2022 PLP 755 (CLC)

ABDUL HAMEED BALOCH, J.

Through this judgment I intend to dispose of above titled succession appeal filed by the appellants/ applicants against the judgment dated 29th November, 2016 (impugned judgment) passed by learned District Judge, Usta Muhammad (trial court), whereby the Succession Applications Nos. 3 and 4 of 2009 were dismissed.

2. Concise facts of the case are that the appellants/ applicants filed applications under Sections 372 and 278 of the Succession Act, 1925 (Act, 1925) for grant of succession certificate and letter of administration against the respondent No. 1 in respect of the movable and immovable estates of deceased Moulvi Abdul Sattar, who was serving in Education Department as Arabic Teacher (BPS-14) and owned house bearing No: 125/4-1-11-1, measuring 2989 square feet situated at Hussain Abad Mohallah Usta Muhammad, Tehsil Municipal Administration Usta Muhammad District, Jaffarabad.

3. Initially on conclusion the above applications were dismissed by learned District Judge, Usta Muhammad vide judgment dated 4th September, 2009, against which Succession Appeal No.(S)1 of 2009 was filed before this Court and vide order dated 19th October, 2012 the matter was remanded to the trial court. The trial court vide judgment dated 16th January, 2015 again dismissed both the applications. The appellants/applicants again preferred Succession Appeal No. (s) 01 of 2015 before this court and this court vide order dated 30th December, 2015 again remanded the matter to the trial court with the direction to provide opportunity of producing additional evidence (oral and documentary) to the appellants/ petitioners. If the respondents want to produce additional evidence, they may also be provided an opportunity to do so, or in case the respondents do not want to produce the evidence, the evidence already produced by them be considered accordingly. The trial court should then decide the matter on the basis of the evidence and the material available before it, strictly in accordance with law and on its own merits. The trial court should decide the case at the earliest possibly by or before 30th April, 2016. The parties are directed to co-operate the trial court. No unnecessary adjournment should be granted to the parties." The trial court after remand and on conclusion of trial vide judgment dated 29th November, 2016 again dismissed both the applications; hence the appellants are before this court.

4. Heard learned counsel for the respondent No. 1 and perused the record. The record transpires that the appellants/applicants filed applications for grant of succession certificate and letter of administration before the trial court with the contention that the appellants/applicants are son and daughter of late Moulvi Abdul Sattar, who was serving as Arabic Teacher in Education Department and they being legal heirs of deceased are entitled for group insurance, gratuity, other pensionary benefits and deposited amount in UBL Branch Usta Muhammad as well as House No. 125/4-1-22-1 Hussain Abad Mohallah, Usta Muhammad. The applications were contested by the respondent No.1 alleging therein that late Moulvi Abdul Sattar had no child. The appellants were, adopted son and daughter of late Moulvi Abdul Sattar. The appellants produced as many as fourteen witnesses and also got recorded statement of their attorney, whereas in rebuttal the respondent No.1 produced thirteen witnesses and also got recorded statement of their attorney.

5. Beside oral evidence the appellants produced School Admission Certificate No. 4431 dated 16th September, 2009 of Government High School Jaffarabad through school representative who exhibited the same as Ex: AW-8. AW-9 Niaz Muhammad SST High School Usta Muhammad, representative Record In-charge produced verification certificate of National Identity Card of appellant No. 1 bearing serial No. 277 vide Ex: AW-9. The witness produced verified certificate of register vide Ex: AW-9-B. AW-10 representative of Girls High School Usta Muhammad produced verification certificate No. 162 of appellant No. 2 and school leaving certificate bearing No.

162. AW-11 Hamadullah Deputy Superintendent NADRA appeared and produced CNIC of appellant No. 1 bearing No. 532-02-34496101, tracking image and form image vide Ex: AW-10-A. AW-12 Ali Hussain representative of DC Office Jaffarabad appeared and produced local certificate of appellant No. 2 as Ex: AW-11-A and local certificate of appellant No.1 as Ex: AW-11-B. AW-13 Adnan Hafeez Manager MCB Usta Muhammad produced the documents of opening of account as Ex: AW-13-A of deceased Abdul Sattar and AW-14 Jan Muhammad Deputy District Education Officer Usta Muhammad produced copy of application for nomination of GP Fund Account of his legal heir as Mark: AW-14-A.

6. Presumption of correctness attached to the entries of educational testimony by the Educational Institutions, NADRA and other official documents issued by the authorities stating the fact while performing his duty. Such book, register or record is kept is itself a relevant fact. It would not be irrelevant to produce Article 49 of the Qanun-e-Shahadat Order, 1984 as under: "

49. Relevancy of entry in public record made in performance of duty.

an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such boo, register or record is kept is itself a relevant fact."

7. Presumption of correctness attached to the documents of official record. The appellants/applicants produced NADRA record, local certificates and school certificates mentioned supra through concerned representatives without any objection from other side. When an official document is produced in accordance with law it always carries sanctity and strong evidence required to cast an aspersion on genuineness. Such document was binding on the parties to the lis. Under Article 91 of the Qanun-e-Shahadat Order, 1984 once a document produced as evidence and admitted in evidence without any objection it amount same had been duly proved. It would be relevant to reproduce Article 91 of the Qanun-e-Shahadat Order as under: "

91. Presumption as to documents produced as record of evidence. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any judge or Magistrate or by any such officer as aforesaid, the Court shall presume: That the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."

