VALMIKI J. MEHTA, J. (ORAL)

IA No……../2012 (to be numbered by the Registry)

There is no opposition to the application for condonation of delay in filing of the review petition and therefore delay in filing the review petition is condoned. IA stands disposed of.

Review Petition No…/2012(to be numbered by the Registry)

1. This review petition is taken across the Board in Court inasmuch as the defendants no. 2 to 4/review petitioners had filed this review petition on 25.9.2012, but the same was returned under objection by the Registry. Counsel for the defendants no.2 to 4 states that so far as the court fee is concerned no court fee is payable except a sum of Rs.20/- as paid on the review petition, and with which submission I agree inasmuch as the suit for partition had been filed with a court fee of Rs.20/-, and therefore, a review petition containing this stamp duty of Rs.20/- is sufficient. This is more so because as per the law applicable on the date of filing of this suit, a decree for partition in a suit is not stamped on the basis of court fee payable, but the stamp duty is paid by means of a non-judicial stamp paper in terms of Article 45 of the Indian Stamp Act, 1899 inasmuch as by virtue of Section 2(15) of the Indian Stamp Act, 1899 an instrument of partition includes a decree for partition. This suit has been filed in 2007 i.e prior to the amendment w.e.f. 1.8.2012 of the Court Fees Act, 1870 as applicable to Delhi. This review petition be therefore registered and number be given by the Registry.

2. By this review petition the defendants no. 2 to 4 seek review of the judgment dated 31.7.2012 by which the suit for partition filed by the plaintiff was decreed and a preliminary decree was passed giving each of the parties to the present suit, who are the sons; daughters and the widow of late Sh. Lakhpat Rai Jain, 1/7th share in the suit property bearing no. C-9, NDSE, Part-II, New Delhi as also in the other properties of the HUF.

3. By the judgment dated 31.7.2012, it was held that daughters have an equal right in the coparcenary property in terms of the amended Section 6(1) of the Hindu Succession Act, 1956 by virtue of Act 39 of 2005. Para 5 of the said judgment reads as under:-

“5. Learned counsel for the plaintiff argues that let the case of the defendant nos. 2 to 4 as pleaded in the written statement be accepted that the property is a HUF property. Learned counsel for the plaintiff further argues that since after amendment of Section 6 of the Hindu Succession Act, 1956 by Act 39 of 2005 w.e.f. 9.9.2005, the daughters have an equal right to that of the son in the HUF property therefore the suit can be decreed by passing a preliminary decree giving the daughters also their shares of the properties, and only because of which issue/dispute the suit remains pending.

Learned counsel for the plaintiff has in my opinion rightly relied upon Section 6(1) of the said Act which specifically provides that now daughters will have an equal share as a male coparcener in the HUF properties. Therefore in my opinion once we accept the admitted case of defendant nos. 2 to 4 in their written statement that there was a HUF, the suit accordingly will have to be decreed on that accepted basis that there was a HUF of which father late Sh. Lakhpat Rai was the karta, the plaintiff and defendant nos. 2 to 4 (sons) were male coparceners and defendant nos. 5 and 6 (daughters of Sh. Lakhpat Rai) and defendant No.1/mother would be the family members of the HUF and all the parties to the suit have an equal share in the properties of the HUF, including the house C-9, NPSE-II, New Delhi.”

4. The present review petition is predicated on two grounds. The first ground is that the provision of Section 6(1) brought in by Act 39 of 2005 is prospective (and not retrospective) in nature, and since in the present case father-Sh.Lakhpat Rai Jain expired on 29.12.1992 i.e before passing of the Act 39 of 2005, therefore, succession having already opened on 2