IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. JUSTICE B.V. NAGARATHNA, AND THE HON’BLE MR. JUSTICE B.VEERAPPA REVIEW PETITION No.298/2016 IN RFA No.488/2014 C/W REVIEW PETITION No.299/2016 IN RFA No.213/2014 C/W REVIEW PETITION No.300/2016 IN RFA No.212/2014 IN RP No.298/2016:
BETWEEN:
K. H. MANJUNATH S/O LATE K. HENJARAPPA, AGED ABOUT 62 YEARS, R/AT NO.134,(OLD NO.94) GROUND FLOOR, 9TH CROSS, RAILWAY PARALLEL ROAD, 1ST BLOCK,KUMARA PARK WEST, BANGALORE-560 020 ...PETITIONER (BY SRI D. R. RAVISHANKAR, ADVOCATE) AND:
1 . SRI PREMANAND, S/O LATE DODDARANGAPPA, MAJOR, R/AT NO.92/A-1, III MAIN, VYALIKAVAL, BANGALORE-560 003 2 . SMT. LOKESHWARI W/O D. P. RAMESH, AGED ABOUT 60 YEARS, R/AT NO.1002,1ST BLOCK, KADABAGERE CROSS, JANAPRIYA TOWNSHIP, MAGADI ROAD, BANGALORE-562130 3 . SRI D. P. RANGANATH S/O PREMANAND D, AGED ABOUT 55 YEARS, R/AT NO. 92/A-1, 3RD MAIN, VYALIKAVAL, BENGALURU - 560 003.
4 . D. P. INDIRA, W/O HANUMANTHARAJU, AGED 58 YEARS, R/AT NO.89,16TH MAIN, 4TH BLOCK,RAJAJINAGAR, BANGALORE-560 010 SRI SIDDARAMAIAH SINCE DEAD BY HIS LRS ALREADY ON RECORD RESPONDENTS 5 TO 7.
5. SMT. SHOBHA NATARAJAN W/0 LATE V.S.NATARAJAN AGED ABOUT 67 YEARS R/AT NO. 92/2 III MAIN, VYALIKAVAL BENGALURU – 03.
6 . SMT. POOJA NATARAJAN D/O LATE V S NATARAJAN, AGED ABOUT 54 YEARS, R/AT NO.66, C.K.M. ROAD, SANJAYANAGAR, NAGASHETTIHALLI, BANGALORE-560 004 7 . SMT. CHANDRIKA D S W/O THIPPESWAMY, AGED ABOUT 35 YEARS NO. 365, 2ND FLOOR 5TH MAIN ROAD, MANJUNATHANAGARA WEST OF CHORD ROAD RAJAJI NAGAR BENGALURU - 560 010.
8 . SMT. K. H. KATHYAYAINI AGED ABOUT 72 YEARS W/O SRI. D.G. RAMAKRISHNA NO.95, (OLD NO. 30-A) 1ST FLOOR, 9TH CROSS, RAILWAY PARALLEL ROAD KUMARA PARK WEST, BENGALURU - 560 020.
9. SMT. K. H. VIJAYABHARATHI AGED ABOUT 64 YEARS W/O SRI. S.JAYANNA NO. 94/1, 9TH CROSS, RAILWAY PARALLEL ROAD, KUMARA PARK WEST, BENGALURU –560020.
…RESPONDENTS **** THIS REVIEW PETITION IS FILED UNDER ORDER XLVII RULE 1 OF THE CPC READ WITH ARTICLE 215 OF THE CONSTITUTION OF INDIA PRAYING TO REVIEW THE ORDER DATED 16.03.2016 PASSED IN RFA No.488/2014 ON THE FILE OF THIS COURT.
IN RP NO.299/2016:
BETWEEN :
DR. MANJUNATH, S/O LATE K.HANJERAPPA, AGED ABOUT 65 YEARS R/AT NO.134 (OLD NO.94) GROUND FLOOR, 9TH CROSS, RAILWAY PARALLEL ROAD, 1ST BLOCK, KUMARAPARK WEST, BANGALORE-560020.
