD MANNER (6TH FLOOR), NEAR POWER HOUSE, KOCHI-18. sts FAO.72/2008 6. VIJI VIJAYAN, S/O. LATE VIJAYAN, AGED 24, BRENT WOOD MANNER (6TH FLOOR), NEAR POWER HOUSE, KOCHI-18. R1 BY SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.K.P.ARAVINDAKSHAN R5 & R5 BY ADV. SRI.RENDEEP PREM THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON 05/01/2011 DELIVERED THE FOLLOWING: sts F.A.O.NO.72/2008 ORDER ON I.A.NO.1158/2008 IN F.A.O.NO.72/2008 DISMISSED 05/01/2011 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- P. BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 72 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2011. JUDGMENT Bhavadasan, J, A couple, namely, Varghese and Brjitha had four children. They are Kamala Raphel, Earnest, Vijayan and Thampi. Varghese died in 1977 and Brijitha on 3.9.1995. 2. It appears that the appellant herein laid a suit as O.S. 286 of 1988 before the II Additional Sub Court, Ernakulam seeking partition of the estate left behind by Varghese. That was uncontested by the other sharers and an ex-parte decree was passed on 30.11.1990. Even though summons was served on the defendants in the suit, they remained ex-parte. The defendants seem to have filed I.A. 429 of 1991 to set aside the ex-parte preliminary decree in the partition suit. That happened to be dismissed for default. An application thereafter to review and set aside the judgment was filed as I.A. 1367 of 1991 dated 25.2.1991 FAO.72/2008. 2 along with I.A.1366 of 1991, an application to condone the delay in filing I.A. 1367 of 1991. The trial court dismissed both the applications and that was confirmed in appeal. 3. The plaintiff seems to have filed I.A. 6617 of 1993 for passing of the final decree on 8.11.1993. Notice was served on all the respondents. The first respondent herein had filed objections on 9.2.1996 to the final decree application and it is claimed by the appellant herein that he had requested the court to pass a final decree in terms of the preliminary decree taking into consideration a few suggestions made by him. He also filed I.A. 544 of 1999 on 29.1.1999 to issue a direction to the Receiver to take possession of 3.250 cents of land comprised in Sy. No.289/1, which was included in the preliminary decree. It is pointed out that during the final decree proceedings, a receiver was also appointed. Proceedings for final decree are still going on and the final decree is yet to be passed. 4. Meanwhile, it appears that the first respondent herein had moved the probate court seeking to have probate with copy of the Will annexed to the same. The Will is said to have been FAO.72/2008. 3 executed by Varghese, the father of the parties in the partition suit. Probate seems to have been granted and it is not in dispute that the appellant was one of the parties to the proceedings. Order of the probate court was carried in appeal as A.S. 93 of 1995 before this court and this court confirmed the order of the probate court. It is stated that the third respondent herein filed I.A.2191 of 2004 in the final decree proceedings to have the receiver discharged in the light of the probate granted in respect of the Will said to have been executed by late Varghese. According to him, the proceedings cannot go on and the preliminary decree became non-est in law. It is stated that I.A. 2191 of 2000 was allowed and the final decree proceedings were dropped and consequential orders were passed by the said court. The appellant has filed I.A. 3834 of 2005 for reviewing the said order dated 12.7.2005 and the review petition was allowed. 5. While things stood thus, it appears that the first respondent herein moved I.A. 5895 of 2005 dated 24.11.2005 for review of the ex-decree passed in the suit with a petition as I.A.5894 of 2005 filed under Section 5 of the Limitation Act to have FAO.72/2008. 4 the delay condoned in filing the review application of the preliminary decree. The review was sought on the basis that the review petitioner had been wrongly advised regarding his participation in the partition suit. According to him, he was given to understand that unless the Will was probated, there was no point in him contesting the suit and he stayed away from court. 6. That application was resisted by the appellant herein. She pointed out that the review petition is devoid of merits and it is highly belated. It was also pointed out by her that all along she has been recognised as an heir of the estate of her father and the Will was never put forward as a defence in any of the previous proceedings. It was also contended that even assuming that a probate is granted, it could not affect the title to the suit property, which was declared by virtue of the preliminary decree passed in the partition suit. Therefore, it was contended that there was no justification in filing the review petition. FAO.72/2008. 