2015 PLP 1719 (CLC)

MRS. SYEDA TAHIRA SAFDAR, J.

The appellants, three in numbers, aggrieved of order dated 30th October, 2014 of District Judge, Kharan, whereby the application filed by one Mah Gul widow of Muhammad Asif (present respondent No.1) for grant of succession certificate in respect of the dues of her husband lying with the Health Department, District Kharan, where he was serving as a Ward Boy, was allowed and succession certificate was directed to be issued in her (respondent No.1) favour, simultaneously held that the appellants were not entitled to receive any share from the debts.

2. The brief facts of the case as described by the papers on the record that the respondent No.1 approached the court for the issuance of succession certificate in her favour for the purpose to collect the dues of her deceased husband from the Health Department, Government of Balochistan. This application was contested by the appellants, who appeared in response to the publication in the newspaper for the general public, filed objections on issuance of succession certificate in favour of Mah Gul (the respondent No.1). The trial court entertained the application and called for the evidence of the parties, arrived to the decision that "she is solely entitled to receive and encash dues of her late husband, and respondents Nos.2 to 4 (present appellants) do not deserve to receive any share out of the dues". Reliance was placed on the judgment of Honorable Supreme Court, Shariat Appellate Bench, in case Federation of Pakistan v. General Public, reported in PLD 1991 SC 731.

3. The appellants were before this court to question their exclusion from the list of the persons entitled for legacy of the deceased Muhammad Asif and sole entitlement of respondent No.1 to receive and encash the dues. It was contended that respondent No.1 intentionally concealed the facts only to deprive them of their right. Further, according to their personal law they were also the legal heirs of the deceased, thus entitled for their shares in the inheritable financial assets of the deceased. The learned counsel for the appellants placed complete reliance on the referred citation and stated that the dues in a Government Department have already been determined as legacy left by a deceased employee, thus to be inherited by all of his legal heirs as per their respective shares as fixed by their personal law.

4. The learned counsel for the respondent No.1 with reference to the cited judgment was of the view that it was clearly determined that neither the mother nor the sister and the brother of the deceased are entitled for the dues payable on death of a government servant.

5. The case in hand pertains to issuance of succession certificate to collect the dues payable on retirement or death of the incumbent, thus to be governed by the provisions of the Succession Act, 1925 (Act 1925). Sections 370 to 390 of the Act 1925 deal with the issuance of succession certificate, described the court having jurisdiction for the purpose, the legal formalities adhered to, the procedure to be adopted by the court, contents of the certificate, and call for the requisite security. It further contained the effect of issuance of succession certificate, grounds for its revocation, the right of appeal and many others. A person may apply under section 372 of the Act, 1925 for issuance of a certificate for the purpose, but the application must be in described form with required details. On receipt the court has to adopt the procedure contained in section 373 of the Act, 1925. A special procedure, summary in nature, provided to deal with the application filed for the purpose. While section 381 of the Act, 1925 described the effect of the certificate issued by a court on such application. The logic behind section 381 of the Act, 1925 is to enable a person to recover the debts on estate of a deceased, but the certificate issued for the purpose neither declared the rights of the persons interested, nor determined their shares in the recoverable debts. Rather issuance of the certificate is with sole purpose to protect the party paying the debt to the holder of the certificate. However, a duty imposed on the holder of the certificate to disburse the amount realized under the certificate among the persons entitled in accordance with their respective rights. It is clear in view of the above discussion that a certificate issued under the Act, 1925 does not confer any title upon a person, but only enables him to recover the debts.

6. A Court while dealing with an application has to follow the procedure contained in section 373 of the Act, 1925, which is summary in nature. It neither conclude rights of the parties nor does it establish the right of the party to the debt for collection of which certificate is granted. Thus a person if wants detailed determination of his right, the remedy lies in a suit before a court of competent jurisdiction. Subsection (3) of the section 373 of the Act, 1925 is clear enough to the effect, re-production would be beneficial:

"Section 373(3). If the Judge cannot decide the right to the certificate without determining questions of law or fact which seeks 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. Subsection (4) of the section is an addition thereto, which reads as under:

Section 373(4). When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicant. The determination of title is beyond the scope of the section. An applicant who can claim his preferential right for payment of debts would ecome entitled for issuance of the certificate, subject to (sic.) he has a prima facie title in his favour. The remaining questions pertaining to determination of title and the extent are to be dealt with in a suit filed for the purpose to establish the claim and also for recovery of the shares respectively claimed. 7. In case in hand the respondent No.1, in whose favour the certificate was issued, admittedly widow of the deceased Muhammad Asif, while the appellant No.1 Mst Aisha is mother of the deceased, and the appellants Nos.2 and 3 are brother and sister of the deceased. They claimed their entitlement, as per their shares, in the dues of the deceased. Both the parties and also the trial court relied on the same judgment of honorable Supreme Court. The trial court without discussing the nature of the dues, and the fact that either it covered by the term legacy ( ) of the deceased, and entitlement of the parties before it ordered to exclude the claim of the appellants. Decided that the applicant (present respondent No.1) solely and lonely entitled to receive and encash dues of her late husband Muhammad Asif and respondent Nos.2 to 4 do not deserve to receive any share out of the dues of deceased Muhammad Asif. The trial court erred while recording findings to the effect in view of the above discussion. The findings to this extent cannot hold the field, thus set aside. 8. As far the order for issuance of succession certificate is concerned, the fact that respondent No.1 Mah Gul widow of Muhammad Asif was before the court for grant of succession certificate, which was allowed. The trial Court fund the respondent No.1 with the best title for the purpose, thus, held her entitled for the certificate in comparison to the appellants. No illegality was committed by the trial court, while making an order to the effect. The appellants surely aggrieved of the order and have a right to agitate, but as discussed herein above the issuance of certificate does not place a bar on right of the appellants to establish their title and entitlement in the debts by a suit before a court of competent jurisdiction. The issuance of a certificate also not confer any title to the holder of the certificate, rather the certificate issued with the sole purpose to recover the dues from the concerned Department. Thus the person aggrieved could press his right through a suit and to recover the amount received on basis of said certificate to the extent of his share on basis thereof. In view of the above discussion the appeal failed, the order of the trial court upheld with the modification as contained in para No.7 of the judgment. Appeal stand disposed of in the above terms. MH/86/Bal. Order accordingly.