Revocability

2017 YLR 150 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 373(3), 384, 387 & 388Application for succession certificateProcedureIssuance of succession certificate during pendency of declaratory suitValidityHolder of succession certificateLiability towards rightful claimantSuccession certificateRevocabilityProof of divorce of wife of deceasedRequirementStatus of widowDeterminationPresumptionApplication for issuance of succession certificate by widow of deceased

Respondents took plea that the deceased had divorced the applicant during his lifetime, and only they being brothers and sisters were entitled to his legacy

Respondents (brothers and sisters) also filed a suit for declaration claiming themselves as sole legal heirs of the deceased and applicant as his divorcee having no right in legacy

Trial Court issued succession certificate in favour of applicant (widow) and respondents on the ground that court, under S. 373(3) of Succession Act, 1925, could proceed with succession application even while leaving aside issues relating to intricate questions of fact and law to be resolved by competent court and taking into account the obvious factual position

Contention raised by respondents was that succession certificate could not be issued during pendency of civil suit and without resolution of question as to divorce of applicant

Validity

Safeguard was provided to rightful claimant and liability of holder of succession certificate to rightful claimant under S. 387 of Succession Act, 1925

Trial Court clearly found that applicant would be considered as widow of deceased unless and until her alleged divorce was established by decree of civil court and that in case in the suit the applicant was declared as divorcee of the deceased, she would be bound to return share she would collect from the legacy

Law allowed Court to grant certificate to applicant who appeared to be a person having prima facie the best title thereto, notwithstanding a rival claim appearing intricate and difficult to determine in summary proceedings

Nothing was wrong with impugned order of Trial Court after Nikkah was proved and the divorce could not be proved from record by respondents in summary proceedings for issuance of succession certificate

Appeal was dismissed in circumstances. (b) Succession Act (XXXIX of 1925)