R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.P.No.549/2009 BETWEEN:
ASHOK PLANTATIONS (P) LTD., II FLOOR, ASHOK MEDICALS BUILDING, VADAKARA KOZHIKODE DISTRICT KERALA.
BY ITS MANAGING DIRECTOR SRI T H RAJAN S/O LATE T NARAYANAN AGED ABOUT 54 YEARS.
…PETITIONER (BY SRI CHANDAN, ADVOCATE) AND:
1. D D RAMESH S/O D DEVA SHETTY AGED ABOUT 33 YEARS 2. D S DEVA SHETTY DEAD.
R-1, 3, 4,5, 8 TO 14 ARE LRs OF R-2 3. D D KESHAVA S/O D S DEVA SHETTY AGED ABOUT 45 YEARS 4. D D GANESH S/O DEVA SHETTY MAJOR.
5. SMT.PARVATHI W/O DEVA SHETTY AGED ABOUT 62 YEARS RESPONDENTS 1- 5 ARE RESIDING AT, MAHADEVPET MADIKERI.
6. K N APPAJI AGED ABOUT 57 YEARS KAGGODU VILLAGE MADIKERI.
7. SMT.THANGAMMA APPAJI W/O K.A.APPAJI MAJOR, R/AT KAGGODU VILLAGE MADIKERI.
8. SMT.N S LEELAVATHI W/O LATE M SHIVANNA 72 YEARS, RESIDING AT No.81/571, IRWIN ROAD MYSORE.
DEAD BY HER LRs.
8(a) GEETHA ANANTHRAMAIAH D/O M S LEELAVATHI No.527, ‘ANANTHAGEETHA’ 5TH MAIN ROAD ,GOKULAM 3RD STAGE, MYSORE-570 002.
8(b) Dr. M S BALASUBRAMANYAM, M.B.B.S S/O M S LEELAVATHI, No.527, ‘ANANTHAGEETHA’ 5TH MAIN ROAD, GOKULAM 3RD STAGE, MYSORE-570 002.
8(c) Dr. M S SAIESHWAR, M.B.B.S S/O M S LEELAVATHI I MIILSTED CLOSE MOORSIDE, SUNDERLAND TYPE & WEAR SR3 2RF U.K.
9. SMT.K S SARASWATHI W/O K K APPAJI AGED 54 YEARS MAHADEVPET MADIKERI.
10. SMT. PADMAJA W/O KESHAVAMURTHY AGED 39 YEARS FISHERIES OFFICER IRWIN ROAD, MYSORE.
11. KUM.SHAILAJA D/O Dr.S K VISHWESHWARA AGED 35 YEARS HARIPRASANNA V V MOHALLA MYSORE.
12. KUM. VANAJA D/O Dr.S.K. VISHWESHWARA AGED 29 YEARS 13. VIJAYA PRASANNA S/O Dr.S.K. VISHWESHWARA AGED 33 YEARS 14. SURESH S/O Dr.S.K. VISHWESHWARA AGED 27 YEARS 15. Dr.S.K VISHWESHWARA AGED 67 YEARS HARIPRASANNA V V MOHALLA, MYSORE. DEAD BY HIS LRs.
RESPONDENTS 11 TO 15 ARE RESIDING AT HARIPRASANNA V.V.MOHALLA, MYSORE.
15(a) KUM.SHAILAJA D/O S K VISHWESHWARA 15(b) KUM. VANAJA D/O S K VISHWESHWARA 15(c) VIJAYA PRASANNA S/O S K VISHWESHWARA ALL ARE R/A HARIPRASANNA V.V.MOHALLA, MYSORE.
...RESPONDENTS (BY SRI G K V MURTHY, ADVOCATE FOR R1 SRI K A BALACHANDAR, ADVOCATE FOR R3 SRI C R SUBRAMANYA, ADVOCATE FOR R4 SRI V SRINIVASA RAGAVAN, ADVOCATE FOR R6 & R7) THIS R.P IS FILED UNDER ORDER 47 RULE 1 OF THE CODE OF CIVIL PROCEDURE R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE PRAYING TO REVIEW THE JUDGMENT DATED 15.04.1998 IN RSA No.550/1998 (RSA FR No.2348/1993) (C/W RSA No.777/1993 AND RSA No.111/1998), ALLOW THIS REVIEW PETITION.
