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.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,
let us know.