PLJ 2007 AJ&K 20
Present: Sardar Muhammad Nawaz Khan, CJ.
Mst. SHAHIDA PERVEN--Appellant
versus
NAMATULLAH KHAN and 2 others--Respondents
C.A. No. 1 of 2006, decided on 2.4.2007.
Legacy--
----Entitlement to legacy of deceased in accordance with
their shares under law of inheritance--Legacy of deceased to extent of alleged
will shall not be distributed or disbursed until the matter is resolved by
Civil Court. [P. 25] H
Succession Act, 1925 (XXXIX of 1925)--
----S. 373(3)--Application for succession certificate
summarily--Succession certificate was issued in favour of the parties as legal
heirs of deceased--Validity--Deceased had bequeathed his deposit in his account
and will-deed had been executed in her favour--Validity of document was
subjudice before Civil Court through a regular suit--Validity order of First
Appellate Court was assailed--Entitlement of right a legal heirs--Judge is
competent to leave any intricate question arising for resolution of any right
claimed by a legal heir--Civil suit dealing with genuineness scope validity and
consequences of allegedly will-deed in favour of appellant was subjudice before
Civil Court through a regular suit. [P.
25] F
Succession Certificate--
----Object of--Beneficial interest in debts--Object of
the succession certificate is to facilitate the collection of debts by person
who had prima facie clear title to succession and had beneficial interest in
debts. [P. 23] A
Succession Certificate--
----Entitlement to succession
certificate--Proceedings--Summary in nature--It is in the competence of the
Court to issue succession certificate in favour of a person who prima facie is
entitled to have succession certificate in his favour. [P. 24] B
Will-deed--
----Genuineness, validity, scope and consequences of
will-deed--Question of pendency--Genuineness validity, scope and consequences
of the alleged will-deed is subjudice before Civil Court through regular
suit--Question of pendency of civil suit with regard to execution of will
before Courts below that proceedings in the application for succession
certificate be stayed. [P. 24] C
Will-deed--
----Marginal witnesses--Executed without consent of legal
heirs--Legality--Will-deed allegedly executed in favour of appellant was not
permissible under law because will-deed was executed without the consent of the
legal heirs. [P. 24] D
Will-deed--
----Question of fact required evidence--Proof
of--Validity--Trial Court did not record his finding about proof and disproof
of the will-deed whose validity, scope, genuineness and consequences are
subjudice before Civil Court through a regular suit--Held: Will-deed was
executed without consent of respondents--Appeal disposed of.
[Pp. 24 &
25] E & G
Mr. Sardar Khan, Advocate for Appellant.
Syed Habib Hussain Shah, Advocate for Respondents.
Date of hearing: 25.4.2007.
Order
Through this appeal, the validity of order dated 26.12.2005
passed by District Judge Rawalakot whereby he has issued a succession
certificate in favour of the parties is under challenge.
The relevant facts necessary for the decision of this
appeal are that respondents applied for issuance of succession certificate in
their favour as legal heirs of one Muhammad Rasheed deceased. This application
was resisted by the appellant-herein. The learned Judge, after having
objections on this application, framed the relevant issues and, after recording
the evidence, he issued succession certificate in favour of both the parties.
According to the certificate issued by the learned District Judge, the
contestants were held entitled to legacy of Muhammad Rasheed deceased in
accordance with their shares under law of Inheritance. The appellant feeling
aggrieved by the order of Court below has preferred the present appeal.
I have heard the learned Counsel for the parties and the
record has also been examined carefully.
The learned Counsel for the appellant, during his arguments,
accepted that the appellant and the respondents were no doubt, the legal heirs
of the deceased yet the learned District Judge while dealing with Issue No. 2
with regard to execution of will-deed by the deceased in favour of the
appellant traveled in the wrong direction. According to the learned Counsel,
the appellant during pendency of application for succession certificate raised
objection to the fact that the deceased had bequeathed his deposit in Habib
Bank Rawalakot under account No. 14312-B and a will-deed had been executed in
her favour. The validity of the document was sub-judice before Civil Court
through a regular civil suit therefore, the learned District Judge should have
abstained to record finding on this issue or he should have kept the proceedings
in abeyance till the controversy with regard to execution of will-deed was
resolved by the Civil Court. However, according to the learned Counsel, the
learned District Judge without having regard to the law on the subject decided
the issue dealing with execution of will-deed which under law, he was not
competent to do so. The learned Counsel, during his arguments, placed reliance
on 2002 SCMR 1544, 1999 MLD 148 (Lahore), 1999 MLD 2738 Lahore, and contended
that in view of Section 373 of Succession Act and the case law cited above the
ancillary and intricate questions arising during proceedings in an application
for succession certificate could not be resolved without thorough inquiry
before a Civil Court.
