ORDER
A.C. Kabbin, J.
1. Both the appeals RFANos. 286/2001 and 386/2001 have been dismissed by judgment dated 10-7-2006. This petition has been filed to review the said judgment on the ground that the said decision has been given in ignorance of binding law laid down by the Supreme Court in the case of Commissioner of Wealth-tax, Kanpur v. Chander Sen : [1986]161ITR370(SC) .
2. The appeals arose out of a common judgment dated 18-1-2001 passed by the learned XXIV Additional City Civil Judge (CCH-6), Bangalore, in O.S. Nos. 3470/1988 and 3491/1988. The suit O.S. No. 3470/1988 was for a declaration that the suit property i.e., 10 guntas of land in Sy. No. 84/3 A of Cholanayakanahally village, Bangalore North Taluk, was a joint family property in which the plaintiffs had right as co-parceners; and the sale deeds executed in favour of the defendant Nos. 2 to 5 for the sale of different sites therein were not binding on their shares. The plaintiffs prayed also for consequent permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit property. The said suit was decreed as regards declaration sought and decree was granted in favour of the plaintiffs holding that sales in favour of the defendant Nos. 2 to 5 were not binding on the shares of the plaintiffs. However permanent injunction as prayed for was not granted in view of the proved possession of the property by the defendant Nos. 2 to 5.
3. Challenging the declaration granted against them, the defendant Nos. 2 to 5 preferred RFA No. 386/2001. The defendant No. 5 of that suit who was purchaser of site No. 8 out of 10 guntas of Sy. No. 84/ 3A had filed O.S. No. 3491/1988 claiming that he was in lawful possession of site No. 8 in ten guntas of Sy. No. 84/3a and that the plaintiffsin O.S. No. 3470/1988 be restrained from disturbing his possession. In view of the finding by the Trial Court that the defendant No. 5 was in possession of that property and was entitled to injunction, that was granted until the plaintiffs in O.S. No. 3470/1988 dispossessed him by taking recourse to law. Challenging that judgment, RFANo. 286/ 2001 had been filed.
4. The main contention urged by the appellants in RFA No. 386/ 2001 (the plaintiffs in O.S. 3470/1998) was that in the settlement made by the propositus Dasappa (father of the defendant No. 1) while settling the properties between the members of the family he had retained thirty one guntas of Sy. No. 84/34 (suit property is a part of that extent of thirty one guntas), which on his death came to the defendant No. 1 and his brothers and therefore the defendant No. 1 and his brothers held that property as tenants in common and not as joint tenants. In the subsequent partition that property was allotted to the defendant No.). It was contended that therefore the defendant Nos. 2 to 5 had no right therein as coparceners. Negativing that contention, this Court observed that merely because the right of the defendant No. 1 is in furtherance of the partition, his earlier right, as class one heir of Dasappa does not change the nature of the property as coparcenery property.
5. The review petition seeks to review of that judgment on the ground that this view taken by the Court is in ignorance of the decision of the Supreme Court in the above mentioned decision of the Commissioner of Wealth-tax, Kanpur v. Chander Sen (Supra) which held that the settled principle of Hindu law that the son would inherit the property of his father as kartha of his own family is amended by Section 8 of the Succession Act and such property devolving on the son has to be regarded as the son's individual property and therefore son's sons will have no right in the said property by birth. The question that would arise is whether the view taken by this Court in judgment dated 10-7-2006 can be regarded as an error apparent on record in view of the above principle of law, necessitating review of the judgment of this Court.
6. Sri GS. Visweswara, learned Senior Counsel for the appellants in RFA No. 386/2001 submits that the judgment of this Court given in ignorance of a binding decision of the Supreme Court is an error apparent on record and that such judgment can be reviewed. In this regard he has placed reliance on certain decisions:
a) In the first decision in Tungabhadra Industries Limited v. The Government of Andhra Pradesh : [1964]5SCR174 representedby the Deputy Commissioner of Commercial taxes, Anantapur it is observed as under:
There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.b) In the second decision in the Selection Committee for admission to Medical and Dental College v. M.R. Nagaraj 1971 (2) Mysore Law Journal 325 on the question whether overlooking a binding decision can be a ground for review, the observationis as under:
Overlooking a binding decision of the Supreme Court constitutes a ground for review of order or judgment of a Court.
