Malleeswari vs K. Suguna

2025 INSC 1080 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025 [@ SLP (C) NO. 12787 OF 2025]

MALLEESWARI … APPELLANT(S)

VERSUS

K. SUGUNA AND ANOTHER … RESPONDENT(S)

JUDGMENT

S.V.N. BHATTI, J.

1. Leave granted.

2. Subramani, the husband of the second Respondent, filed OS No. 192 of

2000 in the Court of the District Munsiff at Ponneri for partition of the suit

schedule properties into two equal shares and allot one such share to him.

The suit in question was filed against Munasamy Naidu, the father of the

plaintiff.

3. The original plaintiff and the defendant, since no more, are being

represented by the respective heirs and successors in interest. To appreciate

the relationship of the present array of parties, the genealogy is stated

hereunder:

Munusamy Naidu (1st defendant)

Muniammal (W/o 1st defendant)

Signature Not Verified Digitally signed by Malleeswari Subramani - 1st SAPNA BISHT Date: 2025.09.08 (Appellant/daughter) plaintiff (Son) 17:08:19 IST Reason:

Rajalakshmi Aruna (2nd (petitioner's plaintiff) (wife of daughter) 1st plaintiff)

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4. The plaint avers that the suit schedule properties are ancestral

properties and are available for partition between the first plaintiff and the

first defendant, being members of the Hindu Undivided Family. To attribute

the character of joint Hindu family property, the plaint refers to the registered

partition deed dated 22.11.1991 executed between the deceased first

defendant and his brother. The suit was filed admittedly without impleading

Malleeswari/Appellant in this civil appeal, who is the daughter of Munusamy

Naidu and Muniammal. On 25.02.2003, the learned Trial Court passed the

ex-parte preliminary decree as prayed for. The first defendant, post the

preliminary decree, executed a registered sale deed dated 27.12.2004 in

favour of K Suguna/first Respondent for item nos. 4 to 7 of the suit property,

and also a settlement deed for item nos. 1 to 3, and 8 to 10 in favour of the

Appellant.

5. On 24.01.2005, the second Respondent filed I.A no. 140 of 2006 to pass

a final decree in terms of the preliminary decree dated 25.02.2003. The first

defendant executed a will bequeathing his share to the Appellant. On

13.05.2011, the first defendant died, and the Appellant has been impleaded

as the legal heir and successor to the first defendant.

6. The first Respondent, pursuant to final orders in IA nos. 130 and 135

of 2013, has been impleaded as one of the Respondents in the pending final

decree proceedings. The subject matter of the appeal arises from the steps

taken by the Appellant in I.A no. 1199 of 2018, praying for amending the

preliminary decree in terms of her status as one of the co-parceners and

entitling her to an equal share along with the father and the brother. The

application for amendment of the preliminary decree was opposed by the first

and second Respondents. The Appellant’s case is that the Hindu Succession

2 (Amendment) Act, 2005 (‘HSA 2005’), grants daughters equal coparcenary

rights by birth. As a daughter of a living coparcener at the time the act came

into force, she is entitled to a 1/3rd share. Thus, she claimed her father’s 1/3rd

share through the Will dated 23.04.2008, bringing the total to 2/3rd share.

The Appellant further contended that the sale to the first Respondent on

27.12.2004 is invalid as it occurred after the amendment’s cut-off date of

20.12.2004; thus, violating the court’s injunction order.

7. In the objection to the reopening of the preliminary decree, it is

contended by the Respondent that the application is barred by limitation,

having been filed over 15 years after the preliminary decree and 7 years after

the petitioner admittedly became aware of the suit. Further, the Appellant is

estopped from challenging the sale to the first Respondent, as she was an

attesting witness to the sale deed. Moreover, the preliminary decree had

already ascertained and finalized the shares in 2003, before the 2005

amendment came into force. Consequently, the sale was valid and based on

prior agreements, and the petitioner’s remedy was to appeal the preliminary

decree and not to seek its amendment. Lastly, the settlement deed and Will

favouring the Appellant are invalid as they were executed during the pendency

of the suit, lis pendens, in violation of the injunction.