Conversely, the learned Counsel for the respondents while
controverting the arguments on the side of the appellant contended that the
learned District Judge while dealing with the application for succession
certificate was fully competent to resolve the questions of will-deed allegedly
executed in favour of the appellant and he did so in accordance with law. The
appellant in order to prove the fact of execution of will-deed produced
evidence however the learned Judge, in view of the evidence and law dealing
with subject of will, rightly observed that the execution of will-deed was
neither proved nor the legacy left behind by the deceased could be bequeathed
in view of Mohammedan law. The learned Counsel during his arguments, referred
to different legal reports from Pakistan jurisdiction like 1585 CLC 2211, 2006
CLC 1093, PLD 2003 Quetta 53, PLD 1993 Peshawar 200, PLD 1989 Karachi 350, 1990
CLC 500, 2001 CLC 1323, 2005 CLC 78, PLD 2005 Lahore 641, 2004 CLC 1060 and,
contended that in view of the case law cited at bar, the finding of the learned
District Judge on Issue No. 2 could not be disturbed.
The case law cited at bar by the learned Counsel for the
respondents except 1985 CLC 2211 is irrelevant and not helpful in order to
resolve the proposition in hand. The proposition, here in this case, is that
whether or not the learned District Judge while dealing with an application for
succession certificate could go into ancillary and intricate questions raised
before him. The other case law except 1985 CLC 2211 deals with the validity,
scope, genuineness and consequences of a will-deed executed by a Muhammadan in
favour of his legal heirs or otherwise. As stated earlier, the learned District
Judge while dealing with Issue No. 2 observed that the will-deed allegedly
executed by the deceased in favour of appellant was not warranted under law
neither it was proved therefore, it is the finding which is under attack by the
learned Counsel for the appellant. Before arriving at some conclusion it is
felt proper to have a brief survey of the case law cited at bar by the learned
Counsel for the parties.
Firstly, I would like to deal with case law like PLD 1985
2211 Peshawar cited at bar by the learned Counsel for the respondents, Syed
Habib Hussain Shah. The learned Judge while dealing with the proposition raised
in the above mentioned legal report observed that the object of the succession
certificate is to facilitate the collection of debts by person who had prima
facie clear title to succession and had beneficial interest in debts. The
person who has a counter claim can establish the same by a civil suit inasmuch
as the Court is required by Suction 373 of Succession Act to decide in summery
manner right to the certificate. The liabilities of the deceased therefore,
cannot be adjudicated upon under these proceedings. Moreover, no decision upon
any question of right between the parties shall be held to bar the trial of the
same question in any suit or any other proceeding between the same parties as
laid down by Section 387 of Succession Act.
Coming to the legal reports resorted to by the learned
Counsel for the appellant, the relevant and brief summery is as follows:--
In Feteh Muhammad's case (1999 MLD 1481 Lahore) it was
held that the object of succession certificate as contemplated by part (X) of
the Succession Act 1925 is to provide speedy remedy and quick decision in
succession matters so that legal heirs of deceased may have their shares in
movable assets, ascertained, allocated and disbursed. The object of following
summary procedure as laid down in Section 373 in the Act is also indicative
that a Judge while dealing with proceedings in an application for succession
certificate is to look into the prima facie right of the applicant in issuing
succession certificate. The intricate questions are kept aside and the
certificate is to be issued keeping in view the object of law.
In Jamila Akhtar's case (2002 SCMR 1544) it was held that
the learned trial Court while granting succession certificate should have
directed that no share of the said amount shall be paid to the contestants
claiming her share as widow of the deceased unless she has got decree from the
Civil Court about her status about widow of the deceased for such a question
could not be decided in summary proceedings.
