1. ' ZAHID HAMID, J.---By this order M.A. No, 31 of 2009 and M.A. 32 of 2009 filed by the appellants Muhammad Sohail Siddiqui, Muhammad Shakil Siddiqui and Muhammad Aqeel Siddiqui against Mst. Parveen alias Muuni arising out of SMA Nos. 232 of 2009 and 465 of 2008 whereby the learned lower Court was pleased to dismiss SMA No,232 of 2009 as having become infructuous and returned the other SMA No,465 of 2008 for presentation in the competent Court of Law.
2. ' Briefly stated the factual background is that in March, 2009 the appellant No, 1 filed an application for the grant of Succession Certificate bearing SMA No, 232 of 2009 under section 278 of the Succession Act, 1925 in the Court of learned District Judge East Karachi for grant of Letters Of Administration in respect of immovable properties left by the deceased Muhammad Shafiq Siddiqui shown in the schedule of the property as Flat No, 1/246 on plot admeasuring 80 square yards situated in Shah Faisal Colony Karachi with double storeyed house constructed thereon, approximately valued at Rs, 20,00,000.
3. ' However previously the appellant No, 1 had already filed SMA No, 465 of 2008 under section 372 of the Succession Act for grant of the Succession Certificate in respect of an amount of Rs,1756027.09 lying in different accounts with different banks and some amount invested in Behbood Saving Certificates. The total amount of the valuation for the Succession Certificate was shown as Rs, 1756027.09. Both the SMAs came to be transferred to the learned Vth Additional District Judge Karachi East.
4. ' The proceedings were initiated separately and separate numbers were as assigned to them under different provisions of the Succession Act, 1925 at different times. It appears that both proceedings were consolidated immediately before their final disposal despite opposition and by adding up of the value, of the immovable property, cash and the Saving Certificates, the learned lower Court came to the conclusion that, he value of the two subject-matters put together had exceeded its pecuniary jurisdiction limited to Rs, 30,00,000 and as such under the circumstances one SMA was returned for presentation in the High Court and the other was dismissed as infructuous.
5. ' It appears from the order dated 28-5-2009 passed by the learned Vth Additional District Judge Karachi East in SMA No, 465 of 2008 and SMA No, 232 of 2009 that the exercise of consolidation of the two proceedings was done by the Court suo motu without even notifying the petitioner / appellant what it was proposing to do and without affording proper opportunity of being heard to the appellant.
6. ' Explaining his plight before the learned lower Court the learned counsel for petitioner has stated in the memo of appeal that on 8-5-2009 the learned Vth Additional District Judge suo motu raised the question of pecuniary jurisdiction in SMA No, 232 of 2009 and pointed out that the total value of the immovable property was Rs, 20,00,000 in that SMA and in the other SMA No, 465 of 2009 the amount lying under different accounts inter alia in shape of investment in Behboob Saving Certificates was Rs, 1756047.09 and proceeded to consolidate the same through the prayers were restricted to each claim. The learned counsel stated that the learned Additional District Judge did not consider the explanation that SMA No,232 of 2009 could not be filed earlier as the title documents of the immovable property were not available with him. The consolidated valuation of the two separate matters having thus been allowed to exceed thirty lacs the learned Vth Additional District Judge returned one for presentation before High Court and dismissed the other as having become infructuous.
7. ' I have heard learned counsel for the appellant. He argued that basically two proceedings i.e, SMA for grant of Letters of Administration and SMA for grant of Succession Certificate were filed separately and separate court fee was paid and each proceedings was independent of the other and maintainable under different provisions of Law of the Succession Act. Even the appeals were provided under separate provisions and therefore the appellant was at liberty under such circumstances to pursue each remedy separately. Strictly peaking the concept of making joint application for the Succession Certificate and the Letters of Administration does not seem to be inherent or innate to the provisions of Successions Act. Succession Certificate can be applied for under section 372 and the Letters of Administration can be applied for under section 278 of the Succession Act and even the appeals have been provided for separately under sections 384 and 299 of the Succession Act respectively. Broadly speaking therefore the proceedings were distinct and could be entertained and decided by the learned lower court separately.
8. ' There are different Articles in the Schedule 2 of the Court Fees Act which separately deal with affixation of appropriate court fees in each case. It seems that the legislature at the time the Succession Act was formulated conceived the two proceedings as basically segregated. It is only a few decades before that the litigants have started filing joint applications for Succession Certificate and Letters of Administration and the learned superior Courts endorsed such practice because of there being no specific prohibition though it may appeir to be implied by necessary intendment. It is the matter of common observation that separate the suits are filed emanating from the same transaction on the same day and the same are proceeded with after being tagged by the same court without adding up valuation and returning the same. Objection to such procedure is considered immaterial when the court fee is paid. For instance suit for partition on one hand and suit for dissolution of partnership and accounts.
9. ' Learned counsel for appellant has relied on 1985 M LD 1559 Karachi in Re: Succession Certificate in Respect of. Assets and Liabilities of Muhammad Hanif Qureshi Deceased (Filed by Muhammad Saleem son of the Deceased). In this case it was held that more than one Succession Certificate can be granted after it was noticed that Letters of Administration were obtained from the High Court of Justice, London in respect of grant of 14424804 with bank of Credit and Commerce International, Earls Court Road Branch London. Reference was made to the full Bench decision of Allahabad High Court in Ghafur Khan v. Kalandari Begum ILR 33 All. 237 wherein it was held that there could only be one certificate in respect of properties of the deceased. Subsequently however the Division Bench of Allahabad High Court in Sharif-un-Nisa Bibi v. Masum Ali and another ILR 42 All. 347 appreciated the difficulties that might arise and later on Dacca High Court did not follow any of these decisions in Sofia Khan and others v. Abdul Haq and the Full Bench decision of Allahabad High Court was expressly dissented from as well by a Division Bench of Calcutta High Court in Muhammad Abdul Hussain v. Sarifa 16 C W No,321.