THIS R.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petition is registered as R.P.No.549/2009 in connection with RSA No.550/1998 that came to be dismissed on 15th April 1998. The said second appeal is directed against the judgment and decree passed by the learned District Judge, Kodagu in R.A.No.15/1989 on 28-07-1993 which was directed against the judgment and decree dated 03-01-1981 passed in O.S.No.78/1978 by the Civil Judge, Madikeri.
2. The Plaintiff/first respondent in RSA No.550/1998 has filed a suit in O.S.No.78/1978 before the trial Judge for declaration of 1/4th share in the suit properties and seeking partition and separate possession which was dismissed on 03.01.1981. Regular appeal in RA No.15/1989 was preferred by the plaintiff against the said judgment and decree of the trial Court. The First Appellate Court allowed the appeal on 28-0701993 and set aside the judgment and decree passed by the trial Court on 03-01-1981 in O.S.NO.78/1978 and consequently, decreed the suit of the plaintiff. Against which, RSA No.550/1998 was filed by the appellant which came to be dismissed along with the connected appeals (RSA No.777/1993 and RSA No.111/1998) on 15.04.1998. Against which, review petitioner (purchaser of properties) preferred Special Leave Petition in No.17922/1998 before the Hon’ble Supreme Court of India. The said Special Leave Petition was dismissed as withdrawn. Later a Civil petition was presented in Civil Petition No.876/1998 along with IA for condonation of delay that came to be rejected and that was challenged before the Hon’ble Supreme Court in SLP Nos.20032-33/2000 which came to be allowed and CA 2992-2993/2001 came to be registered and it came to be allowed and the petitioner was given an opportunity to agitate the matter in review petition as the CP was converted into R.P.549/2009 and it is coming up for disposal in the present proceedings.
3. It is necessary to mention that the review petitioner-Ashok Plantations (P) Ltd., by its Managing Director, is not the plaintiff or the defendants. On the other hand, petitioner is the purchaser of properties from defendant Nos.5 and 6 in the original suit who claims under defendant No.1. It is the petitioner, who claims to have purchased from defendants No.5 and 6. Thus the entitlement of the petitioner is nothing but that of defendants 5 and 6 who claim under defendant No.1.
4. The learned counsel Sri. Chandan, for petitioner submits that the present review petition is wide enough to cover the consideration of errors that are apparent on the face of the record. Learned counsel would further submit that, the provision of law that is directly applicable to the facts and unnoticed in the judgment is permitted to be clarified. Further, by virtue of non consideration of undivided right, title and interest of the defendants or petitioner, adjudicating the same is within the domain of review under order 47 Rule 1 CPC and review petition is perfectly maintainable.
5. Learned counsel further submits that the learned Judge in his judgment has lost the sight of the quantum of share which the petitioner’s vendors vendor was entitled and it is more or less an arithmetical error that needs to be rectified. He would further submit that D.S.Deva Shetty is the son of Shakunaiah Shetty and the said Deva Shetty had three children namely, D.D.Ramesh (Plaintiff), D.D.Keshava (2nd defendant) and D.D.Ganesh (3rd defendant). As the judgment and decree granting the partition is sought to be reviewed for rectification of the error, it is necessary to make a mention of the operative portion of the judgment passed in O.S.No.78/1978 which is as under:
“In the result, the plaintiff’s suit is dismissed, having regard to the relationship between the parties, I direct them to bear their own costs of this suit.”
Thus the suit at the first stage was dismissed.
6. The same was challenged in R.A.No.15/1989 which came to be allowed and the operative portion of the said judgment is as under:
“The appeal is allowed. The decree and judgment dated 3-1-1981 in O.S.NO.78/78 on the file of Civil Judge, Madikeri, is hereby set aside and the suit of the plaintiff/appellant is decreed, declaring that the plaintiff/appellant is entitled for 1/4th share in suit schedule properties and there shall be a Preliminary Decree accordingly.”
7. Thus, by virtue of the judgment and decree passed by the first appellate Court, the plaintiff was granted 1/4th share in the schedule properties.
8. Against which, regular second appeal was preferred by the defendants before this Court in RSA No.550/1998 and the operative portion of the judgment dated 15.4.1998 is as under:
“For the above reasons, I am convinced that there is no merit in the second appeal. Therefore, confirming the judgment and decree of the first Appellate Court, all the three second appeals are dismissed. However, I direct the final decree court to apply equity while considering the allotment of share of the first defendant to the respective purchasers at the time of allotment of the final decree.”
