This question is repeatedly filed not to disturb members, the idea is to get osulutely right View. As the matter is little bit complicated..
Sir,In this Sunni Muslim partition suit, The decree dated 1960 is a preliminary decree,In that preliminary decree our grandmother was 3rd plaintiff and her share is declared as 1/17th share in all the suit schedule properties,
Final decree proceedings was filed in 1986 and is still pending,
She has 3 children One predeceased son with 3 childrens, and 2 daughters who survive her.
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 for which the other legal heirs did not object at that time in 1986, even though they are not entitle for any share as per Mohameddan law.
The final decree proceedings court is not ready to decide Interse dispute among one 3rd plaintiff's Legal heirs to decide who are the legal heirs who are entitle for share in 3rd plaintiff's share, The court says it is out of scope of final decree court to decided who are the legal heirs who are entitle for share in the 3rd plaintiff’s 1/17th share.
As we have (daughters)already filed a application in the pending FDP to delete these LR’s but our I.A is dismissed .
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 for which the other legal heirs did not object at that time in 1986, even though they are not entitle for any share as per Mohameddan law.
The final decree proceedings court is not ready to decide Interse dispute among one 3rd plaintiff's Legal heirs to decide who are the legal heirs who are entitle for share in 3rd plaintiff's share, The court says it is out of scope of final decree court to decided who are the legal heirs who are entitle for share in the 3rd plaintiff’s 1/17th share.
As we have (daughters)already filed a application in the pending FDP to delete these LR’s but our I.A is dismissed .
We have collection of very good citations(ILR 2004 KAR 3599, Air 1982 Patna 89,Moolla CAssim 33, Cal 173 at page 178, 1992(3), KAR L.J.666(DB) etc on Mohameddan law ,which clearly shows that the predeceased son’s children are not entitle for any share..
what is the right remedy for us in pending final decree proceeding?
1) Can we go for a negative prayer through new Interlocutary application in the pending FDP saying the childrens of predeceased son are not legal heirs of 3rd plaintiff as per Mohameddan law, The court has to decide who are the legal heirs of 3rd plaintiff as sated in CPC Order 22 rule 5.
Or
2) Can a seperate Orignaluit 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.
3) Will Sperate suit will not be a resjudica as final decree is still pending
4) Can a declaratory suit with out court fees be filed just to declare who are the legal heirs of 3rd plaintiff?
4) Can a declaratory suit with out court fees be filed just to declare who are the legal heirs of 3rd plaintiff?
