IMPORTANT POINT
Law does not prescribe any fixed time period in which a suit for partition must be filed by one joint owner against other.

Sanjiv Khanna, J.—The present intra court appeal under Order 43, Rule 1 of the Civil Procedure Code of, 1908 read with Section 10 of the Delhi High Court Act, 1968 impugns order dated 11th February, 2013 passed in IA No.7915/2011 filed by the appellant (defendant no.2 in the suit) in CS(OS) No.663/2011.

2. The impugned order also disposed of application No.7857/2011 filed by Ram Chander Nath, HUF, defendant no.4 in the said suit. The said defendant has not preferred any appeal.

3. Respondent nos.1 and 2 Smt. Krishna Gupta and Ms. Madhu Agarwal are the two plaintiffs who have filed CS(OS) No.663/2011 seeking partition, possession, rendition of accounts, permanent and mandatory injunction in respect of properties of Rajinder Nath and Co. HUF, defendant nos.1 and Ram Chander Nath, HUF.

4. The following table gives the relationship between the parties to the present appeal and the suit:-

5. The plaint claims and asserts that pursuant to the amendment to the Hindu Succession Act, 1956 by way of Hindu Succession Amendment Act, 2005, the plaintiff being daughters have acquired a right, title or interest in the Joint Hindu Family properties and are entitled to seek and pray for partition etc.

6. The appellant’s contention is that the judgment of the Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36, opines and holds that the aforesaid amendment is not retrospective and would not apply. Father of the respondent nos.1 and 2 i.e. the plaintiffs and the coparcener had expired on 24th August, 1981, which is before the aforesaid amendment. To this extent, the plea of the appellant may be correct. Equally the claim and cause of action pleaded in the plaint, is not restricted to the amendment vide Hindu Succession Amendment Act, 2005. Relevant in this regard would be averments made in paragraph 13 of the plaint, which read as under:-

“13. That Sh. Rajinder Nath died intestate on 24.08.1981 leaving behind his widow Smt. Kamla Devi, both the plaintiffs and defendants No.2 & 3 as his class I legal heirs. Therefore, the said legal heirs including Smt. Kamla Devi succeeded to and inherited all the individual assets of Sh. Rajinder Nath to the extent of ?th share for each of them in the said individual assets. The interest of Sh. Rajinder Nath in the joint family property to the extent of his ?th share in the assets of Rajinder Nath & Co. HUF was also inherited by the said class I legal heirs to the extent of 1/25th share for each of them. Subsequently Smt. Kamla Devi also died intestate on 04.12.2009 and all her individual assets as well as her 1/25th share in the assets of the Rajinder Nath & Co. HUF also devolved by succession and were inherited in equal share by her surviving Class-I legal heirs i.e. the aforesaid three daughters and the son Sh. Narender Nath.”

Thus, the first and the second respondents have asserted their claim on “deemed partition” principle on death of their father Rajinder Nath in 1981. It is pleaded that he had died intestate and, therefore, the two respondents are entitled to 1/25th share each in the assets of Rajinder Nath & Co. HUF being Class-I legal heirs of their father. Claim or right is made also to assets or the share of Kamla Devi, their mother who is stated had died intestate on 4th December, 2009. The appellant relies on purported “Will” of Rajinder Nath and Kamla Devi, which are contested by the two respondents. This is a matter of issue and dispute to be adjudicated and decided.

7. The appellant submits that the suit is barred by limitation. Mr. Rajinder Nath had expired in 1981 and Kamla Devi had expired in the year 2009 and the suit for partition etc. was filed in March, 2011. The appellant’s submits that the respondents’ claim on account of inheritance to the estate of Rajinder Nath is covered and governed by the residuary Article 106 of the Limitation Act, 1963. Accordingly, the suit for partition having been filed 12 years post death of Rajinder Nath, would be hit and b