Once Preliminary Decree is Passed, Review Court Can’t Sit in Appeal to Reappreciate Facts: Supreme Court Sets Aside High Court Review Granting Fresh Partition Inquiry

“Review is Not a Rehearing — High Court Converted a Limited Review into an Appeal on Facts” — In a landmark clarification of the scope of review jurisdiction, the Supreme Court of India struck down a High Court’s review order that had reversed an earlier order recognizing a daughter’s coparcenary right under the Hindu Succession (Amendment) Act, 2005, and remanded the case for fresh trial. The Apex Court restored the High Court’s original 2022 order that had allowed the daughter to claim 1/3rd share in ancestral property by amending a preliminary decree passed decades earlier.

The judgment reaffirms that a review is not a disguised appeal, and cannot be used to overturn findings of fact or re-examine questions already decided, unless there is a patent error on the face of the record.

“An Error Must Be Apparent — Review Power Is Not Meant to Substitute Judicial Opinion”

The appeal arose from a partition suit filed in 2000 by Subramani, the appellant’s brother, without impleading Malleeswari, the daughter of the original defendant Munusamy Naidu. A preliminary decree was passed ex parte in 2003, and during pendency of final decree proceedings, some properties were sold to a third party, K. Suguna, in 2004, in violation of a court injunction.

When Malleeswari was later impleaded after her father’s death, she filed an application (IA 1199/2018) seeking amendment of the preliminary decree to include her share as a coparcener under the Hindu Succession (Amendment) Act, 2005, which granted equal rights to daughters by birth.

Though her claim was initially rejected by the Trial Court, the Madras High Court allowed her petition in 2022, relying on the Supreme Court’s decision in Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1. But in 2024, on review filed by the purchaser (Suguna), the High Court reversed its own order, holding that the matter must go back to Trial Court for fresh adjudication — a move the Supreme Court found legally impermissible.

The Supreme Court observed: “The impugned order has not adverted to an error apparent on the face of the record, but has taken up an error on reappreciation of the case and counter-case of the parties. The review order records a few findings extending far beyond the actual working out of prayers in a suit for partition.”

The Bench comprising Justices Ahsanuddin Amanullah and S.V.N. Bhatti held that:

“Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC… Review is not to be confused with appellate powers… The review court does not sit in appeal over its own order.”

“Coparcenary Right of Daughter Cannot Be Defeated by Procedural Delay” — Apex Court Reaffirms Application of HSA 2005

The key legal contention raised by Malleeswari was that she was entitled to coparcenary rights by birth, as her father (a coparcener) was alive on the cut-off date of 20.12.2004, and the 2005 amendment would apply to her. Relying on Vineeta Sharma, the earlier High Court order in 2022 had upheld this right and directed the amendment of the preliminary decree to reflect a 1/3rd share.

The Supreme Court, while analyzing the principle of lis pendens and the binding nature of partition suits, agreed with the High Court’s earlier view, holding:

“The plea that the properties were not ancestral is not a defence available to the respondent-pendente lite… The ancestral nature of the property, while asserted by the plaintiff, was not contested by the defendant (deceased father).”

The Court found that the review order attempted to re-open the question of whether the properties were ancestral, despite it being a settled issue based on the pleadings and admissions of the original parties:

“The review court exceeded jurisdiction by revisiting facts and entertaining fresh defences unavailable to a pendente lite transferee.”

“Daughter's Share Diminishes Purchaser's Interest — But That Alone Can't Defeat Statutory Right”

Interestingly, the Court acknowledged that Malleeswari’s recognition as a coparcener would diminish the share of the purchaser (Suguna), who had bought property from the father during the pendency of the partition suit — in defiance of court injunction. However, it made it clear that equitable adjustments cannot override a coparcenary right conferred by law.

“The Appellant’s claim directly challenges the minimum interest Respondent had acquired… The order impugned has extended far beyond the actual working out of prayers in a suit for partition.”

The judgment thus restores the 2022 order, permitting the Appellant to amend the preliminary decree to claim her statutory 1/3rd share and directing the Trial Court to expeditiously conclude all pending applications.

This judgment is a stern reminder that the review jurisdiction under CPC is narrow and exceptional. The Supreme Court has sent a clear message that review cannot be a tool to re-argue or re-adjudicate on merits, especially when the facts and law were already decided.

More importantly, it fortifies the rights of daughters under the Hindu Succession (Amendment) Act, 2005, and prevents procedural technicalities or intervening third-party interests from diluting their birthright in ancestral properties.

Date of Decision: September 8, 2025