IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 25710 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 4528/08 IN OS.422/1985 of ADDL.MUNSIFF COURT-I., KOZHIKODE .................... PETITIONERS: PETITIONERS/D5 &D6/R4 & R5 ----------------------------------------- 1. SAFIYA, AGED 36, W/O.MAMMAD KOYA, 2. MUHAMMED ASHRAF, AGED 21, S/O MAMMAD KOYA, BOTH RESIDING AT 12/509, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.SRINATH GIRISH SMT.M.LISHA RESPONDENTS: RESPONDENTS/PLAINTIFFS & D1 TO 4 & 7 & 8/ F.D PETITIONERS & R1 TO 4, 7 & 8 ------------------------------------------------------- 1. U.BEEVI, AGED 70, W/O.LATE AHAMMED KOYA, 2. U.USMAN KOYA, S/O.AHAMMED KOYA, 3. U.NASAR, S/O.AHAMMED KOYA, 4. U.SALEEM, S/O.AHAMMED KOYA, 5. U.RASIYA, D/O.AHAMMED KOYA, 6. U.SEENATH, D/O.AHAMMED KOYA, 7. U.SHALI, D/O.AHAMMED KOYA, 8. U.HASHIM, S/O.AHAMMED KOYA, 9. U.HABEEB, S/O.AHAMMED KOYA, RESPONDENTS 1 TO 9 RESIDING AT CHAKKORATHUKULAM, NADAKKAVU, KOZHIKODE. WP(C).No. 25710 of 2009(O) 10. KADEESABI, D/O.PATHUMMAYI. 11. MAMMAD KOYA, S/O.MOIDEEN (DIED) (SHOWN IN THE CAUSE TITLE IN COURT BELOW BY MISTAKE) 12. E.T.IMBICHIPATHUMMABI, D/O.MOIDEEN, 13. E.T.UMMER KOYA, S/O.MOIDEEN, RESPONDENTS 10, 12 & 13 RESIDING AT 12/509, NAGARAM AMSOM DESOM, KOZHIKODE. 14. U.BASHEER, S/O.LATE AHAMMED KOYA. 15. U.MAJEED, S/O.LATE AHAMMED KOYA. RESPONDENTS 14 & 15 RESIDING AT THOPPAYIL HOUSE, THOPPAYIL, KOZHIKODE. ADV. SRI.AVM.SALAHUDIN FOR R3 SRI.T.SHYAM PRASAD FOR R3 SRI.AVM.SALAHUDIN FOR R1 TO 9 &14, 15 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25710 of 2009(O) APPENDIX PETITIONERS' EXHIBITS:- EXT P1 : Decree in O.S.422/1985 DTD. 28/11/2002 passed by the Addl.Munsiff Court-I, Kozhikode. Ext.P2 :Judgment dtd.28/11/2002 in O.S.422/1985 passed by the Addl. Munsiff Court-I, Kozhikode. Ext.P3 :Affidavit & petition dtd. 5/12/2008 in I.A.4528/2008 in F.D I.A.5184/2007 in O.S.422/1985 on the file of the Addl.Munsiff-I, Kozhikode. Ext.P4 :Order dtd.25/6/2009 in I.A.4528/2008 in F.D. IA.5184/2007 in O.S.422/1985 on the file of the Addl.Munsiff Court-I, Kozhikode. RESPONDENTS' EXHIBITS: Nil True copy P.A.to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.25710 of 2009 --------------------------------------- Dated this 05th day of October, 2010 JUDGMENT This writ petition is at the instance of supplemental defendant Nos.5 and 6 in challenge of Ext.P4, order dated June 25, 2009 on I.A.No.4528 of 2008 in I.A.No.5184 of 2007 in O.S.No.422 of 1985 of the court of learned Additional Munsiff-I, Kozhikode. For the sake of convenience parties are referred to as plaintiffs and defendants as in the trial court. Original plaintiff sued defendants for partition and separate possession of his share in the suit property claiming that the suit property originally belonged to UmmeriUmma and on her death that property devolved on Mariyamby. Petitioner is the grand son of Mariyamby. Defendant Nos.1 and 2 are grandchildren in her second marriage. Pending suit original plaintiff died and his legal representatives were impleaded as supplemental plaintiffs. Trial court dismissed the suit holding that since plaintiffs are claiming under Anthruman, son of Mariyamby, they are not not entitled to get any share in the property since Anthruman predeceased Mariyamby. Appellate court confirmed the decree. When the matter to this court it was contended that original plaintiff is W.P(C).No.25710 of 2009 : 2 : entitled to share in the half share of his paternal uncle (Kadiri who died on 27-01-1949). This court set aside judgment and decree of the courts below and remanded the case to the trial court for fresh consideration of that question. Trial court vide Ext.P2, judgment found that original plaintiff as a legal heir of his paternal uncle, Kadiri and on the death of original plaintiff, supplemental plaintiffs are entitled to a share in the property. In page 15 of Ext.P2, judgment learned Munsiff observed that as legal heir of Mariyamby, her son in