2003 PLP 965 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has, been preferred against the judgment, dated 3-3-1996 passed by the learned Chief Justice of Peshawar High Court, Peshawar, in a civil revision arising out of a succession matter. Leave was granted in the present appeal vide order, dated 4-4-1997 which is reproduced hereunder:

4. Learned counsel for the petitioner contended that respondent No. 1 being a rank outsider and not being a legal heir, she could not be legally impleaded as party to the proceedings for grant of succession certificate, and that she could not claim the amount without establishment of her claim before a competent Court of law. We have heard the learned counsel for the petitioner. The contentions raised by the learned counsel prima facie appear to be substantial. We accordingly grant leave to consider whether in the circumstances the learned High Court was justified interfering with the order passed by the learned Senior Civil Judge, refusing to implead respondent No.1 as party. Since a very short point is involved, office is directed to fix this case at, an early date." The appellants being legal heirs of Dr. Fazal Rahim upon his death, filed an application for grant of succession certificate of his legacy and pending disposal of the said application, Mst. Fauzia Nasim respondent No.1 herein, moved a miscellaneous application to be impleaded as a party in the application for grant of succession certificate raising charge of rupees thirty lass on the property of late Dr. Fazal Rahim. According to Mst. Fauzia Nasim, she gave the amount in question to the deceased for the beneficial investment and safe custody and that she had a valuable claim in the property of the deceased to be satisfied and thus was a necessary party to the proceedings under Succession Act, 1925. This application was dismissed by the learned Senior Civil Judge, Peshawar, vide order, dated 13-7-1994. The respondent No.1 being aggrieved of the above said order challenged the same by way of filing a revision petition in the High Court at Peshawar and the learned Acting Chief Justice of the High Court in the light of provisions contained in sections 212, 213 and 214 of the Successions Act, 1925 took the view that the amount in question allegedly given by respondent No. I would be deemed to be a debt on the property of deceased subject-matter of the succession certificate and consequently, allowed the revision petition with the following observations:-- "That claim of the present petitioner is that her husband was engaged in business in the Middle East and used to send her money regularly but as the petitioner was suffering from some serious ailment and was under the treatment of the deceased Dr. Fazal Rahim, therefore, she entrusted a sum of rupees thirty lacs to the deceased for safe custody and/or beneficial investment but before any settlement of the said amount, the deceased expired on 13-7-1993. This claim of the petitioner, it may be mentioned here with advantage, has been acknowledged by the respondents 7 to .9 when they submitted their written statement to the application filed by Dr. Hamida Rahim for the grant of succession certificate, in the. Court of Senior Civil Judge, Peshawar, therefore, in my view, if she, Mst. Fauzia Nasim is made a party to the proceedings for the grant of the succession certificate, it will be within the scope of the provisions of sections 212 to 214 of the Succession Act, 1925. The real issue with regard to entitlement to inheritance of deceased Dr. Fazal Rahim will be decided by the Civil Courts in accordance with their provisions bf Muhammadan Law. As such, I hold that the order of rejection of application of present petitioner by the trial Judge is nothing but the result of non-reading and misreading of the material available on record and also the relevant law. The result of the above discussion is that the revision petition in hand must succeed and I order accordingly. The impugned order of the lower Court is set aside. Let the petitioner Mst. Fauzia Nasim be made a party to the proceedings for the grant of succession certificate filed by Dr. Hamida Rahim and others and give her an opportunity to establish her claim according to law." Learned counsel for the appellants has contended that the provisions of sections 212, 213 and 214 of Succession Act, 1925 would not be attracted in the case in hand and the learned Acting Chief Justice has wrongly come to the conclusion that the interest of respondent No. 1 would be a charge on the property and she was a necessary party in the proceedings for the grant of succession certificate. Mr. M. S. Khattak, learned A. O. R. for respondent No. 1 states that the counsel who was supposed to represent the said respondent in the present case has since been appointed as Advocate-General, N.