K.Lalduhkima Vs Sh Zirliana

main ground for seeking review of the said Judgment & Order is in respect of the substantial question of law formulated by this Court in the second appeal which is as to whether the respondent as appellant not being legatee could have the locus standi to file petition to probate the Will dated 15.08.2014 executed by one Smt. Vanhliri (late) who is the mother of the review petitioner and the grand-mother of the other legatee and file the subsequent/connected Appeal in violation of the provisions of the Mizo Marriage, Divorce and Inheritance of Property Act, 2014. The learned counsel submits that since RFA No. 26/2019 was decided in favor of the review petitioner vide Judgment & Order dated 02.02.2021, the petitioner has no reason to file an appeal challenging the same. This Court on the other hand vide the Judgment & Order dated 13.08.2024 in RSA No. 2/2022 opined that the First Appellate Court’s judgment had neither been challenged nor objected by the petitioner at any point of time and therefore, objection being raised by the review petitioner in the second appeal could not be entertained. The learned counsel therefore submits that the Judgment & Order dated 13.08.2024 in so far as the conclusion reached at paragraph No. 21 of the said Judgment & Order is concerned may be recalled.

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[3.] Mr. Lalfakawma, learned counsel by referring to Order 41 Rule 33 CPC

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submits that the Appellate Court indeed has the power to pass a decree and make any order which ought to have been passed or made as the case may require and this power can be exercised by the court notwithstanding the appeal is as to part only of the decree and may be exercised in favor of all or any of the respondent or the parties. He submits that the power can be exercised in respect of all or any of the decree although appeal may have not been filed in such decree. The learned counsel submits that the petitioner may not have filed a separate appeal but by invoking the aforesaid provision, the necessary adjudication can be done by the Appellate Court even at this stage. [4.] Mr. A.R. Malhotra, learned counsel for the respondent on the other hand submits that the ground raised by the review petitioner had elaborately been considered by this Court and it was only thereafter that a conclusion has been arrived at. Therefore, the instant petition being a review petition, the same cannot be filed in the guise of an appeal and that the issue already considered and decided cannot be reopened under the review jurisdiction. Referring to paragraph No. 8 of the Judgment & Order dated 13.08.2024, the learned counsel submits that the submission made on behalf of the appellant in the second appeal that according to the First Appellate Court, the Will executed on the date of averred will be governed by the Mizo District (Inheritance of

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Property) Act, 1956 (Act of 1956) was accepted by this Court while rendering the Judgment & Order dated 13.08.2024. He submits that such submission was advanced in view of paragraph No. 6 of the Judgment dated 02.02.2021 passed by the First Appellate Court in RFA No. 26/2019 wherein, it was clearly recorded that Will executed on the date of averred will be governed by the Act of 1956 and the relevant provisions of which was reflected/abstracted in the said judgment. He therefore submits that the submission advanced by the learned counsel for the review petitioner that he had no reason to challenge the Judgment & Order rendered by the First Appellate Court cannot be accepted. In fact, the review petitioner at the appropriate time could have availed the provision of Order 41 Rule 22 CPC for filing cross-objection in the appeal filed by the respondent raising his grievance with regard to the application of the Act of 1956 for probating the Will concerned. Such provision having not been availed of, the submissions made by the learned counsel cannot be accepted at this stage.

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[5.] In so far as the review jurisdiction is concerned, the learned counsel submits that the settled position in law is that a repetition of old and overruled argument is not enough to re-open a concluded adjudication and that a review is by no means an appeal in disguise whereby an erroneous decision is reheard

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and corrected. In fact, review lies only for patent error and not otherwise. In support of his submission, the learned counsel has relied upon the case of Kamlesh Verma Vs. Mayawati & Ors. (2013) 8 SCC 320.

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[6.] The learned counsel further submits that in so far as the submission made by the learned counsel for the petitioner in respect of Order 41 Rule 33 CPC is concerned, he submits that the same argument could have been made at the time when the second appeal was filed by the respondent and not in the present review petition. Therefore, the argument advanced does not hold any water and the review petitioner should be dismissed.

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[7.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on records. The main ground raised in the instant review petition for review is with regard to the decision arrived at by this Court in respect of the first substantial question of law wherein, it was held that the finding of the First Appellate Court that the Will executed on the date averred will be governed by the Act of 1956, has not even been challenged or objected to by the respondent/review petitioner herein at any point of time.

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[8.] Going back to the judgment of the First Appellate Court, it may be seen that although the First Appellate Court came to a finding that the Will could not

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have been probated in absence of the fulfillment of the criteria provided by the Act of 1956, it also held that the Will that was executed on the averred date would be governed by the Act of 1956. Taking note of the same as well as the submissions made by the learned counsel for the respondent herein, this Court vide Judgment & Order dated 13.08.2024 in RSA No. 2/2022 had concluded that the finding of the First Appellate Court with regard to the applicability of the Act of 1956, was never questioned by challenging the same through appropriate proceedings. Therefore, it is clear that the ground raised by the petitioner in the instant review petition had been duly considered by this Court.

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[9.] The Apex Court in Kamlesh Verma (surpa) had relied upon the case of Union of India Vs. Sandur Manganese And Iron Ores Limited And Others reported in (2013) 8 SCC 337 wherein, certain principles were set out where a review will not be maintainable. One of such principle was that review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. It was also held that a repetition of old and overruled argument would not be enough to re-open the concluded adjudications.

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[10.] Therefore, having regard to the projection made by the petitioner in the instant review petition, this Court is of the considered view that no case for

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review has been made out and in the result, the review petition is found to be

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without merit and accordingly dismissed.

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JUDGE

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K.Lalduhkima v. Sh Zirliana

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K.Lalduhkima v. Sh Zirliana

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