8. On 08.03.2019, the Trial Court dismissed IA no. 1199 of 2018 – a

petition to amend the preliminary decree dated 25.02.2003.

8.1 It noted that the Appellant was impleaded only as the legal

representative of her deceased father, and that she merely stepped into

his shoes and was only entitled to the share as determined by the decree

dated 25.02.2003.

3 8.2 It also held that the HSA 2005 was inapplicable, since it could not be

applied retroactively.

8.3 Further, the Settlement Deed dated 27.12.2004 was void since the deed

was created after the suit had been filed and a decree had been passed.

The father was also under a court injunction not to transfer the

property.

8.4 She was also barred by the principle of estoppel since her own signature

was there on the sale deeds as a witness. This proves that she was

aware of and had consented to the transactions.

8.5 Lastly, the Trial Court notes that a preliminary decree is a final

determination of rights, and can only be amended for clerical errors,

and not to change the outcome fundamentally. It also notes that the

proper legal remedy was to file an appeal against the original decree.

9. The Appellant filed CRP No. 1439 of 2019 in the High Court of

Judicature at Madras against the order dated 08.03.2019. The CRP was

allowed on 23.09.2022, and the order dated 08.03.2019 was set aside. The

first Respondent filed review application no. 227 of 2023 to review the order

dated 23.09.2022. Through the impugned order dated 19.10.2024, the review

application was allowed. The High Court remanded the matter to the Trial

Court for fresh consideration. Hence, the civil appeal at the instance of the

Appellant.

10. Mr. V Prabhakar, learned Senior Advocate, appearing for the Appellant,

contends that the High Court fell into a grave and serious error in not

appreciating the review jurisdiction conferred on the Courts by Section 114

and Order 47 Rule 1 of the Civil Procedure Code, 1908 (‘CPC’). The

consideration and conclusion in the impugned order are not available to a

4 review court. The scope of judicial review of an interlocutory order under

Article 227 of the Constitution of India is extremely narrow and limited. The

review of an order under Article 227 is further conditioned by very few and

limited grounds. The order impugned has recorded fresh findings on facts by

overturning the earlier findings of fact recorded by the High Court. Though

the matter is remitted to the Trial Court, the illegality of the order goes to the

root of the matter and warrants the interference of this Court. The Appellant

is entitled to a share both in terms of Section 29A of the Hindu Succession

Act (Tamil Nadu Amendment Act), 1989 and also HSA 2005. The prayer in I.A

1199 of 2018 is to pass a preliminary decree answering the rights of all the

eligible co-parceners.

11. Ms. Shobha Ramamoorthy contends that the order impugned does not

transgress the review jurisdiction. The matter is remanded to the Trial Court.

The consideration of a fact or reversing an earlier finding, if examined carefully

by this Court, cannot be termed as in any manner exceeding the review

jurisdiction. The Appellant has been a silent spectator and cannot reopen the

preliminary decree to claim the settled share of late Munusamy Naidu or her

1/3rd share.

12. Dr. Sivabalamurugan argues that the order dated 23.09.2022 was

patently illegal and erroneous. The Appellant cannot expand the preliminary

decree and should have acted promptly during the pendency of OS No. 192 of

2000. He prays for the dismissal of the Civil Appeal.

13. Having heard the learned counsel and perusing the record, the civil

appeal examines whether the order impugned conforms to the scope of review

of an order under Section 114 and Order 47 of CPC. The exercise or excess of

jurisdiction is determinative on the order under review and the review order.

5 It is convenient to compare the consideration before the jurisdictional

limitations of review are considered by this Court.

CIVIL REVISION PETITION REVIEW ORDER (IMPUGNED ORDER)

The issue centred on whether the CRP

The issue was whether the Appellant- order unfairly denied the Respondent,

daughter’s right to claim a share as a co- pendente lite-transferee, the right to

parcener following the HSA 2005. defend her title against the Appellant’s

claim.

