2015 C L C 1719
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Mst. AISHA and 2 others ----Appellants
versus
Mst. MAH GUL and 2 others ----Respondents
Succession Appeal No.5 of 2014, decided on 10th July, 2015.
(a) Succession Act (XXXIX of 1925) ---
----Ss.381 & 384 ---Succession certificate ---Object, scope and purpose ---Logic behind S.381 of
Succession Act, 1925, is to enable a person to recover debts on estate of a deceased but the
certificate issued for the purpose neither declares rights of persons interested, nor determine their
shares in recoverable debt ---Issuance of certificate is with sole purpose to protect party paying
debt to holder of certificate ---Duty is imposed on holder of certificate to disburse amount
realized under certifi cate among persons entitled, in accordance with their respective rights ---
Certificate issued under Succession Act, 1925, does not confer any title upon a person but only
enables him to recover the debts.
Federation of Pakistan v. General Public PLD 199 1 SC 731 rel.
(b) Succession Act (XXXIX of 1925) ---
----Ss. 381 & 384 ---Succession certificate ---Determining right in legacy ---Trial Court,
jurisdiction of ---Appellants were mother, brother and sister of deceased who claimed their shares
in the outstan ding dues with government department ---Trial Court issued succession certificate
to widow of deceased for collection of dues of deceased from government department, where he
was employed ---Validity ---Issuance of certificate did not place bar on the right o f appellants
(legal heirs) to establish their title and entitlement in debts by a suit before a Court of competent
jurisdiction ---Issuance of certificate also did not confer any title to holder of certificate, rather
certificate was issued with the sole pu rpose to recover dues from concerned department --- Person
aggrieved could press his right through a suit and to recover amount received on the basis of
such certificate to the extent of his share on the basis thereof ---Trial Court, in the present case,
without discussing nature of dues and fact that either it covered legacy of deceased and
entitlement of parties before it, ordered to exclude claim of appellants (legal heirs) decided that
widow was solely and lonely entitled to receive and encash dues of her late husband and
appellants (legal heirs) did not deserve to receive any share out of the dues of deceased --- High
Court set aside such findings of Trial Court which erred while recording findings and the same
could not hold the field ---High Court modifie d the order passed by Trial Court ---Appeal was
allowed accordingly.
Federation of Pakistan v. General Public PLD 1991 SC 731 rel.
Saleemullah Kakar and Muhammad Anwar Nasar for Appellants.
Qazi Haroon for Respondent No.1.
Date of hearing: 27th March, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The appellants, three in numbers, aggrieved of
order dated 30th October, 2014 of District Judge, Kharan, whereby the application filed by one
Mah Gul widow of Muhammad Asif (present respondent No. 1) for grant of succession certificate
in respect of the dues of her husband lying with the Health Department, District Kharan, where
he was serving as a Ward Boy, was allowed and succession certificate was directed to be issued
in her (respondent No.1) fa vour, simultaneously held that the appellants were not entitled to
receive any share from the debts.
2. The brief facts of the case as described by the papers on the record that the respondent
No.1 approached the court for the issuance of succession cert ificate in her favour for the purpose
to collect the dues of her deceased husband from the Health Department, Government of
Balochistan. This application was contested by the appellants, who appeared in response to the
publication in the newspaper for the general public, filed objections on issuance of succession
certificate in favour of Mah Gul (the respondent No.1). The trial court entertained the application
and called for the evidence of the parties, arrived to the decision that "she is solely entitled to
receive and encash dues of her late husband, and respondents Nos.2 to 4 (present appellants) do
not deserve to receive any share out of the dues". Reliance was placed on the judgment of
Honorable Supreme Court, Shariat Appellate Bench, in case Federatio n of Pakistan v. General
Public, reported in PLD 1991 SC 731.
3. The appellants were before this court to question their exclusion from the list of the
persons entitled for legacy of the deceased Muhammad Asif and sole entitlement of respondent
No.1 to r eceive and encash the dues. It was contended that respondent No.1 intentionally
concealed the facts only to deprive them of their right. Further, according to their personal law
they were also the legal heirs of the deceased, thus entitled for their shares in the inheritable
financial assets of the deceased. The learned counsel for the appellants placed complete reliance
on the referred citation and stated that the dues in a Government Department have already been
determined as legacy left by a deceased emp loyee, thus to be inherited by all of his legal heirs as
per their respective shares as fixed by their personal law.
4. The learned counsel for the respondent No.1 with reference to the cited judgment was of
the view that it was clearly determined that n either the mother nor the sister and the brother of
the deceased are entitled for the dues payable on death of a government servant.
