JUDGMENT 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. 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. 3. THE petitioner contested the aforesaid application by filing written objection thereby opposing the prayer of rejection of plaint. 4. THE learned trial Judge by Order No. dated July 11, 1994 turned down the prayer for rejection of plaint on the ground that the question raised by those defendants could not be decided at that stage and such question would be gone into at the time of hearing of the suit. 4. THE learned trial Judge by Order No. dated July 11, 1994 turned down the prayer for rejection of plaint on the ground that the question raised by those defendants could not be decided at that stage and such question would be gone into at the time of hearing of the suit. Being dissatisfied with the aforesaid order passed by the learned trial Judge, the aggrieved defendants preferred a revisional application under Section 115a of the Code of Civil Procedure which was ultimately heard by the learned Additional District Judge, 3rd Court, Barasat and the learned revisional court below by the order impugned in this application has allowed the said revisional application and has rejected the plaint. 5. THE plaintiff, thus, has come up with the instant application. 6. MR. Dutt, the learned advocate appearing in support of the instant application has contended that in rejecting the plaint, the revisional court below has applied the law relating to succession prevailing in Hanafi School of Mahamedan Law. Mr. Dutt contends that the parties are governed by shia Sect and as such Hanafi Law of Succession has no application to the case in hand. According to Mr. Dutt, Shia law of inheritance does not exclude a grandson through a pre-deceased son from inheritance by his uncle and aunt. In support of such contention Mr. Dutt relied upon the observation given at pages 506 and 521-522 of Dr. Nishi Purohit in the 2nd edition (1998) of the Principles of Mohamedan Law. At page 506 the following observation has been made by the authoress : for example, if a Mohamedan (P) dies leaving behind a son and a grandson, SS who is the son of a pre-deceased son S1. According to the rule of representation, SS representing his father, will be an heir and will take the same share which his father S1 would have taken had he, been alive. " 7. AGAIN, at pages 521 and 522 the following example has been given : (The portion dealing with the calculation of share is full of apparent printing mistakes. However those are quoted with those printing errors) "doctrine of increase (Aul) and doctrine of return (Redd). These doctrines may by applied in certain circumstances. In the diagram, (P) dies leaving behind his wife, W, father F, mother M, Son S, daughter D and a son SS and daughter SD of his pre-deceased son, S1. However those are quoted with those printing errors) "doctrine of increase (Aul) and doctrine of return (Redd). These doctrines may by applied in certain circumstances. In the diagram, (P) dies leaving behind his wife, W, father F, mother M, Son S, daughter D and a son SS and daughter SD of his pre-deceased son, S1. All are heirs of Class 1. W's share is 1/8, Father's share is 1/6, Mother's share is 1/6, S and (S1) and also SS and SD are residuaries and D also becomes a residuary along with the son. Now the question arises, what is left as residue. The total shares of sharers, WF and M are 1/8 + 1/6 + 1/6 = 11/24. The residual - 11/24 = 13/24 is left. This 13/24 will be divided among the sons and daughters. SS and SD are the children of a predeceased son S1. So they will take the share of their father. So 13/24 will be divided into five parts i.e. 2 parts of S1 x 2 parts of S1 and one part of D, so each share consists of 13/24 x 13/120. D's share is 13/120, SS's share is 13/120 x 13/120 = 13/60 and (SSl)'s share is also 13/60 which will go to his son? ss and daughter SD, with the rule that the male takes to portions and the female takes one share. So 13/60 will be divided into 3 parts i.e. 13/60 x 13/180 SD will take 13/180 and SS will get 13/180 + 13/180 = 13/90. New the shares of each of the heirs of Class I are : (i) W's share = 1/8, (ii) F's share = 1/6, (iii) M's share =1/6, (iv) S's share = 13/60 (v) SS's share = 13/90 (vi) SD's share = 13/180 (vii) D's share 13/120. " 8. MR. Dutt contends that there is no admission made in the plaint that the parties are governed by Hanafi law of Succession. Therefore if at the trial it is proved that the parties are governed by Shia law of inheritance, the petitioner will have share in the property. Thus, Mr. Dutt contends, this is not a case of rejection of plaint on the basis of an application