Final decree
Mohamed Ali
(Querist) 06 February 2010
This query is : Resolved
A Sunni hanafi family partition suit was decreed in 1960 by the Additional court,
our grandmother who is 3rd plaintiff in suit was entitled for 1/17th share as per decree,
She died 26 years after decree in 1986.
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 for which the two daughters did not object.
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 saying, Whether Orphaned grandchildren will get any share or not will not be determined in this pending final decree proceedings, Final decree proceedings is only to allot the share as per decree. Morever we have not objected at the time when the LR application of this orphaned grandchildren was filed in 1989.
We filed writ petition in high court..
Writ petition in High court: The high court also has held same view as trial court and dismissed our Writ petition, saying if these grandchildren are not deleted from the record in this pending final decree proceedings it will not affect the other co-plaintiffs as just the names orphaned grandchildren as LR’s of 3rd plaintiff on record will not create any right to them. If they are not entitle for share as per Mohameddan law they will not get the share. But how ? Since they are on record right will go to them ?
Final decree proceedings is still pending..
My Question:
1) Can we file one more Interlocutary application in the trial court where Final decree proceedings is still pending, that these oprphaned grandchildren are not legal heirs as per Mohameddan law hence Orginal 3rd plaintiff’s share must be allotted to only the two daughters not to these orphaned grand children at the time of drawing of final decree.
2)Can we file a separate Orginal Suite parallel to this pending final decree proceedings based on Preliminary decree that the 1/17th share of Orginal 3rd plaintiff as per decree must be allotted only two daughters of 3rd plaintiff not to these Orphaned grandchildren. And later we can club this result of original suite with the final decree proceedings. As here the problem is limited scope of final decree proceedings
3)please suggest a way so that these Oprhaned grandchildren must not get any share in this pending final decree proceedings.
Raj Kumar Makkad
(Expert) 06 February 2010
1. Yes. You can file another application to this effect.
2. You cannot file another suit as all issues have already been decided and though the decree is nullity yet it has attained finality and cannot be reopened.
3. File an application in the pending matter.
Mohamed Ali
(Querist) 08 February 2010
Sir, The decree dated 1960 is a preliminary decree,In that preliminary decree our grandmother share is declared as 1/17th share in all the suit schedule properties, Final decree proceedings is still pending, The final decree proceedings court is not ready to decide Interse problem among one 3rd plaintiff's Legal heirs, as some of the legal heirs of 3rd plaintiff are on record as LR's by mistake, even though they are not entitle for any share.
Now our advocate say we can file a seperate orginal suite(declaratory suit) in a Junior divison court stating that, for 1/17th share of 3rd plaintiff as per preliminary decree in 1960,these orphaned grandchildrens are not legal heris and hence they are not entitle for any share.
he is telling we can file a only declaratory suit and the result of whcih can be clubbed in the pending final decree proceedings.
Mohamed Ali
(Querist) 08 February 2010
Here there is no question of reopening of preliminary decree, It is only to declare who are the legal heirs of 3rd plaintiff who are entitle to get her share after her death in 1980...