5 7. In the review petition, it appears that the petitioner was examined as P.W.1 and Exts.A1 and A2 were marked. The respondent in the petition, who is the appellant herein did not adduce any evidence. By order dated 21.1.2008 the trial court allowed both the applications and thus the preliminary decree passed by the court below stood reviewed and the suit was restored to file. It is the said order that is assailed in this appeal. 8. Sri. N. Subramany, learned counsel appearing for the appellant raised three points for consideration. They are, (i) the probate proceedings were barred by limitation and an order passed in the said proceedings can have no legal effect, (ii) none of the grounds justifying review is available in the case on hand and the court below was wrong in allowing the review and (iii) the delay petition has not been independently considered and no sufficient grounds had infact been shown to condone the delay. 9. Elaborating on the above points, learned counsel went on to point out that it is by now well settled that the probate proceedings are governed by Article 137 of the Limitation Act, which FAO.72/2008. 6 prescribes three years period for seeking probate or the letter of administration of the Will as the case may be. In the case on hand, the Will was executed in 1961 and the testator died in 1977. Nobody has a case that either Brijitha, wife of Varghese or his siblings were unaware of the Will. Probate of the Will was sought for only in 1991. According to learned counsel, the period of three years begins to run either from the date of death of the testator concerned or from the date of knowledge of the Will. Going by any of the above criteria, the proceeding for probate was hopelessly barred by limitation. The probate court had no jurisdiction therefore to pass an order granting probate. It is therefore contended that the probate proceedings are not binding on the appellant. In support, the learned counsel relied on the decisions reported in Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008(2) K.L.T.296), Krishna Kumar Sharma v. Rajesh Kumar Sharma (2009(2) K.L.T. 149), Francis v. Cherupushpam (2009 (3) K.L.T. 479). Learned counsel went on to point out that the law laid down by the Supreme Court will be deemed to have always been the law and the doctrine of prospective overruling is available only to the Apex Court. In support of the said contention, learned counsel relied on the decisions reported in Dr. FAO.72/2008. 7 Suresh Chandra Verma v. The Chancellor, Nagpur University ((1990 4 SCC 55), State Bank of India v. Kuttappan (2000(99) Company Cases 309) and Kerala Agro-Industries Corporation Ltd. v. Amminikutty Amma (1997(3) KLT 931). 10. Learned counsel went on to point out that the grounds for review are provided in Section 104 of the Code of Civil Procedure read with Order 47 Rule 1 of CPC. None of the grounds mentioned therein were present in the facts of this case and the court below was not justified in reviewing its order of preliminary decree. It is not as if the propounders of the Will were unaware of the existence of the Will at the time of earlier proceedings and no justifiable reasons were given for not putting forward the Will. Having not done so, it comes too late in the day to say that since probate had been obtained, the earlier judgment is to be re-considered. Learned counsel referred to Order 47 Rule 1 CPC and contended that none of the grounds are available to the review petitioner for seeking a review. In support of his contention, learned counsel relied on the decisions reported in Raja Shatrunjit (Dead) by His Legal Representatives v. Mohammad Azmat Azim Khan ((1971) 2 SCC FAO.72/2008. 8 200), Sunil Puri v. M/s. Modi Spinning and Weaving Mills Ltd. (AIR 1995 Delhi 203), Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury ((1995) 1 SCC 170), MD. Ashraf Ali v. Debraj Wadhera (1995 Supp (2) SCC 654), Parison Devi v. Sumitri Devi ((1997) 8 SCC 715), Niranjan Sarkar v. Swapna Dam (AIR 2001 Gauhati 92), Delhi Administration v. Gurdip Singh Uban ((2000) 7 SCC 296), Nandi Verdhan Jain v. Chander Kanta Jain ((2002) 9 SCC 471), Delta Foundations and Constructions v. Kerala State Construction Corporation Ltd. (2003(1) KLT 626) and State of Nagaland v. Toulvi Kibami ((2003) 8 SCC 671). 11. It was also contended that the court below has not independently considered the delay condonation petition and therefore has erred in law. According to the learned counsel, the court went on to consider the merits of the review petition and then decided to condone the delay. That, according to learned counsel, is illegal and improper. The court below ought to have considered the delay petition first and should have ascertained whether the petitioner therein had shown sufficient cause for condonation of FAO.72/2008. 