...PETITIONER (BY SRI D.R.RAVISHANKAR, ADV.) AND :
1. SMT.LOKESHWARI, W/O D.P.RAMESH, AGED ABOUT 60 YEARS, R/AT NO.1002, 1ST BLOCK, KADABAGERE CROSS, JANAPRIYA APARTMENT TOWNSHIP, MAGADI ROAD, BANGALORE-562130.
2. SRI D.P.RANGANATH S/O PREMANAND D., AGED ABOUT 55 YEARS R/AT NO.92/A-1, 3RD MAIN, VYALIKAVAL, BANGALORE-560003 3. D.P.INDIRA W/O HANUMANTHARAJU AGE ABOUT 57 YEARS, NO.89, 16TH MAIN, 4TH BLOCK, RAJAJINAGAR, BANGALORE-560001.
SRI D.SIDDARAMAIAH, SINCE DEAD BY HIS LRS ALREADY ON RECORD AS RESPONDENTS 4 TO 7.
4. SMT.SHOBA NATARAJAN W/O LATE SRI V.S.NATARAJAN AGED ABOUT 69 YEARS R/AT NO.92/2, 3RD MAIN, VYALIKAVAL, BANGALORE-560003 5. SMT.POOJA NATARAJAN D/O LATE SRI V.S.NATARAJAN, AGED ABOUT 44 YEARS, No.66, C.K.M. ROAD, SANJAY NAGARA, NAGASHETTIHALLI, BANGALORE-04.
6. SRI CHETHAS NATARAJAN S/O LATE SRI V.S.NATARAJAN AGED ABOUT 39 YEARS, No.66, C.K.M. ROAD, SANJAY NAGARA, NAGASHETTIHALLI, BANGALORE-94.
7. SMT.CHANDRIKA, W/O SRI THIPPESWAMY, AGED ABOUT 52 YEARS, No.365, 2ND FLOOR, 5TH MAIN ROAD, MANJUNATHANAGARA, WEST OF CHORD ROAD, RAJAJINAGAR, BANGALORE-10.
8. SMT.K.H.KATHYAYANI AGED ABOUT 72 YEARS W/O SRI D.G.RAMAKRISHNA NO.95 (OLD No.30-A), 9TH CROSS, RAILWAY PARALLEL ROAD, KUMARA PARK WEST, BANGALORE-560020.
9. SMT.K.H.VIJAYA BHARATHI AGED ABOUT 67 YEARS W/O SRI S.JAYANNA, NO.94/1, 9TH CROSS, RAILWAY PARALLEL ROAD, KUMARA PARK WEST, BANGALORE-560020 …RESPONDENTS ***** THIS REVIEW PETITION IS FILED UNDER ORDER XLVII RULE 1 OF THE CPC READ WITH ARTICLE 215 OF THE CONSTITUTION OF INDIA PRAYING TO REVIEW THE ORDER DATED 16.03.2016 PASSED IN RFA No.213/2014 ON THE FILE OF THIS COURT.
In RP No.300/2016 BETWEEN :
K.H.MANJUNATH, S/O LATE K.HANJERAPPA, AGED ABOUT 62 YEARS R/AT NO.134 (OLD NO.94) GROUND FLOOR, 9TH CROSS, RAILWAY PARALLEL ROAD, 1ST BLOCK, KUMARAPARK WEST, BANGALORE-560020.
