Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

S. M. A. No. 168 of 2013

Date	Order with signature of Judge

1. For orders on CMA No.605/2015 (if granted) :

2. For orders on CMA No.606/2015 (U/R 400 of SCCR) :

3. For hearing of main petition :

Petitioner : Mrs. Amina Jaffer through M/S Khalid Anwer,

Rashid Anwer and Mohammad Yousuf Nasim, advocates.

Date of hearing : 22.05.2015.

O R D E R

NADEEM AKHTAR, J. – The petitioner Mrs. Amina Jaffer has filed this petition under Section 372 of the Succession Act, 1925, read with Rule 379 of the Sindh Chief Court Rules (O.S.) for the grant of Succession Certificate in her name in respect of the movable properties left by late MR. YUSUF EBRAHIM HAROON JAFFER (‘the deceased’), who passed away at Karachi on 17.03.2013. The petitioner is the widow of the deceased. It is stated in the petition that the deceased died intestate, he professed Sunni Hanafi Law, he was issueless, and had no surviving sibling or ascendant at the time of death.

2. According to the chart / list of legal heirs given in paragraph 6 of the petition, the deceased had only four brothers ; namely, Mr. Ahmed E. H. Jaffer, Mr. Sulaiman E. H. Jaffer, Mr. Haroon E. H. Jaffer and Mr. Essa E. H. Jaffer, who are now survived by their sixteen (16) sons whose names are mentioned at serial Nos.2 to 17 of the said chart / list. The petitioner has stated that as per Sunni Hanafi Law of Inheritance, she is the heir of the deceased to the extent of 25% (16/64) of his estate as a sharer, and the entitlement to the remaining 75% (48/64) of the deceased’s estate would be of the residuaries, who, being the sons of the deceased’s late brothers, are the nephews of the deceased. The share of each of the deceased’s sixteen (16) nephews has been shown as 3/64.

3. All sixteen (16) nephews / legal heirs of the deceased have sworn and filed their affidavits stating that they waive notice of this petition and have no objection to the grant of Succession Certificate to the petitioner. Twelve (12) nephews / legal heirs ; namely, Mr. Abdul Kader Jaffer, Mr. Abdul Wahab Jaffer, Dr. Shahnawaz Jaffer, Mr. Haamid Jaffer, Mr. Nasser Jaffer, Mr. Farid Jaffer, Mr. Abdul Razzak Jaffer, Mr. Abdul Sattar Jaffer, Mr. Arif Jaffer, Mr. Sohail Jaffer, Mr. Rooman Jaffer, and Mr. Shakeel Jaffer, whose names are mentioned at serial Nos. 2 to 13 in the aforementioned chart / list, have also stated in their said affidavits that they do not want any share from the estate of the deceased and have waived all their rights therein in favour of the present petitioner. In view of the no objection by the above named twelve (12) legal heirs and waiver of their respective shares in favour of the petitioner, which comes to 36/64, the total share of the petitioner comes to 52/64 (16/64 + 36/64).

4. As per the details disclosed by the petitioner in Schedule ‘A’ to the petition, certain amounts in Pak Rupees and US Dollars are lying in three bank accounts held by the deceased, and 15,001 shares in Granulars (Pvt.) Limited and two bank lockers are in the name of the deceased. As per Schedule ‘B’ to the petition, there are no liabilities of the deceased that require settlement.

5. In support of this petition, the petitioner has filed (a) original death certificate of the deceased, (b) original letters from the banks where the deceased was maintaining Pak Rupee and US Dollar accounts and lockers, and, (c) original letters from Granulars (Pvt.) Limited and Ernst & Young Ford Rhodes Sidat Hyder Chartered Accountants, regarding the shares held by the deceased. The petition is also supported by the affidavits of two witnesses.

6. Mr. Khalid Anwer, learned counsel for the petitioner, submits that the nephews of the deceased, being the real sons of late full brothers of the deceased, have inherited their shares from the assets of the deceased in their own right as residuaries ; and likewise, the petitioner, being the widow of the deceased, has inherited her share in her own right as a sharer. He further submits that since the petitioner has inherited the major portion of 52/64 from the assets of the deceased in her own right and in view of waiver in her favour by twelve (12) legal heirs, and also as the remaining four (04) legal heirs have submitted their affidavits of no objection, she may be exempted from furnishing sureties as per Rules and Succession Certificate be issued in her name on execution of personal bond by her. He has placed reliance upon Kamran Mirza V/S Moazzam Mirza, PLD 2014 Sindh 500 in support of his contention. The petitioner has also filed a separate application bearing CMA No.606/2015 for this purpose.

7. The object of requiring surety is to secure the interest of any such person who may have a share, claim or interest in the movable or immovable assets left by the deceased, such as, a legal heir whose name has not been disclosed to the Court or who is not before the Court, a minor legal heir or a legal heir of unsound mind whose share is retained by the Court, or a legal heir whose share is not distributed to him in accordance with law after the grant of Letters of Administration or Succession Certificate, or a creditor of the deceased. In my humble opinion, if the Court is satisfied that none of the above situations exist in the case before it, it may dispense with the furnishing of surety while granting Letters of Administration or Succession Certificate. I am also of the view that such power of the Court is discretionary and the person applying for Letters of Administration or Succession Certificate cannot seek such discretion in his favour as a matter of right. It goes without saying that the exercise of discretion shall depend upon the facts and circumstances of each case, however, such discretion should be exercised liberally keeping in view the hardship that may be faced by the legal heirs of the deceased in furnishing surety, who may not have any other or additional property of their own to offer as surety.

8. Notice of this petition was published in Urdu daily ‘Express’ Karachi on 30.11.2013, and was also affixed on the Court Notice Board. As per the report submitted by the Deputy Registrar (O.S.) on 06.02.2014, no objection whatsoever has been received from any quarter. Record shows that no one has come forward to oppose this petition and all other legal heirs have submitted their affidavits of no objection in favour of the petitioner. Therefore, I am of the opinion that the discretion of dispensing with the requirement of furnishing surety can be exercised in favour of the petitioner. As all the formalities have been completed as per rules, there appears to be no impediment in the grant of Succession Certificate in the name of the petitioner.

9. Accordingly, the instant petition is allowed. Let Succession Certificate be issued in the name of the petitioner subject to her executing personal bond equivalent to 52/64 share of the total assets left by the deceased, and furnishing solvent surety to the satisfaction of the Nazir of this Court equivalent to 12/64 share of four (04) nephews / legal heirs ; namely, Mr. Mohammad Ali Jaffer, Mr. Mohammad Ahsan Jaffer, Mr. Mohammad Umar Yousuf Jaffer and Mr. Mohammad Fahad Jaffer, whose names are mentioned at serial Nos.14 to 17 in the chart / list given in paragraph 6 of the petition.

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J U D G E