In Allah Nawaz Khan's case (1999 MLD 2738 Lahore), it was
observed by the learned Judges that the, Court has to follow summary
proceedings and it cannot resolve intricate questions of facts and law except
to grant a certificate to the applicant who has a prima facie case of
entitlement to the same. 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 means that the Court has to deal with the matters of
succession through summary proceedings leaving aside the intricate question of
law and facts and only issue certificate to such party who has prima facie case
of entitlement to the such certificate.
After having critical survey of the legal reports cited
at bar by the learned Advocates for the respective parties it becomes clear
that the proceedings before the Court dealing with the succession certificate
are summary in nature. It is in the competence of the Court to issue succession
certificate in favour of a person who prima facie is entitled to have
succession certificate in his favour It also becomes clear that any contestant
for succession certificate if raises some intricate-questions of law and facts
he is at liberty to get it resolve through a regular suit before Civil Court.
Here in this case, the appellant raised a question of will-deed allegedly
executed by her husband in his life time in her favour. It is an admitted fact
that the genuineness, validity, scope and consequences of the alleged will-deed
is subjudice before Civil Court through a regular suit. The appellant raised
the question of pendency of civil suit with regard to execution of will before
Court below and contended that the proceedings in the application for
succession certificate be stayed. The learned District Judge framed Issue No. 2
with regard to execution of will-deed and decided the same in favour of
respondents. It is amazing to note here that the learned District Judge though
recorded evidence of marginal witnesses of the alleged will-deed however, he
decided issue only on the ground that the will-deed allegedly executed in
favour of the appellant was not permissible under law because the same was
executed without the consent of the other legal heirs. This was not the issue
before him raised by any party through their pleadings. The fact whether or not
will-deed was executed by the consent of the other legal heirs being question
of fact required evidence. As stated earlier, neither it was an issue before
the learned District Judge nor there is any evidence on this point therefore,
without evidence the finding of the learned District Judge about the consent is
a legal error committed by the learned Judge. The learned Judge did not record
his finding about proof and disproof of the will-deed whose validity, scope,
genuineness and consequences are subjudice before Civil Court through a regular
suit. I, therefore, respectfully subscribe to the view taken by
the honorable Judges while dealing with above cited cases
on the subject of succession certificate and the ancillary and intricate
questions raised during proceedings in a succession certificate application.
The object, intent and purpose of Section 373 of Succession Act is to deal with
the application for succession certificate summarily and as provided under
sub-section (3) of Section 373 of Succession Act, the Judge is competent to
leave any intricate question arising before him for resolution of any right
claimed by a legal heir. Here in this case, it was brought into the notice of
the learned District Judge that a civil suit dealing with genuineness, scope,
validity and consequences of alleged will-deed in favour of the appellant was
subjudice before Civil Court through a regular suit. But he neither left the
question to be decided by the Civil Court nor resolved the same, if at all
permissible for him, in a legal fashion. Even if it is accepted that the
learned District Judge was competent to resolve such like question he should
have applied his mind to the pleadings, evidence and scope of a will-deed by a
Muhammadan in view of relevant law. He is found to have presumed that the
will-deed was executed without consent of the respondents. From where and how
he deducted this fact is not clear. Therefore, it is safe to say that he on his
own without evidence accepted that the consent was not obtained and on this
assumption he by having resort to law on the subject of will-deed decided the
issue which under law is a wrong approach.
The conclusion therefore, is that findings of the learned
District Judge to the extent of issue dealing with the execution of will-deed
are hereby set-aside however, the succession certificate is allowed to
continue. The parties are admittedly before Civil Court with regard to
adjudication upon alleged will-deed in favour of the appellant therefore, the
legacy of the deceased to the extent of alleged will shall not be distributed
or disbursed until the matter is resolved by the Civil Court. As this Court is
aware of the fact that if the matter before the Civil Court is delayed
unnecessarily it shall defeat the purpose of issuance of succession
certificate. The learned civil Judge therefore, is directed to expedite the
proceedings so as to protect the very purpose of the succession certificate by
not allowing to frustrate through a protracted litigation. He is directed to
finalize the case before him within 2 month's time after receipt of this order.
The office is directed to convey a copy of this order to the learned Civil
Judge before whom the civil suit between the parties is pending.
Appeal disposed of accordingly.
(R.A.) Appeal
disposed of.