To delete wrongly added LR's in Final decree proceedings
Mohamed Ali
(Querist) 01 November 2008
This query is : Resolved
A Muslim Partition suite was decreed, In which my grand mother is entitle for 1/17th as per decree in the total property of her father
Note: In Mohameddan law, Predeceased son /daughter childrens are not entitle for any share in their grandparents property, Also in Muslim law birth right is not recognized, therefore the right to property in question will come only after the death of property holder.
My grand mother died after decree, As per decree my great grand mother got 1/17 share, and her only son predeceased her and only 2 daughters survived her.
When filing for Final decree proceedings they brought on record these children of predeceased son as legal heirs of predeceased son who are grandchildren of share holder
who are misjoinders as per law and order 1 rule 10(2) can be applied to delete this misjoinders at any stage of proceedings.
We have filed an Interim Application in pending final decree proceedings to delete this misjoinders,
Will the court executing decree strike out these misjoinders,
Our doubt: Some advocate are telling the court executing decree cannot go beyond decree to delete this misjoinders, but it is a question of LR’s wrongly brought on record after the death of decree holder after the decree when filing for Final decree proceedings hence it can be taken up at any stage of proceedings .
PALNITKAR V.V.
(Expert) 15 January 2009
Dear Ali,
If the decree has not become final, the final decree proceeding is treated as continuation of the suit. Hence, the unncessary parties can be deleted by making a suitable amendment. If the decree is at the stage of execution, even then amendment can be allowed to delete the parties who are not necessary. Assuming that the unncessary parties can not be deleted at the stage of execution, that by itself does not give any rights to the persons who are not legally entitled to any share. So in either case, there is no cause to worry.
