P L D 1993 Karachi 619 (PLP)

This petition for grant of Succession Certificate pertains to the estates of Miss Soonabai Hormusji Patel (expired at Karachi on 26-8-1983) and Dhunjishaw Hormusji Patel (expired at Karachi on 10-5-1985), daughter and son respectively of late Hormusji Patel. While it appears impermissible that a common petition be riled for grant of a single Succession Certificate pertaining to the estates of more persons than one, this aspect was not brought to the notice of the Court and the petition was granted on 31-8-1986. The irregularity was noticed on 11-6-1987 but because the grant was made by another learned Single e Judge, the order was not reviewed. Coming to the facts, the deceased (both unmarried), according to Parsi Law of intestate succession , where male inherits double the share of a female, left behind the following heirs:-- (a) Nanabhoy Hormusji Pate (brother) (b) Framroze Hormusji Patel (brother) Mrs. Dossibai N. Cooper) (sister) Out of the above, Nanabhoy Hormusji Patel approached the Court as petitioner. Framroze Hormusji Patel, being a bachelor, himself died on 4-3-1987 wheres Mrs. Doosibai N - Cooper expired on 9-7-1987, the latter ]caving behind two daughters namely:-- . (i) Miss Villi N. Cooper. (ii) Miss FrenyN. Cooper. Thus, Framron HormusJi Patel and Mrs. Dossibai N. Cooper, the two next-of kins, apart from Nanabhoy Hormu.sji Patel, the petitioner, expired after grant of the Succession Certificate but before distribution of the estates. Subsequently' in view of fresh discoveries of securities the Succession Certificate was extended on 21-2-1988 and again on 18-11-1(,

00. Meanwhilc, S.M.As. 330 of 1987 and 3.39 of 1987 were riled for grant of Succession Certificates in respect of the estates of (next-of-kin (b) and (c) above) deceased Mrs. Dossibai N. Cooper and Framroze HormusJi Patel respectively, the first being applied for by Miss Freny N. Cooper for self and sister Miss Villi N. Cooper and the second by Nanabhoy HormusJi Patel: see order dated 8-5-1988. Due grants were made. The current position is that Miss Villi N. Cooper has also expired leaving behind her unmarried sister, Miss Freny N. Cooper, apparently, as her only successor. Petitioner Nanabhoy Hormusji Patel, the other living member -of the family, is stated to be hospitalised. Present application has been filed so as to obtain extension of the Succession Certificate for some other movable assets belonging to the two deceased named in the petition, their original next-of-kin being the three persons mentioned at Serial Nos. (a), (b) and (c) above. Power to extend the Succession Certificate to additional debts and securities, originally remaining undiscovered, has also earlier been exercised. as would be evident from the foregoing. Such power emanates from sections 376 and 377 of the Succession Act, 1925. Extension of the Certificate can, therefore, be granted, if just and equitable. However, if and when any such extension is sought and granted, necessary follow up formalities shall, ordinarily, come up for observance and compliance. .It would thus seem that in so far as the directly inherited share of Nanabhoy Hormasji Patel in the newly-discovered securities is concerned the Succession Certificate can justly and lawfully be extended to include that share. Grant is accordingly made to such extent. Section 375 of the Succession Act, 1925 except in case the Court is proceeding under section 373(3) or (4) of that Act, makes it discretionary for it to impose as a condition precedent to the granting of the certificate that the person to whom it proposes to make the grant shall give to the Court a bond with one or more sureties or other sufficient security for making due compliance. There is, however, an obligation on the part of the petitioner to furnish a Succession Certificate Bond with two or more sureties in terms of Rule 400 of the Sindh Chief Court Rules (O.S.). Thus while section 375 of the Act is largely permissive as to imposition of terms Rule 400 is permissive as to relaxation of more or-less similar terms, deemed to be self-operative. One may be tempted to say that there is conflict in these provisions, as regards concurrent powers of the High Court. Really, it is only a case of difference of approach and once its discretion is invoked, this Court should be less stringent and more permissive, solely devoting itself to the cause of advancement of justice. Indeed the condition in Rule 400 is shown to have been relaxed, per order of Court dated 3-3-1991, in view of the fact that no adverse claim was tin then preferred. None seems to have been preferred to date. The extension, in consonance, is allowed only subject to the petitioner furnishing a personal bond. Coming to the shares of petitioner devolving on him from Framoze Hormusji Patel (next-of-kin at (b) above) etc. and of Miss Freny N. Cooper from her mother Mrs. Dossibai N. Cooper (next-of-kin) at (c) above) and her sister Miss Villi N. Cooper, since deceased, Mr. Sultan Nasir, the Additional Registrar, has raised objection that under the Succession Act grant can only extend to living next-of-kin and in case of any of them dying during the pendency substitution I of relevant legal representatives cannot be made. Mr.R.F. Virji, for the petitioner, has submitted a written reply and maintains that the objection-is not well taken. The rule, which is a rule of prudence, cited by the learned Additional Registrar is clearly applicable to cases where one or ' kin expire before the grant is made. The principle should- be more next-of extendable to situations where death. of a next-of-kin occurs after the grant but before distribution. This precise reason prompted the fiing of S.M.As. 336 of 1987 and 377 of 1987 in relation to deceased next-of-kin at (b) and (c) above. Nanabhoy Hormusji Patel, who is on sick-bed and Miss Freny N. Cooper, present and consenting in Court, who is also sick and infirm, there are no other next-of-kin, Miss Villi N. Cooper, having died a spinster. According to learned counsel driving the two survivors to further proceedings would only make a fetish of technicalities. Mr. R.F. Virjis's fears are not altogether unreasonable. If a purely technical 'view of the matter is taken the extension of the Certificate, granted. here, would ensure only to the extent of the personal share of the petitioner inherited by him from the two original estates. He will have to obtain exteusions relative to next-of-kin at Serial No.(b) above, Framoze Hormusji Patel, in S.M.A. 339 of 1987 and likewise Miss Freny N. Cooper would have to seek, similar relief in S.M.A. 336 of 1987. Not merely that, the lady last mentioned may have to apply for a fresh Succession Certificate as regards her deceased sister Miss. Villi N. Cooper since S.M.A. 336 of 1987 apparently cove-red only the estate of her mother, Mrs. Dossibai N. Cooper (Serial No.(c) above). This indeed would be extremely cumbersome and serveral Succession Certificates may have to be issued for fractions of securities standing in the two names of Miss Soonabai Hormusji Patel and Dhunjishaw Hormusji Patel. The survivors are themselves old, sick and infirm and, avowedly, in dire need of money. The securities in question do not involve very large amounts. As said, the objection raised, though valid and reasonable, is based largely on a rule of common sense and prudence. It is supported by C the spirit if not the letter of law. In appropriate cases, therefore, reprieve is possible. Accordingly, with a view to alleviate misery and to meet the ends of justice, it is ordered that the extension to the petitioner hereinabove allowed would cover all the assets and securities in C.M.A. 1140 of 1993 but the petitioner and Miss Freny N. Cooper, within a period of 3 months, would apply duly in S.M.As. 336 of 1987 and 339 of 1987 for appropriate orders of the Court as to in what manner the beneficial interests in those S.M.As. would be 0 dealt by either of them pursuant to the extension granted here. The course of action adopted thus, hopefully, would meet the requirements of law as well as the justice of the cause. To the above extent CMA 1140 of 1993 is granted A.A./N-484/K Order accordingly.