Order Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

S.  M.  A.  No. 49  of  2015

 

Date

              Order with signature of Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

For hearing of Main Petition :

 

 

Petitioner            :      Rustom Hoshang Kakalia through

Mr. R. F. Virjee advocate.

 

Date of hearing  :     28.05.2015.

 

 

O R D E R

 

 

NADEEM AKHTAR, J. – This petition has been filed for the grant of Letters      of Administration in respect of 50% share in an immovable property left by    Mrs. Zarine (Jeroo) Hoshang Kakalia widow of late Mr. Hoshang Rustom Kakalia (‘the deceased’), who passed away at Karachi on 14.06.2014. It is stated in the petition that the deceased died intestate and is survived by only two legal heirs / sons ; namely, Mr. Rustom Hoshang Kakalia and Mr. Cyrus Hoshang Kakalia, who are majors. It is also stated that the deceased and her legal heirs are governed by the Parsi Law of Intestate Succession, and as such the two surviving legal heirs / sons of the deceased are entitled to inherit equal shares in the estate of the deceased.

 

2.         The petition has been filed by both the sons / legal heirs of the deceased. Since Letters of Administration can be granted in the name of only one of the legal heirs, their learned counsel requests that the name of petitioner No.2 Mr. Cyrus Hoshang Kakalia be deleted from the array of petitioners       and the petition may be deemed to have been filed only by petitioner No.1     Mr. Rustom Hoshang Kakalia for the grant of Letters of Administration in his name. He submits that since Mr. Cyrus Hoshang Kakalia had filed this petition as a co-petitioner, there was no need to file his affidavit of no objection in favour of Mr. Rustom Hoshang Kakalia. The learned counsel requests that as the petition is supported by the affidavit of Mr. Cyrus Hoshang Kakalia, his said affidavit may be treated as his affidavit of no objection, or in the alternative, he may now be allowed to submit his affidavit of no objection. He further requests that since there are no other legal heirs and this is an uncontested petition, it may be allowed subject to submission of affidavit of no objection by Mr. Cyrus Hoshang Kakalia in favour of Mr. Rustom Hoshang Kakalia.

 

 

3.         In support of this petition, the petitioner has filed original death certificate dated 20.06.2014 of the deceased, and a copy of mutation order dated 22.08.2003 issued by CDGK showing mutation of 50% undivided share in Plot No.53, Category-B, KDA Scheme No.1, Karachi, measuring 1,611.15 sq. yds., in the name of the deceased. The said mutation order shows that the remaining 50% undivided share in the above mentioned property is owned by both the legal heirs / sons of the deceased. As per the affidavit filed today by Mr. Rustom Hoshang Kakalia, who is present in person, there are no liabilities or debts of the deceased that require settlement. The petition is supported by the affidavits of two witnesses, who are also present in Court and reiterate the contents thereof.  

 

4.         I have examined Section 4 of the Parsi Intestate Succession Act XXI of 1865, which provides that where a female Parsi dies leaving children, but no widower, the property of which she shall have died intestate shall be divided amongst her children in equal shares. In view of this Section, both the sons of the deceased are entitled to equal shares in the immovable property left by the deceased.

 

5.         Notice of this petition was published in Urdu daily ‘Ummat’ on 04.04.2015, and was also affixed on the Court Notice Board. As per the report submitted by the Deputy Registrar (O.S.) on 30.04.2015, no objection whatsoever has been received from any quarter. Since all the other formalities have been completed as per rules, there appears to be no impediment in the grant of Letters of Administration in the name of Mr. Rustom Hoshang Kakalia. The only other legal heir / son of the deceased Mr. Cyrus Hoshang Kakalia is directed to file his affidavit of no objection in favour of Mr. Rustom Hoshang Kakalia. Subject to the filing of such affidavit by Mr. Cyrus Hoshang Kakalia,    let Letters of Administration be issued in the name of Mr. Rustom Hoshang Kakalia as per rules. This conditional order, which has been passed at the request made on behalf of Mr. Rustom Hoshang Kakalia in the peculiar circumstances of this case, may not be treated or relied upon as a precedent in other cases.

 

 

 

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J U D G E