2021 C L C 1807
[Balochistan]
Before Rozi Khan Barrech, J
SHABAN KHUDA BAKHSH ----Petitioner
Versus
HATIMA AMEER and 2 others ----Respondents
Succession Appeal No.03 of 2020, decided on 13th August, 2020.
Succession Act (XXXIX of 1925) ---
----Ss.373 & 384--- Succession certificate, application for ---Title to property ---Jurisdiction ---
Son of deceased sought succession to amount lying in Bank account of his deceased father ---
Widow claimed full amount lying in the account to the exclusion of ot her legal heirs on the
plea that amount was sale consideration of plots owned by her ---Trial Court issued
succession certificate to all legal heirs as per their shares ---Validity ---Petition for grant of
succession certificate was filed under S.373 of Succession Act, 1925, and such proceedings
before Trial Court were summary in nature ---Intricate questions could not be resolved in
such proceedings ---Questions of title to property was to be left to be decided in suit before
Court of plenary jurisdiction ---Hig h Court declined to interfere in Certificate issued by Trial
Court ---Appeal was dismissed, in circumstances.
Mst. Aisha and 2 others v. Mst. Mah Gul and 2 others 2015 CLC 1719; Aziz Ahmed
v. Hakimzadi and 7 others 2013 CLC 406; Mst. Samina Sikandar v. Pub lic-at-Large PLD
2011 Lah. 192 and Banarasi Dass v. Tekka Dutta (2005) 4 SCC 4491 ref.
Behlol Khan Kasi for Petitioner.
Ghulam Mohiuddin Sasoli for Respondent No.1.
Date of hearing: 26th June, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----Through the instan t appeal the appellant has
questioned the validity, legality and propriety of the judgment/order dated 18.04.2019 passed by the learned District Judge Mastung (trial court) whereby the application filed by respondent No.1 under Section 372 of the Succession Act, 1925 was allowed.
2. Brief facts of the case are that the respondent No.1/applicant filed an application
under Section 372 of the Succession Act, 1925 before the trial court against the appellant and
respondents Nos. 2 and 3 with the averment that r espondent No.1/applicant is son of late
Khuda Bakhsh, the appellant is widow of late Khuda Bakbsh and respondent No.2 Shehnaz
Baloch is daughter of late Khuda Bakhsh. The deceased Khuda Bakhsh passed away on 09.06.2018 due to natural death at Mastung. The deceased maintained a bank account in National Bank of Pakistan Civil Secretariat Branch Quetta and an amount of Rs.60,99,997/ -
are lying in the said account and lastly prayed for issuance of succession certificate.
3. The trial court issued notice and pub lication was also made in daily newspaper
'Mashriq' Quetta for general public. The appellant appeared through her counsel and contested the application by way of filing reply and denied the claim of the respondent/applicant over the total amount by claimin g that only Rs.34,45,113/ - is
distributable among the legal heirs of the deceased. However, the respondent No. 2 through her counsel filed reply in which she admitted the contents of the application and supported the claim of the applicant.
Out of the ple ading of the parties the trial court framed the following issues:
"1. Whether the legal heirs of deceased Khuda Bakhsh are entitled according to their sharia shares in the whole amount of Rs.6,099,997/ - left by him in the account
No.4002284162, in National Bank of Pakistan Civil Sec: Branch Quetta. Or Out of Rs.6,099,997/ - only Rs.3445113/ - is divisible among the legal heirs, while the rest
belongs to respondent No.1?
2. Whether the applicant is entitled to relief claim for?
3. Relief?"
After hearing the arguments of learned counsel for the parties the trial court accepted
the application filed by respondent No.1/applicant vide order dated 18.04.2019 and directed to issue the certificate in accordance with their respective shares.
Being aggrieved from the order dated 18.04.2019 passed by the trial court the
appellant has filed the instant appeal.
4. I have heard the arguments advanced by the learned counsel for the parties and have
also perused the record with their able assistance.
5. The claim of the applicant/respondent No.1 is that the applicant himself namely
Hatima Ameer is son of late Khuda Bakhsh while appellant (Shabana Khuda Bakhsh) is widow of late Khuda Bakhsh and respondent No.2 (Shehnaz Baloch) is daughter of late Khuda Bakhsh are entitled to for the amount lying in the account of late Khuda Bakhsh according to their legal shares. On the other hand the claim of the appellant is that her deceased husband Khuda Bakhsh in the year 2016 purchased two residential plots in Sa ngar
Housing project Gwadar and the same were lawfully allotted to the name of the appellant as well as her deceased husband on 24.05.2016 and thereafter in the month of March 2017 both the plots were further sold out to one Ahmed Nadeem son of Abdul Rahim resident of
Gwadar in consideration of Rs.5 millions. As a token Rs.2 millions were deposited in the
account No.4002284162 of deceased Khuda Bakhsh at National Bank Civil Secretariat
through center branch transaction National Bank of Pakistan Gwadar branc h (079) and
thereafter the remaining consideration amount of plots in question were also deposited in the above stated account of the deceased, beside this one month pension amount of Rs.84,884/ -
was also deposited in the account of deceased on 28.06.2018 after his death and the same is
deemed to be the share of respondent No.1 exclusively as such claim of appellant against 2.5
million out of Rs.60,99,997/ - deposited in the account of deceased Khuda Bakhsh is baseless
actually the deceased left behind only an amount of Rs.3,515,113/ - whereas Rs.70,000/ - is
fixed as dower amount of respondent No.1 which is still outstanding against the deceased and
according to Sharia the amount left by the deceased and the remaining amount of Rs.3,445,113/ - is distributable among the legal heirs of the deceased. The learned trial court
while relying on the judgment passed by this court in the case titled as 'Mst. Aisha and 2 others v. Mst. Mah Gul and 2 others' (2015 CLC 1719) passed the impugned judgment and held that:
"13... the applicant and respondents Nos.1 and 2 have right to the certificate in
accordance with their respective shares.
