2013 C L C 523
[Balochistan]
Before Naeem Akhtar Afghan, J
Haji SULTAN MEHMOOD ----Appellant
Versus
ZOHRA BIBI and 7 others ----Respondents
Civil Miscellaneous Appeal No.1 of 2011, decided on 28th December, 2012.
(a) Succession Act (XXXIX of 1925) ---
----Ss. 383, 387 & 372 ---Revocation of succession certificate ---Procedure ---Order passed under
Succession Act, 1925 or proceedings thereunder --- Nature --- Res judicata, principle of ---
Applicability ---Scope ---Succession certificate was grante d to appellant whereafter application of
respondents under S.383 of the Succession Act, 1925 for revocation of said succession certificate
was allowed ---Trial Court further held the surety of appellant under obligation to pay other legal
heirs their share according to Islamic Law ---Validity ---Application for revocation of succession
certificate had been filed after a lapse of three and a half years and said application had not been
signed/thumb impressed by the respondents ---Respondents, throughout the proc eedings before
the Trial Court, did not file any affidavit or lead any evidence in support of the contents of their
application for revocation of certificate ---While there was no time limit prescribed for filing an
application for revocation of the certifi cate under section 383 of the Succession Act, 1925 but at
belated stage of the present case, revocation of the certificate on the basis of an incompetently
filed application was unwarranted and same would not serve any lawful purpose as there were no
more amounts lying in the accounts of the deceased ---Order of Trial Court holding appellant's
surety under obligation to pay amount in case appellant failed to pay other surviving legal heirs
of the deceased according to Sharaie Fatwa, was erroneous and Trial C ourt had travelled beyond
scope of the Succession Act, 1925 ---Under the Succession Act, 1925; the Trial Court could
neither determine the entitlement of legal heirs nor could direct payments of the same to the legal
heirs ---Grievance of the respondents in relation to their entitlement to shares in accounts of the
deceased could only be redressed by a court of civil jurisdiction ---Proceedings under Succession
Act, 1925 were summary in nature and no decree sheet capable of execution could be drawn
during the same ---Under S.387 of the Succession Act, grant of certificate did not establish title to
the amounts drawn and same did not disentitle the respondents to bring any claim before civil
court in respect of their share of inheritance ---Orders passed under the Succession Act, 1925 did
not operate as res judicata with regards to questions of title ---High Court set aside order of Trial
Court and dismissed the application of respondents for revocation of succession certificate
granted in favour of the appellant ---Appeal was allowed accordingly.
(b) Succession Act (XXXIX of 1925) ---
----S. 387 ---Grant of succession certificate ---Effect ---Res judicata, principle of ---Orders passed
under the Succession Act, 1925 did not operate as res judicata with regard to que stions of title.
Muhammad Arshad Chaudhry for Appellant.
Mujeeb Ahmed Hashmi for Respondents Nos.1 and 2.
Shahid Javed Khan for Respondents Nos.3, 4 and 5.
Alamgir Khan for Respondents Nos.6 and 7.
Date of hearing: 7th September, 2012.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. --- This judgment disposes of Civil Miscellaneous
Appeal No.1 of 2011 filed by the appellant (Haji Sultan Mehmood) under section 384 of the
Succession Act, 1925 ("the Act") against the order dated February 28, 2011 passed by the
learned Senior Civil Judge -II, Quetta whereby the application filed by the respondents Nos.1 and
2 (Zohra Bibi and Samina Bibi) under section 383 of the Act for revocation of the Succession
Certificate No.35 of 2006 ("the certificate") dated Novembe r 13, 2006 granted in favour of the
appellant has been accepted.
2. Facts of the case are that late Gul Hassan Sheikh ("the deceased") had contracted two
marriages. From his wedlock with Mst. Hussaina Bibi, the appellant and respondents Nos.3, 4
and 5 (A nwar Bibi, Akhtar Bibi and Bilqees Bibi) were born and from his wedlock with Mst.
