Case Note & Summary
The appellant (plaintiff) filed a suit for partition and separate possession of suit properties, including houses and agricultural lands, against the widow and children of his deceased brother Laxmanrao (defendants 1-6) and his own wife (defendant 7). The Trial Court decreed the suit in part, holding that only one agricultural land was ancestral and that the plaintiff had no interest in the garage business 'Gajanan Automobiles', which was Laxmanrao's sole proprietorship. The defendants' counter-claim for injunction was decreed. The plaintiff appealed, and the Appellate Court reversed the Trial Court's judgment, decreeing the suit in its entirety, holding that all properties were joint family properties and that the plaintiff had a half-share. The defendants filed a second appeal before the Bombay High Court, which was dismissed on 24.11.2018. However, the High Court observed that the Appellate Court's finding that the business became joint from 1991 was not perverse. The defendants filed a review petition, which the same judge allowed on 22.03.2019, modifying the decree to exclude certain properties from partition on the ground that they were acquired before 1991. The plaintiff appealed to the Supreme Court. The Supreme Court held that the review was not maintainable as there was no error apparent on the face of the record; the observation about 1991 was not a finding but a passing remark, and the review court could not re-appreciate evidence. The Supreme Court set aside the review order and restored the Appellate Court's decree.
Headnote
A) Civil Procedure Code, 1908 - Order 47 Rule 1 - Review - Error Apparent on Face of Record - The High Court reviewed its own judgment dismissing second appeal and modified the decree to exclude certain properties from partition. The Supreme Court held that the review was not maintainable as there was no error apparent on the face of the record; the observation regarding the business becoming joint in 1991 was not a finding but a passing remark, and the review court could not re-appreciate evidence. (Paras 11-15) B) Hindu Law - Joint Family Property - Partition - Burden of Proof - In a suit for partition, the plaintiff must prove that the property is joint family property. The Trial Court found only one agricultural land to be ancestral, while the Appellate Court reversed and held all properties to be joint. The High Court in second appeal dismissed the appeal, but later reviewed its judgment. The Supreme Court restored the Appellate Court's decree, holding that the High Court's review was improper. (Paras 3-5, 16-17)
Issue of Consideration
Whether the High Court was justified in reviewing its own judgment in second appeal and modifying the decree to exclude certain properties from partition, and whether the observation that the garage business became joint only in 1991 was correct.
Final Decision
The Supreme Court allowed the appeals, set aside the High Court's review order dated 22.03.2019, and restored the decree passed by the Appellate Court dated 14.11.2008.
Law Points
- Review jurisdiction
- Order 47 Rule 1 CPC
- Error apparent on face of record
- Partition suit
- Joint family property
- Ancestral property
- Burden of proof
