S.VIJAYALAKSHMI vs K.JAGANATHAN(DIED)

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1/18 REV.APPL No. 48 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 27.08.2026
Pronouncing orders on : 03.09.2026
CORAM
THE HONOURABLE MR JUSTICE N. ANAND VENKATESH
REV.APPL No. 48 of 2024
1. S.Vijayalakshmi
2. Minor Pooja
3. Minor Sanjana
Minor 2 and 3, rep. by mother and Guardian 1st respondent S.Vijayalakshmi.
Petitioner(s)
Vs
1. K.Jaganathan(died)
2.J.Damayanthi
3.A.Priya
4.A.Arul Gandhi
Respondent(s)
PRAYER Petition filed under Section 114 Order XLVII and Rule 1, 4 and 5
of C.P.C., to review the order dated 12.02.2024 in CRP No. 1465/2023 and
further be pleased to modify it to the extent of setting aside the order through
Recall the order CRP No.1465 of 2023.
For Petitioner(s): Mrs.S. Vijayalakshmi
Party-in-Person
For Respondent(s): Mr.N.Manoharan for R2 to R4
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2/18 REV.APPL No. 48 of 2024
ORDER
This Review Application has been filed under Section 114 read with
Order XLVII Rule 1 of C.P.C., to review the order passed in CRP No.1465 of
2023 dated 12.02.2024.
2.Brief facts leading to the filing of this review:
2.1.The petitioners, who are the wife and children of Late
K.J.Sivaraman, filed the suit in O.S.No.137 of 2020 on the file of the District
Munsif Court, Kumarapalayam, seeking for the relief of declaring the Deed of
Revocation of the Settlement Deed dated 10.02.2009, registered as Document
No.6261 of 2009, as null and void and not binding on the plaintiffs and for a
permanent injunction restraining the defendants, who are the parents, sister and
brother-in-law, from in any manner dealing with the suit property or mutating
their names in the revenue record.
2.2.The suit was filed with a cause of action that the parents of Late
K.J.Sivaraman had purchased the suit property, which was a vacant house site
in the year 2004 and they settled the suit property vide Settlement Deed dated
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28.11.2005 in favour of Late K.J.Sivaraman, registered as Document No.3957
of 2005, and thereby Late K.J.Sivaraman became the absolute owner of the
suit property and his name was also mutated in all the revenue records and that
the Settlement Deed did not contain any clause for revocation of the
Settlement Deed under any circumstances. The Settlement Deed was acted
upon by the said Late K.J.Sivaraman and it was, in fact, mortgaged in favour
of the State Bank of India for getting a loan and this loan was also repaid back
and thereby, the mortgage was redeemed. Thereafter, Late K.J.Sivaraman, out
st
of love and affection, settled the suit property in favour of the 1 petitioner
herein by way of a registered Settlement Deed dated 20.04.2010, registered as
st
Document No.2636 of 2010 and ever since, the 1 petitioner is the absolute
owner of the suit property.
2.3.In the interregnum, the petitioner’s husband viz., Late
st
K.J.Sivaraman, had put up a construction and his parents, who are the 1 and
nd
2 defendants, were also allowed to occupy the ground floor of the building.
Initially, the petitioner and her family occupied the first floor portion and
subsequently, due to the alleged harassment on the part of the in-laws, the
petitioners had to vacate the first floor portion and live in a leased premises.
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2.4.Late K.J.Sivaraman died due to a heart attack on 23.08.2017, and it
is claimed that the petitioner and her children did the last rites. Thereafter, the
st nd st
petitioners approached the 1 and 2 defendants to evict the tenant from the 1
floor portion in order to occupy the property. The said request did not evoke
st
any response. Intrigued by the attitude of the in-laws, the 1 petitioner applied
for an Encumbrance Certificate on 20.09.2017 and it came to light that a
Unilateral Deed of Revocation of Settlement, dated 10.02.2009, registered as
Document No.626 of 2009, had been registered on the file of the Sub
Registrar, Kumarapalayam, and it was executed by the father and mother of
Late K.J.Sivaraman and thereby, the Settlement Deed dated 28.11.2005, came
to be revoked. Immediately after coming to know of the same, the present suit
came to be filed in O.S.No.137 of 2020, questioning the Deed of Revocation
and seeking for other consequential reliefs.
