1. This is an application to review the judgment and decree passed by Alagiriswami, J. in S. A. No. 1048 of 1966. Before I deal with the application, I shall set out the facts giving rise to the above second appeal.
2. The suit is for possession. The plaintiff's case is that the suit property originally belonged to one kamakshi Ammal, widow of one Thangaraju alias Sappani Pillai, that she was the divided brother's widow, that due to affection towards the plaintiff she executed a settlement deed on 22-1-1948 setting the properties mentioned therein, including the suit items, in favour of the plaintiff that under the settlement deed the plaintiff got right in all the properties including the suit items, that the right to possession in favour of the plaintiff was however, postponed till after the lifetime of the settlor, that the settlor Kamakshi Ammal died on 17-3-1963, and that the plaintiff became entitled to take possession of the suit properties and enjoy the same absolutely. The further case of the plaintiff is that the defendant fraudulently prevailed upon the said kamakshi Ammal to execute a sale deed in respect of the suit property in his favour on 23-9-1960, that the sale deed is sham, void and invalid document and that the defendant who trespassed into the suit property after the death of Kamakshi Ammal is bound to hand over possession to the plaintiff. The present suit has been filed for the aforesaid relief.
3. The defendant filed a written statement contending that a mere reading of the document dated 22-1-1948 executed by Kamakshi Ammal will show that it is a testamentary disposition operative after her death, that no right in praesenti was created in favour of the plaintiff, that the document was registered as a will, that the recitals in the document show that the testator preserved her rights to revoke the document, that she executed the sale deed during her lifetime in favour of the defendant of some of the properties covered by the deed dated 22-1-1948, that the rest of the properties comprised in the dated 16-1-1960, and that the deed in question is a will and not a settlement.
4. The trial court went into the matter fully and held that the disposition in question is a testamentary disposition. In the result the suit was dismissed. The plaintiff filed A. S. 60 of 1966 to the Subordinate Judge of Tiruchirapalli. The learned Subordinate Judge reversed the decision of the trial court and decreed the suit as prayed for. The defendant filed the second appeal No. 1048 of 1966 to this court. The learned Judge, by his judgment dated 15-6-1970, dismissed the appeal holding that the document is not testamentary in character. The defendant has failed the above application to review the judgment of the learned Judge.
5. The learned counsel for the petitioner referred to numerous decisions laying down various tests in determining whether a document is a will or settlement. The principal decisions referred to by him are: Thakur Ishri Singh v. Thakur Baldeo Singh., (1884) ILR 10 Cal 792 PC, Reference by the Collector of Stamps, Bombay ILR (1896) 20 Bom 210 Rajammal v. Authiammal, ILR (1910) Mad 304; Venkatachalam v. Govindaswami, 46 MLJ 288 : AIR 1924 Mad 605; Md. Abdul Ghani v. Fakhr Johan Begum, 44 All 301 PC : AIR 1922 PC 281; Gangaraju v., Somappa : AIR1927Mad197 ; Ignatio Britt v. Rego. 64 MLJ 650 : AIR 1933 Mad 492 and Veerabadrayya v. Setthamma : AIR1940Mad236 . It is unnecessary to deal with each of the above decisions. These decisions however lay down certain broad tests all of which have to be taken into account in ascertaining the principal intention of the parties: (1) the name by which the document is styled, (2) the registration of the document, (3) reservation of life estate in favour of the testator, (4) express words as to when possession passed; (5) use of the present or future tense in the document and (6) reservation of the power of revocation. The complaint of the petitioner is that the learned Judge did not refer to the various tests laid down, but merely took one of them, namely the absence of the power of revocation in the document, and proceeded to dispose of the case on that basis. I am not sitting in judgment over the decision of the learned Judge. Where two views are possible on the construction of the document and the learned Judge adopted one of them, I have no jurisdiction under Order 47, Rule 1 to review the judgment. But the petitioner's contention is that all the tests laid down and culled out from the various decisions have to be taken into account cumulatively and if so taken the only construction possible is that the document in question is a will and not a settlement.
