2000 PLP 585 (CLC)

This writ petition has been filed to call in question the order, dated 16‑6‑1999 passed by the learned Additional District Judge, Khanewal, whereby, the revision petition filed by the respondents Nos.3 to 11 against the order, dated 29‑10‑1997 passed by the learned Civil Judge, 1st Class Khanewal, dismissing the review petition of the respondents, was set aside.

2. Briefly stated the facts of the case are that the petitioners had filed an application on 18‑9‑1995 for grant of Succession Certificate in regard to the death of Abdul Ghafoor husband of petitioner No. l and father of petitioner No.2. The late Abdul Ghafoor was also the son of respondent No. 3 and brother of respondents Nos. 4 to

11. The respondents Nos. 3 to 11 firstly filed a consenting written statement in the Civil Court. Later on, they resiled from the same and submitted an application for filing a new written reply. The petitioner counsel conceded to it and the respondent No.2/Civil Judge, Khanewal, accepted the application of the petitioners for the issuance of Succession Certificate vide order, dated 15‑5‑1996. Learned Civil Judge, while granting the Certificate determined the shares of the parties and declared that Provident Fund, Group Insurance and Pension will be got only by the petitioners. Against the order dated 15‑5‑1995, the respondents preferred a review application which was dismissed by the Civil Judge vide order, dated 29‑10‑1997. Feeling aggrieved, the respondents Nos.3 to 11 filed a revision petition and the learned Additional District Judge vide order, dated 16‑6‑1999 partly accepted the same wherein he observed that the amount of General Provident Fund shall be distributed between all the legal heirs of the deceased (Abdul Ghafoor) and the amount of Group Insurance shall be paid to Manzoor Ahmad, respondent No.6 (herein). The learned Additional District Judge also directed the trial Court to amend the Succession Certificate accordingly.

3. Learned counsel for the petitioners contended that there is no provision of review in the Succession Act; hence, revision petition against the order of review is void ab initio. He further contended that where review petition is not maintainable, revision is also not competent and that the revisional Court has misconstrued the law. He further, contended that the law does not provide that Succession Certificate could be challenged it is only order which could be challenged; therefore, the order impugned is without jurisdiction. He further submitted that the revisional Court illegally observed that the General Provident Fund shall be distributed between all the legal heirs of the deceased and the Group Insurance shall be paid to Manzoor Ahmad, respondent No.6. He relied on the cases of Fateh Muhammad v. Mst. Irshad Afzal 1999 MLD 1481, Allah Nawaz Khan and 2 others v. Farida Fatimah Khanam 1999 MLD 2738 and Federal Government of Pakistan v. Public‑at‑large PLD 1991 SC 731.

4. On the other hand, learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the petitioners and supported the order of respondent No.l. He contended that the General Provident Fund is the Tarka of the deceased and would come to the legal heirs of the deceased and Group Insurance is the entitlement of the nominees. He further contended that the guarantee has a right to nominate any of his relative. He relied on the case of Muhammad Mumtaz v. Umra Bevi 1999 CLC 806.

5. I have heard the learned counsel for the parties and also gone through the record. The application for grant of Succession Certificate could be made under section 370 of the Succession Act, 1925, which is reproduced as below: ‑‑ "Restriction on grant of' certificates under this part. ‑‑‑ (1) A Succession Certificate (hereinafter in this part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 and section 213 to be established by letters of administration or probate: Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Pakistani Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letter of administration under this Act. (2). For the purposes of this Part, 'security' mean‑‑ (a). any promissory note, debenture, stock or other security of the Central Government or of a Provincial Government; (b). any bond, debenture, or annuity charged by Act of Parliament of the United Kingdom on the revenues of India; (c). any stock or debenture of or share in a company or otherincorporated; (d). any debenture or other security for money issued by, on behalf of, a local authority; (e). any other security which the Provincial Government may by Notification in the Official Gazette, declare to be a security for the purpose of this Part." For issuance of a Succession Certificate, a procedure under section 373 of the Succession Act, 1925 is provided that (1) if the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and on the day fixed for the hearing:‑‑ (a). to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given; and (b). to be posted on some conspicuous part of the court‑house and publish in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate. (2). When the Judge decides the right thereto to belong to the applicant; the Judge shall make an order for the grant of the certificate to him. (3). If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant, if he appears to be the person having prima facie the best title thereto. (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.

