ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
M.A. No.07 of 2010.
DATE ORDER WITH SIGNATURE OF JUDGE
For Katcha Peshi
22.10.2012.
Mr. Sachal Awan Advocate for the appellant.
Mr. Agha Kashif Hussain Advocate for private respondents.
Mr. Mukhtiar Ahmed Khanzada State counsel.
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The appellant Aziz has filed Succession Appeal against the impugned order dated 04.05.2010 whereby the Succession Application u/s 372 of Succession Act, 1925 was dismissed.
Succinctly, the facts leading to the appeal are that the appellant filed Succession Application No.14/2007 stating therein that the applicant’s father Muhammad Ismail, passed away on 24.02.2007; deceased had two wives Phapul, mother of the applicant and Mst. Phapi, who was divorced by the deceased; deceased deposited an amount of Rs.2,54,061/- to the Commissioner Workmen’s Compensation and Authority under payment of Wages Act, where so called Ex-wife Mst. Phapi has also submitted claim for the dues of the deceased Muhammad Ismail; the applicant being legal heir claims the said amount.
Record reveals that after filing Succession Application before the learned District Judge Jamshoro @ Kotri, intervener Mst. Phapi appeared in Succession proceedings and claimed that she is also legally wedded wife of deceased Muhammad Ismail. In support of that, some documents were filed. Thereafter pursuant to the order of District Judge, inquiry was conducted, according to that, legal heirs of deceased Muhammad Ismail were shown as under:-
1. Phapi w/o late Muhammad Ismail Khaskheli.
2. Nazir Ahmed s/o late Muhammad Ismail Khaskheli.
3. Anwar Ali s/o late Muhammad Ismail Khaskheli.
4. Abdul Razzaque s/o late Muhammad Ismail Khakheli.
5. Shah Jehan D/o late Muhammad Ismail Khaskheli.
6. Reshma d/o late Muhammad Ismail Khaskheli.
7. Aziz Ahmed s/o late Muhammad Ismail Khaskheli.
8. Mst. Hakimzadi D/o late Muhammad Ismail Khaskheli.
After hearing both the parties, learned District judge, Jamshoro declined the prayer of the applicant with following observations:-
“Perused the material available on record, both the parties are claiming to be the legal heirs of deceased Muhammad Ismail, therefore, in order to reach proper conclusion of the matter both the parties are directed to seek remedy from the competent Civil Court, having jurisdiction regarding declaration that who is the real and actual legal heirs of deceased”
The counsel for applicant inter alia contended that impugned order is against the spirit of proviso 4 of section 373 of Succession Act 1925 in which it is provided that Succession Certificate can be granted even in case of dispute regarding legal heirs; Mst. Phapi is not the same lady and as according to their documents, she is not residing in the same vicinity; claimant Mst. Phapi has failed to prove that she is same lady who was the wife of deceased, therefore, she is not entitled for the claim of amount deposited by deceased Muhammad Ismail. In support of his contentions, he has relied upon the case of Rukhsanat Kausar and another Vs. Additional District and Sessions Judge Khanewal and 11 others (2000 CLC 585), Mst. Jameela Akhtar Vs. Public at Large (2002 SCMR 1544).
Conversely, learned counsel for private respondents argued that the intervener in proceedings of Succession petition Mst. Phapi is the real wife of deceased and by virtue of that, she is getting benevolent fund and family pension from Old Age Benefit Institution; amount deposited by deceased Muhammad Ismail is not in saving scheme and there is dispute on legal heir ship, therefore, same may be allowed to be deposited in any saving Scheme. He supports the impugned order and has relied upon the case of Imtiaz Shamim and others Vs. Muhammad Irfan-ul-Haq and others (2006 CLC 1189, Ameeran Khatoon Vs. Mst. Shamim Akhtar and others (2005 SCMR 512) and case of Malik Safdar Ali Khan and another Vs. Public at Large and others (2004 SCMR 1219).
The counsel for the State has argued that the impugned order is not suffering from any illegality and same is maintainable in law.
Heard learned counsel for the parties and perused the record.
