P L D 1994 Karachi 173 (PLP)

This is a petition for grant of Succession Certificate and Letters of Administration S.M. Asim died at Karachi on 5-12-1990. He left a Will which is dated 7th March, 1990. The Will is annexed to the petition. By that Will, he appointed Muhammad Siddique as the Executor. The petitioner has by this petition applied for the grant of Succession Certificate and Letters of Administration in respect of the properties mentioned in Schedules `A', `B', `C' and `D'. Probate in respect of the said Will has not been granted nor has even been applied for, The office of this Court dealing with testamentary matters raised the objection about maintainability of the petition. The petitioner, however, contended that there is no legal bar to the grant of Succession Certificate and Letters of Administration. Under the circumstances, the point for consideration is whether there is anything in section 213 of the Act which prevents the grant of Succession Certificate and Letters of Administration' applied for. by this petition. Now, this is a petition under section 276 of the Succession Act. Subsection (1) of section 370 of the Succession Act (hereinafter referred to as `the Act') provides that a succession certificate shall not be granted with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by Letters of Administration or Probate. As it has been stated that the deceased has left a Will, Section 212 which applies when there is no Will need not be considered by me. Section 213 of the Act, however, applies when there is testacy and is, therefore, relevant. Subsection (1) of that Section, so far as it is relevant, provides that no right as executor can be established in any Court of justice, unless a Court of competent jurisdiction in Pakistan has granted probate of the Will or Letters of Administration with the Will or with a copy of an authenticated copy of a Will annexed. Subsection (2) of that Section, so far as it is material, provides that nothing in Section 213 shall apply in the case of Wills made by a Muhammadan. As this petition is for debts, movable and immovable properties, a Succession Certificate and Letters of Administration could be granted, because of the provisions of Section 370(1) only if in respect of these debts, movable and immovable properties, a right is required by subsection (2) of Section 213 to be established by probate. As the deceased was, however, a Muhammadan, because of the provisions of Section 213(2), the provisions of subsection (1) of that Section did not apply. Mr. Abdul Rauf contended that the amendments introduced in Section 213 of the Act were repealed by the Federal Laws (Revision and Declaration) Ordinance, 1981 (Ordinance No. XXVII of 1981). Section 2 of the Ordinance provides that the laws specified in the First Schedule are hereby wholly repealed. The Succession (Amendment) Act, 1974 is at serial No.247. The Succession (Amendment) Ordinance, 1978 is at serial No.

273. It may be advantageous to reproduce Section 6-A of the General Clauses Act, 1897 which reads as under:- "6-A. Repealed of Act making textual amendment in Act or Regulation.--Where any Central Act of Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." A plain reading of the above Section 6-A shows that when an amending Act, whereby the text of Central Act or Regulation was amended, is repealed, then, unless a different intention appears, the repeal is not to affect 19 the continuance of any such amendment made by them (Amending enactment) so repealed. In other words, the effect of above Section 6-A is, the amendment, if it was in the text of any Act or Regulation, was to continue. . The question is what is effect of Amending Act, 1974 and Amending Ordinance, 1978 by Section 2 of the Ordinance, 1981. The Principle of interpretation in this regard shall have to be deduced from Section 6-A of the Act. If, therefore, a different intention does not appear from the Ordinance 1981, clauses (a) and (b) the of Succession Act shall continue to remain in force in spite of the repeal of Amending Act, 1974 and Amending Ordinance, 1978. Let me see if a different intention appears. This intention has to be determined with reference with the repealing law, i.e., the Ordinance of 1981. If the Ordinance had simply repealed the Amending Act, 1974 and the Amending Ordinance, 1978 and not made any alternative provisions inconsistent with the said Act and Ordinance, the C intention would of course have been to keep the amendments alive. Section 6-A contemplates that the function of the Amending Act or Amending Ordinance is about wholly to effect incorporation and when that is accomplished, they die as it were a natural death which is formally effected by their repeal. In such a case, the additions made by the Amending Act and Ordinance become a part and parcel of the original Act and any reference to the original Act subsequent to the date of the amendment would automatically be a reference to the Act as amended. It is clear from this provision that textual amendments become a part, of the Amended Act and even the repeal of the Amendment Act does not affect the actual amendments which are so incorporated in the principal Act. I am, therefore, of the opinion that Section 213 debars the petitioner C from applying for and obtaining the Succession Certificate and Letters of Administration as applied for by this petition. The office objection is upheld. AA./M-1903/K Order accordingly.