6. From the plane reading of section 373 of the Succession Act, it is crystal clear that the Act has provided only summary procedure, and if any person wants that there should be detailed determination of rights he would file a suit under section 37 of the Succession Act and if a person is dissatisfied or aggrieved by issuance of a Succession Certificate he would prefer an appeal under section 384 of the Act against the order of granting or refusing the certificate. Section 384 of the Succession Act has provided appeal which is reproduced below:‑‑ "

384. Appeal.‑‑‑ (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made there for to grant it accordingly, in supersession of the certificate, if any, already granted. (2). An appeal under subsection (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (V of 1908). (3). Subject to the provisions of subsection (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (V of 1908), as applied by section 141 of that Code, an order of a District Judge under this part shall be final." . Section 388 of the Act contemplates:‑‑ "

388. Investiture of inferior Courts with iurisdiction of District Court for Purposes of this Act.‑‑‑ (1) The Provincial Government may, by notification in the official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2). Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge: Provided that an appeal from any such order of an inferior Court as is mentioned in subsection (1) of section 384 shall lie to the District-Judge, and not to the High Court and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that subsection authorises the High Court to make by its order on an appeal from an order of a District Judge. (3). An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing subsection shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (V of 1908) as applied by section 141 of that Code, be final. (4). The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5). A notification under subsection (1) may specify any inferior Court specially or any class of such Courts in any local area. (6). Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge." Section 388 of the Act provided that Provincial Government may by notification in the official Gazette authorized any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under Succession Act. If the Civil Court inferior to the Court of District Judge passes an order, granting a succession certificate, from such an order an appeal shall lie to the District Court by virtue of provision to section 388(2) and not to the High Court. In this context, a reference can be made to the case of Bisesar Sheudayal Soonar v. Jairam Bariyar Soonar AIR 1940 Nag.

162. An order of District Judge on an appeal from an order of inferior Court under the last foregoing subsection shall, subject to the provisions as to the reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 as applied by section 114, of that Code, be final. Meaning thereby, that a reference and revision would lie to the High Court and not to the District Court. A Civil Court which for any of the purpose of any enactment is subordinate to, or subject to the control of, a District Judge, shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge.

7. In the instant case, the Succession Certificate was issued by the Civil Judge having the power of District Court under Succession Act, 1925. The respondents Nos.3 to 11 have not filed any appeal against the order of the Civil Judge granting the Succession Certificate and after the expiry of the period of limitation prescribed for an appeal under the Code of Civil Procedure, the order has attained the finality. The respondents have preferred a review petition against the order which is not provided under the Succession Act, 1925.

8. The Civil Judge had dismissed the review petition vide order, dated 29‑7‑1997 and refused to review his earlier order dated 15‑5‑1996, granting the succession certificate. The respondents had preferred a revision petition against the order of dismissal of review petition before the District Judge through a revision petition which was accepted by the Additional District Judge vide impugned judgment. The Succession Act has also not provided any provision for filing of a revision petition before the District Judge. The review petition lies to that Court which has passed the order and revision lies to the next higher Court under section‑115, C.P.C.

9. This Act has provided a special procedure for the grant of a Succession Certificate. The Code of Civil Procedure is not applicable on the cases under Succession Act. An order of the Court is not liable to review; only the certificate can be revoked on any of the grounds under section 383 of the said Act.

10. A revision against the review application under section 115 and Order 47, Rule 1, C.P.C., would be competent from order rejecting the review application provided order to be revised was without jurisdiction or Court had failed to exercise jurisdiction vested in it or had acted in exercise of jurisdiction illegally or with material irregularity.

11. In the present case, the review was not provided under the Succession Act. The Civil Judge could not review his own order for the grant of Succession Certificate arid the Court has not exercised jurisdiction vested in it illegally or with material irregularity. The case is not covered under provision of section 115, C.P.C. which has provided a revision to the District Judge. Had an appeal been filed by the respondents before the District Judge, the District Judge was competent to set aside or correct the order passed by the Civil Judge. No such appeal was filed; therefore, the District Judge could not exercise his jurisdiction in any manner. A reference, to this respect, can be made to the case of Syed Arif Shah v. Abdul Karim PLD 1986 Kar. 189, wherein the Honourable Judge of the Karachi High Court has observed that no mistake in a considered conclusion, whatever extent of that mistake, could be a ground for exercise of review jurisdiction Review was a remedy to be used only in exceptional circumstances and same could not be claimed as a matter of right even though ground for review existed.

12. Where there is no provision of review in the Act against the order of the Civil Judge, granting the Succession Certificate, therefore no revision would be competent against such order. The Act has provided the remedy of appeal and revocation of certificate and has not provided provision of review and revision. A certificate granted under the Act may be revoked on any of the following grounds: ‑‑ (a) that the proceedings to obtain the certificate were defective in substance; (b) that the certificate was obtained fraudulently by making of a false suggestion, or by the concealment from the Court of something material to the case; (c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; (d) that the, certificate has become useless and inoperative through circumstances; (e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked. It reveals that the order of issuance of certificate is not review able only the Succession Certificate could be revoked on any of the grounds mentioned in section 383 of the Act. It is therefore observed that respondents Nos.3 to 11 had adopted a wrong procedure for which there was no provision in the said Act. In view of the above discussion, the writ petition succeeds and the impugned judgment, dated 16‑6‑1999 passed by the Additional District Judge, Khanewal, is declared to have been passed without lawful authority and of no legal effect and the writ petition has been accepted on the ground of jurisdiction only, therefore, there is no need to give findings on other points/merits of the case. Q.M.H./M.A.K./R‑4/L Petition allowed.