Mst. Aisha and 2 others V. Mst. Mah Gul and 2 others,

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.