9 delay. That has not been done and that has resulted in miscarriage of justice. On the basis of the above contention, it is pointed out that the order passed by the court below cannot be sustained. 12. Per contra, learned counsel appearing for the respondents, Sri. Vinod Bhat, contended that the order of the probate court is considered to be a judgment in rem and it cannot be ignored. Attention was drawn to the fact that the appellant was a party to the proceedings and she had also filed an appeal against the order of the probate court. That appeal was dismissed and the order of the probate court with copy of the Will annexed has become final. If the appellant was aggrieved by the appellate order, it was for her to carry the matter in appropriate proceedings before the Apex Court. There cannot be a collateral challenge to those probate proceedings. It was also contended that even assuming that the proceedings was barred by limitation, that does not make the order non-est or without jurisdiction. It is well settled, according to learned counsel, that the order or judgment passed overlooking the limitation aspect is enforceable and the party aggrieved cannot ignore the same and say that it is void. FAO.72/2008. 10 13. Learned counsel then went on to point out that it is not correct to say that no grounds for review had been made out. In the petition to set aside the preliminary decree and seeking review, the petitioner therein had elaborately stated the circumstances under which the delay occurred and as to why in the suit Will was not put forward. The court below found the reasons to be cogent and convincing enough and had accepted the same. The court below has clearly noticed that even the plaintiff in the suit, who is the appellant herein, was fully aware of the existence of the Will and it was concealing the said fact that the suit was laid. The court below was therefore of the opinion that she does not deserve any sympathetic consideration at all. The mere fact that the defendant in the partition suit did not contest the matter does not mean that review cannot be sought. Learned counsel fairly conceded that true, contentions to that effect could have been taken. But the advise received by the review petitioner was that unless the Will is probated, there was no point in contesting the partition suit. It was under those circumstances the Will was not put forward in the partition suit and thus a preliminary decree happened to be passed. It is contended FAO.72/2008. 11 that justice demanded interference with preliminary decree. The court was entitled to set right the wrong committed and a review is fully justifiable in law. That is precisely what has been done in the instant case and there are no grounds to interfere with the order of the court below. 14. Learned counsel then went on to point out that equally unacceptable is the plea with regard to the delay condonation petition. It was in order to ascertain whether there would be any purpose in condoning the delay that the court had gone into the merits of the case. The court has given cogent reasons for condoning the delay and was satisfied that sufficient cause had been shown. Merely because there are no separate orders and there is only one order on the review petition as well as in the delay petition, it does not mean that the court has not applied its mind to both the petitions. In support of his contention, learned counsel relied on the decisions reported in State of Nagaland v. Lipok AO (JT 2005(4) SC 10) and Board of Control for Cricket, India v. Netaji Cricket Club (AIR 2005 SC 592). FAO.72/2008. 12 15. The litigation between the parties started in the year 1988. Even after the lapse of 23 years, it still carries on with full vigour. A preliminary decree for partition was passed as early as on 30.11.1990. Final decree proceedings were initiated in 1993. It is indeed sad to note that it is still pending in the year 2010. 16. The appellant may have a point in contending that if as a matter of fact the defendants in the suit, that is, O.S. 286 of 1988, had a contention that a Will had been executed by Sri. Varghese, they ought to have set up that defence in the suit itself. It is difficult to accept the plea made by the review petitioner before the court below that since he was advised that no purpose will be served by contesting the suit unless the Will is probated cannot be easily accepted. True, at that point of time it was mandatory that the probate of the Will has to be obtained as far as Indian Christians were concerned. But there was no prohibition in carrying on parallel proceedings and seeking some time to obtain probate of the Will and till that proceedings is disposed of, the suit could have been kept pending. That would have been the proper course. That has not been done in the case on hand. FAO.72/2008. 