Noor Bibi, the respondents Nos.1 and 2 (Zohra Bibi and Samina Bibi) were born. The deceased,
expired on September 12, 2006, leaving behind the appellant and the respondents N os.1 to 5 as
his legal heirs. Initially on October 3, 2006 the appellant filed an application under section 372 of
the Act for grant of the certificate for an amount of Rs.2,819,261/ - lying in the Account
No.01002262 of the deceased in the Bank Alfalah Lim ited, Jinnah Road Branch Quetta. In that
application, the appellant arrayed general public as respondent and none of the other legal heirs
of the deceased were joined as party. Notice for the general public was published in daily
'Mashriq Quetta' dated Oct ober 10, 2006. None including the respondents raised any objection to
the grant of the certificate in favour of the appellant. On November 2, 2006 the appellant filed an
amended schedule including the amounts lying in other accounts of the deceased as foll ows: ---
(i) Bank Alfalah Limited Jinnah
Road Branch, Quetta. A/C No.01002262 Rs.2,819,261/ -
(ii) Habib Bank Limited Jinnah Road
Branch, Quetta. A/C No.9918 -82 Rs.321,674/ -
(iii) United Bank Limited Jinnah Road
Branch, Quetta. A/C N o.011 -5765 -2 Rs.1,753,879/ -
(iv) United Bank Limited Satellite
Town Branch, Rawalpindi (0372) A/C No.1202 -5 Rs.64,000/ -.
Affidavits of Imran Khan son of Khushal Khan, Syed Kareem son of Abdul Raheem and the
appellant were filed. The application was accepted vide order dated November 10, 2006. On
November 11, 2006 the respondent No.6 (Haji Muhammad Ismail son of Ghulam Dastagir)
submitted surety bond with fard of his property in the sum of Rs.5,000,000/ - to the satisfaction of
the lear ned Senior Civil Judge -II, Quetta, whereafter the Certificate No.35/2006 dated November
13, 2006 was issued in favour of the appellant for the above mentioned amounts.
3. On December 13, 2007, the appellant applied for amended succession certificate in
respect of another amount of Rs.3,154,850/ - of the deceased lying in Account No.0186 -
00530458 -03 with Habib Bank Shahra -e-Iqbal Branch, Quetta. The learned Senior Civil Judge -
II, Quetta in continuation of the earlier certificate dated November 13, 2006, gra nted amended
certificate to the appellant on February 15, 2008 against another surety bond and fard of the
property in the sum of Rs.3,500,000/ - submitted on February 11, 2008 by the respondent No.7
(Hassan Mehmood son of the appellant).
On July 13, 201 0, the respondent No.7 applied for release/ discharge of his surety, which
was accepted on October 12, 2010. On August 2, 2010, after a lapse of three years, the
respondent No.6 also filed an application for release/discharge of his surety and the said
application was accepted by the learned Senior Civil Judge -II, Quetta vide order dated August 4,
2010.
On March 7, 2011, the appellant submitted an application before the learned Senior Civil
Judge -II, Quetta stating therein that the amount of Rs.3,154,850 /- for which he had availed the
amended certificate was not belonging to his father as it was the account of one Gul Hassan son
of Yar Muhammad. The learned trial Court after getting verification from the Habib Bank
Limited, cancelled the amended certifica te for the amount of Rs.3,154,850/ - vide order dated
March 24, 2011 and the original amended certificate dated February 15, 2008 was returned by
the appellant to the trial Court.
4. On May, 6, 2010, an application was filed under section 383 of the Act f or revocation of
the certificate No.35/2006 on behalf of the respondents Nos.1 and 2 and their mother Noor Bibi
by arraying the appellant as respondent No.1, his mother as respondent No.2 and his real sisters
as respondents Nos.3, 4 and 5 on the ground tha t the appellant falsely posed himself as sole legal
heir of the deceased and deliberately and intentionally did not mention about the other legal heirs
of the deceased and by playing fraud with respondents Nos.1 and 2, as well as with the Court, he
obtaine d the certificate and managed to withdraw the amounts from the accounts of the deceased.