2.5.The defendants 1 to 4 filed CMP No.9732 of 2023 for rejection of
the plaint on the ground that the suit is hopelessly barred by limitation, since
the Revocation Deed dated 10.02.2009 came to be challenged only in the year
2018, which is beyond three years from the date when the cause of action
accrued.
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2.6.The Trial Court, by an order dated 28.03.2023, dismissed the
application and aggrieved by the same, CRP No.1465 of 2023 came to be filed
under Article 227 of the Constitution of India and this Civil Revision Petition
came to be allowed by an order dated 12.02.2024 and thereby, the plaint filed
in O.S.No.137 of 2020 was ordered to be rejected. It is under these
circumstances, the present Review Application came to be filed before this
Court.
st
3.The 1 petitioner appeared as party-in-person for herself and on behalf
nd rd st
of 2 and 3 petitioners, who are the children of the 1 petitioner and are
minors, who were represented by their natural guardian.
st
4.The 1 petitioner submitted that she became aware about the
Revocation Deed dated 10.02.2009 only in the year 2017, after the demise of
st
her husband and when the 1 petitioner applied for Encumbrance Certificate
on 20.09.2017 and immediately thereafter, within three years, the suit came to
be filed in the year 2018. It is therefore contended that the suit was well within
the period of limitation and that the plaint ought not to have been rejected and
such order suffers from an error apparent on the face of the record.
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st
5.The 1 petitioner further contended that the Settlement Deed was acted
upon by her husband and the building was put up in the said place by
st st
mortgaging the jewels of the 1 petitioner and even the 1 petitioner’s husband
was not aware of the revocation of the Settlement Deed and that is the reason
st
why he in turn, executed the Settlement Deed in favour of the 1 petitioner on
st st
20.04.2010, by settling the suit property in favour of the 1 petitioner. The 1
petitioner was not aware about the execution of the Release Deed dated
25.01.2010 by Late K.J.Sivaraman in favour of his parents and even in this
document, the suit property does not specifically find a place and it was a
general Release Deed.
st
6.Apart from the above, the 1 petitioner is in possession of voluminous
documentary evidence to substantiate that the Settlement Deed was acted upon
st
by the 1 petitioner’s husband by putting up construction in the property by
st
mortgaging the jewellery belonging to the 1 petitioner as well as her husband
during the period 2006-2010. That apart, one of the shops and a vacant land
was also sold to repay back the loan and to redeem the mortgage. In the light
of all these materials, there is a triable case on merits and that the plaint ought
not to have been rejected at the threshold stage.
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7.Per contra, Mr.N.Manoharan, appearing for the respondents, submitted
that the learned Single Judge, who dealt with the Civil Revision Petition, has
assigned proper reasons while allowing the Civil Revision Petition and the
ground on which the petitioners are seeking for review is unsustainable and it
does not fall within the strict parameters under Section 114 read with Order
XLVII Rule 1 of C.P.C. To substantiate this submission, the learned counsel
relied upon the judgement of the Hon’ble Apex Court in the State of
Telangana and Others vs. Mohd. Abdul Qasim (Died) Per Lrs. reported in
2024 4 SCC Online SC 548 and S.Madhusudhan Reddy vs. V.Narayana
Reddy and Others reported in 2022 SCC Online SC 1034 .
