2017 PLP 150 (YLR)

QALANDAR ALI KHAN, J.

This is a regular appeal under section 388/ 384 of the Succession Act, 1925 against the judgment and order dated 28.09.2011 of learned Senior Civil Judge, Haripur, whereby succession certificate was issued 'during pendency of civil suit for declaration'.

2. The facts of the case, briefly stated, are that respondent No.1, Mst. Tazeem Akhtar, filed application for issuance of succession certificate regarding legacy of deceased Ahmad Zaman Khan claiming herself to be the widow of the deceased. The application was contested by the appellants, Liaqat Zaman Khan, his another brother and four sisters claiming themselves as brother and sisters of the deceased and denying claim of respondent No.1 on the ground that deceased had divorced respondent No.1 during his lifetime. An application for dismissal of the application was moved, which was rejected by the trial Court on 26 03.2009 and on appeal before the learned District Judge, Haripur, proceedings in application for succession certificate were stayed on 12.06.2009. The review petition was also dismissed on 23.10.2009, whereafter respondent No.1 filed writ petition before High Court, which was decided on 09.12.2010, thereby setting aside the judgment/order of Additional District Judge-IV, Haripur with direction to re-decide the appeal by determining its competency. The learned Appellate Court held the appeal not maintainable and dismissed the same on 23.04.2011. The appellants had also filed a suit bearing No.332/1 of 2009 on 29.06.2009 claiming themselves as sole legal heirs of the deceased and respondent No.1 as a divorcee of the deceased and therefore having no right in his legacy, which was pending adjudication before the Civil Court. After resumption of proceedings on succession application, the parties recorded their evidence in support of their respective contentions, whereafter succession certificate was issued to respondent No. 1 by the learned Senior Civil Judge vide order dated 28.09.2011, which is assailed herein, inter alia, on the grounds that issuance of succession certificate for the time being was not in accordance with law, nor the same was warranted during pendency of the civil suit while placing wrong interpretation on section 373(3) of the Succession Act of 1925, and, nor the succession certificate in respect of the legacy of the deceased could be issued without resolution of the question of divorce of respondent No.1 by the deceased in his lifetime, in the first instance. In short, the appellants questioned issuance of succession certificate in favour of respondent No.1 as a result of summary proceedings without first determination of claim of the appellants with regard to divorce of respondent No.1 by the deceased during his lifetime.

3. The crux of the impugned order dated 28.09.2011 of learned Senior Civil Judge, Haripur is that in view of provision of Section 373(3) of Succession Act 1925, the Court could proceed with the succession petition even while leaving aside the issues relating to intricate questions of fact and law, to be resolved by the competent Court, and taking into account the obvious factual position. It would, therefore, be worthwhile to reproduce the relevant provisions of Section 373(3) of the Succession Act, 1925:-- "

373. Procedure on application (1) (a) (b) (2) (3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto." It may not be out of place to also refer to the provision of section 383 of the Succession Act, 1925 whereby a certificate may be revoked for any of the reasons enumerated in the section including a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate rendering it proper to revoke the certificate. In addition to the above, there is a safeguard to the rightful claimant(s) and liability of holder of succession certificate to the former under section 387 of the Succession Act, 1925.

4. In any case, when the law allowed the Judge to grant the certificate to the applicant who appeared to be a person having prima facie the best title thereto, notwithstanding a rival claim appearing to Judge too intricate and difficult to determine in a summary proceedings, there was nothing wrong with the impugned order of learned Senior Civil Judge, Haripur, after 'Nikah' between the deceased and respondent No.1 was proved and the so-called divorce, the onus of which was admittedly on the appellants who claimed the same, could not be proved on record in the summary proceedings for issuance of succession certificate. Needless to say that the appellants have already lodged a civil suit for declaration with regard to the factum of divorce which has been adjourned sine-die on the application of the appellants; therefore, the proper course for the appellants would be to get proceedings in the said suit restored/revived for the desired purpose. It may not be out of place to point out here that in accordance with the letter and spirit of relevant provisions of law, the learned Senior Civil Judge has clearly held that respondent No.1 shall be considered as widow of the deceased unless and until her alleged divorce, which is disputed, is established by the decree of a competent civil Court. While holding the petitioner and the appellants as legal heirs of the deceased, the succession certificate was issued to respondent No.1 subject to furnishing surety bonds in the sum of Rs.5,000,000/- with two local and reliable sureties each in the like amount to the effect that in case the Civil Court declared the petitioner as divorcee of the deceased, the petitioner would be bound to return the share she would collect from the movable legacy of the deceased.

5. In view of the above, there appears no merit in the appeal, which is dismissed with costs. SL/254/P Appeal dismissed.