The respondents Nos.1 and 2 being co -sharers in the movable and immovable properties of the
deceased claimed their legal entitlement for their due share in all the acc ounts of the deceased
and alleged that the appellant has deprived them of their legal and lawful share. The following
prayer was made in the application:
"It is accordingly respectfully prayed that the Succession Certificate No.35/2006 obtained
on the fa lse suggestions and misrepresentation and fraud may kindly be revoked and
separate Succession Certificate in favour of both the parties be issued so the applicants
collect their shares as per their entitlement, with any other relief, in the interest of
justice".
Subsequently on August 4, 2010 the amended application was filed by deleting Mst.
Noor Bibi (mother of respondents Nos.l and 2) and Mst. Hussaina (mother of the appellant and
respondents Nos.3, 4 and 5) being already expired.
Initially, the ap pellant was proceeded against ex parte and the respondents Nos.3, 4 and 5
engaged a counsel and requested for opportunity to file rejoinder. The appellant submitted an
application for setting aside the ex parte order, which was allowed subject to cost of R s.1,500/ -.
The appellant instead of paying the cost and submitting his rejoinder submitted an application for
recalling the order with regard to imposition of the cost. In the meanwhile, the respondents No.1
and 2 filed an application before the learned Di strict Judge, Quetta for transfer of their
application to some other Court which was dismissed on November 12, 2010. The respondents
Nos.1 and 2 filed a Civil Revision Petition No.9 of 2011 before this Court, which was not
pressed by the respondents Nos.1 and 2 subject to direction to the trial Court to conclude the
proceedings preferably within a period of one month. It was ordered accordingly by this Court
vide order dated January 17, 2011 in the following words: --
"The trial Court is directed to dispos e of the application filed by the petitioners/applicants
on its own merits preferably within a period of one month after winter vacations.
Needless to observe that both the parties be provided fair opportunity for production of
their respective evidence i. e. oral and documentary, if they so desire."
5. After passing of the above order by this Court, the appellant (being respondent No.1 in
the application) filed rejoinder to the application on February 11, 2011 raising preliminary legal
objections on the m aintainability of the application and reserving his right to subsequently file a
detailed reply on merits. The rejoinder was signed by the appellant for himself and for other
respondents as attorney, but there is no power of attorney available on record in favour of the
appellant nor the appellant subsequently filed any detailed reply on merits. On February 17,
2011, the respondent No.4 (respondent No.5 in the un -amended application), filed her rejoinder
with the signature of the appellant, without there be ing any power of attorney executed by her in
favour of the appellant, contesting the application on preliminary legal objections as well as on
merits stating therein that the appellant had distributed the shares of moveable property to all the
legal heirs of the deceased.
None of the parties opted to record evidence and the case was kept for final arguments on
February 18, 2011. The matter was argued on the said date and vide impugned order the
application of respondents Nos.1 and 2 for revocation of the certificate was accepted by the trial
Court in the following words: ---
"I heard arguments advanced by the parties in support and against the application and I
also went through the record of Succession Certificate No.35 of 2006 along with present
applic ation. The objections raised by the contesting respondents were just about time
limitation of filing of this application. Other objections were about affidavit of applicant
that same are not genuine and further allegation raised that the applicants both fe male
having no knowledge and this application has been filed in connivance of husband of one
of the applicants. It is alleged that name of deceased has not been mentioned correctly.
The whole objections raised having no weight to discard the legal entitlem ent of the
applicants as legal heirs or protect the wrongful act of respondent No.1. The respondent
badly failed to show that on what account he obtained cash amount of deceased without
giving the share of other legal heirs. The question relating whether t his application is
time-barred in this regard it is settled principle of law that no time limit will be counted if
the action found to be result of fraud or misrepresentation and in such situation or case it
is held by the honourable apex courts that time runs from the date of knowledge. So
objection about time limitation is discarded. Previous record fully shows that respondent
No.1 Sultan Mahmood committed fraud by concealing of fact not mentioned in his
application and in ex parte evidence that the decea sed has also other legal heirs. As
sufficient evidence available on record that all legal heirs of deceased Haji Gul Hassan
Sheikh are entitled for their share according to Muhammadan Law and Islamic Sharia so
I have no hesitation to accept this applicatio n for revocation of succession certificate.
