1989 PLP 3407 (MLD)

This is a revision application from the order dated 2-11-1985 passed by the District Judge, Karachi South directing the applicant Mrs. Mariam Abdul Sattar Mussa who had applied to him for a succession certificate, to get the certificate on furnishing security to the tune of Rs.36,

000. The facts leading to the filing of the above revision are that Abdul Sattar Mussa died at Humberstone Road, Liecester, England on 21-10-1980 leaving behind his wife, the applicant, four sons and three daughters. The applicant filed petition under section 372 of Succession Act before the Court below for obtaining a succession certificate authorising her to release certain debts and securities mentioned in Schedule attached to her petition. This schedule discloses that there was a sum of Rs.35,170 lying in Saving Accounts No.145026 with Habib Bank Ltd. Foreign Exchange Branch, Habib Square, Karachi. There was no objection to the. grant of the succession certificate by the other heirs of late Abdul Sattar Mussa but on the contrary all the heirs including the applicant/petitioner had executed power of attorney m favour of Irfan Ahmed,. A. Rehman Butt and Shakeel Ahmed Qureshi of Messrs Abrahaand Sarwana, Advocate. . I heard Mr. S. A. Sarwana learned counsel for the applicant and Mr. Warsi learned counsel appearing for Advocate-General Sind, Mr. Sarwana has contended that no security should have been demanded in the instant case. Mr. Warsi has fairly conceded that this is a fit case where succession certificate ought to have been granted without any security. I have considered the arguments of the learned counsel for the parties. There are three decisions from Allahabad High Court in point. In (13) ILR 35 All 249, Tudball and Muhammad Rafiq, JJ, held that there ,might be special circumstances for requiring Hindu widow to give security. In A I R 1923 All

579. Richards C.J. and Banerji, J, affirmed that security should not be taken from Hindu widow of a separated Hindu asking for a certificate to enable her to collect debts in the absence of special circumstances rendering the taking of security necessary. The learned Judges pointed out that on an application by a widow, the only question which arises when she is admittedly entitled to a certificate is whether there are special circumstances making it expedient that she should be V directed to give security. In Mst .Kausilla v. Sukhdi A I R 1923 All 579, Walsh and Rajwes, JJ. dealt with the position in very direct terms. They said: "In the ordinary way a Hindu widow ought not to be called upon to give security at all. No doubt there are many reversioners who are interested, but it is not the business of the Court to go out of its way to look after the reversioners who have no vested interest and to assume everything against the widow. With this statement of law the High Court of Patna expressed its agreement in Badri Narain v. Lachminia A I R 1935 Patna 10, 1916 Madras 740 and A I R 1923 All 579 were also referred to in A I R 1935 Patna

140. In S. Ligamma v. S. Venkayya A I R 1944 Madras 374 Mochett and Bell, JJ. agreed with the view held by the Allahabad and Patna High Courts. This view was followed by Kuppuswami Ayyar, J. in Vemuri Swarjya Lakshmi V.Vemuri Anantha Padmanabha Rao and another A I R 1945 Madras

505. In V. Gurulinga Mudaliar V. Thayyanayki Animal A I R 1948 Madras 522, the facts of the case are that the learned Single Judge of Madras High Court granted succession certificate to the respondent in respect of certain debts due to her husband without furnishing any security. The appellant appealed against this order. A Division Bench held: "With great respect to the learned Judges, we doubt if the provision in S.375(1) could be availed of by a presumptive reversioner who has no present interest in the whole or any part of the debts and securities covered by the succession certificate granted to a widow. The widow is under no duty to render an account to any one, least of all presumptive reversioner. There is no right of indemnity in a reversioner in respect of property which devolves on a HINDU widow. The reversioner is in no sense entitled to the whole or any part of the debts and securities comprised in the estate of the last maleholder in the hands of the widow." In Muhammad Javed Akhtar Public-in-Large 1987 C L C 262 Mr. Saeeduzzaman Siddiqui, J. has come to the conclusion after giving cogent reasons, which are fully supported by the two authorities A I R 1935 Patna 10 and A I R 1944 Madras 374 discussed by him held that" in subsection (1) of Section 375 of the Succession Act the Legislature with reference to different situations used two different expressions namely "shall" and "may" to express their intention. The word "shall" in section 375 is used with reference to the class of cases, which fall under subsection (3) or subsection (4) of section 373, and in which, in spite of involvement of intricate and difficult questions of law and fact, the Court decides to proceed in a summary manner to determine the right to the grant of Succession Certificate to the applicant. In such cases, the provisions of subsection (1) of section 375 make it incumbent on the Court to order issuance of the Certificate, subject to the furnishing of a surety in addition to the execution of the bond. However, where the case for grant of Succession Certificate does not fall under subsection (3) or subsection (4) of section 373, it is discretionary with the Court to require the person in whose favour the Certificate is issued to give security as a condition for grant of the Certificate. I, therefore, agree with the contention of the learned counsel, Mr. Iqbal Kazi, that except in cases, which are covered under subsection (3) or subsection (4) of section 373 of the Succession Act, in all other cases the Court, while granting the Succession Certificate, will have a discretion either to insist or not to insist upon furnishing of security by the applicant according to the circumstances of each case. The conclusion that furnishing of security in such case of grant of Succession Certificate is discretionary is also supported by the decision in the cases of Badri Narain Shau V. Lackminia A I R 1935 Patna 10 and S. Ligamma v. S. Venkayya A I R 1944 Madras 374". He further held that "all the heirs of the deceased are before they Court, and there is no doubt that any other person is or may be entitled to the estate of the deceased and all such persons are adult and major and they express their consent for grant of Succession Certificate in favour of one of the heirs of the deceased, the Court in such clear cases may not at all insist upon furnishing of the security by the petitioner, as after all, the estate of the deceased belongs to its heirs, who survive him, and the object of granting Succession Certificate to all such heirs is the proper distribution of the assets of the deceased among the persons, who are entitled to receive their shares out of the estate of a deceased". I am in respectful agreement with this decision of my learned brother Saeeduzzaman Siddiqui, J. for the reasons given by him in his decision. Under Section 3750) the District Judge is bound to require, as a condition precedent to the grant of a certificate, that the person to whom the grant is being made should furnish security in cases coming under subsections (3) and (4) of Section

373. In any other case, the District Judge has got a discretion which is implied in the use of the word 'may'. , In the instant case all the sons and daughters of the deceased are major. The widow the mother and the sons and daughters of the deceased executed power of attorney stating that they have no objection for the grant of Certificate. There appears to be no other person entitled to any share in the estate of the deceased, as the petition was duly, published and notice of the petition was also pasted on the Court Notice Board but no one came forward to make any claim in respect of the deceased's estate. I am convinced that in this case, there are no circumstances, special or otherwise, to justify an order for security. In the circumstances of this case, therefore, sufficient cause has been advanced to enable me to interfere with the discretion exercised by the Court below in imposing security. In the present case, in my judgment, the discretion has been exercised in an erroneous manner. The result, therefore, is that the application is allowed and the condition of furnishing security is set aside and the District Judge is directed to grant Succession Certificate without imposing any condition for furnishing bond and/or, security. H.B.T./M-801/K????????? Application allowed.