IMPORTANT POINTS
(1) Revision – Where an appealable decree has been passed in a suit, no revision should be entertained under Section 115 of CPC against an order rejecting on merits a review of that decree.
(2) Exercise of revisional powers cannot be claimed as of right – It is a discretionary power.

JUDGMENT :

MANOJ MISRA, J.

1. Leave granted.

2. This is defendants’ appeal against the order of the Madurai Bench of Madras High Court (in short ‘the High Court’) dated 12.09.2017, passed in C.R.P. (NPD) (MD) No. 1342 of 2007, by which the revision of the plaintiff-respondent was allowed, the order dated 20.12.2006 passed by the court of First Additional Sub Court, Tirunelveli in I.A. No. 207 of 2001 in O.S. No. 276 of 1992 was set aside, I.A. No. 207 of 2001 was allowed and the decree dated 21.11.1996 passed in O.S. No. 276 of 1992 was modified.

Factual Matrix

3. The respondent instituted an Original Suit (in short “O.S.”) No. 276 of 1992 for declaring her as the exclusive owner of the property described in the second schedule of the plaint. Additionally, possession of the said property was sought. In the alternative, it was prayed that, if the court concludes that she is not the exclusive owner of the property, her share therein be declared one-sixth and the same be partitioned accordingly.

4. The plaint case is that the suit property was of plaintiff’s grandmother Fathima Beevi, which the plaintiff purchased from her vide sale-deed dated 14.11.1990; the first defendant (i.e. the appellant no. 1) is the daughter-in-law of Fathima Beevi whereas defendant nos. 2 to 6 are her children; taking advantage of staying with Fathima Beevi, the husband of the first defendant, namely, Khaja Mohideen, got a gift-deed executed in his favour from Fathima Beevi on 24.04.1982; the said gift-deed was obtained by exercising undue influence and coercion and was never acted upon and is therefore a nullity. In the alternative, it was pleaded that, if the gift-deed is accepted, since the husband of the first defendant died on 31.05.1988 (i.e. before the death of his mother Fathima Beevi), Fathima Beevi had one-sixth share in the property which would come to the plaintiff under the sale-deed dated 14.11.1990.

5. The appellants, who were defendants in the suit, contested the suit on various grounds. On the pleadings of the parties, inter-alia, following issues came up for consideration:

(i) Whether the plaintiff is entitled to ownership and possession of the entire second schedule property or only a one-sixth share therein?

(ii) Whether the gift-deed, dated 24.04.1982, was fraudulently obtained from Fathima Beevi and never acted upon?

(iii) Whether the sale-deed dated 14.11.1990, executed by Fathima Beevi in favour of plaintiff, valid?

(iv) Whether the property described in the second schedule belonged to Fathima Beevi on the basis of a Hiba executed by her father?

6. The trial court held that the property concerned was gifted to Fathima Beevi by her father; the gift-deed dated 24.04.1982 executed by Fathima Beevi in favour of Kaja Mohideen (first defendant’s husband) is invalid; the sale-deed dated 14.11.1990 in favour of the plaintiff is valid and that the plaintiff is entitled to one-sixth share in the second schedule property. In terms thereof, the suit was decreed for one-sixth share in the suit property.

7. As the trial court found the gift-deed dated 24.04.1982 invalid and sale-deed dated 14.11.1990 valid, the plaintiff filed a review application (I.A. No. 207 of 2001), inter-alia, claiming that the suit ought to have been decreed in its entirety and not for mere one-sixth share. This review application was rejected on merits by the trial court vide order dated 20.12.2006.

8. Aggrieved by rejection of the review application, the plaintiff (i.e. the respondent herein) filed civil revision before the High Court under Section 115 of the Code of Civil Procedure, 1908 (in short ‘the CPC’).

9. The High Court entertained the revision and, by the impugned judgment and order dated 12.09.2017, allowed it. The High Court not only set aside the order of the trial court rejecting I.A. No. 207 of 2001 but it also allowed the review application and modified the decree dated 21.11.1996 in terms prayed for in the review application. In consequence, the decree of the tri