Where without any elaborate argument one could point to the error and say, here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of an error apparent on the face of the record would be made out. In view of the Article 141 of the Constitution, where there is a decision of the Supreme Court bearing on a point and where the Court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error. Where there is error apparent on the face of the record, the question as to how the error occurred is of no relevance for the purpose of review and it is immaterial whether such error occurred by reason of the Counsel's mistake or had crept in by reason of oversight on the part of the Court.
c) Similar view was taken by this Court in State of Mysore v. Karibasaviah 1974 (2) Karnataka Law Journal Short Notes of cases No. 205.
d) In the fourth decision, i.e., Mt. Jamna Kuer v. Lal Bahadur and Ors. AIR (37) 1950 Federal Court 131 it was held that where there is an error apparent on the face of the record, whether the error occurred on the reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstances which can affect the exercise of jurisdiction of the Court to review its decisiion.
e) In Tinkari Sen and Ors. v. Dulal Chandra Das and Ors. : AIR1967Cal518 it was observed that where a Judge is convincedthat he has fallen in error apparent on the face of record, he can certainly review his erroneous judgment suo moto.
7. Sri Padmanabha V. Mahale, learned senior counsel for the other side has placed reliance on the principles in Parsion Devi and Ors. v. Sumitri Devi and Ors. which observes that review proceedings are to be strictly confined to ambit and scope of Order 47, Rule 1, and it cannot be an appeal in disguise. He also places reliance on the following principles laid down in Dokka Samuel v. Dr. Jacob Lazarus Chelly.
Review by High Court reversing its earlier order-Held omission to cite an authority of law is not a ground for reviewing the prior judgment saying that there is an error apparent on the face of the record since counsel committed an error in not mentioning relevant precedents- as respondent having admitted document as a sale deed, High Court wrongly reversed decision of Appellate Court holding transaction to be a real sale-Approach of reviewing judge is not correct in law.
8. I have carefully considered the principles of law in all these decisions. As observed by the Supreme Court in the case of M/s Tungabhadra referred to above, the decision on the question of review is dependent on the question whether the decision of this Court was only an erroneous decision or there is an error apparent on record, which if taken into consideration would change the course of the judgment.
9. The decision in the appeal was mainly dependent on the question as to whether the appellants in RFA No. 386/2001 (referred as the plaintiffs hence forth for the sake of convenience) has a share in the suit property having acquired that interest by birth in the family governed by Mitakshara Hindu Law. To appreciate the fact, it is necessary to reproduce the contentions taken by the plaintiffs in the plaint, i.e., O.S. No. 3470/1988:
Dasappa had acquired houses and landed property during his life time out of his self earnings and the suit schedule property which is morefully described in the schedule Annexed to the plaint is one of them. It is part of Sy. No. 84/3 (Eighty four/three) of Cholanayakanahally Village. The said land was purchased by Dasappa from its previous owner Anuraj under a Registered Sale Deed about the year 1956-57. (NineteenHundred Fifty six-fifty seven)
During the year 1962 (Nineteen hundred sixty two) the said Dasappa executed a Registered Deed styled as Vyavasta Patra (Settlement Deed) under which he settled his properties in 3 lots (Schedule 'A', 'B' and 'C') in order to allay the future disputes between his wife and children. The properties mentioned in Schedule 'A' of the said settlement deed were settled on the first wife and her children and grand children and the properties mentioned in Schedule 'B' were settled on his second wife Papamma and her children and her grand childen. The properties mentioned in Scheduled 'C' were retained by him.
x x x x x x x x x xx x x x x x x x x x xDasappa had retained 31 (thirty one) guntas of area in Sy No. 84/3 (eight four/ three) and some other properties for himself as described in Schedule 'C' under the settlement dated of 1962. After his death, first defendant, his elder brother Muniyappa and his younger brother Krishnappa and their Mother Narasamma effected a mutual division of the said properties between themselves, in which first defendant got 10 (Ten) guntas area out of Sy. No. 84/3 which is clear from the Record of Rights of Sy. No. 84/3A. So, the said 10(Ten) guntas area out of Sy. No. 84/3Abecame the ancestral property of the plaintiffs and first defendant under Hindu Law. Plaintiffs and Defendant No. 1 constitute Joint Hindu Family governed by Mitakshare Law. So first defendant alone had no right, title or interest to deal with the said property in any manner, derogatory to the interests of the plaintiffs. The Plaintiffs are in possession and enjoyment of the said property even till today. It is vacant land.
10. This Court considering the plea held that merely because the right of the defendant No. 1 is in furtherance of the partition, his earlier right as class one heir of Dasappa does not change the nature and consequently declined to accept the contention of the defendant Nos. 2 to 5 who were the appellants in RFA No. 386/2001.