under Order 7 Rule 1 l (d) of the Code. Mr. Therefore if at the trial it is proved that the parties are governed by Shia law of inheritance, the petitioner will have share in the property. Thus, Mr. Dutt contends, this is not a case of rejection of plaint on the basis of an application under Order 7 Rule 1 l (d) of the Code. Mr. Banerjee, the learned advocate appearing on behalf of the opposite parties has on the other hand disputed the aforesaid contention of Mr. Dutt and has contended that even assuming for sake of argument but not admitting that the parties are governed by Shia laws of inheritance, a grand son through a pre-deceased son is excluded by his uncle and aunt. According to Mr. Banerjee under both Shia and Sunni laws of inheritance, if any of the children of a man before the opening of the succession to his estate, dies leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts. In support of the aforesaid proposition of Jaw Mr. Banerjee relies upon the decision of privy Council in the case of Molla Cashim vs. Moolla Abdul Rahim and Ors. reported in 32 Indian Appeals 177. 9. AS regards the observations made in book written by Dr. Purohit and relied upon by Mr. Dutt, Mr. Banerjee contends that the said authoress has made inconsistent comments at various places of the said book. While giving instances of such inconsistency, Mr. Banerjee refers to the following comments at page 508 of the book : there are three classes of consanguineous heirs : a : The first class consists of i) Father and mother ii) Son and daughter and in their absence their descendants how lowsoever." (Emphasis supplied) 10. THUS, Mr. Banerjee contends that the aforesaid comments are inconsistent with those made at pages. 506 and 571-522 relied upon by Mr. Dutt. It appears from Rule 248 (iv) mentioned at page 510 of the aforesaid book that the said rule has been described as follows : "among the heirs of a particular group of classes 1 and II, the nearer, in degree of ascent or descent, as the case may be, excludes the remoter." 11. THEREFORE, if the aforesaid Rule 248 (iv) is followed, a grandchild by predeceased son will be excluded by his uncle and aunt. 12. THEREFORE, if the aforesaid Rule 248 (iv) is followed, a grandchild by predeceased son will be excluded by his uncle and aunt. 12. THE laws of inheritance under the Shia School are without any conflict and may be stated thus The heirs are divided into two groups viz. (a) heirs by blood relation and (b) heirs by marriage. 13. SO far heirs by blood relation are concerned they are classified into three categories and each category is further subdivided into two classes. 14. THOSE categories are enumerated hereunder : 1. (a) Father and Mother, (b) Children and Other lineal descendants how lowsoever. 2. (a) Grandparents how highsoever (Both true and false) (b) Brothers and Sisters and their defendants how lowsoever. 3. (a) Paternal uncles and aunts of the deceased and of his parents and grandparents how highsoever and their descendants how lowsoever. (b) Maternal uncles and aunts of the deceased and of his parents and grandparents how highsoever and their descendant how. lowsoever. " The Rule of Succession among the above persons are as follows : 15. THE first category excludes the second from inheritance and the second category excludes the third. Butt the heirs of the two classes of each category succeed together subject to the condition that the nearer degree in each class excludes the more remote of that class. 16. APPLYING the aforesaid law to the facts of the present case, we find that even under Shia law, a grandchild through a predeceased son is excluded by his uncle and aunt. Therefore on the basis of averment made in the pant, the petitioner is not entitled to any share in the property even if the parties are ultimately found to be governed by Shia School of inheritance. Thus the observation of the Privy Council in the case of Molla Cashim (supra) applies squarely to all Mohamedans be they Sunni or Shia. 17. COMMENTS made at pages 506, 521 and 522 of the book relied upon by Mr. Dutt do not reflect the correct proposition of Shia law of inheritance: on the other hand at pages 508 and 510 of the said book, the correct propositions of the law on the subject have been given. 18. THEREFORE, the learned revisional court below rightly rejected the plaint by allowing the application under Order 7 Rule 10 (d) of the Code. The revisional application is thus dismissed. 18. THEREFORE, the learned revisional court below rightly rejected the plaint by allowing the application under Order 7 Rule 10 (d) of the Code. The revisional application is thus dismissed. No order as to costs. Revision disallowed.