P L D 1979 Lahore 34(2) (PLP)

The appellants have by this appeal called in question the propriety of the order dated 18-12-1977 whereby the learned Civil Judge, Lahore had declared, by granting a succession certificate, the respondents' right to claim 3/10th share of all the assets left by the deceased including those which were not initially included in the application.

2. On the death of Syed Abdul Qadir who was the predecessor of the parties, Mst. Majida Qadir, appellant No. l applied for the grant of a succession certificate in respect of a sum of Rs. 27,760 being the debts and securities of the deceased namely an Insurance Policy, Post Office Saving Bank Account and the Defence Bonds. There is no dispute that the appellants collectively own 7/10 share, whereas the respondents have 3/10 share, but the difference arose when an amount of Rs. 38,776.54 relating to the Group Insurance and the Gratuity left by the deceased was collected by appellant No. 1 as his nominee. The respondents, by a separate application, claimed 3/10 share in the said amount but the appellants on the other hand, claimed that the respondents had no right therein. The learned Civil Judge took up both the applications together and held that the appellant No. 1, being a nominee of the deceased, had the right merely to collect the money and the respondents were also the owners of 3/10th share in that sum also. He, therefore, granted the succession certificate for the total sum left by the deceased and held the respondents the owners of 3/10th share. Hence this appeal.

3. The learned counsel for the appellants contended that the amount relating to the Group Insurance and to the Gratuity had since been withdrawn by appellant No. 1, it was, therefore, no more a debt or security of the deceased, and as such it could not be included in the sum for which a succession certificate was applied for. I do not agree with this argumen for the reason that a Succession Certificate can be given only in respect o the debts and securities of a deceased person which goes to his heirs. The Court in granting a Succession Certificate has only to make a prima faci enquiry as to whether the debt mentioned in the schedule did or did no belong to the deceased. The parties are unanimous so far as the sum of ,t Rs. 27,760 is concerned, but since the other amount in respect of the Group Insurance and the Gratuity was also left by the deceased, and if it had no been collected by appellant No. 1, the same would have conveniently been distributed among all the heirs according to their shares. This amount was claimed by the appellants exclusively because one of them was a nominee appointed by the deceased. In Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others (PLD SC 185) it is laid down that nomination merely confers a right to collect money or to receive the money. It does not operate as a gift o as a will, and therefore cannot deprive the other heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased. In the light of the rule set down above, there is no reason why the appellants can claim the whole of the disputed amount to the exclusion of the respondents. The learned trial Court was, therefore, justified in including this amount in the succession certificate for distribution among the lawful heirs of the deceased.

4. It is also not correct to say that the amount collected by the appellants was no more a best of the deceased and it was not capable of being included in the succession certificate. Section 376 of the Succession Act (XXXIX of 1922) provides that the Court may extend the certificate to any debt or security not originally specified therein, and every such extension shall have the same effect as if the debt or security to which the certificate is extended has been originally specified therein. Since the amount relating to the Group Insurance and the Gratuity belonged to the deceased at the time of his death and collected by some of the heirs, it could be included in the certificate and disbursed accordingly. There was, therefore, no necessity for filing a fresh suit as provided by section 375 (2) of the Act. The learned Civil Judge has, thus, not acted in his jurisdiction illegally or with material irregularity.

5. For the foregoing reasons there is no force in the appeal and the same is dismissed with no order as to costs. S. A. H.