P L D 2021 Balochistan 28
Before Abdul Hameed Baloch, J
Mst. ABIDA KHANUM and another ---Petitioners
Versus
SARFARAZ and others ---Respondents
Civil Revision No. 101 of 2020, decided on 29th September, 2020.
(a) Islamic -law---
----Marriages ---Irregular marriage ---When a lady entered into marriage before completion of
iddat period, then said marriage would not be a "void marriage" but would be an irregular
marriage--- Such union, which was an "irregular marriage", could not be regarded as being
against Sharia.
Allah Dad v. Mukhtar Ahmed 1992 SCMR 1273 rel.
(b) Succession Act (XXXIX of 1925) ---
----Ss. 373 & 372--- Succession Certificate---Nature of proceedings under Ss.373 & 372 of
Succession Act, 1925--- Dispute between legal he irs and intricate questions of facts,
determination of ---Scope ---Procedure provided for in S.373 of Succession Act, 1925 was of
a summary nature and did not decide rights of parties ---For determination of rights as legal
heirs, remedy lay before a court of competent jurisdiction---Intricate questions of fact could
not be resolved in such summary proceedings, and questions as to title of property had to be decided before a civil court.
Muhammad Sher v. Additional Sessions Judge/Justice of Peace District Kh ushab
2016 CLC 717 and Allah Dad v. Mukhtar Ahmed 1992 SCMR 1273 ref.
Mst. Aisha v. Mst. Mah Gul 2015 CLC 1719; Malik Muhammad Rafique v. Mst.
Tanveer Jahan PLD 2015 Isl. 30 and Mst. Samina Sikandar v. Public -at-Large PLD 2011
Lah. 192 rel.
Mumtaz Hussai n Baqri and Rasool Bakhsh Baloch for Petitioners.
Abdul Zahir Khan Noorzai for Respondent No.5 and Maqbool Hussain Respondent
No.3 present in person.
Date of hearing: 15th September, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---Through this judgment I inten d to dispose of
above titled revision petition filed by the petitioners/ applicants against the judgment dated
21st September, 2019 (impugned judgment) passed by Civil Judge -V, with the powers of
District Judge Quetta, whereby the respondent Mst. Zaib- un-Nisa was declared as third wife
of the deceased Hussain Ali and entitled in the legacy of deceased and against the order dated
29th February, 2020 passed by learned Additional District Judge -1, Quetta, whereby the
appeal filed by the petitioners/applicants was dismissed and judgment of the trial court was
upheld.
2. Concise facts of the case are that the petitioners/applicants filed application under
Section 372 of the Succession Act, 1925 (Act 1925) against the respondents Nos. 1 to 4 in respect of the estate of deceased Hussain, who was serving in Police Department as D.S.P., in which respondent No. 5 Mst. Zaib- un-Nisa moved an application under Order I, Rule 10,
C.P.C. claiming herself to be the third wife of deceased Hussain Ali and contesting the success ion application. In such circumstances the learned trial court framed following three
issues on 5th May, 2017:
i. Whether (late) Hussain had contracted three marriages with Abida Khanum, Shamim Ara (late) and Zaib -un-Nisa?
ii. Whether Zaib -un-Nisa and her son Ayan Ali are the legal heirs of Hussain Ali (late)
and entitled for the departmental dues of the deceased?
iii. Whether Zaib -un-Nisa was previously married to Qambar Ali (late) and their
marriage was dissolved on the basis of Khula and she contracted another marriage
with Hussain Ali (late) without passing Iddat period of (90) days?
3. On the above issues the parties to the lis produced their respective evidence,
whereafter, the trial court passed judgment dated 21st September, 2019 in the following
terms:
"19. The succession certificate is granted to applicants and private respondents, they are hereby empowered to collect/ draw the above mentioned amount of their deceased from concerned department/bank according to their following sharia shares:
Legal heirs Shares Amount (Rs.)
