2006 PLP 1189 (CLC)

MUHAMMAD JEHANGIR ARSHAD, J.

This civil revision is directed against the order, dated 10-11-2005 passed by learned A Additional District Judge, Chishtian dismissing petitioner's appeal against the judgment/order dated 7-9-2005 of Civil Judge 1st Class, Chishtian allowing Succession Certificate filed by Muhammad Irfan-ul-Haq respondent No.1 in favour of petitioners and respondents Nos.2 to 8, all being legal heirs of Muhammad Ashraf Abbas, deceased.

2. The facts in brief are that Muhammad Ashraf Abbas, deceased, husband of petitioner No.1 and respondent No.8 and father of petitioner No.2 and respondents Nos.1 to 7 died on 17-2-2005 whereafter Muhammad Irfan-ul-Haq respondent No.1 filed a petition under Succession Act for obtaining Succession Certificate in respect of assets (fully described in the said application) left by Muhammad Ashraf Abbas, deceased. Respondents Nos.2 to 8 filed consenting written statement and raised no objection for the issuance of said Certificate in favour of Muhammad Irfan-ul-Haq respondent .,No. l . However, the petitioners claiming themselves as widow and minor son of the deceased contested the said application claiming that they were exclusively entitled to obtain the certificate in respect of the assets left by the deceased, to the exclusion of respondents Nos.1 to

8. The learned trial Court on receipt of the contesting reply framed the following issues and put the parties at trial:-- Issues (1) Whether the defendant No.8 is entitled to withdraw the amount of accounts of deceased No.PB-A-60 Chishtian and Account No.SA-1719 Dharanwala as the same was gifted by the deceased to her and she was appointed as nominee? OPR-8 and 9. (2) Whether the deceased has accounts in Banks situated at Hasilpur and Faisalabad which have not been disclosed by the petitioner so the application is liable to be rejected? OPR-8 and 9. (3) Whether the petition is not maintainable in its present form? OPR-8 and 9. (4) What is effect of preliminary objection No.3 raised by the respondents Nos.8 and 9 in written reply? OPR-8 and 9. (5) Whether the petitioner and respondents are entitled to Succession Certificate? OPA (6) Relief.

3. The parties produced their respective evidence and on the conclusion of trial, the learned trial Court vide judgment/order, dated 7-9-2005 directed all the legal heirs of the deceased Muhammad Ashraf Abbas i.e. the petitioners as well as respondents equally entitled to inherit the assets left by the deceased according to their shares under the Muslim Law after determining the shares of each legal heir. It was however, directed that since respondents Nos.2 to 7 have requested that to the extent of their shares, the respondent No.1 be authorized to collect the amount from respective National Saving Centres, the respondent No.1 was, therefore, authorized to collect the amount out of the deposits lying in the Saving Centres to the extent of his own share as well as to the extent of respondents Nos.2 to 7, whereas petitioner No. 1 was authorized to collect the amount of her share and also to the extent of shares of her minor son Rizwan petitioner No.2 subject to the terms and conditions of guardianship certificate issued in her favour by the learned Guardian Judge. Against the said order of the learned Civil Judge, the petitioners filed appeal but the same was dismissed by the learned Additional District Judge on _10-11-2005 whereby the judgment of the learned trial Court was maintained hence this civil revision.

4. Learned counsel for the petitioner has argued that petitioners were in custody of the original certificates as well as Pass Book, hence, they were exclusively entitled to have the Saving Certificates encashed to the exclusion of respondents Nos.1 to 8, as late Muhammad Ashraf Abbas had gifted away those Certificates to them which was evident by the fact that petitioner No.1 was appointed as a Nominee and that as said deceased had severed all his relations with respondents Nos.1 to 8 because of their derogatory and disrespectful attitude towards him, hence the, findings of two Courts below were not sustainable. The learned counsel in support of his contentions has placed reliance on Rules 13, 15 and 16 of the Special Saving Certificate Rules, 1990.

5. I have considered the arguments of learned counsel. for the petitioner but am not impressed by the same for the simple reason that as held by the Honourable Supreme Court in the case of Amtul Habib v. Musarrat Parveen PLD 1974 SC 185 and followed in Malik Safdar Ali Khan v. Public-at-Large and others 2004 SCMR 1219, it is now a declared law of the land that the concept of nominee is alien to Muslim Law according to which the legal heirs are the only persons entitled to receive the property left by their father or husband and no Muslim heir can exclude the other heir on the ground that he was holding Saving Certificates as a nominee. It is also now an established principle of law that a nominee, if appointed, does not become the sole owner of the assets left by the deceased but he is only authorized to collect the amount c from the National Saving Centre or to hold the property of the deceased as an Administrator and then to distribute the same among all the legal heirs. It has also been held by the Honourable Supreme Court in the cited judgments that nomination does not make the nominee as donee nor the nomination amounts to a gift in the absence of delivery of possession of the property gifted. In this case, the, petitioners never raised the plea that petitioner No.1 was ever appointed as nominee or the amount under Saving Certificates was ever gifted to her or them, in their written statement and it was for the first time in her statement as R.W. 1 before the trial Court when Mst. Imtiaz Shamim petitioner No.1 took the plea that she was appointed as a nominee and no plea of alleged gift was ever taken in his statement also. However, in any case Mst. Imtiaz Shamim petitioner No.1, in view of the clear law as declared in the cited judgments, could not and cannot claim herself as exclusive owner of the amount under the disputed Saving Certificates and two Courts below while discarding her said claim have neither committed any illegality nor irregularity but have passed the impugned orders in advancement of Muslim Law of Inheritance, whereunder all the legal heirs of the deceased have been declared entitled to receive the property left by the deceased, according to their shares under Muslim Law of Inheritance. This civil revision therefore, has got no force and is dismissed in limine. H.B.T./I-31/L?????????????????????????????????????????????????????????????????????????? Revision dismissed.