A Sunni hanafi family partition suit was decreed in 1960 by the Additional court,
our grandmother who is 3rd plaintiff in suit was entitled for 1/17th share as per decree,
She died 26 years after decree in 1986.
She had 1 predeceased son with 3 children’s and 2 daughters’s who survived her.
While filing Final decree petition in the year 1989, the 3 children’s of predeceased son were wrongly brought on record as Legal heir’s of 3rd plaintiff along with her two daughters for which the two daughters did not object.
Now in the year 2008 daughters have filed an Interlocutory Application under Section 151 of CPC, in front of the trial court to strike out from record those 3 children’s of predeceased son who are not entitle for any share in 3rd plaintiffs share as per Mohameddan law. It is well Known that as per Mohameddan law Orphaned grandchildren are not entitle for any share in grandparent’s property.
Orders on our IA: The Judge has dismissed our IA saying, Whether Orphaned grandchildren will get any share or not will not be determined in this pending final decree proceedings, Final decree proceedings is only to allot the share as per decree. Morever we have not objected at the time when the LR application of this orphaned grandchildren was filed in 1989.
Writ petition in High court: The high court also has held same view as trial court and dismissed our Writ petition, saying if these grandchildren are not deleted from the record in this pending final decree proceedings it will not affect the other co-plaintiffs as just the names orphaned grandchildren as LR’s of 3rd plaintiff on record will not create any right to them. If they are not entitle for share as per Mohameddan law they will not get the share. But how ? Since they are on record right will go to them ?
My Question:
1) Can we file one more Interlocutary application in the trial court where Final decree proceedings is still pending, that these oprphaned grandchildren are not legal heirs as per Mohameddan law hence Orginal 3rd plaintiff’s share must be allotted to only the two daughters not to these orphaned grand children at the time of drawing of final decree.
2) Can we file a separate Orginal Suite parallel to this pending final decree proceedings based on Preliminary decree that the 1/17th share of Orginal 3rd plaintiff as per decree must be allotted only two daughters of 3rd plaintiff not to these Orphaned grandchildren. And later we can club this result of original suite with the final decree proceedings. As here the problem is limited scope of final decree proceedings
3) Please suggest a way so that these Oprhaned grandchildren must not get any share