9. The sum and substance of the concluded proceedings is that the plaintiff is entitled for 1/4th share in the schedule properties and parties standing at par with the plaintiff are also entitled for 1/4th share. The other three persons at par with the plaintiff are:
(1) D.D.Ramesh, S/o D.S.Deva Shetty- Plaintiff (2) D.D.Keshava, 1st son of D.S.Deva Shetty- defendant No.1 (3) D.D.Ganesh, 2nd son of D.S.Deva Shetty-3rd defendant.
10. The learned counsel for petitioner would submit that, without disturbing the other aspects of the case, if the provision of law is properly accepted, it would definitely increase the share of plaintiff. The learned counsel for petitioner based his submission that the date of partition to be reckoned by virtue of death of Shakunaiah Shetty, father of the defendant- Deva Shetty during the year 1970. His submission is that, as on the date of death of Shakunaiah Shetty, the notional partition ought to have been considered, wherein the Deva Shetty and his father Shakunaiah Shetty would be entitled for half share for each of them. Half share of Shakunaiah Shetty invariably went to the shares of the defendant No.1 and his three sons in the ratio of 1/4th of ½ share each. Thus, the arithmetical calculation of the petitioner is that, petitioner herein was entitled for a share of half share plus 1/4th of the rest half when the fraction is simplified by maintaining common denominator, it would be 4/8th plus 1/8th = 5/8th for the petitioner and 3/8th would be shared by his three sons.
11. Learned counsel for petitioner has relied on the decision of the Apex Court in the case of State of Tripura and another Vs. Tripura Government Pensioner’s Association (MANU/GH/0674/2006), wherein Head Note reads as under:
Case Note:
“Civil – Maintainability – Order 47 Rule 1 of Civil Procedure Code, 1908 – Division Bench of High Court disposed of Appeal of State government in reference to concessions of Advocate General thereby extending period of payment to be made to pensioners – Hence, this Review Petition – Whether, ‘Rules 55A’ of CCS (Pension) Amendment Rule 1991 could be ignored without being dealt with or adjudicated upon and order of Division Bench was within ambit of order 47 Rule 1 of Civil Procedure Code – Held, it appeared in view of concession given by Advocate General, Court directed State Government pensioners indefinitely over and payment of 42% unpaid dearness relief – Thus, Mandamus to State Government was giving reflections as if it was continuing/indefinitely – Issuance of perpetual mandamus by Court without dealing and considering applicability of ‘Rules 55A’, in view of concession of Advocate General given under misconception of law and facts based on improper instructions of State and its functionaries forming foundation of impugned order, were relevant material and ground for consideration as ‘error apparent on fact of record – Moreover, there was concession on part of Advocate General under misconception of law, more particularly in respect of ‘Rule 55 A’ as well as on facts, which required jurisdiction to review impugned order in question – Hence, question was answered affirmatively – Review Petition allowed. Ratio Decidendi “Order of Court shall be reviewed if there is error apparent on face of record.”
To be 12. Another decision in the case of Uttam Vs.
Saubhag Singh and others (MANU/SC/0256/2016 = AIR 2016 SC 1169) wherein, at para 12, it is observed as under:
“This Court, in dealing with the proviso and explanation 1 of section 6, held that the fiction created by explanation 1 has to be given its full effect.”
13. Learned counsel Sri. G.K.V.Murthy for 2nd respondent would submit that the submissions of the learned counsel for the petitioner does not stand to the test of logical analysis.
14. The present petition is filed to incumbent the effect of judgment and decree in its letter of spirit passed by this Court in RSA No.550/1998 dated 15.04.1998 that confirms the judgment and decree passed in R.A.No. 15/1989 on 28-07-1993.
15. Learned counsel would further submit that it was a suit for partition simplicitor that is in respect of suit schedule properties and there is no ancestral nature of properties belonging to Shakunaiah Shetty and the plaintiff was entitled to 1/4th share. The above claim is not within the scope of review.
16. Learned counsel would further submit that the calculation that was never urged and was never the subject matter could not be invoked in the review proceedings.
17. He would further submit that the review proceedings cannot be stretched to cause material alterations in the share that was confirmed by this Court. Regard being had to the fact that the connected Special Leave Petition No.17922/1998 also came to be dismissed as withdrawn.
