ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. Misc. A. No.S-02 of 2017

Date of hearing

Order with signature of Judge

1. For Katcha Peshi

2. For hearing of CMA-171/2017

30.10.2017

Mr. Ghulam Shabir Dayo Advocate for the appellant.

Mr. Mansoor Hussain Maitlo Advocate for respondent No.1.

Mr. Irfan Ali Soomro Advocate for respondent No.2.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General.

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Respondent No.1 Mst. Romana Hyder filed Succession Petition No.133/2016 in respect of the assets left by late Naseem Abbas son of Ghulam Hyder. It was claimed by Mst. Romana Hyder that, being the widow of the deceased, she was one of his legal heirs and as such was entitled to her share from his estate as per Shariah. The present appellant Ghulam Hyder, who is the real father of the deceased and was respondent No.2 in the aforesaid Succession Petition, raised an objection before the learned trial Court that Mst. Romana Hyder has not inherited from the estate of the deceased as she was not his wife at the time of his death by virtue of Divorce Deed dated 29.05.2016 (page 75) executed by the deceased during his lifetime. The grievance of the appellant is that the above dispute regarding eligibility and entitlement of Mst. Romana Hyder was not decided or even discussed by the learned trial Court in the impugned order and without deciding this important issue, which goes to the root of the case, Succession Petition filed by Mst. Romana Hyder was allowed.

After hearing learned counsel for the parties at considerable length, I am of the view that Succession Petition filed by Mst. Romana Hyder could not be decided without deciding whether the Divorce Deed submitted by the present appellant was genuine or not and whether or not Mst. Romana Hyder was the legally wedded wife of the deceased at the time of his death. I am also of the view that in order to decide the above dispute, the Succession Petition ought to have been converted into a civil suit whereafter parties ought to have been allowed to lead evidence in support of their respective claims.

In view of this legal position, learned counsel for respondent No.1 Mst. Romana Hyder states that he has no objection if the matter is remanded to the learned trial Court with direction to decide the same within a specified time frame. Accordingly, the matter is remanded to the learned trial Court with direction to ensure that all legal heirs of the deceased are joined in the proceedings as parties, whereafter issues be framed and all parties should be allowed to lead evidence in support of their respective claims. The suit shall be decided by the learned trial Court within a period of four (04) months strictly in accordance with law. By consent, this appeal and listed application are allowed in the above terms.

JUDGE

N.M.