P L D 2015 Balochistan 127
Before Muhammad Hashim Khan Kakar, J
Mst. RAZYA GHULAM and another ---Petitioners
versus
The GENERAL PUBLIC ---Respondent
Civil Revision No.75 of 2015, decided on 16th April, 2015.
(a) Succession Act (XXXIX of 1925) ---
----Ss. 372, 373 & 375----Succession certificate---Condition of furnishing of surety ---Scope ---
Petitioner, being sole legal heir of her husband who was government servant, filed petition for
obtaining succession certificate and other legal heirs did not object to issuance of succession
certificate ---Trial Court allowed said petition subject to production of two sureties equal to
amount of the succession certificate---Petitioner filed application seeking dispensation with
furnishing of said two sureties, which the court dismissed ---Petitioner contended that her case
was not covered under S.373(3) or S.373(4) of Succession Act, 1925, and Trial Court in terms of
S.375 of the Act had discretion to dispense with furnishing of surety in appropriate cases ---
Validity---Trial Court passed impugned order of dismissal of application without giving any
reason and mentioning contentions of petitioner's counsel ---Impugned order, being "non -
speaking" and resulting from non- application of judicial mind, was not a judicial order ---Trial
Court, declaring petitioner to be sole legal heir of the deceased and entitled to issuance of
succession certificate, should not have insisted upon furnishing of sureties ---Petitioner was
entitled to grant of succession certificate without f urnishing sureties ---High Court accepting the
petition ordered issuance of succession certificate in favour of petitioner subject to obtaining
personal surety bond of any government official.
Muhammad Iqbal Chaudhry v. Secretary, Ministry of Industries and Production,
Government of Pakistan PLD 2004 SC 413 rel.
(b) Succession Act (XXXIX of 1925) ----
----Ss. 373 (3) & (4) & 375(1) ----Succession certificate--- Furnishing of surety ---Word "Shall" in
S.375 of Succession Act, 1925 is used with reference t o class of cases, which fell under
Ss.373(3) & 373(4) of Succession Act, 1925, wherein, court decides to proceed in summary
manner to determine right as to grant of succession certificate--- In such cases S.375(1) of
Succession Act, 1925 makes it incumbent on court to order issuance of certificate subject to
furnishing of surety in addition to execution of bond---Where case for grant of succession
certificate does not fall under S.373(3) or S.373(4) of Succession Act, 1925, it is discretionary
with court to require the person in whose favour certificate is issued to give surety as condition
for grant thereof.
(c) Succession Act (XXXIX of 1925) ----
----S. 375----Object ---Object of demanding security from person, in whose favour succession
certificate has been granted by court, is to ensure proper rendition of account by him regarding
debts and securities of deceased received by him and to provide indemnity to such person, who
may be entitled to whole or any part of these debts and securities ---Where all heirs of deceased
were before court and there was no doubt that any other person was or may be entitled to the
estate of deceased and all such persons were adult and major and they expressed their consent for
grant of succession certificate in favour of one of the heirs of deceased, court in such clear cases
may not at all insist upon furnishing of security.
Tahir Ali Baloch for Petitioners.
Shai Haq Baloch, Asstt. A.- G. for Respondents.
Date of hearing: 10th April, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through the instant revision petition
under Section 115 of the Civil Procedure Code 1908 (CPC), the petitioners have prayed for
setting aside the order dated 4th March 2015 ("the impugned order"), passed by the learned
District Judg e, Mekran at Turbat ("the trial Court"), whereby application filed on behalf of the
petitioner for production of official surety was dismissed.
2. The facts, leading to the filing of the above revision petition, are that petitioner No.1 Mst.
Razya Ghulam is widow of late Ilyas Masih, who was targeted and killed by the terrorists on
12th December, 2013. Late Ilyas was working as sweeper in the Technical Training Center,
Turbat, leaving behind his wife (petitioner No.1) and a minor adopted child (petitioner No.2).
Petitioner No.1 filed a petition under section 372 of the Succession Act 1925 ("the Act") before
the trial Court for obtaining a succession certificate, authorizing her to release certain debts and
securities mentioned in the Schedule attached to h er petition. The Schedule disclosed that there
was a sum of Rs.30,00.000/ - (compensation), Rs.20,00,000/ - (cash payment in lieu of plot) and
monthly salary of Rs.I6,501/ - to be paid to the petitioner, being the sole legal heir of late Ilyas
Masih. There was no objection to the grant of the succession certificate by the other heirs of late
Ilyas Masih.
3. I have heard Mr. Tahir Ali Baloch, learned counsel for the petitioners and Mr. Shai Haq
Baloch, learned Assistant Advocate General, Balochistan, and also perused the available record
with their valuable assistance.
4. Mr. Tahir Ali Baloch, learned counsel for the petitioners, contended that, while
dismissing the application for production of official surety, the learned trial Court has not applied
its ju dicial mind to the facts and circumstances of the instant case and has passed one line order,
which cannot be termed as a 'judicial order' being without any reason. He further submitted that,
keeping in view the peculiar facts and circumstances of the case, no sureties should have been
demanded by the trial Court.
5. Mr. Shai Haq Baloch, learned Assistant Advocate General, when was confronted with the
contentions raised by the learned counsel for the petitioners, fairly conceded that this is a fit case,
where succession certificate ought to have been granted without demanding securities.
6. It may be noted that the learned trial Court has passed the impugned order in a casual
manner, without giving reasons for dismissal of the application. The learned tr ial Court did not
bother to mention the contentions of the learned counsel for the petitioners for forming an
opinion. It is observed with great disapproval and dismay that the learned trial Court, without
noting the contentions of the learned counsel for the petitioners, abruptly came to the following
conclusion:
"Not Allowed."
