Original suite to declare Legal heirs
Mohamed Ali
(Querist) 09 February 2010
This query is : Resolved
Sir,In this Sunnimuslim partition suit, 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 filed in 1986 and is still pending, Here there is no question of reopening of preliminary decree as the orginal 3rd plaintiiff died 20 years after preliminary decree and final decree is filed in 1986,
As some of the legal heirs(children of predeceased son) of 3rd plaintiff were brought on record in the Final decree petition as LR's of 3rd plaintiff by mistake along with the actual LR's, even though they are not entitle for any share as per Mohameddan law.
The final decree proceedings court is not ready to decide Interse problem among one 3rd plaintiff's Legal heirs to decide who are the legal heirs who are entitle for share in 3rd plaintiff's share,
Now what is the remedy for us ?
1) 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 heirs and hence they are not entitle for any share, it will be only declaratory suit to declare who are the correct legal heirs of 3rd plaintiff and the result of which later can be clubbed in the pending final decree proceedings.
Question:
1)Can a seperate suit be filed to declare who are the correct legal heirs as per Mohameddan law to succeed in the 1/17 th share of 3rd plaintiff, as FDP court is not ready to decide Interse matters between legal heirs of plaintiff.
2)Do we have to pay the court fees for the declaratory original suit as there are several schedule properties in the schedule more over the final decree is still pending ?
3)No need to pay court fee as this suit is to declare that the predeceased son's children not the legal heirs of 3rd plaintiff ?
how to file the declaratory suit ?
Raj Kumar Makkad
(Expert) 09 February 2010
Your quarry has very well been replied various times.