18. He would further submit that before invoking the jurisdiction of review under order 47 Rule 1 CPC, it is incumbent on the part of the petitioner to establish that error crept in and has made the difference that was legally permitted. Learned counsel would further submit that whether plaintiff or the defendants in the proceedings are estopped from contending contrary to their representation before the competent authority. This submission by the learned counsel is with reference to the declaration said to have been made by the review petitioner’s vendor’s vendor Deva Shetty before the Land Tribunal stating that he was entitled for 1/4th share and he cannot further stretch his claim to increase what himself had admitted. The matter is adjudicated and the shares are fixed and at this juncture, the petitioner cannot agitate for swelling the shares.
19. Learned counsel for first respondent submits that review cannot go in aid of a party as a substantial relief or reassessing the judgment. In this connection, the powers of the Appellate Court cannot be confused with review powers.
20. The said principle is considered and recognized by their lordships in the case of Haridas Das Vs. Usha Rani Banik (Smt) and others ((2006)4 Supreme Court Cases 78 wherein, it is observed as:
“xxx xxx xxx 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” has relied on the decision 21. The points of raising the share of defendant No.1 has become over and complete as the same was decided to be 1/4th.
22. Considering all the submissions of Learned counsel for petitioner (technically for defendant No.1), submit that the review court cannot go into the matter for reinterpretation, that too against the original finding. In this connection, this Court has reiterated the said principles in the case of Abdul Sattar and others Vs.Shan Taveerappa Dundappa and others reported in 1983(2) page 448, wherein, it is held that:
“A point which was never argued at the original hearing cannot be a ground for a review of the judgment.”
23. Further in the case of Rajesh Naik Vs. Smt.
G. Susheela and others (2013(4)KCCR SN 303), it is held as under:
Civil Procedure Code, 1908 – Order 7, Rule 6 – Karnataka Land Reforms Act, 1961- Section 48-A – Suit for partition – Land was granted jointly by the Tribunal – Plaintiff claiming ½ share, and after the death of his father during the pendency of the suit, 9/16 share in the suit schedule properties – Trial Court decreed suit with equal share to all parties-Admission made by the plaintiff before the Land Tribunal – Held, such admission was binding on the plaintiff and the admission made either in the pleading or elsewhere binds the parties to the suit. The plaintiff was held not entitled to 9/16 share in the suit schedule properties as claimed by him.”
24. Learned counsel for 4th defendant would submit that the intention of Shakunaiah Shetty was also made clear when he made a bequest as per Ex.D23. Regard being had to the fact that said Will has become nonest.
25. In order to attract the provisions of Order 47 CPC, the petitioner has to establish that there has been the discovery of important evidence or circumstances that was not agitated earlier or petitioner was prevented by sufficient cause from urging the same or due to the circumstances he could not produce the evidence that was present at the time of disposal of the matter.
26. By virtue of the mistake or error apparent or for any other sufficient reasons the adjudication of the matter is incomplete. It is an admitted fact that the present petitioner is the purchaser of suit schedule properties from defendant Nos.5 and 6 under the registered sale deeds. Earlier to which the said defendants have purchased the same from defendant No.1 – Deva Shetty under the registered sale deeds.
27. The background of the matter which requires to be mentioned is the nature of the suit. Originally D.D. Ramesh, the plaintiff was seeking partition and separate possession of the suit schedule properties claiming the entire suit properties as the joint family properties, wherein he had undivided right. The defendants in the said case are defendant No.1 - Deva Shetty, father of plaintiff, defendant No.2 - D.D. Keshava and defendant No.3 - D.D. Ganesh, sons of Deva Shetty and defendant No.4 - Parvathi mother of the defendants 2 and 3. Insofar as defendant Nos.5 and 6 are concerned, they are the purchasers of the suit properties from defendant No.1- Deva Shetty. Defendant Nos.5 and 6 were made parties to the suit by virtue of their status, as subsequent purchasers.
28. The learned trial Judge on adjudication of the matter in O.S. No.78/1978 has dismissed the same on 03.01.1981, holding that defendant No.1 Deva Shetty was absolute owner of the suit schedule properties by virtue of inheriting the same under testamentary succession from the Will marked at Ex.D23 dated 19.06.1966 executed by his father Shakunaiah Shetty.