7. The above order is not at all a speaking order and in no manner can be called as a 'judicial
order' within the parameters of law. The tenor of the impugned order manifests non- application
of judicial mind. This court has time and again disapproved passing of such perfunctory orders.
In this regard, reference can be placed to the case of "Muhammad Iqbal Chaudhry v. Secretary,
Ministry of Industries and Production, Government of Pakistan" (PLD 2004 Supreme Court
413), wherein the Hon'ble Supreme Court held as under:
"3. It may be noted that the forums seized with the judicial matters are required to pass
such a speaking judgment that it should give an impression to readers th at the legal and factual
aspects of the case which were raised before it for the purpose of decision have been considered
and decided in the light of recognized principles of law on the subject instead of disposing of in
slipshod manner.
`4. We have noted with great concern that in instant cases although the pleadings of the parties
had been reproduced through and through but the contentions of the parties and the points on
which they were resting their cases were not taken into consideration at all. Be that as it may, in
these circumstances, both the sides stated that instead of allowing the petitions to remain pending
on the file, if leave is granted, the cases may be remanded to the Service Tribunal for fresh
decision after providing opportunity of hearing to all concerned, keeping in view the
observations made hereinabove."
8. The next question, which arises for consideration, is whether in the peculiar
circumstances of the case, the learned trial Court was justified for demanding two sureties of
Rs.50,00,000/ - each or dismissing the application for dispensing with the furnishing of security
on grounds contained in it? In this respect, Mr.Tahir Ali Baloch, learned counsel for the
petitioners, contended that, if the case of the petitioners is not covered under subsection (3) or
subsection (4) of section 373 of the Act, the Court within the purview of section 375 of the Act
has discretion in dispensing with the furnishing of security in appropriate cases. Section 375 of
the Act, which lays down the pr ocedure for grant of succession certificate, is as follows:
"375. Requisition of security from grantee of certificate.-- (1) The District Judge shall in
any case in which he proposes to proceed under subsection (3) or subsection (4) of section 373,
and m ay, in any other case, require, as a condition precedent to the granting of a certificate, that
the person to whom he proposes to make the grant shall give to the Judge a bond with one or
more surety or sureties, or other sufficient security, for rendering an account of debts and
securities received by him and for indemnity of person who may be entitled to the whole or any
part of those debts and securities.
(2) The Judge may, on application made by petition and on cause shown to his
satisfaction, and upon such terms as to security, or providing that the money received be paid
into Court, or otherwise, as he thinks fit, assign the bond or other security to some proper person,
and that person shall thereupon be entitled to sue thereon in his own name as if it had been
originally given to the Judge of the Court, and to recover, as trustee for all persons interested,
such amount as may be recoverable thereunder."
9. A careful examination of the provision of subsection (1) of section 375 of the Act would
show that the legislature intentionally with reference to different situations used two different
expressions i.e. "shall" and "may". The word "shall" in section 375 of the Act is used with
reference to the class of cases, which falls under subsection (3) or subsection (4) of section 373
of the Act, and in which, in spite of involvement of intricate and difficult questions of law and
fact, the Court decides to proceed in a summary manner to determine the right to the grant of
Succession Certificate to the appl icant. In such cases, the provisions of subsection (1) of section
375 of the Act make it incumbent on the Court to order issuance of the Certificate, subject to the
furnishing of a surety in addition to the execution of the bond. However, where the case fo r grant
of Succession Certificate does not fall under subsection (3) or subsection (4) of section 373 of
the Act, it is discretionary with the Court to require the person, in whose favour the Certificate is
issued to give security as a condition for grant of the Certificate. Except in cases, which are
covered under subsection (3) or subsection (4) of section 373 of the Act, in all other cases, the
Court, while granting the Succession Certificate, will have a discretion either to insist or not to
insist upon furnishing of security by the applicant according to the circumstances of each case. It
may be observed that the object of demanding security from a person, in whose favour
Succession Certificate is granted by the Court, is to ensure proper rendition of t he account by
him/her of the debts and securities of the deceased received by him/her and to provide indemnity
to such person, who may be entitled to the whole or any part of these debts and securities. In the
cases, where all the heirs of the deceased are before the Court and there is no doubt that any
other person is or may be entitled to the estate of the deceased and all such persons are adult and
major and they expressed their consent for the grant of Succession Certificate in favour of one of
the heir s of the deceased, the Court in such clear cases may not at all insist upon furnishing of the
security by the petitioner.
10. Considering the instant case on the touchstone of the aforementioned principles of law, I
am of the considered view that the tri al Court, after declaring petitioner No.1 to be the sole legal
heir of deceased Ilyas Masih, entitled for issuance of the Succession Certificate, should not insist
upon furnishing of the securities. I am afraid that on one hand, petitioner No.1 has been de prived
from her husband by the terrorists, while on the other hand, she has been compelled and dragged
in unnecessary litigation by the trial Court, while declining her request for production of the
official security. Admittedly, petitioner No.1, who is a widow and belonging to Christian
Community, was not in a position to arrange the required securities. Even otherwise, the
demanded securities are too excessive.
For the discussion made hereinabove, I am satisfied that the petitioners have made out a
case for grant of Certificate of Succession without furnishing of the required securities. I,
accordingly, order that the Certificate of Succession may be issued in favour of petitioner No.1,
subject to obtaining personal surety bond of any government officia l/officer. The petition is,
accordingly, allowed and the impugned order passed by the trial Court is hereby set aside.
SL/54 -Bal Petition allowed.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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