6. The learned counsel for the petitioner contends that the decision of the learned Judge is vitiated by an error apparent on the face of the record, the error being one of the fact and law consisting of the learned Judge failing to address himself to the clauses in the will conclusively establishing that the donee has no interest in the properties dealt with during the donor's lifetime and the learned Judge placing his decision solely on the clause relating to the non-revocability of the document. The learned counsel points out the conduct of the testator in executing the sale deed in respect of some of the properties covered by the document in question and the deed containing the clause 'as I am confident that till my life ends you will be helpful and look after my family,' as showing the preservation of the right to revoke the will by the testator and resulting in the deed being a testamentary disposition. The learned counsel contends that the sole ground upon which the judgment of the learned Judge is based not being a correct one, there is an error apparent on the face of the record. He has referred to the following two passages in Halsbury's Laws of England, Simonds Edn., Vol. 39, at pages 888 and 844 respectively:--
'A will is of its own nature revocable and therefore though a man should make his testament and last will irrevocable in the strongest and most express terms, yet he may revoke it, because his own act and deed cannot alter the judgment of law of make that irrevocable which is of its own nature revocable.'
'The revocable nature of a will cannot be lost, even by a declaration that it is irrevocable,. or a convenant not a revoke it'. In support of his contention, the learned counsel relied on the decision of the Calcutta High Court in Sagar Chandra Mandal v. Digambar mandal, (1909) 10 CLJ 644, where Mookerjee, J., observed as follows:
'If therefore an instrument is on the fact of it of a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its quality, for as Lord Coke said in Vynior's case, 1619 8 Coke 82. 'If I make my testament and last will irrevocably, yet I may revoke it for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable.' The principal test to be applied is, whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease. If it is really of this letter nature, it is ambulatory and revocable during his life'.
The learned counsel, therefore, contends that the clause in the will, namely, 'This settlement cannot hereafter be cancelled by me on any account,' cannot be constructed in isolation, and that the learned Judge ought to have interpreted the clauses in the will and found out whether the document is ambulatory in character. The learned counsel refers to the following passages in the will:
'After my lifetime you may take possession and enjoy with full rights.
'After my life you yourself shall perform my funeral ceremonies according to our custom.'
'As long as I live you shall have no interest whatsoever in the properties set out thereunder.'
Relying on the aforesaid passage in the will, the learned counsel contends that the document in question is will and the clause therein 'this settlement cannot hereafter be cancelled by me on any account' cannot control the recitals in the document. The contention of the learned counsel for the petitioner is that judgment of the learned Judge based solely on the clause 'this settlement cannot be hereafter cancelled by me on any account' is vitiated by an error on the face of the record.
7. The question is whether I am entitled to review the judgment of the learned Judge, the error pointed out being one on the face of the record. In Catholicos v. Athanasius, 1954 SCJ 736 : AIR 1954 SC 526, the scope of an application for review is considered. The following passage from the judgment of Das J., (as he then was) explains the true scope:--
'It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in Travancore Civil Procedure Code, which is similar in terms to Order 47 Rule, 1 of our Civil Procedure Code, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specific grounds namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee, that the words 'any other sufficient reason' mean 'a reason sufficient on grounds at least analogous to those specified in the rule.'
The following passage from the judgment of His Lordship is pressed into service:
'The majority judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the record.'
8. Relying upon this passage the learned counsel points out that the judgment in question did not effectively deal with and determine an important issue arising in this case.
9. Elaborating the argument the learned counsel contends that the learned Judge failed to appreciate the true scope of the document with reference to various recitals, but laid considerable stress on a portion of the document relating to the absence of power of cancellation of the deed which, according to him, is not the correct test. In effect the learned counsel contends that the appeal has been disposed of without effectively dealing with and determining the nature of the document. In Tungabhadra Industries Ltd. v. government of Andhra Pradesh, : 5SCR174 , Rajagopala Ayyangar J., observed:
'A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that 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 be reasonably no two opinions entertained about it, a clear case of error apparent on the face of the record is made out.'
