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
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 aying, whether these Orphaned grandchildren entitle for any share in 3rd plaintiffs property cannot be settled in this pending Final decree proceedings as per order 1 rule 8, further saying Final decree proceedings is for only allotment of shares as per decree.
Judge failed to assess that when one is not a legal heir as per law, he cannot be a legal representative he can be strike out from record as Final decree proceedings is a continuation of partition suit.
Question: Our advocate is now filing writ petition in the high court to challenge lower court order,under order 22 rule 5 along with judgements on Mohameddan law for orphaned grandchildren and judgements on competency of final decree court..
Is he proceeding in a right way is he using correct section of CPC, If any other please suggest. Whether highcourt gives dirction to trial court to strike LR’s wrongly added ?
Order 22 Rule 5. Determination of question as to legal representative.
Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
1[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]
