MD MANSUR Vs. MD ALLAUDDIN

JUDGEMENT

(1.) THIS revisional application under Article 227 of the Constitution of India is at the instance of a plaintiff in a suit for partition and accounts and is directed against order dated May 25, 1997 passed by the learned Additional District Judge, 3rd Court, barasat in Civil Revision Case No. 116 of 1994 under section 115a of the Code of Civil Procedure thereby setting aside Order No. 30 dated July 11, 1994 passed by the learned Assistant District Judge, 1st Court, barasat in Title Suit No. 263 of 1991 and rejecting the plaint of the aforesaid suit.

(2.) THE aforesaid suit for partition was filed by the petitioner herein claiming to be one of the heirs of one Abdul Hamid. In paragraph 3 of the plaint it was asserted by the petitioner that the said Abdul Hamid died intestate leaving the parties to the suit as his legal heirs. According to the said paragraph, the said Abdul Hamid had four sons and one daughter and except Md. Sarifuddin and Mst. Fatema Bibi, the defendant no. 2 and defendant no. 9 respectively, other children of Abdul Hamid predeceased him. The plaintiff described himself as a grandson of Abdul hamid being the son of one of the pre-deceased sons.

(3.) IN view of the aforesaid plaint case, the defendant nos. 1. 4 and 5 filed an application under Order 7 Rule 11 (d) of the Code of Civil procedure for rejection of the plaint inter alia on the ground that according to Mohamedan Law a son of a pre-deceased son is excluded by his uncles and aunts who are alive at the time of death of his grand father and as such on the basis of the plaint case the plaintiff was not entitled to get any share in the suit property and thus the plaint was liable to be rejected.