1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION (REVIEW) NO.9 OF 2009 Mrs. Swaroopa Naik Vaigankar Nee Kalpana Gunaji Rane, r/o. H.No.64, Patto, Ribandar, Tiswadi Taluka, Goa. …. Applicant V/s 1. Mrs. Deepa Prakash Naik, widow of Prakash Naik Vaingankar, major of age, r/o. H.No.138, D.N., r/o. Basu Dipu Naik, Rua de Maria, Sancoale, Mormugao, Goa. 2. Kalidas Prakash Vaingankar, son of late Prakash Naik Vaingankar, major of age, student, through his next friend, Mrs. Deepa Prakash Naik, D.N., r/o. Basu Dipu Naik, Rua de Maria, Sancoale, Mormugao, Goa. 3. Pradeep Naik Vaingankar, PWD, Mapusa, Water Supply Department, Mapusa, Goa. 4. Life Insurance Corporation of India, through its Vasco-da-Gama branch, with office at Nitin Chambers, Swatantra Path, House No. not known, Vasco-da-Gama, Goa. 5.The Board of Trustee of the Port of Mormugao, through its Secretary, Mormugao Harbour, Mormugao, Goa. 6. Syndicate Bank, Ribandar Branch, through its Branch Manager, 2 Ribandar, Tiswadi Taluka, Goa. …. Respondents Mr. M.S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the Applicant. Mr. V.A. Lawande, Advocate for Respondent no.1 & 2. Mr. Pravin Faldesai, Advocate for Respondent No.3. Mr. S. Malkarnekar, Advocate for Respondent No.5. CORAM : N.A. BRITTO, J. DATE : 13th APRIL, 2010 JUDGMENT: Heard. 2. This is an application for review filed under Order 47, Rule 1, CPC, by defendant no.5 in Special Civil Suit No.61/1996 for review of the judgment of this Court dated 2/12/2008, dismissing the appeal filed by her, against judgment/decree dated 26/09/2003 of the learned Civil Judge, Senior Division, in the said civil suit. 3. Some basic facts are required to be stated. 4. The dispute is essentially between the two wives of Prakash Naik alias Vaingankar of Ribandar, Goa, for the estate left by him. The said Prakash Naik alias Vaingankar married Mrs. Deepa P. Naik (plaintiff no.1 in the said Civil Suit) on 17/03/1978. The said marriage was short lived till about 8/04/1979. According to the said Prakash Naik alias 3 Vaingankar, the said Deepa P. Naik abandoned the conjugal domicile on or about 8/04/1979, but according to the said Deepa P. Naik (plaintiff no.1) it is she who was driven out of the house by him. At that time, the said Deepa P. Naik was expecting and she gave birth to Kalidas (plaintiff no.2) on 27/05/1979. 5. Thereafter, the said Prakash Naik married Swaroopa P. Vaigankar (defendant no.5/applicant herein) on 17/07/1983, at Sawantwadi, while the first marriage was subsisting. A suit for divorce filed by the said Prakash Naik alias Vaingankar against the said Mrs. Deepa P. Naik, the first wife, presumably, inter alia, on the ground of abandonment of conjugal domicile came to be dismissed as abated after his death on 13/04/1996. The said Prakash Naik alias Vaingankar lived with the second wife the said Mrs. Swaroopa P. Vaingankar at Ribandar till his death. Upon the death of the said Prakash Naik alias Vaingankar, the said second wife Mrs. Swaroopa made a deed of succession on or about 24/06/1996 claiming to be the only legal heir to the estate of the said Prakash Naik alias Vaingankar. The claim and counter claim by the first wife (plaintiff no.1) and the second wife (defendant no.5) is again essentially to the moneys which were due and payable to the said Prakash Naik alias Vaingankar by defendants no.2, 3 & 4 (Respondents nos. 4,5 and 6, herein). 4 6. The first wife along with their son, as plaintiffs, filed the said civil suit, inter alia, for direction to the said defendants to pay to the plaintiffs the benefits due upon the death of the said Prakash Naik alias Vaingankar and also for declaration that they were the sole and universal heirs of the said Prakash Naik alias Vaingankar and for declaration that the deed of succession and qualification be declared null and void. The suit was resisted by the second wife, defendant no.5, stating that at no point of time, the said Prakash Naik alias Vaingankar had disclosed to her that he was married, before the Registrar of Sawantwadi where they had got married, and after the said marriage he was staying with her in a joint family along with her in-laws and continued to do so. She had also stated that neither the said Prakash Vaingankar nor her in-laws or relatives or friends or anyone, told her about the alleged first marriage of the said Prakash Naik alias Vaingankar to the plaintiff no.1. 