PLJ 2013 Karachi 1
Present:
Muhammad Ali Mazhar, J.
ZIAUDDIN--Petitioner
versus
PUBLIC-AT-LARGE
and others--Respondents
S.M.A. No. 76 of
2011, decided on 16.2.2012.
Succession Act,
1925--
----S. 372--Sindh Chief Court Rules, Rr. 379
& 392--Certificate of debts and securities of deceased--Contents of
affidavit was accepted--All legal heirs filed affidavits of no objection--No
concealment or suppression--High Court directed NADRA for submitting B-Form
of--deceased--Requirements for filing petition for succession
certificate--Validity--A person who had preferred to for succession certificate
was only required to fulfill conditions and there is no specific provision for
calling any B-Form or heirship certificate from legal
heirs of deceased, nor any such provision brought into statute by virtue any
amendment--No statutory requirement to insist legal heirs to submit Form-B or heirship certificate along with petition either for
succession certificate or letter of administration--Before grant of petition,
Court for its own satisfaction not only calls affidavits of no objection of all
legal heirs, affidavits of witnesses who appeared in Court with legal heirs and
confirm veracity of petition including list of surviving legal heirs--All
necessary requirements had been fulfilled nobody come forward to oppose
petition nor filed any objections in spite of issuing notices and publication
in newspapers, all legal heirs had filed their affidavits of no objection, no
impediment or legal disabilitly to grant of
succession certificate--Petition was allowed. [Pp.
4, 5 & 6] A, D & F
Mohammadan Law--
----Arts. 39
& 40--Succession Act, 1925--S. 211--Share of inheritance in Islamic
Law--Administration of estate of deceased--Distribution of
estate--Validity--Since estate devolved on heirs at moment of death of
deceased, they were at liberty to divide it at any time after death of
deceased--Distribution was not liable to be suspended until payment of
debts--When deceased was Hindu, Muslim, Buddhist, Sikh an exempted person,
nothing shall vest in an executor or administrator any property of deceased
person which would have passed by survivorship to some other person. [Pp. 4 & 5] B & C
Succession
Certificate--
----Requirement
of submitting or summoning Form-B issued by NADRA--Factum of inheritance and
status of actual legal heirs--Sole criterion to decide--Validity--If a person
before his death had failed to intimate NADRA or fill B-Form, it does not mean
that after his death, no succession certificate will be issued to legal heirs
due to non completion or fulfillment of such requirement and right of
inheritance will be neither suspended nor snatched away only for said reason
alone. [P. 5] E
Mr. Nooruddin Abdullah, Advocate for Petitioner.
Mr. Riaz, Attorney of Petitioner and other Legal Heirs are also
present in person.
Date of hearing:
16.2.2012.
Order
This petition is
brought under Section 372 of the Succession Act for the grant of succession
certificate in respect of debts and securities of late Muhammad Ali S/O Virjee Bhayani and Mst.Daulat W/o Muhammad Ali.
1. The names of legal heirs are mentioned in
Paragraph 3 of the petition. The details of debt and securities relating to
both the deceased are mentioned in Annexure "A". The note of Deputy
Registrar (OS) dated 5.5.2011 shows that notices have been issued to all the
legal heirs and publication has also been effected in daily Jang, Karachi dated 27.4.2011,
but nobody has filed any objection. Today the petitioner is not present in
person due to his treatment in USA,
but he is being represented by his attorney namely, Riaz
son of Barkat Ali Bhayani.
Copy of original general power of attorney shown to the office and the same was
returned after seeing the original. Photocopy of the general power attorney is
taken on record.
2. The affidavit of no objection of legal heirs Aashiq Ali Bhayani is at Page No.
67, and on behalf of Tajuddin, his son Shahzeen had filed affidavit of no objection on the basis
of general power of attorney which is available at Page No. 75 but today Tajuddin is himself present in Court and he concedes to the
grant of this petition and accepts the contents of affidavit filed on his
behalf by his attorney to be true and correct. Affidavit of Barkat
Bhayani is at Page No. 71, Affidavit of Sher Ali is at Page No. 85, and affidavit of Karim Sherali is at Page No. 89.
All legal heirs have filed their affidavits of no objection and two witnesses,
namely Feroze Meghani and Noor Ali Jivani are present and
have also filed their affidavits that they know the family and confirmed that
the petitioner has rightly mentioned the names of all legal heirs in the
petition without any concealment or suppression. No objection was filed or
received from any quarter and all formalities have been complied with hence
there is no impediment or obstacle and or any legal disability to the grant of
this petition.
3. This matter was fixed for hearing of main
petition on 15.8.2011 on which date the learned Judge of this Court directed
NADRA for submitting "B" Forms of the deceased Muhammad Ali son of Virjee Bhayani and Mst. Daulat wife of Muhammad Ali
and the petitioner was also directed to file heirship
certificate. The Deputy Registrar (OS) of this Court after completing due
formalities in accordance with law fixed the matter in Court for hearing of main
petition in which neither any requirement of heirship
certificate was mentioned nor any "B" Form from NADRA. The Deputy
Registrar in his report dated 5.5.2011 clearly informed that
publication/citation was effected in Daily Jang, Karachi on 27th April 2011 but non has filed any objection. Notices were also issued to
all legal heirs through registered post A.D and courier service and they have
filed their affidavits of no objection.
