VALMIKI J. MEHTA, J.

Caveat Nos. 50-51/2018

Counsel appears for the caveators. Caveats accordingly stand discharged.

RFA No.72/2018 & CM No.2749/2018 (stay) & CM No.2750/2018 (seeking summoning of the trial court record) and CM No.2751/2018 (Exemption)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the suit impugning the judgment of the trial court dated 12.10.2017 by which the trial court has decreed the suit filed for partition and has passed a preliminary decree as under :-

“30. Relief :

In view of my above findings and the reasons preliminary decree suit in respect of suit property bearing no.D-330, Defence Colony, New Delhi, is passed declaring the share of the parties as under :

(i) Ms. Rajika Narain and Ms. Rasika Narain (plaintiffs) shall get 6/9th share in the suit property.

(ii) Ms. Shashi Bahadur (defendant no.1) shall get 2/9th share in the suit property.

(iii) Sh. Ranjit Bahadur (defendant no.2) shall get 1/9th share in the suit property.

(iv) Plaintiffs are also entitled to have true and correct account of the income fetched from the suit property and the manner in which the said income has been dealt with after the death of late Sh. R.S. Bahadur.

Ordered accordingly.”

2. Parties are the family members of the original plaintiff Smt. Malka Bahadur who was the widow of late Sh. R.S. Bahadur. Defendant no.1 in the suit and who is the appellant no.1 in this Court is the daughter-in-law of the original plaintiff Smt. Malka Bahadur as she is the widow of Sh. Jitender Bahadur son of Smt. Malka Bahadur and Sh. R.S. Bahadur. Defendant no.2 in the suit and the appellant no.2 herein is the son of the appellant no.1/defendant no.1 being the son of late Sh. Jitender Bahadur. I may note that suit was originally filed by Smt. Malka Bahadur against her daughter-in-law being the appellant no.1/defendant no.1 and her grandson being appellant no.2/defendant no.2 seeking partition of the suit property bearing no. D-330, Defence Colony New Delhi, however during the pendency of the suit the original plaintiff/Smt. Malka Bahadur expired and her daughter Smt. Abha Narain, who was the defendant no.3 in the suit was transposed as a plaintiff on the basis of a registered Will dated 5.5.1999 executed by the deceased plaintiff/Smt. Malka Bahadur in favour of her daughter Smt. Abha Narain. Smt. Abha Narain also expired during pendency of the suit on 29.9.2004 and she was thereafter substituted by her two daughters who became the plaintiffs and are hence the respondents in this appeal. Reference in this judgment to the plaintiff will include, wherever context so requires, reference to the original plaintiff or the present respondents who are the daughters of Smt. Abha Narain, daughter of the original plaintiff Smt. Malka Bahadur.

3.(i) It is undisputed that Sh. R.S. Bahadur created an HUF, by throwing the suit property in common hotchpotch in terms of his declaration dated 11.5.1970/Ex.PW1/2. Sh. R.S. Bahadur expired on 11.6.1977. In view of Sh. R.S. Bahadur expiring intestate on 11.6.1977, and there existing an HUF, and that Sh. R.S. Bahadur died leaving behind a female heir specified in Class-I of the Schedule of the Hindu Succession Act, 1956 consequently, in view of Section 6 of the Hindu Succession Act on the death of Sh. R.S. Bahadur there was deemed to have taken place a partition in the family with such shares falling to the parties which were their shares in the HUF property just before the death of Sh. R.S. Bahadur. This is the law in view of Section 6 of the Hindu Succession Act as interpreted in the judgment of the Supreme Court in the case of Uttam Vs. Saubhag Singh and Others (2016) 4 SCC 68.

(ii) It is also settled law in view of the judgment of the Supreme Court in the case of Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and Others (1978) 3 SCC 383 that though ordinarily a female does not have a right in an HUF property (i.e. the position prior to