Hifeeza and 5 others V. General Public,
Bench: Naeem Akhtar Afghan
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This case involved a family from Turbat, Balochistan, seeking a succession certificate after their relative died in an accident while working as a farmer in Sharjah, UAE. Such a certificate was needed to collect compensation and dues owed to the deceased. The District Judge at Turbat had dismissed their application, ruling that it lacked jurisdiction because the deceased was considered domiciled in Sharjah at the time of death, and the money owed was located there.
The family appealed, arguing that their relative was actually a permanent resident of Turbat who had only gone abroad temporarily to earn a living, and had not given up his Pakistani domicile.
The Balochistan High Court agreed with the family. It explained that under the Succession Act, 1925, succession to a deceased person's movable property is governed by the law of the country where the person was domiciled at death. Since "domicile" is not defined in the Act, the court relied on standard legal dictionaries and treatises, which define domicile as a person's true, permanent home to which they intend to return, even if currently living elsewhere. The court found no evidence that the deceased intended to permanently abandon Pakistan. Therefore, the trial court had wrongly interpreted "domicile" and wrongly refused jurisdiction. The High Court set aside that order and sent the case back for a decision on its merits. This ruling clarifies that working abroad temporarily does not change a person's legal domicile.
یہ مقدمہ بلوچستان کے شہر تربت سے تعلق رکھنے والے ایک خاندان کا ہے جنہوں نے اپنے رشتہ دار کی وفات کے بعد وراثتی سرٹیفکیٹ (Succession Certificate) کے حصول کے لیے درخواست دی تھی۔ متوفی متحدہ عرب امارات کے شہر شارجہ میں بطور کسان کام کرتے ہوئے ایک حادثے میں انتقال کر گئے تھے۔ یہ سرٹیفکیٹ متوفی کے واجب الادا معاوضے اور دیگر رقوم کی وصولی کے لیے ضروری تھا۔
تربت کے ڈسٹرکٹ جج نے خاندان کی درخواست خارج کر دی تھی، یہ قرار دیتے ہوئے کہ عدالت کو اس معاملے میں دائرہ اختیار حاصل نہیں کیونکہ وفات کے وقت متوفی کا ڈومیسائل (مستقل رہائش) شارجہ تصور کیا جائے گا، اور واجب الادا رقم بھی وہیں موجود تھی۔
خاندان نے اس فیصلے کے خلاف اپیل دائر کی اور موقف اختیار کیا کہ متوفی دراصل تربت کے مستقل رہائشی تھے اور محض روزی کمانے کی غرض سے عارضی طور پر بیرون ملک گئے تھے، اور انہوں نے کبھی اپنا پاکستانی ڈومیسائل تر
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P L D 2015 Balochistan 132
Before Naeem Akhtar Afghan, J
HIFEEZA and 5 others ---Appellants
versus
GENERAL PUBLIC ---Respondent
Succession Appeal No. 2 of 2015, decided on 4th May, 2015.
(a) Succession Act (XXXIX of 1925) ---
----Ss. 5(2), 372 & 384 ---Application for succession certificate ---Appeal under S.384 of Succession Act, 1925 against dismissal of application for certificate ---Jurisdiction of court --- "Domicile" ---Interpretation and determination ---Deceased was temporaril y residing out of country and claimed amount lying there ---Competent forum ---Application for issuance of succession certificate, was dismissed for lack of jurisdiction on ground that predecessor was domiciled of a foreign country and amount claimed was lyi ng abroad ---Applicants contended that their predecessor was permanent resident to Pakistan and had gone abroad to earn livelihood where he was temporarily residing ---Validity ---Applicants and their predecessor were permanent residents of Pakistan ---Correct criteria for issuance of succession certificate was domicile of the deceased at time of his death ---Nothing was available on record that could show that the deceased had intended to abandon Pakistan for ever ---Trial court while dismissing application filed under S.372 of Succession Act, 1925, had erred in facts and law while interpreting the word 'domicile' ---Word 'domicile' had not been defined in Succession Act, 1925 ---In ordinary meaning 'domicile' meant the place where a man lived or had his home ---Impugned order was set aside and Trial Court was directed to decide succession application on merits in accordance with law -- -Appeal was accepted in circumstance.