...PETITIONER (BY SRI D.R.RAVISHANKAR, ADVOCATE) AND :
1. SRI D.P.RAGHUNATH, S/O PREMANAND D., AGED ABOUT 63 YEARS R/AT NO.92/A-1, III MAIN, VYALIKAVAL, BANGALORE-560003 2. D.P.INDIRA W/O HANUMANTHARAJU AGE 58 YEARS, NO.89, 16TH MAIN, 4TH BLOCK, RAJAJINAGAR, BANGALORE-560001 SRI D.P.RAMESH SINCE DECEASED REP BY RESPONDENT NO.9 3. SMT.K.H.KATHYAYINI AGED ABOUT 72 YEARS W/O SRI D.G.RAMAKRISHNA NO.95, (OLD NO.30-A),1ST FLOOR, 9TH CROSS, RAILWAY PARALLEL ROAD, KUMARA PARK WEST, BANGALORE-560020 4. SMT.K.H.VIJAYA BHARATHI AGED ABOUT 64 YEARS W/O SRI S.JAYANNA, NO.94/1, 9TH CROSS, RAILWAY PARALLEL ROAD, KUMARA PARK WEST, BANGALORE-560020.
5. SMT.SHOBHA NATARAJAN W/O LATE V.S.NATARAJAN, AGED ABOUT 67 YEARS R/AT NO.92/2, III MAIN, VYALIKAVAL, BANGALORE-560003 6. SMT.POOJA NATARAJAN, D/O LATE V.S.NATARAJAN AGED ABOUT 54 YEARS, NO.66, C.K.M. ROAD, SANJAY NAGARA, NAGASHETTIHALLI, BANGALORE-560094.
7. SRI CHETHAS NATARAJAN S/O LATE V.S.NATARAJAN AGED ABOUT 24 YEARS, R/AT NO.66, C.K.M. ROAD, SANJAY NAGARA, NAGASHETTIHALLI, BANGALORE-560094 8. SMT.CHANDRIKA V.S., W/O SRI THIPPESWAMY AGED ABOUT 35 YEARS, NO.365, 2ND FLOOR, 5TH MAIN ROAD, MANJUNATHANAGARA, WEST OF CHORD ROAD, RAJAJINAGAR, BANGALORE-560010 9. SMT.LOKEHSWARI, W/O D.P.RAMESH, AGED ABOUT 60 YEARS, R/AT NO.1002, 1ST BLOCK, JANAPRIYA APARTMENT TOWNSHIP, KADABAGERE CROSS, MAGADI ROAD, BANGALORE-562130. …. RESPONDENTS THIS REVIEW PETITION IS FILED UNDER ORDER XLVII RULE 1 OF THE CPC READ WITH ARTICLE 215 OF THE CONSTITUTION OF INDIA PRAYING TO REVIEW THE ORDER DATED 16.03.2016 PASSED IN RFA No.212/2014 ON THE FILE OF THIS COURT.
CAUSE TITLE TYPED AS IN THE MEMORANDUM OF REVIEW PETITIONS.
THESE REVIEW PETITIONS COMING UP FOR ORDERS THIS DAY, B. VEERAPPA .J., MADE THE FOLLOWING.
O R D E R These Review Petitions are filed by the common petitioner to review the Judgment & Decree dated 16.3.2016 made in RFA No.212/2014 c/w RFA Nos.213/2014 & 488/2014.
2. Since there is a delay of 73 days, the petitioner has filed I.A. No.1/2017 for condonation of delay in each of these Review Petitions.
3. We have heard the learned counsel for the petitioner on merits alongwith I.A. No.1/2017 for condonation of delay filed in each of these Review Petitions.
4. The subject matter of all these Review Petitions is an immovable property bearing present Corporation No.134 consisting of ground floor portion and first floor portion situated on 9th Cross, Railway Parallel Road, First Block, Kumara Park West, Bangalore-560 020, which is more particularly described in the schedule to the plaint in the suits.
