(Querist) 13 October 2008
This query is : Resolved
A muslim partition suit was decreed in name of 6 Sons as defendants and 5 Daughters as plaintiffs, As per decree sons are entitle for 2/17th share and daughters are entitle for 1/17th share..
While filing FDP all the original defendants and plaintiffs were dead as this a very long pending suite,
Hence all their LR's had to be brought on record to represent them in FDP.
In one 3rd plaintiff's case who is a daughter, She had 3 children 1 son and 2 daughters, Son had predeceased her mother (hence he is not entitle for share as per Mohameddan law)..
But by mistake or purpose, The predeceased sons heirs were brought on record while filing of FDP.. As per LAW they are misjoinders, As their father(predeceased son of 3rd plaintiff) was not entitle for any share in the 3rd plaintiff Property.
FDP is still pending, As per decree my great grandmother is entitle for 1/17 share, while filing of FDP they have brought on record heirs of this predeceased son as LR's (misjoinders) along with their 2 aunts as the son(died in 1974) had predeceased, of original 3rd plaintiff, Since FDP is to allot 1/17th share for my Great grandmother in that only two daughters of Original 3rd plaintiff are entitle for share.
Point to be noted: These predeceased son's children were brought on record, while filing FDP in 1984, where as preliminary decree was passed in 1970, since the original 3rd plaintiff had died(1978) at the time, In muslim law birth right is not recognised(where Hindu law recognises birth right), hence this issue of predeceased son will come up only after the death of Share holder ie 3rd plaintiff(1/17th share holder as per decree)
question: 1) FDP is still pending, Will the court executing decree will delete these misjoinders in FDP proceedings itself, as per Rule 10(2) and sec 47. or we have to file a seperate suite after FDP...
2) Since court in which FDP is pending is delaying on argument of our application, can we file a writ petition in High court to delete this misjoinders...
(Expert) 14 October 2008
Executing court can not go beyond the decree.
disputing parites will have to take other remedies.
(Expert) 14 October 2008
dear mohd ai, U have not stated if the FDP is pending or disposed off. Any how if it is disposed off, no need to file a separate suit. the executing court can decide the matter since the decree granting share to them is against law. U can file objections in the ep or can file petition u/s 47 cpc.