From the record it is also revealed that surety namely Hassan Mahmood son of Sultan
Mahmood and Muhammad Ismail s/o Ghulam Dastagir have also taken back (release)
their surety after completion of three years stil l according to their affidavit filed at the
time of filing surety they have taken fully responsibility that in case of fraud and
misrepresentation they are liable to pay the amount for which they stood surety and on
the basis of same undertaking they are u nder obligation to pay the amount in case the
respondent No.1 failed to pay the amount to the all legal heirs surviving according to
Sharie Fitwah. Murasallah be sent to Revenue authority/Tehsildar Quetta for report
within four -days along with copy of Fard and affidavit of surety available on the record
for attachment of property of sureties till recovery of amount or otherwise for recovery of
process of sale of the attached property according to law. The applicants further directed
to file Sharie Fitwah th e same must be verified and appear in person while applying for
succession certificate. Application disposed of in this manner."
6. Learned counsel for the appellant Mr. Muhammad Arshad Chaudhry Advocate stated that
the application for revocation of the succession certificate has been filed by the respondents
Nos.1 and 2 with mala fide as according to the family settlement they had received their share of
inheritance and according to the decision of the elders, they were deliberately not joined as party
in the application for the grant of certificate. The learned counsel stated that since the certificate
has already been acted upon and the controversy raised by the respondents No.1 and 2 is factual
in nature, the respondents Nos.1 and 2 should approach the Civil Court for redressal of their
grievance or in alternate the matter be remanded to the trial court for recording evidence of the
parties. In rebuttal Mr. Mujeeb Ahmed Hashmi, learned counsel for the respondents Nos.1 and 2
stated that due to there bei ng no denial to the status of respondents Nos.1 and 2 being legal heirs
of the deceased and the respondents Nos.1 and 2 being not party to the application for grant of
the Certificate, the trial Court has rightly revoked the certificate vide order impugned warranting
no interference by this Court. Mr. Shahid Javed, Advocate appearing on behalf of the
respondents Nos.3, 4 and 5 supported the appeal by stating that the sisters had received their
share out side the Court and for that reason they did not object to the grant of the certificate in
favour of the appellant. Mr. Alamgir Khan, Advocate appearing on behalf of respondents Nos.6
and 7 stated that after discharge of the surety bonds, the respondents Nos.6 and 7 cannot be held
liable for any action and dir ection of the trial Court to the Revenue authorities against the
respondents Nos.6 and 7 vide impugned order is unwarranted.
7. Heard the learned counsel for the parties and perused the record. Though the appellant in
the application for grant of the cer tificate has not mentioned the family or other near relative of
the deceased and their respective residences as per requirement of section 372(c) of the Act but
in Para 4 of the application he has mentioned the right in which he claimed the certificate as per
requirement of section 372(d) of the Act in the following words: ---
"That being the real son of the deceased the applicant is the only entitled person to
receive this amount from the said bank, for which a Succession Certificate is required and
there is nothing impediment in the grant of Succession Certificate to the Applicant".
In the proceedings for the grant of the certificate, the affidavits of the witnesses also
mention that the appellant being the real son of the deceased is entitled for the certificate and no
other legal heir is entitled for the grant of the certificate. The appellant in his affidavit sworn that
being the real son of the deceased he is entitled for grant of the certificate. Had the appellant
disclosed the other relatives (leg al heirs) of the deceased in his application or in the affidavits or
had joined the respondents as party, the situation would have not arisen at all. On the other hand
the respondents No.1 and 2, despite publication for the general public in widely circula ted (daily
Mashriq) Quetta of October 10, 2006, did not raise any objection to the grant of the certificate to
the appellant. The silence and conduct of the respondents Nos.1 and 2 for more than 3 -1/2 years
is of significance and same cannot be ignored. Du ring that period the appellant withdrew the
amounts from the accounts of the deceased on the basis of the certificate and the surety
(respondent No.6) was also discharged.
