P L D 2016 Balochistan 39
Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ
SULEMAN MEHMOOD ---Appellant
Versus
ANWARI BEGUM and others ---Respondents
C.M. Appeal No.16 of 2015, decided on 24th November, 2015.
Succession Act (XXXIX of 1925) ---
----Ss. 264, 270, 278, 299 & 371 ---Letter of administration ---Territorial jurisdiction ---Principle --
-Appellant filed application for grant of letter of administration but Trial Court at place "Q"
returned the application for lack of t erritorial jurisdiction ---Validity ---Application was filed
before Trial Court with assertion that deceased had permanent place of abode at place "Q" but
properties owned by deceased situated in different parts of another province ---District Judge at
place "Q" had jurisdiction to entertain application for the purpose and to grant letter of
administration ---Simultaneously District Judge, in whose territorial jurisdiction the properties
situated also had the jurisdiction ---Trial Court without going into releva nt provisions of law
simply returned the application, on the basis that Court had no jurisdiction in the matter ---Such
action of the Trial Court was an error ---High Court advised the Trial Court that before making
decision should always go through law appl icable in the matter pending for decision ---Forum
and territorial jurisdiction for courts was determined under Ss.264 & 270 of Succession Act,
1925 ---High Court did not put respondents on notice as they had not been served when
application was returned by Trial Court ---High Court set aside the order passed by Trial Court at
place "Q" and remanded the case for decision afresh.
Mst. Uzma Rehman v. Public at Large PLD 2011 Kar. 108; Tariq Shafi; in the matter of
2013 MLD 129 and Vasdev v. General Public PLD 1979 Quetta 35 ref.
Muhammad Ilyas Mughal for Appellant.
Nemo for Respondents.
Date of hearing: 8th September, 2015.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---According to the contents of the order dated
17th August 2015, questioned in the appeal , the trial court i.e. Civil Judge/Judicial Magistrate -
IX, Quetta, returned the application filed for the purpose of grant of letter of administration, to
the appellant Suleman Mehmood for want of territorial jurisdiction.
2. The appellant assailed the order while contending that the trial court ignored Section 371
of the Succession Act 1925. (Act 1925), it clearly provided that the court where the deceased
ordinarily resides shall have the jurisdiction to grant the certificate . It was contended that the
deceased Saqib Mashhood had fixed place of residence at Quetta, and the documents describing
the fact were annexed with the application, but the trial court failed to take note thereof. Further,
the fact that the application fil ed for the purpose of issuance of succession certificate, pertaining
to the property of the same deceased was entertained and allowed by the trial court, was ignored.
While the application for grant of letter of administration was returned due to misreadin g of the
law. He requested for remand of the case to the trial court for a decision on merit.
3. The learned counsel for the appellant repeated the stance taken in the application, and in
support cited the following judgments:
Mst. Uzma Rehman v. Pub lic at Large PLD 2011 Karachi 108.
Tariq Shafi; in the matter of 2013 MLD page 129
Vasdev v.General Public PLD 1979 Quetta 35
4. The papers available on the record reveals that the appellant filed an application under
Section 278 of the Act 1925 wi th a prayer for grant of Letter of Administration in his favour for
all legal purposes for the properties owned by his deceased brother Saqib Mashhood. Anwari
Begum and Sarwari Begum, described to be the sisters of the deceased, were arrayed as
respondents in the application. The trial court at very initial stage arrived to the conclusion that:
"The application was perused thoroughly; the properties for which the letter of
administration is sought are situated in different districts of the province of Pun jab which
do not fall in the jurisdiction of this court. So this court cannot verify whether the said
properties are in the name of deceased or not. Thus the application is returned back for
want of jurisdiction."
5. It was a fact that the deceased Saqib Mashhood died, and the appellant applied for
issuance of Letter of Administration for the immoveable properties owned by the deceased. The
properties, subject matter of the application, as described were situated at Sialkot, Multan and
Sargodah Province o f Punjab. The copy of CNIC of the deceased, available in the case file,
contained his present as well as permanent address at Quetta, and he was described to be residing
at Quetta at the time of his death. Thus before going into merit of the case the trial court took the
issue of its jurisdiction, and concluded not to have jurisdiction, as the properties, subject -matter
of the case, were situated beyond its territorial limits. As the matter in hand pertains to issuance
of Letter of Administration thus to be governed by the Succession Act 1925, the relevant law. A
court while dealing with the matter has to assume the jurisdiction for the purpose of issuance of
Succession Certificate or Letter of Administration as provided under the Act 1925. The learned
couns el for the purpose referred Section 371 the Act 1925 for assuming territorial jurisdiction by
a court entertaining an application to the effect. Thus to understand the issue in hand
reproduction of the Section 371 of the Act 1925 would be beneficial:
"Section 371. Court having jurisdiction to grant certificate. The District Judge within
whose jurisdiction the deceased ordinarily resided at the time of his death or if at that
time had no fixed place of residence, the District Judge, within whose jurisdicti on any
part of the property of the deceased may be found, may grant a certificate under this Part.
