Order Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

S.  M.  A.  No. 73  of  2015

 

Date

              Order with signature of Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

For hearing of the main petition :

 

 

Petitioner             :     Mrs. Ratna Devi through Mr. Abdul Qadir Khan Advocate.

 

Dates of hearing :    26.05.2015, 29.05.2015 and 25.06.2015.

 

 

O R D E R

 

 

NADEEM AKHTAR, J. – The petitioner Mrs. Ratna Devi has filed this petition under Sections 372 and 278 of the Succession Act, 1925, for the grant of Succession Certificate and Letters of Administration in respect of movable and immovable properties left by her late husband Justice (Retired) Rana Bhagwandas (‘the deceased’), who passed away at Karachi on 23.02.2015.    It is stated in the petition that the deceased died intestate and is survived by three (03) legal heirs ; namely, Mrs. Ratna Devi (petitioner / widow), Rana Kelash Chander (son) and Rana Mukesh Kumar (son), who all are majors.

 

2.         In addition to the above named three legal heirs, the deceased also has one daughter ; namely, Aneeta Kumari. It is stated in the petition that the said daughter was married much before the death of the deceased and as such under the Hindu Law prevailing in Pakistan, she is not entitled to inherit from the estate of the deceased as the deceased and his family are governed by the Mitakshara School of thought. In compliance of the direction given by this Court on 26.05.2015, an affidavit to the above effect was filed on 29.05.2015 by the daughter Mrs. Aneeta Kumari.

 

3.         In support of this petition, the petitioner has filed (a) original death certificate of the deceased, (b) marriage certificate of the deceased’s daughter, (c) copies of title documents of immovable properties left by the deceased,     (d) bank statements, (e) documents showing NIT Units in the name of the deceased, and (f) copy of registration book of vehicle No.AYW-109. A schedule has been filed by the petitioner wherein relevant particulars of all the movable and immovable assets left by the deceased have been disclosed. The petitioner has also filed a statement to the effect that there are no liabilities of the deceased that require settlement.

 

4.         In order to appreciate the contentions of the petitioner, it is necessary to understand the basic principles of the Hindu Law of Inheritance. There are two systems of inheritance / Schools of thought amongst the Hindus under the Hindu Law of Inheritance ; namely, the Dayabhaga system and the Mitakshara system. The former system prevails in East and West Bengal while in the rest of the subcontinent including Pakistan, the latter system prevails. The Mitakshara system recognizes two modes of devolution of property, that is, survivorship and succession. The rule of survivorship applies to joint family property. If at the time of his death the owner was a member of a joint and undivided family, technically called ‘coparcenary’, his undivided interest in the coparcenary property devolves on his coparceners by survivorship. On the other hand, the rules of succession apply to property held in absolute severalty by the last owner. The ‘last full owner’ of property is one who held the property absolutely at the time of his death. From the statements made in the petition, it is clear that the deceased was the last full owner of all the properties left by him. Thus, the said properties shall devolve upon his legal heirs according to the rules of succession.

 

5.         I shall now take up the question as to who are entitled to inherit from the estate of the deceased and to what extent. Under the rules of succession, the daughters, during the lifetime of their mother, are not entitled to inherit from the estate of their father, and such right accrues to them only after the death of their mother. In other words, the daughters succeed if their mother dies during the lifetime of their father. The heritable right accrues to the daughters not on the death of their father, but after the death of their mother, though they are not the heirs of their mother, but of their father. In view of the above legal position, I am of the opinion that the deceased’s daughter Mrs. Aneeta Kumari is not entitled to inherit from the estate of the deceased because of the reason that the petitioner, being her mother and the widow of the deceased, is alive, and not because of the fact that she got married during the lifetime of the deceased, as stated in the petition. Thus, the movable and immovable properties left by the deceased will be inherited by his widow (petitioner) and the two sons.

 

6.         Regarding the petitioner / widow of the deceased, it may be noted that under the Hindu Law of Inheritance the widow takes only a limited interest called “the widow’s estate” in the estate of her husband, and in the event of her death the estate is inherited not by her heirs, but by the next heirs of her husband, technically called “reversioners”. It is worth mentioning here that though the widow may alienate her life-interest in the estate, she has no power to dispose of the corpus of the immovable property inherited by her except in four cases ; namely, (i) when there is ‘legal necessity’, or (ii) when the alienee, after reasonable inquiry as to the necessity, acted honestly in the belief that the necessity existed, or (iii) when there was such consent of the next reversioners to the alienation as would raise a presumption that the transaction was a proper one, or (iv) when it was a surrender by her of her whole interest in the whole estate in favour of the nearest reversioner(s) at the time of alienation.

 

7.         As to ‘the widow’s estate’ inherited by the petitioner, she has filed her affidavit surrendering and relinquishing her “life interest” in favour of the sons / other two legal heirs of the deceased. Accordingly, the movable and immovable properties left by the deceased will be divided amongst his two sons. The other two legal heirs / sons of the deceased have filed their affidavits stating that they have no objection if Letters of Administration is granted in the name of the petitioner. The petition is supported by the affidavits of two witnesses, who were present in Court on 26.05.2015, when they reiterated the contents of their affidavits.

 

8.         Notice of this petition was published on 05.05.2015 in Urdu daily ‘Express’ and in Sindhi daily ‘Kawish’, and was also affixed on the Court Notice Board. As per the report submitted by the Deputy Registrar (O.S.) on 21.05.2015, no objection whatsoever has been received from any quarter. Since all formalities have been completed as per rules, there appears to be no impediment in the grant of Succession Certificate and Letters of Administration in the name of the petitioner. Accordingly, the instant petition is allowed. Let Succession Certificate and Letters of Administration be issued in the name of the petitioner as per rules.

 

 

 

 

                                                                                                ___________________

J U D G E

 

 

 

 

 

 

 

*SMA 73-2015/Big Orders Single/Court Work/E*