It is well known principle of Mohameddan law that orphaned grandchildren are not entitle for any share in their Grandmother or Grand father’s property.
Here property in question is of grandmother, whose son has predeceased her with three orphaned grandchildren, only two daughters survived the mother.
But our opposition lawyer has posted the below extract from tables of Sunni-law and our Interlocutory application got dismissed in the trial court.
Residuaries: If there are no sharers, or if there are sharers but there is a residue left after satisfying their claims, the whole inheritance as the case may be devolves upon residuaries.
“The daughter cannot inherit share when there is a son but if the heirs be a daughter and a son’s son, the daughter as a sharer will take ½ and the son’s son as a residuary will take remaining ½, as same, if there are two daughters, sons son and sons daughter,
two daughters get 2/3 rd share, sons son get 2/3rd share of 1/3rd i.e. equal to 2/9th share and sons daughter will get 1/3rd of 1/3rd share i.e. equal to 1/9th share as a residuary”
But In the above extract Para there is no where mentions that he is Predeceased Son’s son and also here there are sharers as two daughters survive their mother the only son has predeceased her.
As per Sharia law / Mohammedan law only heirs who are alive at the time of their ancestor death they are are only ones who are entitle for share in their ancestor property not the ones who predeceased him or her
1) Do the orphaned grand children fall into residuary category?
2) Or They will be completely excluded from Inheritance by their Aunts who survive their mother the decree holder as per Principle of representation of Mohameddan law?
3) Do we approach high court thru Writ petition that orphaned grandchildren are not entitle for any share ?