8.The learned counsel further submitted that the petitioners are
attempting to escape from limitation by astute drafting of the plaint and merely
by showing an Encumbrance Certificate of the year 2017, the petitioners
cannot get over the bar wherein the suit is hopelessly barred by limitation. It is
submitted that the petitioners have sought for the relief of declaration and the
limitation is governed by Article 58 of the Limitation Act, which provides for
three years from the time when the right to sue first accrues. The date of
knowledge is irrelevant and Article 59 of the Limitation Act will not apply.
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9.The registration of the Deed of Revocation by itself constitutes
constructive notice from the date of registration and the presumption under
Section 3 of the Transfer of Property Act comes into operation. It is submitted
that whenever a document is registered, the date of registration becomes the
date of deemed knowledge and in cases where the fact of registration of the
document can be discovered by due diligence, then deemed knowledge would
be attributed to the plaintiffs and the plaintiffs cannot be allowed to extend the
period of limitation by merely claiming that they had no knowledge. To
substantiate this submission, the learned counsel relied upon the judgement of
the Hon’ble Apex Court in Shri Mukund Bhavan Trust and Others vs.
Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and
Another reported in 2024 (15) SCC 675 , Dahiben vs. Arvindbhai Kalyanji
Bhanusali (Gajra) Dead through Lrs., and Others reported in 2020 7 SCC
366 and Ramisetty Venkatanna and Another vs. Nasyam Jamal Saheb and
Others reported in 2023 SCC Online SC 521 .
10.This Court has carefully considered the submissions made on either
side and the materials available on record.
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11.The scope of consideration in a review application is very limited and
therefore, before this Court ventures to find out if there is any error apparent
on the face of the order passed in the Civil Revision Petition, this Court will
remind itself of the scope of review through the settled legal principles
enunciated by the Apex Court.
12.The judgment/order may be open to review, inter alia, if there is a
mistake or an error apparent on the face of the record. The error must be a
glaring omission or a patent mistake or a grave error that has crept in the
judgment/order and not an error which is not self-evident and it has to be
deduced by a process of reasoning. This jurisdiction cannot be applied for
correcting an erroneous decision after rehearing the matter. Just because the
Court will be able to reach a different conclusion on the same set of facts, that
is not a ground for reviewing a judgment/order. In the guise of exercising the
powers of review, the Court can correct the mistake, but it cannot substitute the
view taken earlier merely because there is a possibility of taking two views in
a matter. In other words, a review should not be confused with appellate
powers, which may enable an appellate Court to correct all manner of errors
committed by the Court below.
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13.Having noted the scope of a review application and the distinction
between the power of review and appellate power, this Court will now venture
into the order passed in CRP No.1465 of 2023, dated 12.02.2024 and see if the
same deserves to be reviewed.
14.On the face of it, it is seen that the Civil Revision Petition had been
filed under Article 227 of the Constitution of India and this Court had
exercised its jurisdiction under Article 227, which itself is erroneous. The
appropriate remedy that was available for the review petitioners was under 115
of C.P.C., and in the light of such an effective remedy available, this Court
ought not to have exercised its jurisdiction under Article 227 of the
Constitution of India.
15.It will be relevant to take note of sub-section (1) of Section 115 of
C.P.C., which is extracted hereunder:
115. Revision.- (1)The High Court may call for the record of any case
which has been decided by any Court subordinate to such High Court and in
which no appeal lies thereto, and if such subordinate Court appears-
(a)to have exercised a jurisdiction not vested in it by law, or
(b)to have failed to exercise a jurisdiction so vested, or
(c)to have acted in the exercise of its jurisdiction illegally or with
material irregularity,
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the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course of a suit
or other proceeding, except where the order, if it had been made in favour of
the party applying for revision, would have finally disposed of the suit or
other proceedings.]
[ (2) The High Court shall not, under this section, vary or reverse any
decree or order against which an appeal lies either to the High Court or to
any Court subordinate thereto.
[ (3) A revision shall not operate as a stay of suit or other proceeding
before the Court except where such suit or other proceeding is stayed by the
High Court.]