5. The present petitioner filed O.S. No.7635/1998 for declaration and injunction and O.S. No.5472/1995 for partition in respect of the suit schedule property. The defendants in the above suits (K.H. Vishalamma - since deceased by her L.Rs. and others) filed O.S. No.820/2000 against the present petitioner for the relief of declaration to declare them as the absolute owners of the suit schedule property. The trial Court considering the entire material on record by its common Judgment and Decrees dated 21.12.2013 decreed O.S. No.820/2000 in part and declared that the plaintiffs therein are the owners of the suit schedule property and dismissed O.S. Nos.5472/1995 and 7635/1998 filed by the present petitioner. Being aggrieved by the said Judgment and Decrees, the present petitioner filed RFA Nos.212/2014, 213/2014 and 488/2014 before this Court. This Court after hearing the learned counsel for the parties at length, by the common Judgment & Decree dated 16.3.2016 dismissed all the appeals and confirmed the Judgment & Decree dated 21.12.2013 passed by the trial Court.
6. The petitioner has filed the present Review Petitions mainly on the ground that the suits were based on the Will – Ex.D39 dated 7.10.1980 of Mr. Nagabhushan who executed the said Will when he was suffering from mental disorder from the year 1975 onwards and the treatment taken by him between the years 1977 to 1979 discloses that he had been admitted to NIMHANS hospital as an in- patient and had also been administered with electro- convulsion therapy and various antidepressants and other psychiatric drugs, which clearly indicates that he was suffering from Paranoid Schizophrenia, which was an incurable mental disorder. It is contended that the execution of the Will itself was very suspicious and there are discrepancies in the evidences of DWs.3 and 4 who had given evidence with regard to execution of the Will. It is further contended that the scribe of the Will – Ex.D39 had filed O.S. No.10398/1985 for appointment of guardian in respect of executant of the Will viz., Nagabhushan on the ground that when the Will was executed, the executant was mentally unsound etc., Therefore, there is an error apparent on the face of the record in the findings recorded by the trial Court and this Court and therefore the petitioner seeks for review of the Judgment and Decrees dated 16.3.2016 passed by this Court in the appeals.
7. We have given our anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record carefully.
8. The grounds urged by the petitioner in these Review Petitions were urged in the memorandum of appeal and considered by this Court at paragraphs 24, 30, 31 and 33 of the Judgment, which read as under:
“24. The learned counsel for the appellant assailing the impugned judgment and decree passed by the trial Court contended that the evidence on record clearly establishes that the deceased Sri Nagabhushana was suffering from Schizophrenia. He was not in a sound state of mind. Therefore, the Will executed by him on 7.10.1980 is vitiated. The evidence of the two attesting witnesses to the said Will is quite contradictory. They have pleaded ignorance of material aspects and in fact they were the first to attest the document and thereafter the testator has affixed the signature, is their evidence. Therefore, the requirement of Section 63 of the Indian Succession Act is not satisfied and, therefore, he contends the finding of the trial Court that the Will dated 7.10.1980 is proved is liable to be set aside. Once that Will is excluded from consideration, Sri K.H.Nagabhushana died issueless and intestate. His father was the Class II heir who succeeded to the said estate. He in turn has executed a registered Will dated 29.1.1988 bequeathing the entire property in favour of Dr.Manjunath and therefore Dr. Manjunath is entitled to a decree for declaration of title and is entitled to possession of the schedule property.
30. Now, the title to the property revolves around the due execution of the Will dated 7.10.1980 by K.H.Nagabhushana in favour of the defendants, i.e. sisters. The Will is assailed on several grounds. The first major ground on which it is assailed is the testator K.H.Nagabhushana was not in a second state of mind at the time of execution of the Will. He was suffering from Schizophrenia and, therefore, the Will is not proved. In order to substantiate his contention, plaintiff has produced inland letters, post cards, written by Nagabhushana to his father. Reliance is also placed on the certificate dated 30.5.1985 issued by Nimhans. Reliance is also placed on medical records. It is on the basis of the said documentary evidence it is contended that he was suffering from Schizophrenia, depression, illusion and hallucination which affected his thinking capacity, as such he was not in a sound state of mind to execute the Will. The documents by way of medical records ranges from 1975 till 1986. The fact that he was suffering from these mental illness cannot be disputed. The question is, what is the nature of the disease, what is the extent it had affected the ability to think, whether he was taking any treatment, whether there was any improvement, what was the mental condition on the day he executed the Will.
