Karnataka High Court
Smt. Thimmamma vs Sri H. Eshwarappa on 23 February, 2015
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
WRIT PETITION NO.35559/2011(GM-CPC)
BETWEEN:
Smt.Thimmamma,
W/o.Venkatachala,
D/o. Late Hanumanthappa,
Aged about 51 years,
Residing at S.Madapura Village & Post,
Singatager Hobli,
Kadur Taluk,
Chickmagaluru District. ...Petitioner
(By Sri.B.S.Sachin, Advocate)
AND:
1. Sri.H.Eshwarappa,
S/o.Hanumanthappa,
Aged: Major,
2. Smt.Lakshmamma,
W/o.Late Hanumanthappa,
Aged: Major,
3. Chandrappa,
S/o. Hanumanthappa,
Aged: Major,
2
4. Sri.Venkatesh,
S/o. Hanumanthappa,
Aged: Major,
5. Sri.Basavarajappa,
S/o.Hanumanthappa,
Aged: Major,
6. Manjappa,
S/o.Hanumanthappa,
Aged: Major,
7. Sri.Vasudevamurthy,
S/o.Hanumanthappa,
Aged: Major,
All the respondents
Are residents of
Haruvanahally Village,
Kasaba Hobli,
Kadur Taluk,
Chickamagalore District. ....Respondents
(By Sri.K.Shrihari, Advocate for R1 to 5 and 7, R6 Served)
This Writ Petition filed Under Articles 226 And 227 of
Constitution of India, Praying to quash the order dated
01.03.2011 on I.A.No.II in FDP No.11/2010 pending on the
file of Principal Civil Judge, Kadur vide Annexure - A and
consequently allow the I.A.No.II in FDP No.11/2010 pending
on the file of Principal Civil Judge, Kadur and etc.,
This Writ Petition coming on for Preliminary Hearing in
'B' Group and having reserved for Judgment on 09-02-2015,
this day, the Court pronounced the following:
3
ORDER
Petitioner is the first respondent in FDP No.11/2010, being aggrieved by the order dated 01-03-2011 rejecting I.A.No.2 filed under Sections 152 and 153 read with Section 151 of CPC has filed this writ petition.
2. The first respondent herein filed a suit in O.S.No.618/1997 on the file of the Additional Civil Judge (Jr.Dn.) Kadur, seeking for partition and separate possession of 1/7th share in the suit schedule property and for other reliefs. Defendant No.1 Hanumanthappa is the father of the plaintiff and defendant Nos.2 to 6. During the pendency of the said suit, Hanumanthappa died and his wife and daughter being the legal representatives of deceased Hanumanthappa were brought on record as R1(a) and R1(b). The said suit came to be decreed on 28-09-2006. Thereafter, the 5th defendant in the suit initiated final decree proceedings in FDP No.11/2010. In the said final decree proceedings, the 4 first respondent i.e. the petitioner herein filed an application I.A.No.2 under Sections 152 and 153 read with Section 151 of CPC seeking for correction of the share allotted to her in O.S.No.618/197. In the said application, she has contended that in view of amendment to Section 6 of the Hindu Succession Act (hereinafter referred to as 'the Act' for short), the petitioner is entitled to share in the joint family properties as a coparcener by birth. She has the same right in coparcenary property as she would have had if she were to be the son. Further, in view of insertion of Section 6A to the Central Act by Karnataka Act No.23/1994, the petitioner is entitled for equal right in the coparcenary property notwithstanding anything contained in Section 6 of the Act. Further, while allotting the share, the petitioner was allotted 1/56th share out of 1/7th share of her father. The allotment of share is contrary to the Act. The judgment and decree has been passed subsequent to coming into force of Section 6 of the Act and also the Karnataka Act No.23/1994. 5
3. The specific allegation of the petitioner is that after the death of her father, the petitioner was brought on record as a legal representative. Her brothers had taken her signature on the vakalath and other papers to defend her case. They informed her that she will get her legitimate share in the joint family properties. In view of that, she has not participated in the proceedings. Only after passing of the decree, she came to know that instead of allotting 1/7th share as a coparcener of the joint family properties, she was allotted only 1/56th share out of 1/7th share, which is contrary to law. In view of that, in the final decree proceedings initiated by the 5th defendant, she filed an application for correction of the share allotted to her.
4. The petitioner and other respondents in the final decree proceedings filed objections to the said application. The Trial Court without examining Section 6 of the Hindu Succession Act and also insertion of Section 6A by Karnataka Act 6 No.23/1994 solely on the ground that the petition under Sections 152 and 153 of CPC is not maintainable. Sections 152 and 153 of CPC can be invoked only to correct the clerical and arithmetical mistakes or to make clerical corrections. In the instant case, the petitioner has sought for correction of share allotted to her in the final decree proceedings, it is not a clerical or arithmetical mistake and the decree cannot be modified and hence dismissed the said application. Being aggrieved by the same, this writ petition has been filed.