[Explanation .-In this section, the expression, "any case which has
been decided" includes any order made, or any order deciding an issue, in the
course of a suit or other proceeding.]
16.The proviso to sub-section (1) of Section 115 of C.P.C., was inserted
by the Amendment Act, which came into effect from 01.07.2002. A revision
under 115 of C.P.C., will lie where the order that is put to challenge in the
revision, if it had been allowed, would have finally disposed of the suit. In the
case in hand, if the application filed by the revision petitioners under Order VII
Rule 11 of C.P.C., had been allowed by the Court below, it would have
disposed of the entire suit and therefore, the revision petitioners ought to have
filed the revision only under Section 115 of C.P.C., and not under Article 227
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of the Constitution of India. This is not a mere error, but a glaring error, since
the scope of exercising jurisdiction under Article 227 of the Constitution of
India is limited and that jurisdiction will not be exercised if there is an
effective remedy available to the party under the Code of Civil Procedure.
17.Be that as it may, this Court also wants to have a careful look at the
order passed in the Civil Revision Petition to find if there is any glaring error
apparent on the face of record.
18.The order was passed in the Civil Revision Petition to justify the
rejection of plaint, mainly relying upon the Release Deed dated 25.01.2010,
that is said to have been executed by Late K.J.Sivaraman, in favour of his
st nd
parents, who are the 1 and 2 defendants. Therefore, it was assumed that he
has accepted the revocation of the Settlement Deed dated 10.02.2009 and
consequently, he executing a Settlement Deed dated 20.04.2010 in favour of
st
the 1 petitioner is of no consequence. This Court was also swayed by the fact
that Late K.J.Sivaraman did not question the revocation of the Settlement
Deed during his lifetime or the Release Deed executed by him on 25.01.2010
and therefore, his wife and children have no right to challenge the Cancellation
Deed dated 10.02.2009.
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19.The specific averment that was made by the petitioners/plaintiffs
insofar as the knowledge regarding the Deed of Revocation dated 10.02.2009
is extracted hereunder:
17.Under the circumstances, the Plaintiffs have no other option
except to come forward with this suit seeking the reliefs of declaration that
the Deed of Revocation of Settlement dated 10.2.2009 registered as
Document No.626 of 2009 on the file of the 5th defendant is invalid, void ab
initio and not binding on the suit Property and on the Plaintiffs and
permanent Injunction restraining the defendant 1 to 4 from dealing with the
suit property in any manner whatsoever by effecting mutation of
owner's/assessee's name effected in his favour in ail the public records
pertaining to the suit property or by demanding rents from the Tenants of the
Suit Property or by alienating the same. The Plaintiffs submits that the suit is
not barred by limitation, as the same is being filed within three years from
20.9 2017 when the 1st plaintiff first came to know about the Deed of
Revocation of Settlement dated 10.2.2009 through encumbrance certificate.
The 1st and 2nd Defendants never informed the Plaintiff about the said
Revocation Deed dated 10.2.2009.
20.The petitioners/plaintiffs nowhere in the plaint talk about the Release
Deed dated 25.01.2010 by Late K.J.Sivaraman in favour of his parents and this
document comes to light only after the respondents/defendants got into the
scene. In other words, this is a material that was brought in by the defendants
and nowhere in the plaint is it seen that the petitioners/plaintiffs had
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knowledge about the Release Deed dated 25.01.2010. However, this Court,
while passing the order in the Civil Revision Petition, has assumed that the
plaintiffs have suppressed this fact and this finding on the face of the order is
erroneous, since suppression or otherwise is a matter of fact which can only be
ascertained during the course of trial.
21.When this Court made a mention about the Release Deed dated
25.01.2010 in the order, a very crucial factor was not noticed by this Court in
the Release Deed viz., there is no specific mention about the suit property in
st
this Release Deed. If in spite of execution of the Release Deed, the 1
st
petitioner’s husband had executed the Settlement Deed in favour of the 1
petitioner on 20.04.2010, it will become an issue of fact to ascertain as to
whether the petitioner’s husband had released his right and interest in all the
other properties except the suit property. This issue certainly cannot be decided
at the stage of considering the application for rejection of the plaint.
