P L D 2015 Balochistan 132 (PLP)

NAEEM AKHTAR AFGHAN, J.

This judgment disposes of Succession Appeal No.2 of 2015 filed by the appellants against the order dated 24th February, 2015 passed by learned District Judge, Mekran at Turbat (hereinafter "the trial court") whereby the succession application filed by the appellants has been dismissed for want of jurisdiction.

2. Facts of the case are that the predecessor of the appellants was working as Farmer in Sharja (UAE). He died in an accident. Collection of his compensation/dues required a succession certificate. Consequently, the appellants filed an application under section 372 of the Succession Act, 1925 "hereinafter "the Act") before the trial Court. The same has been rejected by the trial Court for lack of jurisdiction on the ground that the deceased/ predecessor of the appellants was domiciled in Sharja at the time of his unnatural death and the amount claimed by the appellants is also lying in Sharja.

3. Learned counsel for the appellants stated that the predecessor of the appellants was permanent resident of Turbat District Kech and had gone to Sharja (UAE) to earn livelihood by Farming. While relying upon section 5(2) of the Act and the case of Saleem Lodhia 1986 MLD 897, learned counsel stated that the trial court has the jurisdiction to grant succession certificate to the appellants as at the time of his death, their predecessor was domicile/permanent resident of Turbat and was temporarily residing at Sharja to earn his livelihood.

4. Heard the learned counsel and perused the available record. Perusal of record reveals that the appellants are permanent residents of Trubat District Kech and their predecessor was also a permanent resident of Turbat District Kech and he was temporarily residing at Sharja for earning his livelihood by working as Farmer. He died unnatural death in Sharja. To receive compensation/dues of the deceased the appellants applied for grant of succession certificate. The application filed by the appellants has been rejected by the trial Court for lack of jurisdiction after holding that the predecessor of the appellants was domiciled in Sharja. Section 5(2) of the Act reads as follows: "5(1)............ (2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death". The word "domicile" has not been defined in the Act. According to Halsbury's Laws of England (4th ed) Volume 8, Para 421 "domicile" has been defined as under:-- "A person is domiciled in that country in which he either has or is deemed by law to have his permanent home". In ordinary meaning "domicile" means "The place where a man lives or has his home". According to Black's Law Dictionary, 9th Edition by Bryan A. Garner "domicile" means The place at which a person has been physically present and that the person regards as home; as person's true, fixed, principal, and permanent home, to which that person intends to return and remain even, though currently residing elsewhere. A person has a settled connection with his or her domicile for legal purposes, either because that place is home or because the law has so designated that place". According to Dicy and Morris on the conflict of laws, 10th Ed Volume 1, Page 100 "A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home".

5. In the referred case of Saleem Lodhia, it has been held that correct criteria for issuance of succession certificate is domicile of the deceased at the time of his death.

6. There is nothing on record to show that the predecessor of the appellants had abandoned his country of domicile i.e. Pakistan with intention of abandoning it forever.

7. In view of the above, there was no occasion for the trial Court to dismiss the application under section 372 of the Act for lack of jurisdiction. It appears that while passing the impugned order the trial Court has erred in facts as well as law while interpreting the word "domicile".

8. For the above reasons, the appeal is accepted, the impugned order dated 24th February, 2015 passed by learned District Judge, Mekran at Turbat, is set aside. The application under section 372 of the Act is deemed pending before the trial Court. The trial court is directed to decide the same on merits in accordance with law. SL/65/BAL Appeal accepted.