1. Abida Khanum (W) 6.25% 259,583.1875
2. Zaib un Nisa (W) 6.25% 259,583.1875
3. Nadia (D) 10.94% 454,374.4114
4. Sajida Bano (D) 10.94% 454,374.4114
5. Sarfaraz Hussain (S) 21.87% 908,333.4897
6. Maqbool Hussain (S) 21.87% 908,333.4897
7. Hasnain Haider (S) 21.87% 908,333.4897
Further applicant No. 1 and respondent No. 4A being widows of deceased are hereby
empowered to collect/draw the monthly pension (past and future) of their deceased husband from concerned department according to pension rules. Applicants and other
private r espondents are at liberty to approach competent court of law against
respondent No. 4- A for declaration of status of her marriage with late Hussain Ali. If
after approach to Civil Court, the marriage of respondent No. 4- A is declared void,
then respondent No. 4 -A is bound to return the amount if collected by her in the
shape of her alleged share in Tarka and as well as family pension. Application after
completion and compilation be consigned to record."
4. The petitioners/applicants being aggrieved of the same approached appellate forum
i.e. Additional District Judge -I, Quetta, who vide order dated 29th February, 2020 upheld the
judgment of the trial court and dismissed the appeal, hence the petitioners/applicants are before this court.
5. Learned counsel for he petitioners contended that the respondent No. 5 approached
the trial court with assertion that she is third wife of the deceased. The burden was upon the respondent No. 5 to prove that she was wedded wife of deceased, but the learned trial court
has wrongly shifted the onus of proof on the petitioners/applicants that the respondent No. 5 was not wedded wife of the deceased. It is admitted that when a party alleged certain facts he/she has to prove such facts through cogent and trust w orthy evidence. The trial court as
well as appellate court have wrongly appreciated the evidence. The orders are illegal in the eye of law.
6. While on the other hand the learned counsel for the respondent No. 5 stated that the
orders of the trial c ourt as well as appellate courts are according to law. The respondent
No. 5 proved that she was wedded wife of the deceased Hussain Ali and has Sharai right in the legacy of the deceased. Reliance was placed on the case of Muhammad Sher v. Additional Sessions Judge/Justice of Peace District Khushab 2016 CLC [Lahore] 717 and
Allah Dad v. Mukhtar Ahmed 1992 SCMR 1273
7. Heard learned counsel for the parties and perused the record with their assistance. The
record transpires that the petitioners filed an application under section 372 of the Succession
Act, 1925 for grant of succession certificate before the trial court being legal heirs of late
Hussain Ali, who was serving in Police Department as D.S.P. During trial intervener Zaib-un-Nisa filed an application under Order I, Rule 10, C.P.C. for impleadment as legal heir of
deceased Hussain Ali. The learned trial court accepted the application of intervener vide order dated 6th September, 2017. The relevant para of order is reproduced hereunder for ready reference:
"6. Thus, in light of above discussed facts it had been established that the marriage of Mst. Zaibun Nisa is not void as termed by the applicant counsel and though he admits her marriage, however, he is adamant to call the wedlock as legal one, t herefore, the
application in hand is hereby allowed and the applicants are directed to file amended succession application while incorporating the name of the intervener namely Zaib un Nisa as necessary party in case they have any objection the applicants may file a separate suit in competent court of law."
8. The petitioners have complied the order and impleaded Zaib- un-Nisa as respondent.
The parties led evidence in support of their respective contentions. The learned trial court vide order/judgment dated 21st September, 2019 accepted the application and determined the
shares of applicants and respondent No. 4- A in the terms as mentioned in para -3 supra.
9. The learned appellate court i.e. Additional District Judge -I, Quetta, vide order dated
29th February, 2020 upheld the order of the trial court.
10. Now discuss the contention of learned counsel for the petitioners that respondent No.
5 contracted marriage during Iddat period, as such it is a void marriage. It is settled
Islamic law that a lady ent ered into marriage after divorce before completion of Iddat
period would not be void marriage, but would be irregular marriage. The union of husband
and wife is irregular marriage; the same cannot be regarded against Sharia. Reliance is
placed on the case of Allah Dad v. Mukhtar Ahmed 1992 SCMR 1273, wherein it was held
as under:
"24. According to this verse, the period of 'Iddat' laid down by the Holy Qura'n is not
90 days. It is rather three periods of menstruations which do not necessarily extend to
90 days. According to Hanafi Jurists in minimum period of menstruation is 3 days and the minimum period of 'Tuhr' (period of purity) is 15 days (see Al -Fatawa Al -
Alamgiria, Vol. 1 at pp.36 and 37, Book I, Chapter 6)."
