MALLEESWARI v. K. SUGUNA & ANR.
2025 INSC 1080
Decided on: 08-09-2025
Bench: Ahsanuddin Amanullah, J. and S.V.N. Bhatti, J.
Catchwords:
Civil Procedure Code, 1908 — S.114 & O.47 R.1 — Scope of Review — distinction between appellate power and review power — Review jurisdiction confined to correction of error apparent on face of record; cannot re-hear matter or substitute new view.
— Partition Suit / Hindu Succession Act, 1956 (as amended in 2005) — Daughter’s coparcenary right — Amendment of preliminary decree to include omitted coparcener permissible where law so mandates — Vineeta Sharma v. Rakesh Sharma applied.
— Transfer pendente lite (lis pendens) — Pendente lite transferee bound by rights of parties to the litigation; transferee’s rights subordinate to coparcenary rights.
Held:
Review ≠ Appeal — Review jurisdiction is confined to grounds under O.47 R.1 CPC: (i) discovery of new and important matter/evidence despite due diligence; (ii) mistake or error apparent on face of record; (iii) any other sufficient reason analogous to these. [(Meera Bhanja v. Nirmala Kumari), (Parsion Devi v. Sumitri Devi), (Lily Thomas v. Union of India) reaffirmed].
Review court cannot re-hear or substitute findings as if exercising appellate jurisdiction.
Error requiring long reasoning or where two views possible is not an error apparent.
High Court exceeded review jurisdiction — By reappreciating evidence, reopening the nature of property, and enlarging scope of transferee’s defences, the High Court acted as if sitting in appeal over its own CRP order. This was impermissible.
Coparcenary rights of daughter — Under HSA (Tamil Nadu Amendment Act, 1989) and HSA (Amendment) Act, 2005, daughter is coparcener by birth. Preliminary decree in partition suit can be amended to include her share.
Pendente lite transferee — Purchaser during pendency of partition suit cannot claim higher rights than transferor. Transferee’s title is subject to decree in partition.
Result:
High Court’s review order dated 19.10.2024 set aside.
High Court’s CRP order dated 23.09.2022 (allowing amendment of preliminary decree in favour of appellant-daughter) restored.
Civil Appeal allowed. No costs.
Trial Court directed to dispose pending applications expeditiously within 3 months.
2025 INSC 1080
1
REPORTABLE
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)
J U D G M E N T
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)
Malleeswari
(Appellant/daughter)
Rajalakshmi
(petitioner's
daughter)
Subramani - 1st
plaintiff (Son)
Aruna (2nd
plaintiff) (wife of
1st plaintiff)
2
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
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(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.
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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
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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.
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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 was whether the Appellantdaughter’s right to claim a share as a coparcener following the HSA 2005.
The issue centred on whether the CRP
order unfairly denied the Respondent,
pendente lite-transferee, the right to
defend her title against the Appellant’s
claim.
The court accepted her claim, stating
that she was entitled to a 1/3rd share in
ancestral properties based on Vineeta
Sharma v. Rakesh Sharma.
1
Acknowledged the claim but renamed it
as a third-party claim. This was done in
relation to the original suit structure,
which warranted a fresh inquiry at the
trial court level.
As a pendente lite transferee, Suguna
could not have challenged the ancestral
nature of the properties. She would have
had to settle for whatever share her
vendor (the Appellant’s father) was
allotted. Her rights were subordinate to
the co-parceners’ shares and flows from
the vendor.
The finding of the CRP would prevent
Suguna from defending her title. Review
order affirms her right to raise possible
defences in Trial. These defences may
include challenging the ancestral nature
of the property.
The plea that the properties were not
ancestral is not a defence available to
the Respondent-pendente lite. The
Property is treated on the admission
made by the original plaintiff.
The Review order notes that the
ancestral nature of the property, while
asserted by the plaintiff, was not
contested by the defendant (deceased
father). It held that an uncontested
1 (2020) 9 SCC 1.
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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
Appellant’s 1/3rd share would diminish
Respondent’s interest in the properties
she purchased to the 1/3rd share
belonging to her vendor, the deceased
father.
Held that the Appellant’s claim directly
challenges the minimum interest
Respondent had acquired. Moreover, the
review order allows the Respondent to
adjust equities.
CRP was allowed. The Trial Court order
dismissing the Appellant’s application
was set aside. The Appellant was
permitted to pay the required court fee
for her 1/3rd share.
The Review Application was allowed. The
CRP order was set aside. The entire
matter was remanded to the trial court
for a fresh enquiry, allowing the
Respondent to raise all contentions to
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
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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.
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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.
10
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.