Muslim law
Mohamed Ali
(Querist) 19 March 2013
This query is : Resolved
Dear All,
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 2 orphaned grandchildren a grand son and a grand daughter, only two daughters survived the mother.
We filed (daughters) a declaratory suit against these orphaned grand children seeking a declaration that only 2 daughters alone entitled to succedd in left over properties of their mother and these orphaned grandchilden are not entitled for any share,
But the trial court has dismissed our suit saying the daughters are not entitle to succeed to the whole property of their mother they are entitled for only 2/3rd share and the remainig 1/3rd will go to orphaned grand children as they will come under residuaries as per Section 65 of Mullah's, Even though we had brought to the notice of the court that even if the 1/3 rd residue remains it will go to the other Sharers such the uterine relations of grand mother i.e her brothers and sisters if they are alive or their childrens not to these orphaned grand children. Kindly clarify, How to proceed now. Any Citation where onl;y daughters survived and the son had predeceased . will help.
Thanks and Regards
Ali
prabhakar singh
(Expert) 19 March 2013
I do not find any lacuna or illegality in the judgement of the trial court.
The deceased mother whose estate has to be inherited here is survived by her two daughters and children of her predeceased son are the facts stated by you.
you have not stated the number and sex of children.Only you know why?Perhaps you are swept by your jurisprudence of orphanage.
Look! what happens when any MUSLIM dies living any estate.
According to a celebrated authority Al Sirajiyyah and Al Sharifiyyah:
The first step in the distribution of estate of a deceased Muslim,after payment of his /her funeral expenses,debt and legacies,is to allot their respective shares TO SUCH OF THE RELATIONS AS BELONG TO THE CLASS OF SHEARERS AND ARE ENTITLED TO A SHARE;
The next step is to divide the residue,if any,among SUCH OF THE RESIDUARIES AS ARE ENTITLED TO THE RESIDUE.
AND IF THERE ARE NO SHARERS,THE RESIDUARIES
WILL SUCCEED TO THE WHOLE INHERITANCE.
LASTLY,IF THERE BE neither SHARERS nor RESIDUARIES,only then inheritance would be divided among SUCH OF THE DISTANT KINDRED AS ARE ENTITLED TO SUCCEED THERE TO.
Now coming back to your facts. Deceased died leaving behind 02 daughters and children of a predeceased son.
Guided by rule enumerated above(their work is treated as authority by Hanafi school), who we find as sharers,02 daughters whose defined share would be 2/3 rd in your facts of the case;1/3 rd is the residue.For this we need to look for preferred residuaries.
Among long list of residuaries DESCENDANTS come FIRST and exclude all OTHER residuaries.
THE LIST OF DESCENDANTS COUNTS IN PREFERENCE 1.SON(if he is daughter also gets as residuary with a proviso that son would take double of the daughter) BUT IN YOUR FACTS NOT APPLICABLE AS SON HAS PREDECEASED.
2.The next in preference among residuaries comes SON'S SON HOW LOW SOEVER,the nearer in degree shall exclude the remoter.
For our facts we have 1/3 rd as residue to
go to son of a predeceased son.In case among children(as sex untold by you)of predeceased son one is male and the other is female then 2/9 would go to male(deceased son's son)and 1/9 to female(deceased son's daughter).
HENCE IN MY OPINION THE JUDGEMENT IS 100% CORRECT ACCORDING TO HANAFI SCHOOL OF MUSLIM LAW OF INHERITANCE.
Adv k . mahesh
(Expert) 19 March 2013
very well explained by Mr Prabhakar Singh
Mohamed Ali
(Querist) 19 March 2013
Dear Prabhakar Sir,
Once a person predeceased his case is closed there it self.
There are 3 rd set of Sharers as given below,
the remaining 1/3 rd will go uterine brothers and sisters, hence there is no question of resiuaries and other sharers are present such as brothers and sisters of grand mother.
The third set of sharers are uterine brothers and sisters. They are entitled to one-sixth if their number is one, and one-third if they are more than one.
Regards
Ali
Mohamed Ali
(Querist) 19 March 2013
Dear Prabhakar Sir,
Once a person predeceased his case is closed there it self.
The Sharers are 12 in number and are as follows:
(1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.
There are 3 rd set of Sharers as given below,
the remaining 1/3 rd will go uterine brothers and sisters, hence there is no question of residue remaining as other sharers are present such as brothers and sisters of grand mother or there children s if they are not alive.
When there are sharers such as uterine brothers and sisters of grand mother if alive or there children. They are entitled to one-sixth if their number is one, and one-third if they are more than one.