11. The respondent No. 5 fi led an application under Order I, Rule 10, C.P.C. for
impleadment in succession application being legal heir of deceased Hussain Ali, which was accepted vide order dated 6th September, 2017. The petitioners did not assail the impugned order and filed amended application by incorporating the name of applicant as
respondent No. 4A, meaning thereby that the petitioners were not aggrieved from the order of the trial court dated 6th September, 2017. Subsequently the petitioners could not agitate the ground which had already been agitated before the trial court. On the principle
of estoppel by conduct the petitioners could not re -agitate the point which had already been
decided by the competent court of jurisdiction.
12. The procedure contained in section 373 of the Act, 1925 is summary in nature. It
would not decide the right of the parties. If a person wants determination of his right the remedy lies in a suit before the court of competent jurisdiction. Reliance is placed on the
judgment of this court tilted as Mst. Aisha v. Mst. Mah Gul 2015 CLC 1719 wherein it was held:
"6. A Court while dealing with an application has to follow the procedure contained in section 373 of the Act, 1925, which is summary in nature. It neither conclude rights of the parties nor does it establish the right of the party to the debt for collection of which certificate is granted. Thus a person if wants detailed determination of his right, the remedy lies in a suit before a court of competent jurisdiction. Subsection (3) of the section 373 of the Act, 1925 is clear enough to the effect, re -production would
be beneficial: -
"Section 373(3). If the Judge cannot decide the right to the certificate without determining questions of law or fact whi ch 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 section is an a ddition 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.
The determination of title is beyond the scope of the section. An applicant who can
claim his preferential right for payme nt 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 filed for the purpose to establish the claim and also for recovery of the
shares respectively claimed."
13. The procedure under section 373 of the Succession Act, 1925 is summary
procedure. The court while granting succession certificate does not determine the right of the party. If a person is dissatisfied from issuance of succession certificate he/she/they could have right to approach court of competent jurisdiction for determining of rights.
Intricate question could not be resolved in summary proceeding. Question of title of property
has to be decided in suit before court of competent jurisdiction. Reliance is made on the
following judgments:
Malik Muhammad Rgfique v. Mst. Tanveer Jahan PLD 2015 Islamabad 30, it was held that the proceedings under the Succe ssion Act, 1925, were of a summary nature
and intricate question could not be resolved in such proceedings.
(ii) Mst. Samina Sikandar v. Public -at-Large PLD 2011 Lahore 192, it was held that
summary proceedings under section 373 of 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 cer tificate 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 Das s v. Teeka Dutta 2005 4
SCC 4491.
"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 furnishes the grantee with authorit y 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."
(iii) Allah Nawaz Khan v. Fareda Fatima Khanum 1999 (sic) 2738, it was observed that the procedure for dealing with the disposal of the petition for the grant of a succession certificate was given in sect ion 373 of the Succession Act, 1925. The said section was
interpreted in the following terms:
"----Court has to follow the summary procedure and if it cannot resolve any intricate
question of law and facts, it may nevertheless grant a certificate to the applicant
if he appears to be a person having prima facie the best title thereto. However, while granting certificate to the person who has prima facie title, would leave the other person to establish his right by a regular suit. This m eans that the court has to
deal with the matter summarily leaving aside the intricate question of law and facts and only issue certificate to such party who has a prima facie case of entitlement to
such certificate."
The petitioners have failed to point out any illegality or irregularity in the orders of
the courts below, as such the judgment dated 21st September, 2019 passed by Civil Judge -V,
with the powers of District Judge Quetta, and the order dated 29th February, 2020 passed by
learned Additio nal District Judge -I, Quetta are upheld and the petition being bereft of any
merit is dismissed with no orders as to costs.
KMZ/265/Bal. Petition dismisseThis 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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