5. Sri.B.S.Sachin, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. Though the petitioner is not a party in the original proceedings, after the death of her father, as a legal representative, she was brought on record. She is entitled for share which is being allotted to other coparceners. The Trial Court has not taken into consideration Section 6 and Section 7 6A of the Act incorporated by the Karnataka Act No.23/1994. He also relied upon the judgment reported in 2011 AIR SCW 3443 (PREMA v/s NANJE GOWDA AND OTHERS) and contended that, invoking Sections 151, 152 and 153 of CPC seeking amendment to the preliminary decree, the Hon'ble Supreme Court upheld the contention of the petitioner and held that "Since the parties have invoked the jurisdiction of Civil Court to decide their rights in a partition suit, their rights can be considered at any stage till the passing of final decree. Till the final decree as stated above is passed in the partition suit, it is well settled that the suit is said to be pending, till the final decree is signed by the Judge after engrossing the same on the Stamps."
In view of insertion of Section 29-A in the Act, the statute conferred a right on daughters and they become the coparceners in their own right in the same manner as sons and have the same right in the coparcenary property. Further, as per the Karnataka Act No.23/1994, Section 6A 8 has been inserted to the Central Act. Under Section 6A, equal right in the coparcenary properties has been given to the daughters. The Trial Court has not taken into consideration the contention raised in the final decree proceedings and mechanically passed the order on the ground that the decree cannot be altered or modified invoking Sections 152 and 153 of CPC. Hence, sought for allowing the writ petition.
6. On the other hand, Sri.Srihari, learned counsel appearing for respondents No.1 to 5 argued in support of the order passed by the Trial Court and contended that Sections 152 and 153 can be invoked only for correction of clerical or arithmetical mistake or to make clerical correction and the decree passed by the Trial Court cannot be modified. Though the petitioner was party to the original suit, she has not raised her little finger about her right. Hence, in the final decree proceedings she cannot plead about Section 6 or 6A of the Act. New arguments cannot be addressed in the final 9 decree proceedings and sought for dismissal of the writ petition. In support of his contention, he relied upon the judgments reported in (1993) 3 SCC 500 (DWARAKA DAS v/s STATE OF M.P. AND ANOTHER); (2006) 1 SCC 380 (UPSRTC v/s IMTIAZ HUSSAIN); 1992 (2) KLJ 109 (NANJAMMA AND ANOTHER v/s STATE OF KARNATAKA AND OTHERS); and ILR 2001 KAR 5221 (TUKARAM DHONDIBA PADATARE AND OTHERS v/s SMT.SAVITHRI AND OTHERS).
7. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.
8. The records clearly disclose that the first respondent herein filed a suit for partition and separate possession of the joint family properties against the father as well as other brothers. Petitioner being the daughter of the first defendant was not made party. After the death of the first defendant, she was impleaded as a legal representative of the deceased 10 first defendant. The case of the petitioner is that the other defendants have taken her signature on the vakalath and some stamp papers to defend her case. Since the suit is for partition, if any one of the members of the family files objections, it enure to the benefit of other members. Subsequent to passing of the decree, she came to know that she was allotted only 1/56th share out of 1/7th share allotted to her father, which is contrary to law. In view of that, in the final decree proceedings she filed an application for correction of the allotment of shares invoking Sections 152 and 153 read with Section 151 of CPC. The records further disclose that in view of the amendment to Sections 6 and 29A of the Act, the daughters are entitled for equal rights in the coparcenary properties. The daughter should be treated as son in respect of the coparcenary properties. The Karnataka amendment inserted to Central Act by way of Section 6A also contemplates that the daughter is entitled for equal share. 11
9. The Hon'ble Supreme Court in a judgment reported in 2011 AIR SCW 3443 (supra) in the identical circumstances, wherein an application has been filed invoking Sections 152 and 153 held that the daughter is entitled for equal share as that of a son. The Supreme Court also examined the said issue in a judgment reported in POOLCHAND AND ANOTHER v/s GOPAL LAL reported in AIR 1967 SC 1470 and held that any number of preliminary decree can be passed. Unless the decree engrossed on the stamp paper, it cannot be held that the final decree is drawn. In the instant case, in the final decree proceedings itself the petitioner has taken the contention that she is entitled to equal share in the coparcenary properties, but the Trial Court has not examined the said contention. Without examining the other issues, I feel it appropriate to remand the matter to the Trial Court with a direction to reconsider the matter afresh taking into consideration Sections 6 and 6A of Hindu Succession Act and judgments of the Hon'ble Supreme Court referred to above 12 and also the judgments reported in 2011 AIR SCW 6163 in the case of GANDURI KOTESHWARAMMA AND ANOTHER v/s CHAKIRI YANADI AND ANOTHER and in 2009 (6) SCC 99 in the case of G.SEKAR v/s GEETHA AND OTHERS) and pass appropriate orders.
10. Accordingly, I pass the following:
ORDER The writ petition is allowed. The order dated 01-03-2011 rejecting I.A.No.II in FDP No.11/2010 is quashed and the matter is remanded to the Trial Court to reconsider the same afresh in the light of amended provisions of Hindu Succession Act and the judgments referred to above.
Sd/-
Judge mpk/-*