29. The plaintiff preferred an appeal before the Court of District Judge, Madikeri in R.A. No.15/1989 which came to be allowed on 28.07.1993. Thus, the learned first Appellate Judge set aside the judgment in O.S.No.78/1978 and decreed the suit of the plaintiff declaring that plaintiff is entitled for 1/4th share in suit schedule properties and there shall be a preliminary decree. In this connection it is necessary to place on record that the first appellate Court determined the right of plaintiff at 1/4th share and rest of the family members standing at par with each other. The other parties contesting are, father of the plaintiff (defendant No.1 Deva Shetty), D.D. Keshav, D.D. Ganesh and Parvathi. Later a Civil petition was presented in Civil Petition No.876/1998 along with IA for condonation of delay that came to be rejected and that was challenged before the Hon’ble Supreme Court in SLP Nos.20032- 33/2000 which came to be allowed and CA 2992- 2993/2001 came to be registered and it came to be allowed and the petitioner was given an opportunity to agitate the matter in review petition as the CP was converted into R.P.549/2009 and it is coming up for disposal in the present proceedings.
30. Thus, each of the members is held entitled to 1/4th share. Defendant No.1 -Deva Shetty challenged the judgment and decree passed by the 1st appellate Judge before this Court in RSA No.550/1998 that came to be dismissed on 15.04.1998. Thus, insofar as the shares are concerned, the 1/4th share of the plaintiff got confirmed. The same was challenged by the petitioner before the Hon’ble Supreme Court in SLP(C)No.17922/1998, which came to be withdrawn.
31. The determination of rights and liabilities is the bone of contention between the parties. The 1st defendant- Deva Shetty had claimed the suit properties in the partition suit bearing O.S. No.78/1978 as he has got the same through testamentary succession under Ex.D23 in respect of which Codicil also made as per Ex.D24.
32. The father of 1st defendant Shakunaiah Shetty died during the year 1970. The trial Court agreed the stand of defendant No.1 and dismissed the suit. When the same is contested before the 1st appellate Court in RA No.15/1989, the said appeal came to be allowed on 28.07.1993. An appeal was preferred by Deva Shetty in RSA No.777/1993 against the judgment in RA No.15/1989.
33. In this regard, it is necessary to make a mention, that petitioner is the purchaser of item Nos.15 to 18, 20 to 23, 26,28,29,36,38,39 and 40 under the sale deeds from defendant Nos.5 and 6 as under;
Sale Deeds are dated 16.11.1988, 17.11.1988, 08.12.1988, 20.05.1989 and 08.12.1989 34. The said defendant Nos.5 and 6 are the purchasers of the suit properties from defendant No.1- Deva Shetty S/o. Shakunaiah Shetty.
35. The learned first appellate Judge has considered the said defendant Nos.5 and 6 as the bonafide purchasers who are entitled for 1/4th share in the suit properties that was granted to defendant No.1. The question of Will was alleged by defendant No.1 and it was agitated. However, the matter neither seriously contested nor adjudicated on the strength of the Will.
The 1st appellate Court recognized the suit schedule properties as joint family properties of family of Deva Shetty. In the meanwhile, it is submitted that Final Decree proceedings in pursuance of the out come of the Partition Deed is pending before the learned trial Judge in FDP No.9/2001 at Madikeri.
36. Thus, the schedule properties are already held to be one belonging to joint family and the same is not questioned, rather both the parties are not at dispute. The claim of the petitioner (the then defendant is regarding extent of entitlement).
37. The learned counsel for the petitioner had drawn my attention to Section 30 of the Hindu Succession Act 1956, which reads as under:
“Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this ”
38. It is necessary to observe that the said matter is not the one that was considered as pertaining to the testamentary succession. Thus even the petitioner argues that he is entitled for the share in accordance with Hindu joint family members, but to the extent of 1/2 + 1/4 total leading thereby 5/8th. Insofar as the nature of property is concerned the matter is finally adjudicated and it is open to the petitioner to claim benefit under the said Will.