31. The records disclose that, Nagabhushana was studying in Engineering course. He was a Cricketer. He represented Karnataka State in Ranaji Trophy matches. Some how his father was not happy with his cricket. Notwithstanding his spectacular performance in the cricket field, he was very much afraid of his father. The publications on which plaintiff relies to show he was suffering from Schizophrenia, K.H.Nagabhushana was pleading with the press not to publish his performance in the paper, lest his father became aware of it and he would be in deep trouble. Probably it is this which might had a serious effect on the mental faculties of the said Nagabhushana. Ex.P71 is dated 11.9.1976 when probably for the first time Nagabhushana was admitted to the National Institute of Mental Health and Neuro Sciences, Bangalore. The brief history as set out in the records shows he was very much interested in cricket, however he was forced to write B.E. Final examination, he was be able to pass only 5 to 6 subjects and father was pressurizing him in the studies. He also had some sexual problems. Exs. P70 to 87 are for the period 1975-76. Ex. P89 shows on 30.4.1979 he was admitted to the hospital. He was an inpatient. On 17.5.1979 his father as per Ex.P90 requested the authorities to discharge Sri Nagabhushana and he undertook he will be responsible for his care and safety and accordingly he was discharged as per Ex. P88. Ex.P88 dated 3.10.1980 also discloses Nagabhushana went to the Mental Hospital for a follow up. On that day he wanted the doctors to certify that he is mentally sound. He was told by the doctors that it is unnecessary and the Will executed by him would be valid because his judgment is Ok. It is also mentioned in the said record, his problem was he was depressed because of impotency, lack of motivation and vague uneasiness. Even the subsequent medical records produced are for the period subsequent to 1981 onwards up to 1986. Now, the point for consideration before us is, on the day he executed the Will, i.e., 7.10.1980 what was his mental status. Was he in a position to execute the Will and make a bequest.
33. In categorical terms in para 1 of the Will he states that, on the day he was making the Will he is in perfect and clear state of mind. On his own volition, independent will and self decision, without being influenced by anybody, he is making the Will. For this assertion the basis is what the doctor told him on 3.10.1980. Even in the Will he has referred to the partition deed dated 9.6.1971 under which he got the schedule property. Thereafter, he proceeded to set out the names of his sisters, four in number and declares that he is bequeathing the said property in favour of his four sisters. Not only he has given their names but also their addresses. He further states each of the sisters will get 1/4th share in the schedule property. He makes it clear if any one of them were to die before or after him, their children shall succeed to the share. He is conscious that the Will will come into effect only after his death and therefore, he declares on his death his father were to survive as he was aged about 80 years and was residing in the schedule property, his sisters will have to wait till his father dies for custody and enjoyment of the schedule property, though they will get immediate title after his death.”
9. It is not in dispute that the trial Court in its Judgment recorded a finding that the present petitioner, who is the plaintiff in O.S. No.5472/1995 had failed to prove that the Will dated 7.10.1980 executed by Nagabushan is not valid. The trial Court also recorded a finding that the present petitioner, who is the plaintiff in O.S. No.7635/1998 had failed to prove that the defendants therein (K.H. Vishalamma – since deceased by her L.Rs. and others) had not acquired right over the suit schedule property under the Will dated 7.10.1980 and also he failed to prove that his father executed a Will dated 29.1.1988 bequeathing the suit schedule property in his favour. The trial Court further recorded a finding that the plaintiffs in O.S. No.820/2000 (K.H. Vishalamma – since deceased by her L.Rs., and others) have proved due execution of the Will dated 7.10.1980 by late Mr. Nagabhushana and they have acquired title to the suit schedule property under the said Will and they are entitled to possession of the suit schedule property. Based on the oral and documentary evidence, the trial Court dismissed O.S. Nos.5472/1995 and 7635/1998 filed by the present petitioner and decreed O.S. No.820/2000 in part and declared the plaintiffs therein (K.H. Vishalamma – since deceased by her L.Rs., and others) as absolute owners of the plaint schedule property and granted Permanent Injunction against the present petitioner.