Regards
Ali
prabhakar singh
(Expert) 19 March 2013
Dear Mr.Mohamed Ali!
You did not mention in your first post clearly that besides 02 daughters as sharers,the deceased was also survived by SO AND SO SHARES.WHY?
If you put misleading facts what can a respondent like me do?I HAVE VERY CLEARLY SPOKEN THAT PROPERTY would go FIRST to SHARERS and if any RESIDUE left would go to RESIDUARIES as come NEXT TO SHARERS.
THERE IS NOTHING WRONG IN MY REPLY.
ONLY YOUR FACTS PUTTING IS WRONG.
More over the suit's dismissal is still right
as 02 daughter here can not claim any thing more
than 2/3 rd,then how can court declare them owner
of whole.
However court's finding about 1/3 rd is not binding upon sharers entitled to it if they were not party.If they were party,they need to file appeal against this
finding.
Mohamed Ali
(Querist) 19 March 2013
Dear Prabhakar Sir,
I admit my mistake Sir, i have not mentioned about the other sharers such a surviving childrens of uterine brothers and sisters of grandmother but I have mentioned we brought to the notice of court even if residue remains it will go to uterine relations of grand mother.
Even though 2 daughters are not entitled for whole share of their mother, Since the suit was filed between Daughters and children of predeceased son's childrens and uterine relations are not party to the suit,
In this case only daughters are entitled to succeed their mother(ofcourse for 2/3 rd only) where as predeceased sons children are not entitled to succeed for anything, The court should have given the declaration that only daughters are entitled to succeed in their mother's property between these 2 parties to the suit not the orphaned grand children. But it did not say anything about orphaned grandchildren it said they will come under residuaries and thereby succeed to 1/3 rd share, which is also wrong.
Mohamed Ali
(Querist) 19 March 2013
Dear Prabhakar Sir,
I admit my mistake Sir, i have not mentioned about the other sharers such a surviving childrens of uterine brothers and sisters of grandmother but I have mentioned we brought to the notice of court even if residue remains it will go to uterine relations of grand mother.
Even though 2 daughters are not entitled for whole share of their mother, Since the suit was filed between Daughters and children of predeceased son's childrens and uterine relations are not party to the suit,
In this case only daughters are entitled to succeed their mother(ofcourse for 2/3 rd only) where as predeceased sons children are not entitled to succeed for anything, The court should have given the declaration that only daughters are entitled to succeed in their mother's property between these 2 parties to the suit not the orphaned grand children. But it did not say anything about orphaned grandchildren it said they will come under residuaries and thereby succeed to 1/3 rd share, which is also wrong.
Regards
Ali
Mohamed Ali
(Querist) 19 March 2013
Dear Prabhakar Sir,
I admit my mistake Sir, i have not mentioned about the other sharers such a surviving children s of uterine brothers and sisters of grandmother but I have mentioned we brought to the notice of court even if residue remains it will go to uterine relations of grand mother.
Even though 2 daughters are not entitled for whole share of their mother, Since the suit was filed between Daughters and children of predeceased son's childrens and uterine relations are not party to the suit,
In this case only daughters are entitled to succeed their mother(ofcourse for 2/3 rd only) where as predeceased sons children are not entitled to succeed for anything, The court should have given the declaration that only daughters are entitled to succeed in their mother's property between these 2 parties to the suit not the orphaned grand children. But it did not say anything about orphaned grandchildren it said they will come under residuaries and thereby succeed to 1/3 rd share, which is also wrong.
Regards
Ali
prabhakar singh
(Expert) 19 March 2013
Dear Mr.Mohamed Ali!
MY LAST ANSWER ADDRESSES ALL SITUATIONS AND I HAVE ADEQUATELY GUIDED YOU ABOUT THAT EVEN WITHOUT YOUR LAST EXPLANATION WHICH YOU HAVE UNDERSTOOD TOO.
HENCE NO PROBLEM,MOVE ON ACCORDINGLY.
Mohamed Ali
(Querist) 20 March 2013
Dear Prabhakar Sir,
But the suit dismissal is wrong then ?
Is there any scope to get the desired declaration if we go to appeal.
Ali
Mohamed Ali
(Querist) 20 March 2013
Dear Prabhakar Sir,
But the suit dismissal is wrong then ?
Is there any scope to get the desired declaration if we go to appeal.
Ali
Devajyoti Barman
(Expert) 20 March 2013
When was the suit dismissed? If delay is not much then prefer appeal.