39. It is also necessary to make a mention of proceedings before the Land Tribunal at Madikeri wherein Deva Shetty had filed Form No.11 and also sought for a declaration which could be seen at Ex.13 and Ex.P14. It is on 02.07.1977 Deva Shetty, defendant No.1 by himself gave declaration that his father Shakunaiah Shetty died on 19.09.1970 at the age of 84 years and he has two sons and stated that he is having a share along with his wife and 3 male major children in the family. Thereby he confines to 1/4th share in the total properties. Added to it, the discussion made at Para No.9 page No.17 of the certified copy of the judgment and order in RSA 550/1998 is necessary to be perused and the same is as under:
“On the other hand, the evidence of the first defendant was that his father was called Deva Shetty and Shakunayya Shetty who died on 13.09.1970 at the age of 84. Deva Shetty was his father who died in 1984. Deva Shetty had two sons by name Shakunayya and Devappa Shetty, the grand-father. His maternal grand-mother was one Deviramma. According to him, Kechayana Kenchayya died unmarried and after his death his grand-mother Deviramma succeeded to the property, thereafter his father got the property by succession. Except this, his father did not get any other property, his father was a Lawyer’s Clerk. But at the same time he said that he was doing money lending business. There was a clear admission on his part when he said that all the properties were purchased out of the joint family funds of himself and his father”
40. This Court has observed that Shakunaiah Shetty died on 19.09.1970 at the age of 84 years and his father was also called as Deva Shetty. The said Deva Shetty had two sons Shakunaiah Shetty and Deva Shetty.
42. It is stated that father of Deva Shetty was a Lawyer’s clerk and also a money lender and there was clear admission on the part of the 1st defendant that all the properties were purchased out of joint family fund of himself and his father. The nature of the suit properties being joint family properties is a concluded fact. Deva Shetty died in the year 1993 and during his life time his defence in the beginning confined only claiming suit properties as self acquired properties and nothing else. Defendant Nos.5 and 6 who purchased the properties from Deva Shetty under the sale deed 26.03.1998. The properties purchased by defendants 5 and 6 who later sold it to the present petitioner. The share of first defendant is 1/4th. The petitioner under the review petition are claiming as 5/8th (1/2+1/8) as stated above.
43. The scope does not travel beyond the domain of mistake, error apparent on the face of the record. The conditions also are stated in the said legal provision. The petitioner is claiming the relief which was literally sought but refused by the trial, the first appellate and this Court in second appeal. Thus it is a closed chapter.
43. Here, it is necessary to have cursory glance of Order 41 Rule 1 of the Code of Civil Procedure 1908, which is as under:
“1. Form of appeal.- (1) What to accompany memorandum.- Every appeal shall be preferred in the form of a memorandum signed by the appellant or his Pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the [Judgment]:
[Provided that where two or more suits have been tried together and a common judgment has been delivered therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] KARNATAKA HIGH COURT AMENDMENT [Provided that, in appeals from decrees or order under any special or local Act to which the provisions of Parts II and III of the Limitation Act (Central Act IX of 1908) do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit a memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by that court.]”
44. In the totality of circumstances, the purchaser – petitioner is claiming for 5/8th share which according to him was the entitlement of his Vendors (defendant Nos.5 and 6) who purchased the share of property from defendant No.1 – Deva Shetty. Whatever was entitled by defendant No.1 is claimed by the present petitioner. Thus the quantum of share is calculated at 5/8th share by the petitioner who is the purchaser from purchasers. Further this claim is made for the first time in the review proceedings on the ground that whatever right Deva Shetty had, defendant Nos.5 and 6 also got and whatever got by defendant Nos.5 and 6 devolved upon the petitioner and nothing more.
45. The petitioner claimed that Deva Shetty was entitled for 1/2 share in the joint family properties along with his father Shakunaiah Shetty and that is on the death of Shakunaiah Shetty. Thus remaining 1/2 share to be calculated as notional share of Shakunaiah Shetty, father of the Deva Shety in which his legal heirs would be beneficial. As such, out of rest of 1/2 share Deva Shetty and his three sons would be entitled for 1/4 and 1/2 share. Thus the equation claimed by the petitioner is 1/2 plus 1/4 of 1/2 = 4/8 + 1/18= 5/8th.
46. Deva Shetty in his declaration made before Land Tribunal as per Ex.P13 and Ex.P14 and specific admission in the context as observed by this Court in RSA No.777/1993. There was no error or mistake within the meaning of CPC nor the right that was vested in the petitioner independently. I find that the petition is made with an intention of gaining more than the legal entitlement in respect of the quantum of share.
Therefore, I do not find there is any merit in the review petition. It is liable to be dismissed with costs of Rs.25,000/-.
47. Accordingly, petition is dismissed with costs of Rs.25,000/- payable to Prime Minister’s Relief Fund within 15 days from the date of receipt of a copy of this order.
Sd/- JUDGE tsn*/Sbs