13 17. The above fact does not mean that the probate proceedings can be ignored. As per Section 41 of the Indian Evidence Act, it is the judgment in rem. Apart from the above aspect, the appellant herein was a party to the probate proceedings and she had hotly contested the matter. The decree of the probate court was challenged before this court by the appellant herein and this court confirmed the judgment of the probate court. That means, the probate proceedings had become final. 18. There is no merit in the contention that the probate proceedings were barred by limitation and has to be ignored. As rightly pointed out by the learned counsel for the respondent in this appeal, it could not be said that in law, even assuming that the probate proceedings were barred by limitation, decree passed in the proceedings could be ignored and treated as non-est in law. Nor could it be treated as one with jurisdiction. It is well settled by now that the judgment, decree or order passed overlooking the provisions of the Limitation Act does not make the order ab initio void. It has as much force as a decree passed within the period of limitation. If any FAO.72/2008. 14 person is aggrieved by the decree, it is for him to challenge the same. Unless it is done, it is binding on all the parties in law. Therefore, there cannot be a collateral attack on these proceedings. 19. In the decisions referred to by the learned counsel for the appellant, it was held that the probate proceedings are governed by Article 137 of the Limitation Act. It is also true that going by the principle laid down in the said decisions, the probate proceedings, probably now taken aid of by the review petitioner, may have been out of time. But as already noticed, no such ground was urged before the probate court or before the appellate court and order came to be passed in the probate court and confirmed by the appellate court. As already noticed, it could not be said that the order is one without jurisdiction. It is not a void order at all. In the light of this fact, it is unnecessary to refer to the decisions relied on by the appellant in this regard. This contention has necessarily to fail. FAO.72/2008. 15 20. There is no inherent right of review. The power of review is the creation of a statute. Section 104 of the CPC provides for a right of review and Order 47 deals with the grounds and the procedures to be followed in considering the review petition. Section 104 reads as follows: “104. Orders from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (ff) an order Section 35-A; (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be, (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: (Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made) FAO.72/2008. 16 (2) No appeal shall lie from any order passed in appeal under this Section.” Order 47 Rule 1 reads as follows: “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 © by a decision on a reference from a Court (exercising small cause jurisdiction. 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 FAO.72/2008. 17 and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” 21. It is by now well settled that review is not granted as a matter of course. Unless there are compelling circumstances, normally a court will not entertain a review application. At any rate, it has to satisfy among one of the grounds enumerted under Order 47 Rule 1. In the decision reported Raja Shatrunjit (Dead) by His Legal Representatives's case (supra) the question as to the interpretation to be given to the words “any other sufficient reason” was considered. It was held as follows: “Under O.47 of the Code of Civil Procedure the principles of review are defined by the Code and the words “any other sufficient reason” in O. 47 of the Code and the words “any other sufficient reason” in O. 47 of the Code would mean a reason sufficient on grounds analogus to those specified immediately previously in FAO.72/2008. 18 that order. The grounds for review are the discovery of new matters 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 the review is asked for on account of some mistake or error apparent on the face of the record.” 22. In the decision reported in Sunil Puri v. M/s. Modi Spinning and Weaving Mills Ltd. (supra), it was held as follows: “Strictly the way this point has been taken in the review application the objection is that the point has not been dealt with in the correct perspective. Firstly I do not agree that the point has not been dealt with in the correct perspective. Secondly, even if that were so this is no ground for review of the judgment so long as the point is dealt with and answered.” 23. In the decision reported in Meera Bhanja's case (supra) it was held as follows: