2020 C L C 1053
[Balochistan]
Before Abdullah Baloch, J
Mst. ANITA ANAM and others ----Appellants
Versus
GENERAL PUBLIC and others ----Respondents
Succession Appeal No.06 of 2019 and Succession Appeal No.03 of 2018, decided on 2nd
December, 2019.
Succession Act (XXXIX of 1925) ---
----Ss. 372, 383 & 384---Appeal ---Wrong forum ---Appeal was filed directly before High
Court against orders passed by Trial Court ---Validity ---Order passed under S. 372 of
Succession Act, 1925 by an inferior court, appeal l aid before District Judge ---When an order
was passed under S. 372 of Succession Act, 1925 by a District Judge, appeal laid before High Court --- Appeals were wrongly filed before High Court ---Appeal against judgment and order
passed by Trial Court under pro visions of Succession Act, 1925 lay before District Judge ---
High Court directed appeals filed by appellant to be returned to appellant to file before the District Judge ---Order accordingly.
Umar Farooq Shah v. Mst. Shagufta Nasreen and others 1997 CLC 18 46 and Sh.
Muhammad Mushtaq and others v. Public -at-Large and others" PLD 1994 Lahore 373 ref.
Ghulam Mohyuddin Sasoli for Appellants (in Succession Appeal No.6 of 2019).
Gul Hassan Tareen for Respondent No.2 (in Succession Appeal No.6 of 2019).
Muhamma d Mehmood Sadiq Khokar for Appellants (in Succession Appeal No.03 of
2018).
Ghulam Mohyuddin Sasoli for Respondents (in Succession Appeal No.03 of 2018).
Date of hearing: 22nd November, 2019.
JUDGMENT
ABDULLAH BALOCH, J .----Since common point is involve d in both the appeals,
therefore, this common judgment dispose of both appeals, the Succession Appeal No.06 of 2019 filed by the appellant against the judgment dated 20th May, 2019, (hereinafter referred as, "the impugned judgment") passed by the learned J udicial Magistrate -IX/Civil Judge,
Quettta (hereinafter referred as, "the trial Court"), whereby the application for grant of
Succession Certificate was dismissed.
Whereas the Succession Appeal No.03 of 2018 filed by the appellants against the
order dated 20th April, 2018 (hereinafter referred as "the impugned order") passed by learned
Civil Judge -I, Quetta; whereby an application under Section 383 of the Succession Act, 1925
for revocation of Succession Certificate dated 3rd June, 2019 has been dismissed.
2. Brief facts of the case are that the appellant is daughter of Dr. Abu Amar, who died
on 28th August, 2008. The deceased left behind at the time of his death Abu Asar Bilal, Anjuman Ara/married, Alia Bano/married, Shazia/married, and second wife/decease d mother
of petitioner namely late Hameeda Akhtar and her children namely Muhammad Abu Tahir, Sabia Sahar/married and Anita Anum (appellant) as legal heirs/relatives. The appellant is unmarried, youngest and the only dependent daughter of the deceased. The father of the
appellant was a doctor, who served and retired as District Health Officer from the Government of Health Department of Balochistan. The respondent No.2 without informing the appellant has been receiving pension which amounted to Rs.90,000/ - per month since the
death of the deceased. The appellant is also entitled under the Rules for the pension that is paid to the respondent per month since the death of her father/the deceased including Rs.10,00,000/ - that is also paid to respondent No.2 only as arrears in lump sum. It is further
averred that the respondent No.2 has not only concealed the fact of appellant's entitlement to the extent of half share in the amount of said pension, but also concealed the fact that the deceased have 2nd wife and her children and it is further pertinent to mention here that the
pension is being paid to the respondent No.2 without receiving succession certificate from court of competent jurisdiction. The appellant approached the authorities including Secretary
Health D epartment and Accountant General Office repeatedly for receiving half of the
pension and arrears mentioned above, but refused with an excuse to obtain succession certificate for collection of monthly pension and said amount.
3. Out of the pleadings of the parties, the following issue was framed:
"Whether the applicant, being unmarried daughter of second wife of deceased Dr. Muhammad Abu Amar, is entitled to half of the pension of deceased?"
4. After framing of issue, the learned trial court directed the parties to produce their
evidence and after producing their respective evidence the learned trial Court dismissed the application filed by the appellant/applicant as mentioned hereinabove in para No.1 .
5. While, concise facts of the Successio n Appeal No.03 of 2018 are that the Succession
application was filed by the respondent No.4 "Mst. Anita Anam" for grant of succession certificate in respect of debts/amounts lying with Banks of the predecessor -in-interest of the
parties namely "Abu Amar so n of Ch: Noor Hussain" who was expired on 28th August,
2008, resultantly after completion of codal formilities the trial Court granted succession certificate in favour of respondent No.4 "Mst. Anita Anum" with power to collect debts/amount of deceased. The applicants added that Mst. Anita Anum (respondent No.4) at
the time of filing of Succession Application bearing No.11 of 2009 misconceived the actual facts and fraudulently obtained the Succession Certificate from the trial Court without
impleading the ap plicants being legal heirs of deceased and also narrated false as well as
untrue averments in application for grant of Succession Certificate, consequently, the
respondent No.4 "Mst. Anita Anam" is liable to be prosecuted under Section 372 subsection (2) o f the Succession Act, 1925, beside revoking the succession certificate. The applicants
further added that they came to know about obtaining Succession Certificate in 15th
September, 2017 when the respondent No.4 "Mst. Anita Anam" filed another succession
application for procuring of monthly pension of deceased.
