2013 PLP 406 (CLC)

SALAHUDDIN PANHWAR, J.

The appellant Aziz has filed Miscellaneous Appeal challenging the legality of the impugned order dated 4-5-2010, whereby the Succession Application under section 372 of Succession Act, 1925 was dismissed.

2. Succinctly, the facts leading to the appeal are that the appellant filed Succession Application No.14 of 2007, stating therein, that his father namely Muhammad Ismail passed away on 24-2-2007; deceased had two wives namely Phapul, mother of the applicant and Mst. Phapi, who was divorced by the deceased; deceased deposited an amount of Rs.2,54,061 to the Commissioner Workmen's Compensation and Authority under Payment of Wages Act, where so-called Ex-wife Mst. Phapi has also submitted claim for the dues of the deceased Muhammad Ismail; the applicant being legal heir claims the said amount.

3. Record reveals that after filing Succession Application before the learned District Judge Jamshoro @ Kotri, intervener Mst. Phapi, Nazir Ahmed, Anwar Ali, Abdul Razaq, Shah Jehan and Mst. Reshman appeared in Succession proceedings and claimed that they are also legal heirs of deceased Muhammad Ismail. In support of that some documents were filed. Thereafter, pursuant to the order of District Judge an inquiry was conducted, according to that, legal heirs of deceased Muhammad Ismail were shown as under:

(1) Phapi wife of late Muhammad Ismail Khaskheli. (2) Nazir Ahmed son of late Muhammad Ismail Khaskheli. (3) Anwar Ali son of late Muhammad Ismail Khaskheli. (4) Abdul Razzaque son of late Muhammad Ismail Khakheli. (5) Shah Jehan daughter of late Muhammad Ismail Khaskheli. (6) Reshma daughter of late Muhammad Ismail Khaskheli. (7) Aziz Ahmed son of late Muhammad Ismail Khaskheli. (8) Mst. Hakimzadi daughter of late Muhammad Ismail Khaskheli. After hearing both the parties, learned District Judge, Jamshoro declined the prayer of the applicant with following observations:

"Perused the material available on record, both the parties are claiming to be the legal heirs of deceased Muhammad Ismail, therefore, in order to reach proper conclusion of the matter both the parties are directed to seek remedy from the competent Civil Court, having jurisdiction regarding declaration that who is the real and actual legal heirs of deceased."

4. The counsel for applicant inter alia contended that impugned order is against the spirit of proviso 4 of section 373 of Succession Act, 1925, in which it is provided that Succession Certificate can be granted even in case of dispute regarding legal heirs; Mst. Phapi is not the same lady and according to documents, she is not residing in the same vicinity; claimant Mst. Phapi has failed to prove that she is same lady who was the wife of deceased, therefore, she along with her children is not entitled for the claim of amount deposited by deceased Muhammad Ismail. In support of his contentions, he has relied upon the case of Rukhsana Kausar and another v. Additional District and Sessions Judge Khanewal and 11 others (2000 CLC 585), Mst. Jameela Akhtar v. Public-at-Large (2002 SCMR 1544).

5. Conversely, learned counsel for private respondents argued that the intervener, in proceedings of Succession Petition, namely Mst. Phapi is the real wife of deceased and by virtue of that she is getting benevolent fund and family pension from Old Age Benefit Institution; amount deposited by deceased Muhammad Ismail is not in saving scheme and there is dispute over legal heir ship, therefore, same may be allowed to be deposited in any saving Scheme. Learned counsel has also filed objections along with annexures. He has relied upon the case of Imtiaz Shamim and others v. Muhammad Irfan-ul-Haq and others (2006 CLC 1189, Ameeran Khatoon v. Mst. Shamim Akhtar and others (2005 SCMR 512) and case of Malik Safdar Ali Khan and another v. Public-at-Large and others (2004 SCMR 1219).

6. The counsel for the State has argued that the impugned order is not suffering from any illegality and same is maintainable in law.

7. I have given serious consideration to the contentions of learned counsel for the parties and have perused the impugned order and the documents filed by the respective parties. Before dilating to the factual aspects of this case, it will be proper to examine section 373(4) as referred by the counsel for the appellant. It will be conducive to understand concept of concerned clause of section 373 of Succession Act, 1925, hence for convenience the same is reproduced as under:

"(3) If the Judge cannot decide the right to the certificate without determining question 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 person having prima facie the best title thereto." I have also examined the case-law on this point, relied by the learned counsel for the appellant. In case of Mst. Jameela Akhtar (supra), it is held that:

"

3. We have heard learned counsel for the petitioner and Syed Zulfiqar All Bokhari, learned counsel for respondent No.3 Mst. Umat-ul-Hameed. We find that Nikah on which respondent No.3 placed reliance in this case prima facie appears to be a mutilated document, for the name of the bride was Surrya Begum which was scored of and below her name, Mst. Umat-ul-Hameed had been written. An application was made by the petitioner before the trial court for summoning the record of the Union Council to ascertain whether the said Nikah was entered in the relevant register under the Family Laws Ordinance but no order was passed on this application.