(b) Words and phrases ---
----"Domicile" ---Meaning and definition.
Halsbury's Laws of En gland (4th Edn.) Vol. 8, para. 421; Black's Law Dictionary (9th Edn.) by Bryan A. Garner and/Dicy and Morris on Conflict of Laws (10th Edn.) Vol. 1, p.100 ref.
Khurshid Ahmed Khosa for Appellants.
Nemo for Respondent.
Date of hearing: 27th April, 2015.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This judgment disposes of Succession Appeal No.2 of 2015 filed by the appellants against the order dated 24th February, 2015 passed by learned District Judge, Mekran at Turbat (hereinafter "the trial court") wh ereby the succession application filed by the appellants has been dismissed for want of jurisdiction.
2. Facts of the case are that the predecessor of the appellants was working as Farmer in Sharja (UAE). He died in an accident. Collection of his compens ation/dues required a succession certificate. Consequently, the appellants filed an application under section 372 of the Succession Act, 1925 "hereinafter "the Act") before the trial Court. The same has been rejected by the trial Court for lack of jurisdic tion on the ground that the deceased/ predecessor of the appellants was domiciled in Sharja at the time of his unnatural death and the amount claimed by the appellants is also lying in Sharja.
3. Learned counsel for the appellants stated that the predece ssor of the appellants was permanent resident of Turbat District Kech and had gone to Sharja (UAE) to earn livelihood by Farming. While relying upon section 5(2) of the Act and the case of Saleem Lodhia 1986 MLD 897, learned counsel stated that the trial c ourt has the jurisdiction to grant succession certificate to the appellants as at the time of his death, their predecessor was domicile/permanent resident of Turbat and was temporarily residing at Sharja to earn his livelihood.
4. Heard the learned couns el and perused the available record. Perusal of record reveals that the appellants are permanent residents of Trubat District Kech and their predecessor was also a permanent resident of Turbat District Kech and he was temporarily residing at Sharja for ear ning his livelihood by working as Farmer. He died unnatural death in Sharja. To receive compensation/dues of the deceased the appellants applied for grant of succession certificate. The application filed by the appellants has been rejected by the trial Cou rt for lack of jurisdiction after holding that the predecessor of the appellants was domiciled in Sharja.
Section 5(2) of the Act reads as follows:
"5(1)............
(2) Succession to the movable property of a person deceased is regulated by the l aw of the country in which such person had his domicile at the time of his death".
The word "domicile" has not been defined in the Act. According to Halsbury's Laws of England (4th ed) Volume 8, Para 421 "domicile" has been defined as under: --
"A per son is domiciled in that country in which he either has or is deemed by law to have his permanent home".
In ordinary meaning "domicile" means "The place where a man lives or has his home".
According to Black's Law Dictionary, 9th Edition by Bryan A. Garner "domicile" means The place at which a person has been physically present and that the person regards as home; as person's true, fixed, principal, and permanent home, to which that person intends to return and remain even, though currently residing e lsewhere. A person has a settled connection with his or her domicile for legal purposes, either because that place is home or because the law has so designated that place".
According to Dicy and Morris on the conflict of laws, 10th Ed Volume 1, Page 100 "A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home".
5. In the referred case of Saleem Lodhia, it has been held that correct criteria for issuance of succession certificate is domicile of the deceased at the time of his death.
6. There is nothing on record to show that the predecessor of the appellants had abandoned his country of domicile i.e. Pakistan with intention of abandoning it forever.
7. In view of the above, there was no oc casion for the trial Court to dismiss the application under section 372 of the Act for lack of jurisdiction. It appears that while passing the impugned order the trial Court has erred in facts as well as law while interpreting the word "domicile".
8. For the above reasons, the appeal is accepted, the impugned order dated 24th February, 2015 passed by learned District Judge, Mekran at Turbat, is set aside. The application under section 372 of the Act is deemed pending before the trial Court. The trial cour t is directed to decide the same on merits in accordance with law.
SL/65/BAL Appeal accepted.