7. The learned trial Court by judgment dated 26/09/2003 declared the said plaintiffs to be the sole and universal heirs of the said Prakash Naik alias Vaingankar and further declared as void, the said marriage of Prakash with Swaroopa (applicant, herein) as well as the succession deed and all the said three defendants were directed to pay the amount due upon the death of the said Prakash Naik alias Vaingankar to the plaintiffs only. 5 8. The defendant no.5 preferred First Appeal no.9/2004 and the main contention put forward on her behalf was that her marriage to the said Prakash Naik alias Vaingankar on 17/07/1983, solemnized at Sawantwadi, was entered into by her in good faith and, therefore, she was entitled to a share in the estate left by the deceased Prakash Naik alias Vaingankar in view of Article 30 of the Family Laws in force in this State [Decree dated 26/05/1911]. Article 30 when translated reads as follows; “Whenever a void or voidable marriage has been contracted in good faith, it will produce civil effects in relation to the spouses. If only one of the spouses has contracted it in good faith, the marriage shall produce effect only in favour of such spouse.” 9. The said Article appears in Chapter IV with a heading which when translated reads as follows; Of the effects of annulment, specially in respect of the fate of minor children. 10. Referring to Article 30 of the Family Laws, it was urged before the learned Single Judge that whenever a void or voidable marriage has been contracted bona-fide, the women who gets married to the person already married, is entitled to a share in the estate of that person, if the marriage was contracted bona-fide. It was further urged that defendant no.5 had contracted the marriage with the late Prakash Naik alias Vaingankar, relying upon the representation made by him, that he was unmarried and admittedly the said Prakash Naik alias Vaingankar was 6 not staying with plaintiff no.1 for a period of over six years before the solemnization of his marriage with defendant no.5 and the only inference which could be drawn was that the defendant no.5 had contracted the marriage bona-fide. It was also submitted that the share of defendant no.5, would be 1/4th in the estate left by the said Prakash Naik alias Vaingankar. A further concession has now been made that the said share of defendant no.5 would be 1/8th only, with reference to Article 1235 of the Civil Code, 1867. 11. It appears that the plaintiffs had remained absent at the hearing of the said first appeal. Nevertheless, the learned Single Judge first noted, in para 10, that from a bare reading of Article 30, it is clear that if a void or voidable marriage has been contracted bona-fide by a spouse, it shall have civil effects with relation to the spouses. Then the leaned Single Judge noted that Article 30 finds its place in Chapter IV dealing with effects of annulment specially with respect to the fate of minor children and then in para 11 concluded that Article 30 did not confer any right on the spouse to claim a share in the estate left by her spouse, if the marriage is void or voidable provided such marriage is contracted bona- fide. 12. The learned Single Judge also observed that it was not seriously disputed by the learned Counsel appearing for the appellant (defendant 7 no.5) that the second marriage was void having been solemnized during the subsistence of the first marriage and, therefore, the learned Single Judge rejected the submission made on behalf of the appellant/defendant no.5 in the said appeal. 13. There can be no dispute that the second marriage of the said Prakash Naik alias Vaingankar with defendant no.5 was a void marriage since the first marriage was still subsisting and this in the light of the provisions of Article 11 read with Article 4(6) of the said Family Laws but the question was essentially whether inspite of the said marriage being void, the defendant no.5 was entitled to have a share in the estate left by her husband in the light of Article 30 of the said Family Laws. 14. Shri Usgaonkar, the learned Senior Counsel appearing on behalf of defendant no.5, the second wife, submits that the learned Single Judge went by the heading of the Article as controlling provision when in fact Articles 30 & 33 of the said Family Laws dealt with spouses only and not with their children. Learned Senior Counsel submits that this the learned Single Judge could not have done in the light of the judgment of the Apex Court in Ms/. Frick India Ltd. V/s. Union of India & Ors. (AIR 1990 SC 689), wherein the Apex Court held that; It is settled law that the headings prefixed to sections or entries cannot control the plain words of the provision and that they cannot also be referred to for the purpose of construing the provision when the 8 words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision and only in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. 