Acknowledged the claim but renamed it The court accepted her claim, stating as a third-party claim. This was done in that she was entitled to a 1/3rd share in relation to the original suit structure, ancestral properties based on Vineeta which warranted a fresh inquiry at the Sharma v. Rakesh Sharma.1 trial court level.

As a pendente lite transferee, Suguna The finding of the CRP would prevent could not have challenged the ancestral Suguna from defending her title. Review nature of the properties. She would have order affirms her right to raise possible had to settle for whatever share her defences in Trial. These defences may vendor (the Appellant’s father) was include challenging the ancestral nature allotted. Her rights were subordinate to of the property.

the co-parceners’ shares and flows from

the vendor.

The plea that the properties were not The Review order notes that the

ancestral is not a defence available to ancestral nature of the property, while

the Respondent-pendente lite. The asserted by the plaintiff, was not

Property is treated on the admission contested by the defendant (deceased

made by the original plaintiff. father). It held that an uncontested

1 (2020) 9 SCC 1.

6 assertion should not bind the Purchaser

in the face of the Appellant’s new claim.

Thus, this question is to be re-examined.

The order explicitly stated that Held that the Appellant’s claim directly Appellant’s 1/3rd share would diminish challenges the minimum interest Respondent’s interest in the properties Respondent had acquired. Moreover, the she purchased to the 1/3rd share review order allows the Respondent to belonging to her vendor, the deceased adjust equities.

father.

The Review Application was allowed. The CRP was allowed. The Trial Court order CRP order was set aside. The entire dismissing the Appellant’s application matter was remanded to the trial court was set aside. The Appellant was for a fresh enquiry, allowing the permitted to pay the required court fee Respondent to raise all contentions to for her 1/3rd share.

defend her purchase.

14. In summing up precedents on the point, the judgment may not be

understood as though we are putting an old spin on a classic. The court notes

that there is no infirmity or illegality in entertaining the review petition;

however, the approach to the error pointed out warrants a review of the

precedents on the point.

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

7 appellate power and is subject to the following limitations to maintain the

finality of judicial decisions:

15.1 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 of CPC.2

15.2 Review 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.3

15.3 In 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.4

15.4 The 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.5

15.5 The 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.6 Hence, it is invoked only to prevent a miscarriage of justice or

to correct grave and palpable errors.7

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

2 Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170. 3 Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389. 4 Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715. 5 Lily Thomas v. Union of India, (2000) 6 SCC 224. 6 Inderchand Jain v. Motilal, (2009) 14 SCC 663. 7 Shivdev Singh v. State of Punjab, AIR (1963) SC 1909. 8

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:

17.1 The 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.

17.2 Mistake 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.8 Such an error is a patent

error and not a mere wrong decision.9 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.10

17.3 Lastly, 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.11

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

8 Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104. 9 T.C. Basappa v. T. Nagappa, AIR (1954) SC 440. 10 Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR (1960) SC

137. 11 Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 and approved in Moran Mar Basselios

Catholicos v. Mar Poulose Athanasius, AIR (1954) SC 526. 9

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.

19. The impugned order has not adverted to an error apparent on the face

of the record, but has taken up an error on reappreciation of the case and

counter case of the parties. The review order records a few findings extending

far beyond the actual working out of prayers in a suit for partition. The order

impugned has exceeded the jurisdiction of review by a court.

20. For the above reasons, the order impugned is set aside, and

consequently, the order dated 23.09.2022 in CRP is restored. Civil Appeal

allowed. No order as to costs.

20.1 The Trial Court is directed to expeditiously dispose of all the pending

applications, preferably within three months from the date of receipt of this

judgment.

………..……….…………………J. [AHSANUDDIN AMANULLAH]

………...…………………………J. [S.V.N. BHATTI]

New Delhi;

September 8, 2025.

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