6. The application was contested by the respondents Nos.2 and 4 by filing their separate
rejoinders to the application whereas, the respondent No.3 despite service of notices failed to
appear and con test the application, as such, was proceeded against ex parte on 6th February,
2018.
7. After hearing the parties the application of the appellants was dismissed as mentioned
hereinabove in sub para No. 1.
8. Heard learned counsel for the parties and perus ed the record minutely, at the very
outset, learned counsel for the respondents raised objection on the maintainability of the appeals on the grounds that the impugned judgment and order passed by the Civil Judge, hence the appeal lies before the District Judge instead before this Court. While confronted the learned counsel for the appellants, he contended that the impugned judgment and order passed by the Civil Judges with the power of District Judge, as such, the appeal lies before this Court, in support of their contentions the learned counsel for the parties referred the
provisions of the Succession Act, 1925.
9. It would be appropriate to reproduce the relevant provisions of the Succession Act,
1925 as under:
"384. Appeal. - (1) Subject to the other pr ovisions of this Part, an appeal shall lie to
the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted, and direct the District Judge, on application being made therefor, to grant it accordingly, in suppression of the certificate, if any, already granted.
(2) An appeal under subsection (1) must be preferred within the time a llowed for an
appeal under the Code of Civil Procedure, 1908.
(3) Subject to the provisions of subsection (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as app lied by section 141 of that Code, an order of a District Judge
under this Part shall be final.
Section 388
Provided that an appeal from any such order of an inferior Court as is mentioned in
subsection (I) of section 384 shall lie to the District Judge, a nd not, the High Court,
and that the District Judge may, if he think fit, by his order on the appeal, make any such declaration and direction as that subsection authorises the High Court to make
by its order on an appeal from an order of a District Judge."
10. The provisions of ibid Act, are crystal clear that an order passed under section 372 of
the Succession Act, 1925 by an inferior Court, the appeal lies before the District Judge and in
case an order passed under the aforementioned section by a District Judge, the appeal shall lie before the High Court. In this regard I am fortified by the judgment of "Umar Farooq Shah v. Mst. Shagufta Nasreen and others" 1997 CLC 1846 Peshawar, the relevant portion is reproduced as under:
"It appears that under section 388 the Courts inferior to District Judge are vested with
the powers to entertain applications for succession certificate in order to reduce the over burden work of the District Judge who is exercising power in the whole District in respect of man y other matters. The option, is left to the party filing application for
succession certificate to file the same either directly before the District Judge who may entertain the same in its original jurisdiction and if so the appeal would lie to the High Co urt under section 384 of the Act. In other cases the District Judge may refer
the case to any Court inferior to it duly notified by the Provincial Government in official Gazette to entertain the said application for succession certificate. In this view of the matter and by interpreting the two sections of law an interpretation which
create convenience to the parties and is more liberal is to be construed. I, therefore, hold that the proper forum for appeal is the Court of District Judge and not this Court when order is passed by an inferior Court. I refrain from making any observation on
the merits of the case and will send this case to the District Judge, Abbottabad to hear the appeal on merits. The parties are directed to appear before District Judge, Abbo ttabad on 19- 6-1997."
Likewise, in the case of "Sh. Muhammad Mushtaq and others v. Public -at-Large and
others" PLD 1994 Lahore 373 it was held that:
"Where any order was passed by a Court subordinate to District Judge, then an appeal from that order gran ting, refusing or revoking a Succession Certificate by such Court
would lie to the District Judge and not to the High Court ---.Punjab Government
Notification No.781 dated 17- 7-1914, had invested the subordinate Judges of the first
and second class with, fu nctions of a District Court ---Regardless of the limits of
pecuniary jurisdiction, any order passed under the delegated authority under S.388, Succession Act, 1925, by a Civil Judge was susceptible to an appeal to the District Judge and not directly to the High Court ---Appeal against order of Civil Judge having
been directly filed before High court was returned for its presentation to the Court of competent jurisdiction."
In view of the above, it is crystal clear that both the appeals were wrongly been filed
before this Court, while under the provisions of ibid Act, the impugned judgment and order passed by the learned trial Court the appeal shall lie before the District Judge; thus, the appeals filed by the appellants are hereby directed to be returned to t he appellants to file the
same before the District Judge, Quetta, the period of limitation so consumed during the course of pendency of these appeals shall not be hurdle in filing of appeal before the competent forum.
MH/181/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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