8. Now the question is whether the appellant'/applicants' evidence is sufficient to prove that they are son and daughter of late Abdul Sattar or the respondent No. 1 produced such material from which conclusion could be drawn that the appellants were adopted son and daughter of late Abdul Sattar. The respondent No.1 produced oral evidence but in contrast the appellants produced official record to prove their version. The records of different departments have been produced by the appellants to prove their contention that the appellants are legal heirs of deceased Abdul Sattar. Admittedly the documentary evidence prevails over the oral evidence. Oral evidence does not exclude documentary evidence. Document can be rebutted by document only. It is undisputed fact that the appellants' father mentioned his name (Abdul Sattar) in all the documents from admission in school up-to obtaining CNIC without any objection from respondent No.1. After demise of Abdul Sattar the respondent No.1 has claimed to be the legal heir of deceased with contention that Abdul Sattar died issueless. The oral evidence of respondent No. 1 could not rebut the documentary evidence of appellants. Reliance is placed on the case of Mst. Asma Naz v. Muhammad Younas Oureshi, 2005 SCMR 401, wherein it was held: "

6. We have heard the petitioner's counsel and the respondent in person and have also gone through the pleadings of the parties, evidence produced before the trial Court, impugned judgment as well as the judgment of the trial and Appellate Courts carefully. A perusal whereof indicates that prior to filing of the suit, which has culminating in present proceeding, there had been a litigation on criminal side between the parties which ensued on the criminal complaint (Exh.D.1) filed by the petitioner/plaintiff against respondent/defendant and it ultimately ended into smoke as petitioner/Plaintiff could not prove stated allegation of deceiving her or committing fraud with her by the respondent/defendant, therefore, he was acquitted of the charge. It is pertinent to point out that during the course of criminal litigation, vide application dated 9th May, 1992, respondent/defendant produced letter (Exh.D. 12) dated 14th December, 1965 and on the basis of the same he asserted that one Syed Wasi Ahmed Rizvi son of Syed Rashid Ahmed Rizvi got custody of a child from the City/District Magistrate, Karachi through S.H.O., Jamshed Quarters and the said child is the petitioner/plaintiff therefore, she is not his real daughter: It may be noted that this document was received in evidence under objection, however, we will deal with this question after a while. On the end of criminal case, the petitioner/ plaintiff realized that the respondent/defendant had denied her paternity on the basis of the letter (Exh.D.12), therefore, she instituted a civil suit for declaration that she is legitimate daughter and heir of respondent/defendant, therefore, by issuing a permanent injunction, respondent/defendant be restrained to disown her as his legitimate daughter. In response to plaint, respondent / defendant filed written statement. It is important to note that in the written statement respondent/defendant had not averred about the personal status of petitioner being a legitimate child or otherwise.

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9. The procedure under Section 373 of the Succession Act, 1925 is summary in nature. It could not conclude the right of the parties. If a party desires for determination of his right the remedy lies in suit before a court of competent jurisdiction. For determination of title, the same can be decided by the civil court of competent jurisdiction by way of filing civil suit for the purpose to establish the claim and recovery of share. Reliance is placed on the case of Asif Shah v. Mst. Attar Bibi, 2016 CLC 1715. It was held therein: "

6. Procedure on application for issuance of succession certificate is provided in Section 373 of the Succession Act, 1925. Subsection (1) of Section 373 says that right to certificate shall proceed in a summary manner. Subsection (2) provides that when the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of certificate to him and if the rights of the rival applicant are difficult to decide in a summary manner, as in the present case, the Court, in that case too, should not refuse to grant the certificate and leave the other person to establish his right by a regular suit as subsection (3) of Section 373 lays down that if the Judge cannot decide the right to the certificate without determining question of law or fact which seems to be too intricate and difficult for determination in a summary proceedings, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto, however, in that case, the applicant must execute a bond as required under section 375(1) of the Act for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities. The very object of Succession Act is to facilitate the collection of debt on succession and not to indulge the parties in litigation over the disputed question of title as the grant of succession only enable the party to collect any debt or security belonging to the deceased but it does not determine any question of disputed title, therefore, the learned appellate court has adopted a wrong procedure for which there is no provision in the Succession Act. Nominee as per settled law is the person to receive/collect the amount and would be legally bound for onward payment of the same to all of them who are legally entitled to receive the same as per their respective shari shares. Nominee at the most can act as a facilitator for all those who are legally entitled to receive their shares in order of succession. Making of nomination could not give legal right to nominator. The law of Succession in this regard is very much settled. The claim of the lady regarding gift in her favour by her deceased husband is the question to be determined by a competent Court of law. Reference in this regard can also be placed on the case of Malik Safdar Ali Khan and another v. Public at large and others (2004 SCMR 1219)." In view of the above discussion the succession appeal is accepted. The judgment dated 29th November, 2016 passed by learned District Judge, Usta Muhammad, is set aside. The applications filed by the appellants under Sections 372/278 of the Succession Act, 1925 are accepted. Issue succession certificate in respect of emoluments of deceased Moulvi Abdul Sattar Arabic Teacher BPS-14 lying against the Education Department Government of Balochistan as well as UBL Branch Usta Muhammad and MCB Branch Usta Muhammad, detail whereof mentioned in para-6 of the application as well as immovable property / house bearing No. 125/4-1-22-1 measuring 2989 square feet situated in Hussain Abad Mohallah Usta Muhammad. ZH/250/Bal. Appeal accepted.