15. The learned Senior Counsel has further submitted that the learned Single Judge has given correct interpretation to Article 30 in the first part of para 10 of the learned judgment and that what is stated in first part of para 11 is nothing but an error apparent on the face of record. Learned Senior Counsel has placed reliance on several decisions to support his submissions. On the other hand, Shri Lawande, the learned Counsel appearing on behalf of the first wife and son/plaintiffs has submitted that the present review application is nothing but an appeal in disguise which is impermissible. Learned Counsel submits that the learned Single Judge has given certain interpretation to Article 30 and that is found in para 11 of the learned judgment and therefore it is impermissible to interpret the said provision differently, in review jurisdiction. Learned Counsel points out that in case the said finding of para 11 is erroneous, the same cannot be corrected in review jurisdiction. Learned Counsel has also placed reliance on several judgments. 16.1. In the case of Girdharlal Mansukhbhai Gandhi V/s. Kapadvanj Municipality (AIR 1930 Bombay 317) a Division Bench of this Court 9 has stated that a Court hearing an application for review has no jurisdiction to order a review because it is of opinion that a different conclusion of law should have been arrived at. 16.2. In Ranbir Prasad V/s. Sheobaran Singh (AIR 1939 Allahabad 619) a Division Bench of that Court has held that the fact that different view on certain questions of law is possible is no ground for review. 16.3. In Dolat Industries, Gonal V/s. Krishna Oil Industries, Jamnagar and another (AIR 2002 GUJARAT 91), the learned Single Judge has held that a review is not permissible on the ground that the Court has proceeded on wrong preposition of law. 16.4. In Meera Bhanja (SMT) V/s. Nirmala Kumari Choudhury (SMT) (1995 (1) SCC 170) the Apex Court has stated that the review proceedings are not by way of an appeal and has to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC and the review petition has to be entertained only on the ground of error apparent on the face of record and not on any other ground. 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 by two opinions. The Apex Court referred to Aribam Tuleshwar Sharma V/s. Aribam Pishak 10 Sharma (AIR 1979 SC 1047) and noted that there are definitive limits to the exercise of the power of review and 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 to 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. For what is an error apparent on the face of record, the Apex Court noted, that it must be 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 and for that the Apex Court referred to Satyanarayan Laxminarayan Hegde V/s. Mallikarjun Bhavanappa Tirumale (AIR 1960 SC 137) and again noted that an error which has to be established by a long-borne 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 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 11 by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. 16.5. In Lily Thomas & Ors. V/s. Union of India & Ors. (2006 (6) SCC 224), the Apex Court again noted that error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. Referring to the words “any other sufficient reason appearing in Order 47 Rule 1 CPC”, the Apex Court observed that they would mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The Apex Court also observed that error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. The Court also referred to Hari Vishnu Kamath V/s. Ahmad Ishaque (AIR 1955 SC 233), wherein it was observed that ; “It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.” The Apex Court then held that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left 12 to be determined judicially on the facts of each case (emphasis supplied). 