11. In Commissioner of Wealth-tax, Kanpur v. Chander Sen (Supra) the Supreme Court ruled that Hindu Succession Act has been enacted to modify wherever necessary and to codify the law and therefore it would be difficult to hold today that the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be Hindu undivided property in his hand vis-a-vis his own son. Since this concept clarified in the Supreme Court decision had not been noticed by this Court, even if it is an error on the part of the Court to have not taken into consideration that principle, it would be an error apparent on record. In the light of the principles in the Selection Committee for Admission to Medical and Dental Colleges v. M.R. Nagaraj (Supra) overlooking a binding decision of the Supreme Court constitutes a good ground for review of the judgment
12. Sri Padmanabha V. Mehale, learned senior counsel for the respondents has after verification, fairly submitted that he did not come across any subsequent decision of the Supreme Court taking a view different than the one taken in Chander Sen's case referred to above. Infact in a subsequent decision in Commissioner of Income Tax v. El. Karuppan Chettiar 1993 Supp (1) SCC 580 question of law in view of the decision of Chander Sen's case had been referred for the decision of Larger Bench consisting of three Hon'ble Judges of the Supreme Court. In that case father's share had been separated from his wife and son. After the death of the father intestate, his separate property was inherited by and divided between his widow and son. It was held that the property so inherited by the son has to be treated as his individual and separate property and income arising therefrom was no assessable in the hands of the Hindu undivided family. In the light of this position of law, I find there was error apparent on record in the view taken by this Court and therefore the judgment dated 10-7-2006 needs to be reviewed.
13. Now to consider the principles laid down by the Supreme Court in Commissioner of Wealth-tax, Kanpur v. Chander Sen (Supra) the facts of that case will have to be taken into consideration. In that case, there was partial partition in 1961 in the family by which the business was divided between the father Rengilal and the son Chander Sen and thereafter it was carried on by a partnership consisting of the two. The firm was assessed to income tax as a registered firm and the two partners were separately assessed in respect of their shares of income. The house proeperty of the family continued to remain joint. In 1965, the father died leaving being his son, Chander Sen and Chander Sen's sons. On the death of Rengilal, there was credit balance of Rs. 1,85,043/- in his account in the books of the firm. For the assessment year 1966-67, Chander Sen, who constituted a joint family with his own sons, filed a return of his net wealth. The return included the property of the family, which on the death of Rengilal passed on to assets of the buisness, which devolved upon Chander Sen on the death of his father. The sum of Rs. 1,85,043/- standing to the credit of Rengilal was not included in the net wealth of the family of Chander Sen on the ground that that amount devolved on Chander Sen in his individual capacity and was not the property of Chander Sen's family. The Wealth-Tax Officer did not accept that contention and held that the sum of Rs. 1,85,043/ - also belonged to Chander Sen's family. For the subsequent year 1967-68 in respect of interest occurring on the credit balance of Rengilal and Wealth Tax assessment of Rs. 1,82,742/- similar view was taken by the assessing officer. On appeal, the Appellant Assistance Commissioner of Income Tax accepted assessee's claim in full. He held that capital in the name of Rengilal devolved on Chander Sen in his individual capacity and could not be included in the wealth of Chander Sen's family. Appeals before the Income-Tax Appellate Tribunal by the revenue against those orders were dismissed.
14. On appeal by the revenue to the High Court, the following question was considered by the High Court of Allahabad:
Whether on the facts and in the circumstances of the case, the conclusion of the Tribunal that the sum of Rs. 1,85,043/ and Rs. 1,82,742/- did not constitute the assets of the assesses Hindu undivided family is correct?
The High Court of Allahabad answered the referred question holding that the earlier principle of Hindu law had been modified by Section 8 of the Hindu Succession Act which section provided that the property of a Hindu male dying intestate devolved according to the provisions of that Chapter in the Act and indicated further that it would devolve first upon the heirs being the relatives specified in Class I of the schedule. It held that Chander Sen was the only heir and therefore the property should be passed to him only. The Supreme Court discussed the earlier view of the Allahabad High Court in the case of Commissioner of Income-tax, U.P., v. Ram Rakshpal, Ashok Kumar : [1968]67ITR164(All) , the Full Bench decision of the Madras High Court in Additional Commissioner of Income-tax, Madras v. P.L. Karuppan Chettiar : [1978]114ITR523(Mad) , the decision of the Madhya Pradesh High Court in Shrivallabhdas Modani v. Commissioner of Income-tax, M.P-I : [1982]138ITR673(MP) , the decision of the Andhra Pradesh High Court in the case of Commissioner of Wealth-tax, A.P-II v. Mukundgir : [1983]144ITR18(AP) and also the contrary view taken by the Gujarat High Court in Commissioner of Income-tax, Gujarat-I v. Dr. Babubhai Mansukhbai : [1977]108ITR417(Guj) which held that in the case of Hindus governed by Mithakshara law where a son inherited the self acquired property of his father, the son took it as joint family property of himself and his son and not as his separate property. After discussing those two views, the following law has been laid down by the Supreme Court:
18. We have noted the divergent views expressed on this aspect by the Allahabad High Court. Full Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on one side and the Gujarat High Court on the other.
