Mohamed Ali (employee) 08 February 2010

Declaratory suit

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,
3rd 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...

The final decree proceedings court is not ready to decide Interse problem among one 3rd plaintiff's Legal heirs, as some of the legal heirs of 3rd plaintiff are on record as LR's by mistake, even though they are not entitle for any share as per Mohameddan law.

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 and the result of whcih can be clubbed in the pending final decree proceedings.

Question: Can a seperate suit be filed to declare who are the right legal heirs 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.

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2 Replies

N.K.Assumi (Advocate) 08 February 2010

Similar case was decided by the Gauwahati High Court Imphal Bench: In that case the matter was before the Hon'ble Mr.Justice M.BK Singh: One of the first issue was whether the defendants 1 to 6 were the brothers of the same parents. the Learned Civil judge proceeded with the case without determaining that issue and left it to b decided by the Family Court, Manipur.The Learned Justice M.BK Singh, held that the first issue is the most important issue and without deciding that isue it will not be possible to dispose of the suit properly, without deciding the said issue. So unless the right legal heirs is decided first it will not be possible for the court to do justice in the case for the shares to be alloted to the right heirs.

Daksh (Student) 09 February 2010

Dear All,

I concur with Mr.Assumi's view point but would like to add that there is no need of separate suit as Mr.Mohamed Ali has mentioned that "some of the legal heirs of 3rd plaintiff are on record as LR's by mistake". This mistake can be cured in this proceeding itself and as such to my mind there is no need of filing a separate parallal proceeding as lastly nothing is going to happen in any eventuality both the proceedings are bound to be clubbed together.

Best Regards

Daksh