5. The case in hand pertains to issuance of succession certificate to collect the dues payable
on retirement or death of the incumbent, thus to be governed by the provisions of the Succession
Act, 1925 (Act 1925). Sections 370 to 390 of the Act 1925 deal with the issuance of succession
certificate, described the court having jurisdiction for the purpose, the legal formalitie s adhered
to, the procedure to be adopted by the court, contents of the certificate, and call for the requisite
security. It further contained the effect of issuance of succession certificate, grounds for its
revocation, the right of appeal and many others . A person may apply under section 372 of the
Act, 1925 for issuance of a certificate for the purpose, but the application must be in described
form with required details. On receipt the court has to adopt the procedure contained in section
373 of the Act, 1925. A special procedure, summary in nature, provided to deal with the
application filed for the purpose. While section 381 of the Act, 1925 described the effect of the
certificate issued by a court on such application. The logic behind section 381 of th e Act, 1925 is
to enable a person to recover the debts on estate of a deceased, but the certificate issued for the
purpose neither declared the rights of the persons interested, nor determined their shares in the
recoverable debts. Rather issuance of the c ertificate is with sole purpose to protect the party
paying the debt to the holder of the certificate. However, a duty imposed on the holder of the
certificate to disburse the amount realized under the certificate among the persons entitled in
accordance w ith their respective rights. It is clear in view of the above discussion that a
certificate issued under the Act, 1925 does not confer any title upon a person, but only enables
him to recover the debts.
6. A Court while dealing with an application has to follow the procedure contained in
section 373 of the Act, 1925, which is summary in nature. It neither conclude rights of the parties
nor does it establish the right of the party to the debt for collection of which certificate is granted.
Thus a person if wants detailed determination of his right, the remedy lies in a suit before a court
of competent jurisdiction. Subsection (3) of the section 373 of the Act, 1925 is clear enough to
the effect, re -production would be beneficial: ---
"Section 373(3). If t he Judge cannot decide the right to the certificate without
determining questions of law or fact which seeks to be too intricate and difficult for
determination in a summary proceedings, he may nevertheless grant a certificate to the applicant
if he appear s to be the person having prima facie the best title thereto.
Subsection (4) of the section is an addition thereto, which reads as under: ---
Section 373(4). When there are more applicants than one for a certificate, and it appears
to the Judge that m ore than one of such applicants are interested in the estate of the deceased, the
Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of
interest and the fitness in other respects of the applicant.
The determination of title is beyond the scope of the section. An applicant who can claim
his preferential right for payment of debts would ecome entitled for issuance of the certificate,
subject to (sic.) he has a prima facie title in his favour. The rema ining questions pertaining to
determination of title and the extent are to be dealt with in a suit filed for the purpose to establish
the claim and also for recovery of the shares respectively claimed.
7. In case in hand the respondent No.1, in whose fav our the certificate was issued,
admittedly widow of the deceased Muhammad Asif, while the appellant No.1 Mst Aisha is
mother of the deceased, and the appellants Nos.2 and 3 are brother and sister of the deceased.
They claimed their entitlement, as per thei r shares, in the dues of the deceased. Both the parties
and also the trial court relied on the same judgment of honorable Supreme Court. The trial court
without discussing the nature of the dues, and the fact that either it covered by the term legacy ( )
of the deceased, and entitlement of the parties before it ordered to exclude the claim of the
appellants. Decided that the applicant (present respondent No.1) solely and lonely entitled to
receive and encash dues of her late husband Muhammad Asif and respon dent Nos.2 to 4 do not
deserve to receive any share out of the dues of deceased Muhammad Asif. The trial court erred
while recording findings to the effect in view of the above discussion. The findings to this extent
cannot hold the field, thus set aside.
8. As far the order for issuance of succession certificate is concerned, the fact that
respondent No.1 Mah Gul widow of Muhammad Asif was before the court for grant of
succession certificate, which was allowed. The trial Court fund the respondent No.1 wi th the best
title for the purpose, thus, held her entitled for the certificate in comparison to the appellants. No
illegality was committed by the trial court, while making an order to the effect. The appellants
surely aggrieved of the order and have a rig ht to agitate, but as discussed herein above the
issuance of certificate does not place a bar on right of the appellants to establish their title and
entitlement in the debts by a suit before a court of competent jurisdiction. The issuance of a
certificate also not confer any title to the holder of the certificate, rather the certificate issued
with the sole purpose to recover the dues from the concerned Department. Thus the person
aggrieved could press his right through a suit and to recover the amount rec eived on basis of said
certificate to the extent of his share on basis thereof.
In view of the above discussion the appeal failed, the order of the trial court upheld with
the modification as contained in para No.7 of the judgment. Appeal stand disposed of in the
above terms.
MH/86/Bal. Order accordingly.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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