I have given serious consideration to the contentions of learned counsel for the parties and have perused the impugned order and the documents filed by the respective parties. Before dilating to the factual aspects of this case, it will be proper to examine section 373(4) as claimed by the counsel for the appellant. It will be conducive to understand concept of concerned clause of section 373 of Succession Act, 1925, same is reproduced as under;-
“(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicant”
I have also examined the case law on this point, relied by the learned counsel for the appellant. In case of Mst. Jameela Akhtar (supra), it is held that:
“3. We have heard learned counsel for the petitioner and Syed Zulfiqar Ali Bokhari, learned counsel for respondent No.3 Mst. Umat-ul-Hameed. We find that Nikah on which respondent No.3 placed reliance in this case prima facie appears to be a mutilated document, for the name of the bride was Surrya Begum which was scored of and below her name, Mst. Umat-ul-Hameed had been written. An application was made by the petitioner before the trial court for summoning the record of the Union Council to ascertain whether the said Nikah was entered in the relevant register under the Family Laws Ordinance but no order was passed on this application.
4. We find that the trial court while granting succession certificate to respondent No.2, should have directed that no share of the said amount should be paid to Mst. Umat-ul-Hameed unless she gets a decree from the Civil Court about her status as widow of Muhammad Zafarullah Khan, deceased, for such, a question could not be decided in summary proceedings.
In case of Rukhsana Kausar(supra) it is held that only summary procedure is provided for issuance of Succession Certificate under S.373 of Succession Act, 1925. If any person wants a detailed determination of rights, remedy lies in shape of suit filed under section 37, Succession Act, 1925. Where a person is dissatisfied or aggrieved by issuance of Succession Certificate, an appeal under S.384, Succession Act, 1925 lies.
Bare perusal of sub proviso of section 373 of Succession Act, 1925, suffice to say that this section is related to the extent of the share of one applicant and same is relevant when dispute on some share arose and also on this point the dictum of Honourable Supreme Court in which authoritative proposition of law is laid down which is, if there is dispute regarding the claim of deceased for issuance of Succession Certificate, parties have been directed to approach the Civil Court for declaration of their status. In another case of Rukhsana Kausar (supra) relied by learned counsel that according to the procedure on jurisdiction of Civil Court and District Judge in matters of Succession petitions. Matters involved the succession, therefore, there is no cavil on this proposition of law that in case of dispute on claim of any property which is subject matter in the Succession petition and dispute is on legal heirship, the proper course would be to approach the Civil Court for deciding the legal character by adducing the evidence. In the instant case admittedly in para No.3 the appellant/applicant has mentioned that deceased Muhammad Ismail had two wives Phapul and Phapi simultaneously he claims that Phapi was divorced by the deceased. It is also surfaced in para no.5 where it is mentioned that so called Ex-wife Mst. Phapi has also submitted her claim for the dues of late Muhammad Ismail”, hence there is admission of the appellant/applicant that Phapi is wife of the deceased but he has also taken the plea that Phapi present in court as well as participated in proceedings is not the same lady. It is also the matter of record that pursuant to the directions of District Judge Jamshoro, inquiry was conducted by Mukhtiarkar Kotri which reveals that Phapi widow is also legal heir of deceased Muhammad Ismail. Hence under the circumstances when it is not disputed that Phapi is wife of deceased Muhammad Ismail, question raised by counsel for appellant that she is not the same lady, who was the wife of deceased, such question cannot be determined during proceedings under Succession Act and Honourable Supreme Court has also laid down such proposition of law. Thus the impugned order in which it has been directed to both the parties to approach the Civil Court regarding their claim/dispute in respect of legal heirship of deceased Muhammad Ismail, does not suffer from any illegality or infirmity.
The counsel for respondents No.1 to 7 has relied upon some citations as referred above, which relates with the nominee and dispute regarding disbursement of amount and whether nominee is owner of the amount, in that respect Succession certificate was issued. On this point there is no dispute and it is settled principle of law that nominee is not entitled as owner of the amount subject matter in the Succession matter but here this question is not involved. Here the dispute is regarding heirship and regarding the widow Phapi, whether she is the same lady or different lady.
Under these circumstances, this appeal carries no weight, which is hereby dismissed. However, Commissioner for Workmen’s Compensation and Authority under Wages Act is hereby directed to deposit the said amount in some profitable Saving Scheme till the controversy between the parties is resolved from the competent court of law.
Regarding the objection of learned counsel for the appellant that under what capacity, the respondent Mst. Phapi is getting pension etc, the applicant is at liberty to seek remedy provided under the law.
JUDGE
A.K