2014 PLP 981 (CLC)

AFTAB AHMED GORAR, J.

Through this Miscellaneous Appeal the appellant Abdul Wahab has impugned the order dated 24-5-2012 passed by the learned District Judge, Karachi Central in SMA No.107 of 2012 whereby while declining the request of the appellant to convert the said SMA into a suit for partition, he allowed the SMA filed by respondent No.l. Precisely, the facts of the case are that respondent No.1 filed petition under section 278 of the Succession Act for grant of Letter of Administration in respect of immovable property viz. Quarter No.89/3, Sector No.5/D, Refugee Colony, North Karachi, left by his deceased father namely Abdul Ghani son of Abdul Rahman, who is said to have expired intestate on 17-8-1978 at Karachi leaving behind following legal heirs:

1. Abdul Wahab (present appellant) Son

2. Abdul Rasheed (respondent No.1 herein) Son

3. Mst. Aqila Begum Daughter

4. Mst.Azra Naz Daughter

5. Mst.Uzma Daughter In support of the above petition, respondent No.1 also filed relevant documents i.e. death certificate of the deceased, photocopy of allotment order in respect of the property in question and heirship certificate. Notice of the said petition was got published in Daily Ummat dated 7-3-2012. Other legal heirs filed their affidavits of no objection to the grant of the SMA in favour of respondent No.1 except the present appellant, who filed objections to the grant of said petition. In his objections, the appellant took plea that respondent No.1 had filed the petition after a delay of 33 years, as such the petition is not maintainable and is liable to be dismissed being time-barred. He also stated that property was allotted by the Rehabilitation Commissioner, Karachi to himself as well as his parents, who have since expired. He also stated that at the time of allotment of the said quarter there was only room therein and he reconstructed the property after expending huge amount. According to him, respondent No.1 after taking his share in the said property from the appellant, had filed the said SMA. He also asserted that after the death of his parents, he spent huge amount on the marriages of his three sisters and their maintenance. His plea was that respondent No.1 should have filed suit for partition before the concerned authority as in the SMA, evidence could not be recorded and without undertaking such exercise, the matter could not be decided on merits. He prayed for conversion of the SMA into a suit for partition. After hearing both the parties, the learned District Judge, Karachi Central vide impugned Order dated 24-5-2012, rejected the prayer of the appellant for conversion of the SMA into suit for partition and allowed the petition and directed the Petitioner/Respondent No.1 to get the names of all the legal heirs including the appellant mutated in the relevant record. It is against the said order, that the present appeal has been preferred by the appellant. I have heard the submissions made by the learned counsel for the parties and perused the material available on the record as well as the law applicable to the facts of the present case. Neither the appellant, nor the respondent No.1, or for that matter, any other legal heir of the deceased, has disputed that the persons arrayed as parties in the SMA filed by respondent No.1 are the legal heirs of deceased Abdul Ghani. The grievance of the appellant is that, besides the SMA being time-barred having been filed after 33 years, the property in question was allotted to himself as well as his parents and that he had incurred huge funds on the reconstruction of the property and on the marriages of his three sisters as well as their maintenance and that respondent No.1 has already taken his share in the said property from the appellant. So far as the plea regarding delay in filing the SMA is concerned, this Court in the case of Abdul Rauf Chaziani v. Zaibunissa and 2 others reported in PLD 1975 Karachi 76 has held that there is no limitation in matters of letters of administration and succession certificate. As regards the assertion that the appellant is one of the allottees of the property in question, suffice it to refer to the allotment order which clearly shows that the property in question was allotted to deceased Abdul Ghani, whereas the names of his wife and the present appellant being his son, who was only 6 years old at that time, have been mentioned as his dependents. The appellant has miserably failed to refer or produce any document which shows that the property in question was allotted to him. The plea regarding spending huge funds on reconstruction of the property in question and on the marriages and maintenance of his three sisters, or for that matter, taking his share by respondent No.1, is also devoid of force. First of all, he has not produced any document to substantiate such plea, mere verbal assertions in the absence of any documentary evidence is not sufficient. Even otherwise, for the sake of argument, if he has done so, he is at liberty to avail any remedy available under the law for redressal of such grievances i.e. for recovery etc. but, in no case, in the proceedings under the Succession Act he is supposed to raise any such claim in view of the dictum laid down by the honourable Supreme Court in the case of Sindh Industrial Trading Estate) Ltd. through Secretary v. Muhammad Ilyas and another (2005 SCMR 309). In the said case it was observed that the court would only determine question about assets left by the deceased and inherited by the legal heirs while considering issuance of letter of administration. In view of this legal and the factual position, I am not inclined to agree with the contentions advanced on behalf of the appellant and do not find any cogent reason to interfere with the findings arrived at by the learned District Judge while passing the impugned order. Above are the reasons for the short order announced on 8-4-2014, whereby this appeal was dismissed in limine. However, the appellant would be at liberty to avail any remedy available under the law for redressal of his grievances, if any. MWA/A-47/Sindh Appeal dismissed.