16.6. True, as contended by Shri Lawande, the case of Lily Thomas & Ors. V/s. Union of India & Ors. (Supra) was with reference to Article 137 of the Constitution of India read with Order XL of the Supreme Court Rules and Order 47 Rule 1, CPC for reviewing the judgment in Sarla Mudgal V/s. Union of India (1995 (3) SCC 635), but the fact remains that it is also a judgment delivered with reference to Order 47, Rule 1, CPC and therefore would be as much applicable to a case of review under Order 47, Rule 1, CPC. 16.7. In Board of Control for Cricket in India & Anr. V/s. Netaji Cricket Club & Ors. (2005 (4) SCC 741), the Apex Court has stated that Order 47, Rule 1, of CPC provides for filing an application for review and such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reasons. What would constitute sufficient reason would depend on the facts and circumstances of the case and the words “sufficient reason” in Order 47, Rule 1, of CPC are wide enough to include a misconception of fact or law by a court of even an advocate 13 and that an application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit” (emphasis supplied). The Apex Court took note of Lily Thomas & Ors. V/s. Union of India & Ors. (supra) and noted; “52. The dictionary meaning of the word 'review' is 'the act of looking, offer something again with a view to correction or improvement'. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi V/s. Pradyumansinghji Arjunsinghji, held that the power of review is not an inherent power. It must be conferred by law wither specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.” 16.8. In Haridas Das V/s. Usha Rani Banik (Smt) & Ors. (2006 (4) SCC 78) the Court took note of Thungabhadra Industries Ltd. V/s. Govt. of A.P., (AIR 1964 SC 1372) wherein it was observed as follows; “There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” 14 The Court also took note of Meera Bhanja (SMT) V/s. Nirmala Kumari Choudhary (SMT) (1995 (1) SCC 170), wherein it was stated as follows; “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. An error which is no 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 its 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'.” 17. As already noted, the second marriage, during the subsistence of the first marriage is void as if it never existed and this has been so provided by Article 11 of the Family Laws. However, Article 30 onwards provide certain exceptions so that the children of such marriage are not bastardized, if I may us that expression, and the second spouse is not thrown on the street in penury, if he or she (more often than not it must be she) contracts the second marriage in good faith. Article 31 expressly declares that the children of a void or voidable marriage shall always be legitimate except the children of prohibited marriages under clauses (1) and (2) of Article 4. Article 30 again expressly provides that even a void marriage shall produce civil effects in favour of a spouse who contracts it in good faith. The only requirement is good faith of the spouse who marries for the second time. Article 30, as seen deals with 15 effects of a void or voidable marriage in favour of a spouse who marries for the second time in good faith. It has nothing to do with children. Likewise, Article 33 states that whenever marriage is declared void due to the fault of one of the spouses, the latter shall lose all the benefits availed from the other and, notwithstanding, he/she shall be bound to fulfill the promises which have been made to the other in the respective ante-nuptial contract. The other 6 articles in Chapter IV may be dealing with the effect of annulment in relation to the fate of minor children. There can be only one interpretation to Article 30 and no other that a void or voidable marriage produces civil effects in favour of a spouse who contracts it in good faith. In other words, the only qualification to claim civil effects is that the second marriage should be contracted in good fate. This interpretation, and in my view rightly, was given by the learned Single Judge in para 10 of the judgment. Therefore, it appears that the learned Single Judge took a wrong direction via the misconception of the heading of Chapter IV and recorded a wrong conclusion in para 11 of the learned judgment, and this in my humble view, is an error apparent on the face of record which has cropped in disregarding the provision of Article 30 of the Family Laws. As said, and as stipulated by Article 30, a void marriage does create civil effects in favour of a spouse who contracts it in good faith and therefore the said error found in para 11 needs to be corrected and the view expressed in para 10 of the learned judgment, needs to be maintained i.e. “from 16 bare reading of Article 30, it is clear that if a void or voidable marriage has been contracted bona-fide by a spouse, it shall have civil effects with relation to that spouse”. That is a correct interpretation given by the learned Judge to Article 30 of the Family Laws. The contents of para 10 and para 11 cannot coexist and in that light also there is an error apparent on the face of record which needs to be corrected. 18. As already stated Chapter 4 deals with the effects of annulment specially with respect to the fate of minor