4. The requirements for filing petition for
Succession Certificate are provided under Section 372 of the Succession Act,
1925 which are as under:--
(a) the time of the
death of the deceased;
(b) the ordinary residence of the deceased
at the time of his death and, if such residence was not within the local limits
of the jurisdiction of the Judge to whom the application is made, then the
property of the deceased within those limits;
(c) the family or
other near relatives of the deceased and their respective residence;
(d) the right in
which the petitioner claim;
(e) the absence of any impediment under
Section 370 or under any other provisions of this Act or any other enactment,
to the grant of the certificate or to the validity thereof if it were granted;
and
(f) the debts and
securities in respect of which the certificate is applied for.
5. According to Rule 379 of Sindh
Chief Court Rules (OS), application for succession certificate is required to
be made in Form 25, which is provided in Appendix "A" and notice is
required to be issued to the next of kin by the Registrar (OS) under Rule 392
of Sindh Chief Court Rules (OS). The aforesaid
provisions of law clearly lay down that person who has preferred a petition for
succession certificate is only required to fulfill the conditions mentioned
above and there is no specific provision for calling any "B" Form or heirship certificate from the legal heirs of the deceased,
nor any such provision has been brought into statute by virtue of any
amendment.
6. The share of inheritance in Islamic Law
becomes due only after opening out of succession. Under Chapter V, Article 39
of the Mahomedan Law the provisions for
administration of the estate of deceased Muslim are provided. While Article 40
relates to vesting of estate in executor and administrator and inter alia
provides that the executor or administrator, as the case may be, of a deceased
Muslim, is under the provisions of the Succession Act, 1925, Section 211, his
legal representative for all purposes, and all the property of the deceased
vests in him as such. The estate vests in the executor, though no probate has
been obtained by him. Likewise Article 44 pertains to distribution of estate and it
provides that since the estate devolves on the heirs at the
moment of the death of the deceased, they are at liberty to divide it at any time
after the death of the deceased. The distribution is not liable to be suspended
until payment of the debts. (Reference can be made to Principles of Mahomedan Law by Sir Dinshah Fardunji Mulla, Pakistan Edition
(Mansoor Book House).
7. Section 211 of the Succession Act, 1925 is
linked with Character and property of executor or administrator and provides
that the executor or administrator, as the case may be, of a deceased person is
his legal representative for all purposes, and all
property of the deceased person vests in him as such. It further states that
when the deceased was Hindu, Muslim, Buddhist, Sikh or (Jaina
or Parsi) an exempted person, nothing herein
contained shall vest in an executor or administrator any property of the
deceased person which would otherwise have passed by survivorship to some other
person.
8. The above provisions of law make it clear
beyond all shadow of doubts that there is no statutory requirement to insist
the legal heirs/petitioner to submit Form-B or heirship
certificate along with the petition either for Succession Certificate or letter
of administration. It is also a fact that before the grant of petition, the
Court for its own satisfaction not only calls the affidavits of no objection of
all legal heirs, affidavits of two witnesses who also appear in Court with
legal heirs and confirm the veracity of the petition including the list of
surviving legal heirs, the Deputy Registrar, also issues citation in the
vernacular newspaper for inviting objection not only from legal heirs in order
to rule out the possibility of any dispute or contention but also from all
creditors and after completion of all codal
formalities, the matter is fixed in Court for hearing of main petition. However
in case of any dispute or contention regarding the parentage or legitimacy and
acknowledgment or concealment or suppression of legal heirs by the other legal
heirs or in case of more than one marriages of the deceased, the requirement of
submitting or summoning Form-B issued by NADRA may be one of the relevant
considerations to decide the factum of Inheritance and status of actual legal
heirs but again this will not be a sole criterion to decide. If a person before
his death is failed to intimate NADRA or fill B-FORM, it does not mean that
after his death, no succession certificate will be issued to the legal heirs
due to non completion or fulfillment of this only requirement and their right
of inheritance will be neither suspended nor snatched away only for this reason
alone. However, it is for the Court to decide and in case of any reasonable
doubts, dispute or contention, it can make necessary enquiry so that rights of
deserving person may not be affected and surely this is one of the reasons for
which, Court grants succession petitions subject to furnishing of surety as per
rules in order to satisfy and cope with any future claim.
9. As a result of above discussion, I am
satisfied that in this case all necessary requirements have been fulfilled,
nobody come forward to oppose the petition nor filed any objections in spite of
issuing notices and publication in the newspaper, all legal heirs have also
filed their affidavits of no objection, thus there is no impediment or legal
disability to the grant of Succession Certificate. Consequently, this succession
petition is allowed. Let succession certificate be issued to the petitioner as
per rules.
(R.A.) Petition
allowed