8. The application for revocation of the certificate has been filed on behalf of t he
respondents Nos.1 and 2 on May 6, 2010, i.e. after a lapse of 3 -1/2 years. The said application
has not been thumb -impressed/ signed or sworn by the respondents Nos.1 and 2. It has been
signed by Mr. Mujeeb Ahmed Hashmi, Advocate. The affidavit of the a pplication bearing the
names of respondents No.1 and 2 as deponents does not bear the thumb -impressions or the
signatures of the respondents Nos.1 and 2 and it has also been signed by Mr. Mujeeb Ahmed
Hashmi, Advocate. The amended application also bears th e signature of Mr. Mujeeb Ahmed
Hashmi, Advocate instead of respondents Nos.1 and 2 and the affidavit bearing the names of the
respondents Nos.1 and 2 as deponents has been signed by Mr. Mujeeb Ahmed Hashmi,
Advocate. The trial Court while revoking the cer tificate vide impugned order has badly failed to
appreciate that the application for revocation of the certificate filed on behalf of the respondents
Nos.1 and 2 was not competent/maintainable as it was neither thumb -impressed/signed by the
respondents No. 1 and 2 nor supported by any affidavit of the respondents Nos.1 and 2. The
learned counsel was not competent to sign the application and the affidavit of respondents Nos.1
and 2. Even the power of Mr. Mujeeb Ahmed Hashmi, Advocate does not bear the thumb -
impressions/ signatures of the respondents Nos.1 and 2. It only bears the name of the respondent
No.1 in Urdu as " " There is no power of attorney executed by the respondent No.2 (Samina
Bibi) in favour of respondent No.1 (Zohra Bibi). Throughout the proceedings, despite
opportunity and the observations of this Court in the order dated January 17, 2011, the
respondents No.1 and 2 have not filed any affidavit nor led any evidence in support of the
contents of their application.
9. Though there is no t ime limit prescribed for filing an application for revocation of the
certificate under section 383 of the Act and more than one succession certificates can be granted
to the legal heirs of a deceased under the Act but in the peculiar circumstances of the i nstant
case, at this belated stage, the revocation of the certificate on the basis of an incompetently filed
application is unwarranted and same will not serve any lawful purpose as the respondents Nos.1
and 2 cannot be granted a succession certificate as no amounts are lying in the accounts of the
deceased. The trial Court, while holding the surety under obligation to pay the amount in case the
appellant fails to pay the same to the surviving legal heirs according to the Sharie Fatwa, has
erred in facts as well as the law and has travelled beyond the scope of the Act as under the
provisions of the Act, the trial Court can neither determine the entitlement of the legal heirs nor
can direct the payment of the same to the legal heirs. The respondent No.7 (Hass an Mehmood)
has wrongly been held liable by the trial Court as he stood surety for the amount of the amended
certificate which was got cancelled by the appellant on March 24, 2011 and surety of respondent
No.7 was already discharged on October 12, 2010. Th e grievance agitated on behalf of the
respondents Nos.1 and 2 in the application for revocation of the certificate with regard to their
entitlement and shares in the accounts of the deceased at this stage can only be redressed by the
court of civil jurisdi ction and not in the proceedings under the Act which are summary in nature
and in which no `decree sheet' capable of execution, is drawn. In view of section 387 of the Act
the grant of the certificate to the appellant does not establish his title to the am ounts drawn and
the same does not disentitle the respondents Nos.1 and 2 to bring any claim before the court of
civil jurisdiction in respect of their share of inheritance in the amounts drawn by the appellant
from the accounts of the deceased on the basis of the certificate. The orders passed under the Act
does not operate as res judicata as regards question of title.
10. For the above reasons the appeal is accepted but with no order as to costs. The impugned
order dated February 28, 2011 passed by the l earned Senior Civil Judge -II, Quetta is set aside
and the application under section 383 of the Act for revocation of the certificate being
incompetently filed on behalf of the respondents Nos.1 and 2 stands dismissed.
KMZ/4/Q Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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