I.A Dismissed..
Mohamed Ali
(Querist) 01 December 2009
This query is : Resolved
A Sunni hanafi family partition suit was decreed in 1960 by the Additional court, There are 11 decree holders 6 sons and 5 daughters, So as per decree each son is entitle for 2/17th share and each daughter to 1/17th share. Later RFA was filed and finally.
Final decree petition is filed in the year 1989, there were two types of properties town properties and revenue properties in the decree schedule, town properties were distributed by appointing a commissioner as per decree in 1995 and final decree proceedings for revenue properties is still pending in Principle civil judge senior division and CJM court.
In one of the daughter’s case who is 3rd plaintiff in suit, she had 1 predeceased son with
3 children’s and 2 daughters’s who survived her.
While filing Final decree petition in the year 1989, the 3 children’s of predeceased son were wrongly brought on record as Legal heir’s of 3rd plaintiff along with her two daughters, to which the two daughters did not object then, Now in the year 2008 daughters have filed an Interlocutory Application under Section 151 of CPC, in front of the trial court to strike out from record those 3 children’s of predeceased son who are not entitle for any share in 3rd plaintiffs share as per Mohameddan law. It is well Known that as per Mohameddan law Orphaned grandchildren are not entitle for any share in grandparent’s property.
Orders on our IA: The Judge has dismissed our IA last Thursday saying, whether these Orphaned grandchildren entitle for any share in 3rd plaintiffs property cannot be settled in this pending Final decree proceedings as per order 1 rule 8, further saying Final decree proceedings is for only allotment of shares as per decree.
Further in this pending final decree proceedings, the parties except us have compromised out of court with one of the non bonafide subsequent purchaser of one decree schedule property ,who has been made party wrongly, for which we are objecting saying there is problem in branch of legal heirs of 3rd plaintiff which needs to be settled first, The judge is ready to settle issue of non bonafide purchaser in FDP but dismissed our IA saying it cannot be settled in FDP. The case is adjourned for 16th.
But as we know as per Order 1 rule 10(2) legal heirs can be strike out from record at any stage of proceedings if they are not entitle for share as per law, and also we know Final decree proceedings is continuation of original suit for partition where in any type of application can be considered. As these Orphaned grandchildren were brought on record after preliminary decree while filing final decree petition, they can be deleted, as per order 20 rule 18 final decree petition may be amended accordingly.
Now our advocate is planning to file CPC writ petition in the high court to challenge the trial court order as our objection is based on Mohameddan law point.
Please advice which is the best way to proceed. So that we can delete these Oprhaned grandchildren wrongly brought on record in this pending Final decree proceedings itself
Seeing to that during such time no harm must be caused to 3rd plaintiffs share in trial court proceedings.
Raj Kumar Makkad
(Expert) 01 December 2009
It is best way to approach HC as your counsel is already planning as per your quarry. It shall be better if a stay or proceeding is also obtained from HC till the decision of your revision qua the deletion of the names of the orphaned grandchildren of plaintiff no. 3.
Khaleel Ahmed
(Expert) 07 December 2009
As per your stated facts, legal representatives of 3rd plaintiff wrongly imp leaded or brought on record .The predeceased son` and daughters have no right over the property left by their grand mother as per Shariah. The other legal representatives should have opposed at the time of implead them as a legal representatives of the third plaintiff. You have stated that a separate IA has filed in this regard. The trial court have dismissed the your contention.
You are advised hereby to file a civil miscellaneous appeal in this regard to higher court. Filing Writ is not the right remedy.
The other option left for you, file a another civil suit against the heirs of predeceased son. Later the court will club both the cases and pass orders.
Mohamed Ali
(Querist) 08 December 2009
Dear Khaleel Sir, Our advocate says we cannot go for Appeal in District court, because it is an Order on I.A, we must go for Writ petition,
But as we have filed our I.A in 151 CPC instead of Order 1 rule 10(2) CPC to delete these LR's. Does this order is appeal able.