4. We find that the trial court while granting succession certificate to respondent No.2, should have directed that no share of the said amount should be paid to Mst. Umat-ul-Hameed unless she gets a decree from the Civil Court about her status as widow of Muhammad Zafarullah Khan, deceased, for such, a question could not be decided in summary proceedings." In case of Rukhsana Kausar (supra), it is held that only summary procedure is provided for issuance of Succession Certificate under section 373 of Succession Act, 1925. If any person wants a detailed determination of rights, remedy lies in shape of suit filed under section 373 of the Succession Act, 1925. When a person is dissatisfied or aggrieved with issuance of Succession Certificate an appeal under section 384 Succession Act, 1925 lies. From the bare perusal of the above sub proviso of section 373 of Succession Act, 1925, it appears that this section is related to the extent of the share of one applicant and same is relevant when dispute on some share arose and also on this point the dictum of honourable Supreme Court in which authoritative proposition of law is laid down which is to the effect that the proceedings under Succession Act, being summary in nature, cannot help in determining the issue of status of a party hence in the event of dispute of status of a party the proper course would be for parties to approach the competent Civil Court for declaration of such disputed status and then to resort to course, provided under the Succession Act". As discussed above case-law, it is suffice to say that according to the procedure on jurisdiction of Civil Court and District Judge in matters of Succession petitions, there is no cavil on this proposition of law that in case of dispute on claim of any property which is subject matter in the Succession petition and dispute is regarding status of legal heirship, the proper course would be to approach the Civil Court for deciding the legal character by adducing the evidence hence it needs no further reiteration that status of a person cannot be determined in succession proceedings, being summary in nature. Now let the case, in hand, be examined on this touch-stone. The perusal of the record shows that in Para No.3 the appellant/applicant has mentioned that late Muhammad Ismail had two wives Phapul and Phapi, simultaneously he claims that Phapi was divorced by the deceased. It is also surfaced in para No.5 of the petition where it is mentioned that so-called Ex-wife Mst. Phapi has also submitted her claim for the dues of late Muhammad Ismail hence the status of Mst. Phaphi to be wife of the deceased is not disputed more particularly when in result of the inquiry, got conducted by learned District Judge, Jamshoro through Mukhtiarkar, Kotri, Mst. Phaphi was found to be wife (widow) of the deceased, Nazir Ahmed, Anwar Ali, Abdul Razaq and Shah Jehan as son and Mst. Reshma as daughter of deceased Muhammad Ismail, therefore, it can safely be said that it is no more disputed that Mst. Phaphi and her children are legal heirs of deceased. However, the record shows that what the petitioner has disputed in the petition is that Mst. Phaphi was divorced by the deceased and that who appears and participated in the proceedings, is not the same Phaphi, the other wife of the deceased. Following the guidance, provided by the honourable Supreme Court of Pakistan in the above case-laws, it would suffice to say that both these issues cannot be determined in the succession proceedings, being summary in nature, therefore, the impugned order, whereby the parties have been directed to resort to a proper course by approaching the Civil Court regarding determination of the disputed issues revolving around the status of parties,) does not suffer from any illegality or infirmity.

8. The counsel for respondents Nos.1 to 7 has relied upon some citations, as referred above, which relates to the issue of the nominee; dispute regarding disbursement of amount and that as to whether nominee is owner of the amount. On this point there is no dispute and it is now settled principle of law that nominee is not entitled as owner of the amount subject-matter in the Succession matters, is the only representative and legal, duty bound to receive the amount and disburse amongst the legal heirs.

9. Under these circumstances, this appeal carries no weight, which is hereby dismissed. However, Commissioner for Workmen's Compensation and Authority under Wages Act is hereby directed to deposit the said amount in some profitable Saving Scheme till the controversy between the parties is resolved from the competent court of law.

10. Before parting, regarding the objection of learned counsel for the appellant that under what capacity, the respondent Mst. Phapi is getting pension etc, it would suffice to say that this issue is not before this court hence needs not be responded, however, the applicant is at liberty to seek remedy provided under the law to raise and have this issue decided. KMZ/A-148/K Appeal dismissed.