14. The parties have following shares out of Rs.6,099,997.5/ -
S.No Name. Relation. Shares Amount.
Hatim Ameer Baloch. Son 14 Rs.3558331.875
Shabana Khuda Baldish Widow 03 Rs.762499.6875
Shenaz Baloch Daughter 07 Rs.1779165.938
Total. 24 Rs.6,099,997.5
15. Thus three separate certificates be issued to the applicant and respondents Nos.1
and 2. Subject to their filing surety equal to the amount of their respective shares mentioned above."
6. It is an admitted position that the petition for the grant of succession certificate was
filed by the p etitioner under Section 373 of the Succession Act, 1925, and that the
proceedings before the learned Civil Court were summary in nature. Intricate questions could not be resolved in such proceedings. Questions of title to property have to be left to be decided in a suit before a Court of plenary jurisdiction. Subsection (3) of the section 373 of the Act, 1925 is clear enough which reads as under:
"Section 373(3). If the 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 appears to be the person having prima facie the best title thereto."
Subsection (4) of the sect ion ibid 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 more 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."
7. The determination of title is beyond the scope of the section. An applicant who can
claim his preferen tial right for payment of debts would become entitled for issuance of the
certificate, subject to (sic.) he has a prima facie title in his favour. The remaining questions
pertaining to determination of title and the extent are to be dealt with in a suit fi led for the
purpose to establish the claim and also for recovery of the shares respectively claimed.
In Aziz Ahmed v. Hakimzadi and 7 others (2013 CLC 406 Sindh) it was has held
that:-
"From the bare perusal of the above sub proviso of section 373 of Suc cession Act,
1925, it appears that this section is related to the extent of the share of one applicant and same is relevant when dispute on some share arose and also on this point the dictum of honourable Supreme Court in which authoritative proposition of law is laid
down which is to the effect that the proceedings under Succession Act, being summary in nature, cannot help in determining the issue of status of a party hence in the event of dispute of status of a party the proper course would be for parties to
approach the competent Civil Court for declaration of such disputed status and then to resort to course, provided under the Act "
In Mst. Samina Sikandar v. Public -at-Large (PLD 2011 Lahore 192), it has been held
that summary proceedings under section 373 or the Succession Act, 1925, are to determine
whether the petitioner had a right to a succession certificate. Furthermore, it was held that a succession certificate is not a final adjudication of the question as to who is the next heir, and
the grant of such a certificate merely clothes its holder with an authority to realize the debts of the deceased and to give an authority of discharge. The Hon'ble Lahore High Court also quoted with approval the following passage from the judgment in the case of Banarasi Dass v. Tekka Dutta ((2005) 4 SCC 4491) which reads as under:
"8. Succession Certificate neither gives any general power of administration on the estate of the deceased nor establishes title of the grantee as the heir of the deceased. It only furnis hes the grantee with authority to collect debts due to the deceased and
allows the debtors to make payments to him without incurring loss. Thus the object of the said certificate is to facilitate the collection of the debts, to regulate the administration of Succession and to protect person who deals with the alleged
representatives."
8. The learned trial court, vide order dated 18.04.2019, had allowed the respondent
No.1's application for the issuance of a succession certificate in favour of legal heirs of late
Khuda Bakhsh, including the respondent No.1, subject to the "filing of local surety bonds in the equal amount to the satisfaction of trial court." All the legal heirs were held to be entitled to withdraw their respective shares from late Khuda Bakhs's legacy separately and independently. The requirement to furnish surety bonds is in conformity with Section 375 of the Succession Act, 1925, which empowers the Court to requisition security from the grantee of the succession certificate. The said Section provides inter alia that the Court may require,
as a condition precedent to the granting of a succession certificate, that the person to whom
the Court proposes to make the grant shall give a bond with one or more sureties, or other sufficient security, fo r rendering an account of debts and securities received by him and for
indemnity of persons who may be entitled to the whole or any part of those debts and securities.
In view of the above discussion no illegality or irregularity has been found in the
impugned judgment/order of the trial court to warrant interference by this court, therefore, the instant appeal is dismissed being devoid of merits.
MH/195/Bal. Appeal dismissed.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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