-W.F.P. and that he was not in a position to argue the case without the instructions of the respondent No.1 or her counsel. Mr. Khattak further states that he had also no instructions from respondent No.1 for the engagement of another counsel. Under the Supreme Court Rules, 1980, Mr. Khattak, being the AOR of respondent is her recognized agent and in absence of senior counsel, he is under legal duty to assist and address the Court on behalf of his client, therefore, the absence of senior counsel is not a valid ground to postpone the hearing of this appeal. Mr. M.S Khattak with reference to the Succession Act, 1925 referred above, contended that the view of the matter taken by the High Court was logical and not in conflict to the law, therefore, would not call for interference of this Court. The learned counsel added that the appellants can raise all possible objections to the claim of respondent No.1 before the Court seized of the matter. We having heard the learned counsel for the parties and examined the relevant provisions of Succession Act, 1925, find that said provisions would not be helpful to respondent No. 1 to establish her claim to become a necessary party in the application for grant of succession certificate to the appellants. Mst. Fauzia Nastm, the respondent herein. admittedly is not a legal heir of late Dr. Fazal Rahim and also no Court has given any verdict in favour of her claim as a charge on the property of the predecessor-in-interest of appellants and without satisfaction of, which the grant of succession certificate to the appellants would be adverse to the interest of said respondent. There can be no exception to the rule that the person who is entitled to inherit the property of another person is also responsible for his liabilities but such liabilities must be recognized as charged on the property, in law. The claim which is either admitted by the legal heirs of the deceased person or is recognized in law is not subject to further determination, would be deemed to be the charge on the property of deceased and the claim which is subject to the determination by the appropriate forum, cannot be treated as charge on the property of the deceased and his liability. According to the claim of respondent, she gave the amount in question to the deceased for investment and unless it is established in law through proper and independent proceedings, that this amount was a debt on the property of Dr. Fazal Rahim, since deceased, the mere raising the claim of debt payable by the deceased would not be enough. The claim of the respondent No. 1 against the deceased without proper determination by the competent forum, would ipso facto not a charge on the property of deceased and therefore, the said respondent neither has a locus standi to be impleaded as necessary party in the proceedings under Succession Act, 1925 nor could contest and oppose the grant of succession I certificate to the legal heirs of deceased under Succession Act, 1925. It is not within the domain of the Court seized of the matter relating to the issue of succession certificate to adjudicate the claim of a third person against the deceased for the satisfaction of such claim from his property. It is noticeable that the respondent in the present case while setting up claim against the predecessor-in-interest of appellants, without any legal proof in her possession claimed her interest in the property of the deceased. The proceedings under Succession Act, 1925 would be limited in nature to the extent of determination of the rights of legal heirs of the deceased inter se and the scope of such proceedings cannot be enlarged to the settlement of the disputed claim and the determination of liabilities of legal heirs of the deceased through the adjudication by the competent Court. There is no cavil to the legal proposition that if in absence of a person no effective decree or an order can be passed in the suit such person is a necessary party and the suit cannot proceed in his absence and thus the requirement of addition of a party in the suit would be essential if in absence of such party the adjudication of the dispute is not possible: The legal heirs of the deceased in a civil suit to recover the amount of debt due are necessary party but a stranger in such a suit is neither a necessary nor proper party. In nutshell we may point out that if a dispute in a suit can effectively be adjudicated in absence of a person, such person is not a necessary party to be impleaded in the suit. The respondent No.1 in the present case being a stranger in the proceedings for grant of succession certificate to the legal heirs of Dr. Rahim would have no locus standi to be impleaded as party and allowed to join the proceedings, therefore, there could be no exception to the order passed by the learned Senior Civil Judge Peshawar. For the foregoing reasons, we are of the considered view that in the given facts, the respondent was neither a proper nor necessary party to be impleaded in the application of the appellants for grant of succession certificate and the judgment of the High Court would not represent the correct legal position. Consequently, we while setting aside the judgment of the High Court, restore the order passed by Senior. Civil Judge, Peshawar and allow this appeal. There will be no-order as to costs. M.H./S-203/S Appeal allowed.