Order Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

S.  M.  A.  No. 56  of  2015

 

Date

              Order with signature of Judge

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

For hearing of Main Petition :

 

 

Petitioner            :      Mst.  Syeda Rafat Eijaz through

Mr. Khalid Mahmood Siddiqui advocate.

 

Date of hearing  :     27.05.2015.

 

 

O R D E R

 

 

NADEEM AKHTAR, J. – The petitioner Syeda Rafat Eijaz has filed this petition under Section 278 of the Succession Act, 1925, for the grant of Letters of Administration in respect of the immovable properties left by her late husband Major (Retd.) Syed Tanvir Ali S/O Syed Khateeb Ali (‘the deceased’), who passed away at Karachi on 06.03.2015 at the age of 70 years. It is stated in the petition that the deceased died intestate and is survived by the following five (05) legal heirs who all are majors :

 

(i)          Syeda Raffat Eijaz                          widow             petitioner

(ii)         Erum Tanvir                                     daughter

(iii)       Sana Tanvir                                     daughter

(iv)       Syed Muhamamd Ali Tanvir         son

(v)         Muhammad Ahsan Tanvir                        son    

 

 

2.         In support of this petition, the petitioner has filed (a) original death certificate dated 26.03.2015 of the deceased, (b) copy of the certificate dated 12.03.2015 confirming burial of the deceased, (c) original family registration certificate issued by NADRA on 30.01.2012 showing names of all the above named legal heirs as family members of the deceased, and (d) copies of title documents in favour of the deceased in respect of the immovable properties fully described in the Schedule attached to the petition.

 

3.         Legal heirs mentioned at serial Nos.(ii) to (v) above have submitted their affidavits stating that they have no objection if Letters of Administration are issued in the name of the petitioner. The petition is also supported by the affidavits of two witnesses, who are present in Court along with the petitioner. In compliance of the order passed on 25.05.2015, the petitioner has filed her personal affidavit in support of Schedule ‘B’ containing the list and valuation of immovable properties left by the deceased. On my query, the petitioner, who is present in person, stated that there are no liabilities of the deceased that require settlement. She undertakes to file a statement to this effect duly supported by her affidavit within one week from today.

 

4.         The petitioner has prayed that she may be exempted from furnishing sureties as per Rules and Letters of Administration be issued in her name on execution of personal bond by her. Her learned counsel submits that since this is an uncontested matter, 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, she may be exempted from furnishing surety for the grant of Letters of Administration in her name. He has placed reliance upon Kamran Mirza V/S Moazzam Mirza, PLD 2014 Sindh 500 in support of his contention.

 

5.         The object of requiring surety is to secure the interest of any such person who may have a share, interest or claim 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. In some cases, the legal heirs may not be in a position to offer even the inherited property as security.

 

6.         Notice of this petition was published in Urdu daily ‘Jang’ on 13.04.2015, and was also affixed on the Court Notice Board. As per the report submitted by the Deputy Registrar (O.S.) on 14.05.2015, no objection whatsoever has been received from any quarter. 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. Since all the formalities have been completed as per rules, there appears to be no impediment in the grant of Letters of Administration in the name of the petitioner. Accordingly, the instant petition is allowed. Subject to the filing of a statement by the petitioner duly supported by her affidavit within one week from today stating that there are no liabilities of the deceased that require settlement, and further subject to her executing personal bond equivalent to the value of the immovable property left by the deceased, let Letters of Administration be issued in the name of the petitioner.

 

 

 

 

                                                                                                ___________________

J U D G E