6. In view thereof the relevant forum would be the District Judge with the exception as
provided by Section 388, Act 1925. In addition this section also de termined the territorial
jurisdiction of the District Judge. It clearly contained that a District Judge in whose jurisdiction
the deceased ordinarily resided at the time of his death would have the jurisdiction.
Simultaneously the District Judge in whose j urisdiction any part of the properties of the deceased
may be found shall have the jurisdiction. Though the learned counsel pressed the Section, but
ignored that the Section while describing the jurisdiction also states its applicability that may
grant a c ertificate under this part. Section 371 contained in Para -X of the Act 1925 which
pertains to grant of succession certificate. Thus the application of Section 371 of the Act 1925
would be only to the extent of the Succession Certificates.
7. Rather in ca se in hand the appellant was before the court for the purpose of grant of letter
of administration in his name for the immoveable properties owned by the deceased. Part -IX of
the Act 1925 pertains to probate, letter of administration and administration of assets of
deceased. Thus Part IX Chapter -IV would determine the jurisdiction for the purpose of granting
and revoking probates and letter of administration. Section 264 Act 1925 would be relevant for
the purpose, it reads as under:
"Section 264. Jurisdic tion of District Judge in granting and revoking probates, etc. (1)
The District Judge shall have jurisdiction in granting and revoking probates and letters of
administration in all cases within his district.
(2) Except in cases to which section 57 applies, no Court 1***, 2***, shall, where the
deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person,
receive applications for probate or letters of administration until the Provincial
Government has, by a notification in the offic ial Gazette, authorized it so to do."
8. This section determined the forum for the purpose would be the District Judge. As far
territorial jurisdiction is concerned, Section 270 of the Act 1925 would be the most relevant. It
reads as under:
"Section 27 0. When probate or administration may be granted by District Judge. Probate
of the will or letters of administration to the estate of a deceased person may be granted
by a District Judge under the seal of his Court, if it appears by a petition, verified as
hereinafter provided, of the person applying for the same that the testator or intestate, as
the case may be, at the time of his decease had a fixed place of abode, or any property,
moveable or immoveable, within the jurisdiction of the Judge."
The plai n reading of the Section made it clear that the District Judge, in whose territorial
jurisdiction the deceased at the time of his death had a fixed place of abode, or had any
moveable or immoveable property shall have the jurisdiction to entertain the appl ication
filed for the purpose and on adopting the provided procedure, make an order to the effect.
Section 271 of the Act 1925 deals with another situation when an application is made to a
judge of a District in which deceased has no fixed abode. Reproduct ion of the Section
would be beneficial. It reads as under:
"Section 271. Disposal of application made to Judge of district in which deceased had no
.fixed abode. When the application is made to the Judge of a district in which the
deceased had no fixed a bode at the time, of his death it shall be in the discretion of the
Judge to refuse the application, if in his judgment it could be disposed of more justly or
conveniently in another district, or, where the application is for letters of administration,
to grant them absolutely, or limited to the property within his own jurisdiction.
9. In the case in hand the application was filed before the court with the assertion that the
deceased had permanent place of abode at Quetta, but the properties owned by the deceased
situated in different parts of the Province of Punjab. In view thereof the District Judge at Quetta
would have the jurisdiction to entertain the application for the purpose, and to grant Letter of
Administration as prayed. Simultaneously the Dist rict Judge, in whose territorial jurisdiction the
properties situated shall also have the jurisdiction. The trial court without going into the relevant
provisions of law simply returned the application, while deciding to have no jurisdiction in the
matter. It was an error. It is advisable for the trial court that before making a decision always go
through the law applicable in the matter pending for decision. The learned counsel though
pressed Section 371 Act 1925, but overlooked Sections 264 and 270 Act 19 25, which determined
the forum and territorial jurisdiction of the courts.
10. In view thereof as the application was returned by the trial court without any notice to the
respondents, therefore, there is no need to put the respondents on notice in the i nstant appeal.
The impugned order is set aside being erroneous, thus not sustainable. The case is remanded to
the trial court with the direction to proceed with the matter strictly in accordance with the law.
There shall be no orders as to costs.
MH/6/Ba l. Case remanded.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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