2013 PLP 952 (MLD)

ABDUL RASOOL MEMON, J.

The petitioner has filed this petition under section 278 of the Succession Act, 1925 for Letter of Administration in respect of immovable property bearing No.B-243, measuring 500 Sq. Yds. Block-13, K.D.A. Scheme-16, Federal 'B' Area, Karachi left by the deceased Wasia Khatoon wife of (Late) Syed Shabbir Hassan Rizvi who died on 21-7-2007 left behind the following persons as surviving legal heirs:--

1. SYED QAMAR SHABBIR RIZVI Son

2. SYED MAZHAR SHABBIR Son

3. MRS. DEEBA HASSAN (Petitioner) Daughter

4. MRS. QURAT UL AINE Daughter

5. MRS. TALAT ALI Daughter

6. MRS. NAZLI ASAD Daughter

7. SYED ANSAR SHABBIR RIZVI Son

2. Syed Qamar Shabbir Rizvi, one of the legal heirs of deceased filed Objections stating therein that the property bearing No.B-243 Block-13 was gifted to 'him' 'by deceased and possession was delivered to him by the deceased and as such the property is in his physical possession since 2006 when the gift was made. The petitioner Mst. Deeba Hasan filed her written objection against the Caveat filed by the objector denying the contention of the objector, rejoinder was also filed by Syed Qamar Shabbir Rizvi.

3. Learned counsel for the objector has submitted that since the Caveater has raised the contention and disputed grant of Letter of Administration, therefore, these proceedings may be treated as regular suit as required under section 295 of the Succession Act. In support of his contention he has placed his reliance on the cases of Mst. NAGINA BEGUM v. Mst. TAHZIM AKHTAR and others (2009 SCMR 623), LIAQUAT ALI v. Mst. HAYAT BI (2002 CLC 808), ZAFRAIN IQBAL v. THE STATE (2008 CLC 741), Noor Mohammad and another v. Mohammad Kareem and another (AIR 1938 Madras 502), AHMAD SADIQ CHUGHTAI v. BAIDAR BAKHT CHUGHTAI and others (1992 MLD 695) and ATTAUR REHMAN v. Mst. AISHA JABEEN (1996 MLD 858).

4. Learned counsel for the petitioner has contended that the gift claimed by the objector is not written or registered one and the objector could not establish his caveatable interest, therefore this C.M.A. could be decided summarily. He has placed reliance on the cases of Mrs. Elizabeth Antony v. Michel Charles John Chown Lengera (AIR 1990 SUPREME COURT 1576) and MUHAMMAD HUSSAIN and others v. MUHAMMAD NAWAZ and others (PLD 1991 Lahore 262).

5. I have given careful consideration to the arguments of learned counsel for the parties and gone through the relevant provisions of law. It is admitted fact on record that objector Syed Qamar Shabbir Rizvi is one of the legal heir of the deceased Wasia Khatoon and has raised contention as to the grant of Letter of Administration and prayed that it ought, not be granted. The objector has claimed that the property in question was gifted to him by the deceased to which the petitioner has denied. This controversy requires proper adjudication for which section 295 of the Succession Act, 1925 would be applicable. In this context I have consulted with the relevant provisions of Secession Act, 1925 which are as follows:-- "

283. Powers of District Judge.

(1) In all cases the District Judge or District Delegate may, if he thinks proper:-- (a) Examine the petitioner in person, upon oath; (b) Require further evidence of the due execution of the will or the right of petitioner to the letters of administration, as the case may be; (c) Issue citations calling upon all persons claiming to have any interest in the estate, of the deceased to come and see the proceedings before the grant of probate, or letters of administration. (2) The citation shall be fixed upon some conspicuous part of the Court-house, and also in the Office of the Collector of the District and otherwise published or made known in such manner as the Judge or District Delegate, issuing the same may direct. (3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of District Judge in another Province, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issue the citation."

6. Thereafter, section 286 deals with power of the Court not to grant probate or administration. Section 286 is reproduced as follows in extenso:-- "

286. District Delegate when not to grant probate or administration, A District Delegate not grant probate or letters of administration in any case in which there is contention as to the grant; or in which it otherwise appears to him that probate: or letters of administration ought not to be granted in his Court. Explanation.

"Contention" means the appearance of any one in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceedings."

7. Section 295 of the Succession Act, 1925 is reproduced herein below:-- "

295. Procedure in contentious cases.

In any case before the District Judge in which there is contention, the proceedings shall be taken, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure 1908, in which the petitioner for probate or letters of administration," as the case may be, shall be plaintiff, and the person who has appeared to oppose the grant shall be the defendant."

8. The contention of the learned counsel for the petitioner that the objector has based his claim on oral gift and has not mentioned the name of witnesses before whom the said gift was made, therefore, he has got no caveatable interest could not be decided at this stage because it requires full-fledged inquiry specified in section 295 of Succession Act.

9. Perusal of above provisions of law and the facts of the case indicates that the contention has been raised by the objector, therefore, this court could not proceed to decide the matter in a summary fashion and under section 295 where there is contention, proceedings must take the form of regular suit according to the Civil Procedure Code. In the above circumstances, I hereby convert the Succession Miscellaneous Application into Civil Suit. The petitioner will become the plaintiff and the Caveator will be the defendant. With above observation the objection raised by the objector is decided in above terms. SAK/D-5/K Order accordingly.