22.It must also be borne in mind that the so-called Revocation Deed
st nd
dated 10.02.2009 was a deed executed by the 1 and 2 defendants unilaterally
cancelling the Settlement Deed executed in favour of Late K.J.Sivaraman on
28.11.2005, without the said document containing any clause reserving the
right the cancel the Settlement Deed under any circumstances. Therefore, this
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will again be an issue of fact which can be decided only on the completion of
trial.
23.This Court held that under Article 58 of the Limitation Act, the suit
ought to have been filed within three years from the date on which the right to
sue first accrues and that right accrues on 10.02.2009 and the suit was filed in
the year 2018 and therefore, the suit is barred by limitation.
24.It is true that registration of a document gives rise to constructive
notice under Section 3 of the Transfer of Property Act. However, in the case in
hand, the plaintiffs are able to establish that the Settlement Deed was acted
upon and loans were taken for construction of the building and the loan was
repaid back by Late K.J.Sivaraman and Late K.J.Sivaraman was not a party to
the Revocation Deed and he had later executed the Settlement Deed in favour
st
of the 1 plaintiff on 20.04.2010. In view of the same, there were various
registered documents that have come into play and if the Revocation Deed
dated 10.02.2009 and the Release Deed Dated 25.01.2010, which are
registered documents, ought to be construed as constructive notice, the same
will equally apply to the Settlement Deed dated 20.04.2010, executed by Late
st
K.J.Sivaraman in favour of the 1 petitioner and this document has not been
put to challenge by the defendants.
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25.Thus, in such a scenario, the pleadings in the plaint to the effect that
st
the 1 plaintiff, on the demise of her husband on 23.08.2017, was not allowed
to occupy the first floor of the property and therefore, applied for the
Encumbrance Certificate on 20.09.2017 and came to know about a Deed of
Revocation of Settlement Deed dated 10.02.2009, must be taken to be a crucial
st
date when the 1 plaintiff became aware of the document after due diligence.
This averment made in the plaint, along with the supporting documents, must
be taken as it is without trying to read the case of the defendants into the
plaint. When this Court passed the order in the Civil Revision Petition, that is
exactly what this Court had done and thereby resulting in an order which is
erroneous on the face of the record. This error is manifest and self-evident.
st
26.Apart from the above, the 1 plaintiff, who was present in the Court
while arguing the petition, was in possession of more than seventy documents
to prove as to how the Settlement Deed was acted upon by Late K.J.Sivaraman
by taking a loan by pledging jewellery and later repaying back the loan. These
materials may not be relevant while dealing with this review application. But
this observation is made only to impress upon the fact that this is not a case
where the plaint should have been rejected at the threshold and many vital
issues of fact ought to have gone through the process of trial before taking a
final decision in the suit.
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27.The Court below had properly appreciated these issues and rightly
dismissed the application filed in I.A.No.1 of 2021 for rejection of plaint by
order dated 28.03.2023 and the said order did not suffer from any perversity
warranting the interference of this Court.
28.In the result, this Review Application is allowed and the order passed
in CRP No.1465 of 2023 dated 12.02.2024, is set aside and the order passed by
the learned District Munsif, Kumarapalayam, in IA No.1 of 2021 in
O.S.No.137 of 2020 is sustained. No Costs.
03-09-2026
(1/2)
Index:Yes
Speaking order
Internet:Yes
Neutral Citation:Yes
ssr
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18/18 REV.APPL No. 48 of 2024
N.ANAND VENKATESH J.
ssr
To
The District Munsif Court, Kumarapalayam.
REV.APPL No. 48 of 2024
03-09-2026
(1/2)
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