Declaratory Suite
Mohamed Ali
(Querist) 08 February 2010
This query is : Resolved
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 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, 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...
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,
Now what is the remedy for us ?
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: 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.
Raj Kumar Makkad
(Expert) 09 February 2010
In the given facts, the opinion of your counsel seems accurate. File a separate suit.
Khaleel Ahmed Mohammed
(Expert) 09 February 2010
Already once I have answered the same question in this forum.
The orphaned children are not the legal heirs of the deceased as per shariah.
Who are the legal heirs of the deceased as per shariah?
The two daughters and the other heirs of the deceased means children of her brothers and sisters are the heirs of the deceased as islamic shariah.You can get a fatwa by mentioning all the relevent deatail of her brothers and sisters children from Darul Ifta, Madarsa Mazahir Ul uloom, Saharanpur , Uttar pradesh. Before you file a seprate suit.
