THIMMAMMA Vs. H. ESHWARAPPA AND ORS.

JUDGEMENT

(1.) 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 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.

(3.) 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 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.