1996 PLP 858 (MLD)

Abdul Khalil for Applicant. Shakeel Ahmed (absent) for Respondent. Date of hearing: 17th December 1995. The Civil Revision is directed against the order, dated 12‑7‑1994 passed by the learned District Judge, Karachi‑East in S.M.A. No.352 of 1993 whereby petition of the respondent was allowed and the application submitted by the present applicant under section 295 of the Succession Act (hereinafter referred to as the Act) was dismissed. The respondent filed petition under section 278 of the Act for grant of Letter of administration in respect of House No.5/2144 situate in Shah Faisal Colony, Karachi. This house was in the name of Mst. Sairah Bi who was mother of the parties. She died interstate at Karachi on 22‑12‑1985 leaving behind two sons and two daughters. According to the respondent after her death a joint meeting of the legal heirs was held wherein the applicant being one of the legal heirs had agreed to relinquish his right from the property after receiving his share which was valued at Rs.60,000 out of which he was paid Rs.10,

000. Therefore she prayed for grant of Letter of Administration. However the applicant after receipt of notice of Petition No. S.M.A. 352 of 1993 submitted his own application under section 295 of the Act wherein he alleged that true facts were concealed by the respondent. He stated inter alia that the deceased had gifted the said house to him. He denied that at a joint meeting of the legal heirs he had relinquished his rights or accepted any amount. The applicant filed affidavit in support of application under section 295 of the Act and the parties filed their respective counter‑affidavit and affidavit‑in- rejoinder. The learned District Judge in the impugned order observed that the question raised by the caveator has to be decided by the Civil Courts as the same required detailed evidence due to the fact that gift deed and relinquishment deed had been denied and disputed by the parties. Accordingly he rejected the application of the caveator and allowed the petition. He further ordered that Letter of Administration be issued in favour of the respondent subject to her furnishing security in the sum of Rs.1,50,000 (one lac fifty thousand). I have heard Mr. Abdul Khalil learned counsel for the applicant and perused the record. The respondent and her learned counsel were called absent. Learned counsel for the applicant submitted that since the applicant/caveator had raised the contention and dispute regarding the grant of the Letter of Administration therefore the learned District Judge ought to have treated the petition of the respondent as a regular suit as required under the provision of section 295 of the Act. He further submitted that the impugned order which is based on lack of application of judicial mind is liable to be set aside. In support of his submission the learned counsel cited Ahmed Said Chughtai v. Bedar Bukhat Chughtai 1992 MLD

695. In this judgment the application for grant of Letter of Administration was registered as a suit when the matter became contentious between the heirs of the deceased and ultimately on the basis of evidence led by the parties on the issues settled by this Court decree was passed. There is considerable force in the submission of the learned counsel for the applicant. The proceedings become contentious when caveat supported by affidavit is filed as had happened in this matter and once the proceedings become contentious it is not open to the Court to decide the matter in a summary manner as was done by District Judge, Karachi‑East. In that situation the proceedings will not become a regular suit but the petitioner will become the plaintiff and the caveator will be the defendant and as nearly as may be it will take the form of a regular suit and all the incidents of a suit will fasten to such proceedings. Thus keeping in view the provision contained in section 295 of the Act and the fact and circumstances of the present case I am of the view that the learned District Judge has erred in not following the provisions of law and the impugned order is legally unsustainable. Accordingly this revision is allowed and the learned District Judge, Karachi‑East is directed to decide the matter afresh according to law. A.A./A‑6/K Revision accepted.