In the present case what the learned Judge has done is to set out the relevant clause in the document Ex. A-1 dated 22-1-1948 and, after referring to the decision in Rajammal v. Authiammal 33 mad 304, to hold that, by reason of the document in question containing a clause. 'This settlement cannot hereafter be cancelled by me on any account', the document is a settlement and not a will. In ILR (1910) Mad 304, the learned Judges considered the document as a whole and held that there were clear provisions in the document having an immediate operation. thereafter, the learned Judges observed that one of the invariable tests in coming to the conclusion as to the testamentary character of a paper was whether the paper was whether the paper was revocable. The learned Judges came to the conclusion that they were satisfied that the document Ex. A was not a will. Therefore that the terms of the will should be construed first in order to find out whether the provisions such as absence of power of revocation to confirm the inference drawn from other clauses. Reference is made to : AIR1927Mad197 , where no power of revocation was reserved in the document. Yet the learned Judge construed the document as a whole relying upon the other clauses showing that the donee would get the property only after the lifetime of the testator. It is thus clear that the absence of a clause relating to revocation or the mention of a clause containing the statement that the settlement is not revocable, is not decisive on the question as to the character of the document. The learned counsel for the petitioner, however, concedes that if the learned Judge had taken into account the other clauses in the will and other circumstances and had come to a conclusion, that decision cannot be reviewed. The learned counsel put the case in various ways. Relying upon Tinkari Sen v. Dulal Chandra, : AIR1967Cal518 , he contended that the judgment in so far as it overlooked a settled principle of law is reviewable under Order 47, Rule 1, C.P.C. Though a mistake in interpreting a document is not a ground for review, the learned counsel contends, the matter would fall under Order 47, Rule 1, C.P.C., when a clear legal position is overlooked. In this connection he referred to S. 28 of the Indian Succession Act and contended that, when there are inconsistent recitals in a document, the last clause shall prevail. The last clause in the present case, 'As long as I live you shall have no interest whatsoever in the properties set out hereunder' having been ignored, the learned counsel contends, the error is one apparent on the face of the record. The learned counsel contends the error is one apparent on the face of the record. The learned counsel referred to Natesa Naicker v., Sambanda Chettiar AIR 1941 Mad 918, and contended that, when there is a legal position clearly established by a well known authority and by some oversight the Judge has gone wrong by the omission of those concerned to draw his attention thereto, it will be an error apparent on the face of the record. The learned counsel referred to Chinna govinda Chetti v. Varadappa Chetti, AIR 1940 Mad 17 and contended that there by some misapprehension of counsel all the contentions urged in the trial court in support of the finding were omitted to be argued and the learned Judge was thereby misled to form an erroneous impression, the judgment is vitiated by an error apparent on the face of the record and Order 47, Rule 1 would apply in such circumstances. In the present case all the aspects presented in the trial court do not appear to have been put forward before the learned Judge. therefore the above decision will directly apply. The next decision referred to is Ramaswami Padayachi v. Shunmugha Padayachi : (1959)2MLJ201 . The following extract from the head note may be usefully referred to:--
'The mistake or error justifying a review under order 47, Rule 1, is most often an error of fact and may in certain cases be one of law also. But in all cases it should be an error of inadvertence; in the case of an error of law it should not have been arrived at by a process of conscious reasoning and the correction suggested or asked for should be such that a bare statement carries conviction without further reasoning or extraneous matter. The test is whether the court itself would have made the correction if it was aware of the particular fact or circumstance while writing the judgment. An erroneous view on a debatable point of law or a failure to interpret the law correctly would not be a mistake or error apparent on the face of the record.'
10. Thus though the matter is put in several ways, the principal objection is that in the present case the learned Judge did not deal with all the relevant provisions of the will conclusively establishing that the document in question is testamentary, but dealt only with a single clause relating to the revocability relied upon in order to determine the character of the document. I am satisfied that there is a considerable force in the contentions put forward. The result is that the application for review is allowed and the judgment of the learned Judge is set aside. The second appeal is allowed. the decree and judgment of the lower appellate court art set aside and those of the trial court are restored. The parties will bear their costs throughout. No leave.