the first marriage, Kadiri has half share in the suit property and on the death of Kadiri, 1/6th share in his ½ right devolved on the deceased original plaintiff. It was held that as legal heir of Kadiri original plaintiff was entitled to 5/12th share in the suit property. Based on Ext.P2, preliminary judgment and decree, application for final decree (F.D.I.A.No.5184 of 2007) was filed. In the course of final decree proceeding, petitioners and supplemental defendant Nos.5 and 6 came up with I.A.No.4528 of 2008 claiming that the share allotted to them in the preliminary decree is not correct since in paragraph 15 of Ext.P2, judgment learned Munsiff has found that 1/6 right in the ½ share of Kadiri in the suit property devolved on the original plaintiff in which case, share of petitioner and W.P(C).No.25710 of 2009 : 3 : supplemental plaintiff Nos.5 and 6 should be 1/12 and not 5/12 as stated in the judgment. It was therefore prayed that judgment and decree to that extent may be corrected by invoking Sec.152 of the Code of Civil Procedure (for short, “the Code”). Learned Munsiff has found against that plea and dismissed the application which is under challenge. Learned counsel for petitioners/supplemental plaintiff Nos.5 and 6 contend that in so far as learned Munsiff has found that Kadiri had ½ right in the suit property and on his death 1/6 right in that ½ right devolved on original plaintiff, share of petitioner and supplemental plaintiff Nos.5 and 6 cannot be 5/12 as stated in the judgment and preliminary decree of trial court but 1/12. Learned counsel has placed reliance on the decisions in Kuruvilla Thomas Vs. State Bank of Travancore (1988(1) KLT 563), Abdhu Vs. Assainar (1993(2) KLT 711) and Vasudevan Vs. Lakshmi (2000(1) KLT 306) to contend that such mistakes are amenable to correction under Sec.152 of the Code and hence learned Munsiff was not correct in dismissing the application. Learned counsel for supplemental plaintiffs would contend that Kadiri has got 1/2 right in the suit property following death of his mother, Mariyamby but further observation that on the death of Kadiri 1/6 W.P(C).No.25710 of 2009 : 4 : right in that ½ right devolved on original plaintiff (consequently on the supplemental plaintiffs) is not correct and that is a mistake committed by learned Munsiff in stating the share. According to the learned counsel, ultimate decision rendered by the learned Munsiff that share of supplemental plaintiffs is 5/12 is correct. Learned counsel has placed reliance on Mulla on Principles of Muhomedan Law at page 48 to contend that on the death of Mariyamby, her daughter in the second marriage (Pathumayi) has got 1/6 share in which case the remaining 5/6 share goes to the supplemental plaintiffs. 2. No doubt, Sec.152 of the Code permits the court to correct judgment and decree when there is clerical or arithmetic mistake or error arising from accidental slip or omission. It is true that in paragraph 15 of the judgment it is stated 1/6 right of Kadiri in his ½ right devolved on original plaintiffs. But the further direction in the judgment and preliminary decree, according to learned counsel for supplemental plaintiffs is in accordance with share as provided under the Muhomedan Law to which reference is made by learned counsel I am not persuaded to think that petitioner/supplemental defendant Nos.5 and 6 could complain of any clerical error or mistake arising from W.P(C).No.25710 of 2009 : 5 : accidental slip or omission in the judgment and decree which could be corrected under Sec.152 of the Code. As such the prayer for amendment under Sec. 152 of the Code cannot be sustained. If the entitlement of parties stated in the judgment and decree is not correct, proper procedure is to challenge it by way of appeal. Writ petition is dismissed without prejudice to the right if any of petitioners to challenge the preliminary judgment and decree, as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/-