1989 PLP 34 (MLD)

‑‑‑S.383‑‑Succession Certificate‑‑When a stranger succeeds in obtaining certain amount from estate of a deceased in pursuance of filing proceedings for a Succession Certificate, Court has power to rectify such a mistake‑‑Appellant sought succession certificate on basis of alleged gifts which were not established through competent proceedings before a competent Court of law‑‑Trial Judge concluded that although there were two orders for payment of certain amount from amounts realised by Nazir of Court from estate of deceased but there was no order (or grant of Succession Certificate‑‑Trial Judge directed appellant to redeposit amount received by her in pursuance of an order passed by Trial Judge in succession application‑‑Order of Trial Judge, held, was in consonance with law. AJMAL MIAN, J.‑‑This appeal is directed against the order dated 2nd June, 1988, passed by a learned Single Judge of this Court in Succession Misc. Application No. 22 of 1983, directing the present appellant to redeposit the amount received by her in pursuance of an order passed by the learned Single Judge in the above Succession Application. The ground on which the order under appeal has been passed is that admittedly the appellant has no blood relationship with the deceased in respect of whose estate the above proceedings were filed. The allegations of the appellant in the above application for succession were that certain gifts were given by the deceased. The appellant was seeking the Succession Certificate on the basis of the alleged gifts which were not established through competent proceedings before a competent Court of law. The learned Single Judge has concluded that though there were two orders for the payment of certain amount from the amounts realised by the Nazir of this Court from the estate of the deceased, but there was no order for the grant of the Succession Certificate. The appellant being aggrieved by the above order, has filed the present appeal.

2. Mr. Wazir Ali learned counsel for the appellant has vehemently urged that the appellant even as the donee was entitled to apply for Succession Certificate, as his position is akin to that of a creditor, who is entitled to apply for a Succession Certificate.

3. We are unable to agree with the above contention. Unless and until the appellant establishes the factum of gifts before a competent Court, even if we were to hold that a Donee can move an application for Succession Certificate, she had no such right by the time she filed the above Succession Certificate application as admittedly no decree from a competent Court for establishing her rights as a donee was obtained. Then it was contended that since the Succession Certificate was granted, it could not have been recalled. The learned Single Judge has concluded that factually no Succession Certificate was granted, though the orders in favour of the Nazir for realizing certain amounts lying in the name of the deceased in the Banks were passed and the orders for payment of certain amount to the appellant were passed

4. Mr. Wazir Ali has invited our attention to an order dated 28‑9‑1983, whereby the Nazir of this Court was authorised to collect the amount lying with M/s. Taj Company Ltd., Post Master General and Habib Bank Ltd., Bunder Road Branch, Karachi, that there is no order for the grant of the Succession Certificate in favour of the appellant. He then submitted that factually the Succession Certificate has been issued in favour of the Nazir of this Court and since it has been acted upon, the same cannot be revoked.

5. In our view the Court, upon discovery of mistake, could have rectified the same. If a stranger succeeds in obtaining certain amount from the estate of a deceased in pursuance of filing proceedings for a Succession Certificate, the Court, in our view, has the power to rectify such a mistake. The orders seem to be in consonance of law. The appeal has no merits and is dismissed in limine. M.Y.H./R-70/K Appeal dismissed.