Mohamed Ali
(Querist) 20 March 2013
Sir, Suit was dismissed on 28-3-2013 and we have recived the copy of judgement yesterday,.
V R SHROFF
(Expert) 20 March 2013
Prefer Appeal as suggested by Shri Barman
prabhakar singh
(Expert) 20 March 2013
"Dear Prabhakar Sir,
But the suit dismissal is wrong then ?
Is there any scope to get the desired declaration if we go to appeal."
IS YOUR LATEST QUERY ADDRESS TO ME.
YOU CAN FILE APPEAL AS IT IS YOUR RIGHT.
BUT I DISAGREE THAT SUIT DISMISSAL IS WRONG BECAUSE IN MY VIEW THE 02 DAUGHTERS BEING ENTITLED TO ONLY 2/3 SHARE FIXED IN QURAN DO NOT HAVE ANY RIGHT TO GET A DECLARATORY DECREE FOR WHOLE.
ON SUBSEQUENTLY IMPROVED FACTS I TOO FIND THAT REST 1/3 WOULD NOT GO TO CHILDREN OF PREDECEASED SON AS RESIDUE BECAUSE THERE ARE STILL QUARANIC SHARERS TO EXHAUST THAT
1/3 LIVING NO RESIDUE AT ALL.
HENCE FINDING ABOUT RESIDUE IS WRONG BUT IT DOES NOT CONFER UPON PLAINTIFFS TO HAVE DECLARATION OF WHOLE AS BELONGING TO THEM INSTEAD OF 2/3.
FURTHER THIS FINDING IS NOT BINDING UPON THOSE WHO ARE ENTITLED TO IT AS THEY WERE NOT PARTY IN THE SUIT.
I DO NOT KNOW WHY DESPITE AGREEING THAT PLAINTIFFS HAVE ONLY 2/3 YOU WANT A WAY OUT
TO HAVE A DECLARATION OF WHOLE IN THEIR FAVOR.
Mohamed Ali
(Querist) 20 March 2013
Dear Prabakar Sir,
We want a declaration that Oprhaned grandchildrens are not entitle for any share, Since we cannot seek negative declaration Saying declare that defendants are not entitle for any share in the properties of or grand mother, we had gone this way.
Rgds
Ali
prabhakar singh
(Expert) 20 March 2013
Dear Mohamed Ali!
The maximum declaration you can seek is that plaintiff have inherited 2/3 as daughters
and 1/3 has been inherited by so and so as Quoranic heirs leaving no residue to pass on to defendant's(sons of a predeceased son).But unfortunately you have not made party to 1/3 sharers who were necessary party.
Mohamed Ali
(Querist) 20 March 2013
Dear Prabhakar Sir,
Actually our grandmother got her share from her father, for which there was a suit and as per decree in that suit our grand mother was entitle for 1/17th share, for which FDP proceedings are still pending and these Orphaned grandchildren were brought on record as LR's in the same final decree proceedings, for which which objected later after almost 20 yrs in same fdp, But fdp court did not delete them fdp court told LR's are only to represent the decree holders, Hence for our branch we filed an declaratory suit if we want to inclue other sharerers in this suit then there are so many uterine relations.
Regards
Ali
prabhakar singh
(Expert) 20 March 2013
SIR GREAT Mohamed Ali!
THIS IS NOT THE WAY TO TAKE ANY OPINION.I SHUT MY DOORS.KINDLY DO NOT KNOCK IT ANY MORE IS MY HUMBLE REQUEST.
I FEEL MALE MUFT DILE BERTAHAM NOW?
GOOD BYYYYYYYYYYYYYYYYYYYYYYYYYYYYY!
prabhakar singh
(Expert) 20 March 2013
NOW TRY WITH THEM WHO AGREE WITH YOU.
MEAN WHILE I AM GOING FOR A FRESH WASH OPPOSITE TO MIRROR , TRULY ADVISED BY AN WELL WISHER HERE WHO HAS NO SUFFICIENT REASONS TO HAVE GRUDGE AGAINST ME YET HE
HAS BECAUSE MY HOROSCOPE IS OF SUCH NATURE
IN WHICH YOU PROFESSING ISLAM MAY NOT BELIEVE .
Raj Kumar Makkad
(Expert) 20 March 2013
28.03.2013 has yet to come. How your case can dismiss in future date previously?
prabhakar singh
(Expert) 20 March 2013
...............KAMEE NAHEE GALIB !
EK DHOONDHO HAJAR MILTE HAIN !!
Mohamed Ali
(Querist) 21 March 2013
Sir it was dismissed on 28.02.2013...