10. Being aggrieved, the petitioner filed appeals before this Court challenging the Judgment & Decrees passed by the trial Court. This Court based on the oral and documentary evidence on record, framed two points for consideration in paragraph-26 of the judgment, which read as under:
“26. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration are as under : -
(1) Whether the finding of the Court below that K.H.Nagabhushana executed the Will in respect of the schedule property bequeathing the same in favour of his sisters with life interest to his father under the Will dated 7.10.1980, requires interference?
(2) Whether the Will dated 29.1.1988 said to have been executed by Henjarappa in favour of Dr.Manjunath is proved?”
11. A coordinate Bench of this Court observed in the judgment that the executant, in categorical terms stated in paragraph-1 of the Will that on the day he was making the Will, he was in perfect and clear state of mind and on his own volition, independent will and self decision, without being influenced by anybody was making the will. For this assertion, the basis is what the doctor told him on 3.10.1980. Even in the Will, he has referred to the partition deed dated 9.6.1971 under which he got the schedule property. Thereafter, he proceeded to set out the names of his sisters, four in number and declared that he was bequeathing the said property in favour of his four sisters. Not only, he has given their names but also their addresses. He has further stated that each of the sisters will get one- fourth share in the schedule property. Ultimately, this Court dismissed all the appeals and confirmed the Judgment & Decrees passed by the trial Court.
12. Both the trial Court as well as this Court considering the oral and documentary evidence, has recorded a finding that the plaintiffs in O.S. No.820/2000 viz., K.H. Vishalamma – since deceased by her L.Rs., and others, have proved that Will dated 7.10.1980 was executed by K.H. Nagabhushana in his own handwriting when he was in a sound state of mind and dismissed the suits filed by the present petitioner in O.S. Nos.5472/1995 and 7635/1998.
13. It is well settled that the first and foremost requirement while entertaining a review petition is that the order, review of which is sought, suffers from an error apparent on the face of the record and permitting such an order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and has to be detected by the process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review. Re- agitating the points already decided is impermissible in review proceedings. An error contemplated under Order XLVII Rule 1 of Code of Civil Procedure, 1908, for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one, which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie.
14. It is also well settled that the power of review can be exercised for the correction of a mistake and not to substitute a view. Such powers should be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. The error contemplated under Order – XLVII Rule 1 of the Code of Civil Procedure must be such which is apparent on the face of the record and not an error which has to be searched. It must be an error of inadvertence. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of the Code of Civil Procedure. In these Review Petitions, the petitioner is trying to re-argue and re-agitate the matter, which is impermissible in law.
15. The Hon’ble Supreme Court while considering the scope and ambit of the provisions of Order XLVII Rule 1 of the Code of Civil Procedure, 1908, in the case of Kamlesh Varma Vs. Mayawati & Others reported in AIR 2013 SC 3301 has held at paragraph 15 as under:
“15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.”
16. For the reasons stated above, we do not find any error apparent on the face of the record to review the Judgment & Decrees dated 16.3.2016 made in RFA Nos.212/2014 c/w 213/2014 and 488/2014, by which this Court confirmed the Judgment & Decrees dated 21.12.2013 passed by the trial Court.
17. Accordingly, the Review Petitions are dismissed as being devoid of any merit.
In view of dismissal of the Review Petitions on merits, I.A. No.1/2017 for condonation of delay does not survive for consideration and accordingly, I.A. No.1/2017 stands dismissed in each of these Review Petitions.
Sd/- JUDGE Sd/-
Gss/- JUDGE