19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
20. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu Family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted the observations of Mull's Commentary on Hindu Law, 15th Edn. Dealing with Section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12'' Edition, pages 918-919.
22. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored.
23. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.
24. In the premises the judgment and order of the Allahabad High Court under appeal is affirmed and the Appeal Nos. 1668-1669 of 1974 are dismissed with costs. Accordingly Appeal No. 1670 of 1974 in Income-Tax Reference which must follow as a consequence in view of the findings that the sums standing to the credit of Rangi Lal being to Chander Sen in his individual capacity and not the joint Hindu family, the interest of Rs. 23,330/ was an allowable deduction in respect of the income of the family from the business. This appeal also fails and is dismissed with costs.
15. Sri Padmanabha V. Mahale, learned senior counsel for the respondents in RFA No. 386/2001 submits that the observations are with regard to the liability regarding income tax and wealth, tax and not directly on the question of inheritance of immovable property. The Supreme Court has considered the principles of Hindu law particularly in view of the change introduced by Section 8 of the Hindu Succession Act, 1956 and therefore this principle, which has been later affirmed by a decision of larger bench of the Supreme Court, is binding on all Courts in India.
16. From the discussions made above, it is clear that though under traditional Hindu law, from the moment a son is born, he gets a share in his father's ancestral property and becomes a co-parcener, on accrual of that right by his birth in the family, that position is affected and modified by Section 8 of the Hindu Succession Act 1956. Consequently, the property of the father who had separated from his family, on his death will be inherited and held by his sons in their individual capacity and son's son / sons will have no right therein as co-parceners.
17. In the present case, the plea of the plaintiffs in the plaint was that the propositus Dasappa had acquired house and rented property including the suit property out of his self earnings and in the settlement deed effected in 1962 by him he had settled the properties in favour of the members of his family as detailed in settlement deed and had retained 31 guntas of Sy. No. 84/3. It was the further plea of the plaintiffs that after his death, the first defendant inherited the property along with his elder brother Muniyappa and his younger brother Krishnappa and their mother Narasamma; and subsequently there was mutual division of the family properties in which the defendant No. 1 got 10 guntas of Sy. No. 84/3. That property is the subject matter of the suit. In the light of the principles laid down by the Supreme Court in Chander Sen's case referred to above, 31 guntas of Sy. No. 84/3 inherited by the defendant No. 1, his brothers and mother took the properties as tenants in common and subsequently in view of the partition in the family, 10 guntas of Sy. No. 84/3 A became the exclusive property of the defendant No. 1. The plaintiffs as sons did not have any right therein by their birth and therefore the sale deeds executed by the defendant No. 1 in favour of the defendant Nos. 2 to 5 were not affected by the plaintiffs being the members of the family since they had no right in the said property sold by the defendant No. 1
18. In the result, the suit filed by them has to be dismissed as the plaintiffs were not entitled to the declaration sought. Consequently the judgment passed by this Court needs to be reviewed allowing the appeal, RFA No. 386/2001, resulting in consequent dismissal of the suit. As regards the other appeal, RFA No. 286/2001, the order of dismissal of the appeal does not need any modification though that portion of the judgment in O.S. No. 3491 /1988 which directs that the injunction is only until the purchasers are dispossessed by taking recourse to law does not survive since the rights of the defendants in that suit as claimed by them has been negatived by this finding.
19. For the above said reasons, the review petition is allowed and modifying the judgment dated 10-7-2006 passed by this Court, RFA No. 386/2001 is allowed. Setting aside the judgment and decree dated 18-1 -2001 passed by the XXIV Additional City Civil Judge (CCH-6), Bangalore in O.S. No. 3470/1988, the said suit is dismissed. The judgment dated 10-7-2006 stands modified to this extent.