10. ' The learned counsel for the appellant has also relied on PLD 1968 Dacca, 952 (MRs, Sufia Khanam and others v. Abdul Huq Khan and others) wherein it was observed, "To lay down a limitation for grant of Succession Certificate where there is none in the statute might involve denial of justice in some cases. Courts should have unfettered discretion to do complete justice in a matter unless law imposes a limitation. A Court has to decide after all relevant considerations as to whether or not it would be in the interest of justice to grant more than one certificate in a case where there is more than one applicant for the same. The Legislature appears to have left the matter to the discretion of the Judge who is empowered to issue more than one. Succession Certificate, by reason of subsection (3) of section 372 Succession Act.
11. ' The learned counsel has also referred to 1999 M LD 1481 Lahore Fateh Muhammad v. Mst. Arshad Hifza wherein it was held that application for Succession Certificate for a portion of assets of the deceased was maintainable where the successor of deceased in his application for Succession Certificate had left out any portion of assets of deceased that, by itself, could not be a ground for refusing issuing of Succession Certificate regarding assets mentioned in the application for Succession Certificate and the application regarding portion of Estate of deceased was competent in law and applicant could not be forced to include entire assets of deceased in application for Succession Certificate. The object of the Succession was to provide speedy remedy and quick decision in Succession matters so that legal heirs of deceased could have their share in immovable assets, ascertained, allocated and disbursed and further the object of filing summary procedure under the Succession Act was also indicative that the Court was to look into the prima facie right of the applicant and intricate questions were not be bothered about.
12. ' Under the Sindh Civil Court Ordinance the proceedings and suits which may be instituted are dealt with separately and it follows there from that if in any proceedings certain valuation has been put then such amount of the subject-matter would determine the pecuniary jurisdiction of that Court.
13. ' The proceedings under the Successions Act are not always contentious and even the provision of Order II Rule 2 which are based on constructive Res judicata would not apply simply for the reason that application of constructive Res judicata is based on invocation of two principles; i) that no one could be twice vexed on the same cause of action and ii) that there should be an end to litigation, In absence of opposite party or in presence of consorting party either of the two principles could hardly apply.
14. ' Two sections which govern the grant of Succession Certificate and Letters of Administration being relevant to the controversial questions may be reproduced from the Succession Act as follows:-- "278. Petition for letters of administration. (1) Application for letters of administration shall be made by Petitioner distinctly written as aforesaid and stating:--
(a) the time and place of the deceased's death;
(b) the family or other relatives of the deceased, and their respective residents;
(e) the right in which the petitioner claims;
(d) the amount of assets which are likely to come to the petitioner's hands;
(e) when the application is to the District Judge, that the deceased at the time of death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(f) when the application is to the District Judge, that the deceased at the time of death had a fixed place of abode within the jurisdiction of such Delegate.
(2) Where the application is to a District Judge and any portion of the assets likely to come to the petitioner's hand is situate in another Province, the petition shall further state the amount of such assets in each Province and the District Judges within whose jurisdiction such assets are situate.
15. "372. Application for Certificate. (1) Application for such a certificate shall be made to the District Judge by the Petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the signing and verification of a plaint by or on behalf of a plaintiff and setting forth the following particulars, namely:--
(a) the time of the death of the deceased.
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it Were granted; and
(f) the debts and securities in respect of which the certificates applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Pakistan Penal Code.
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof."
16. From the general scheme it would appear that the Succession Certificate is meant for movable property i.e, debts and securities and the Letters of Administration for the immovable property and whereas Succession of the immovable property is regulated by the Law of the Country in which person had his domicile at the time of his death and Succession of Immovable property in Pakistan of a person deceased is regulated by Law of Pakistan wherever such person may have had his domicile at the time of his death. Grant of Succession Certificate and Letters of Administration are not only governed by above separate sections but under separate chapters under the Succession.
17. Act. Petition of Letters of Administration under section 278 can be made for administration of the assets belonging to the deceased which are likely to come to the petitioner's hand whereas Succession Certificate which is granted to the petitioner under section 372 of the Succession Act is made in respect of debts and securities left by the deceased and application for Succession Certificate can be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof which implies that more than one applications for grant of Succession Certificate can be made.
18. ' Under section 385 of the Succession Act it has been provided that where more than one certificate or Letters of Administrations has been granted the subsequent grant shall be invalidated. To avoid duplicity of the grant similarly under section 215 effect on certificate of subsequent probate or Letters of Administrations has been laid down to nullify the previously granted certificate in respect of any debt or debts included in the Estate left by the deceased for instance balance sale consideration due to the deceased. Accordingly the word debts under section 372 of the Succession Act which governs grant of Succession Certificate could not include the debts such as balance sale consideration as it would be deemed to be included in the Estate of the deceased.
19. The word debts in this section means such amounts of the deceased lying with any bank. The word securities in this section is referable to common securities which generate profits in shape of dividends any saving certificate issued by the Government, the bank or any other financial institution. Letters of Administration in respect of any Estate give right to administer it and release the respective share to the legal heirs, It is provided under section 302 of the Succession Act that where Letters of Administration in respect of any Estate have been granted, the High Court may on an application made to it, give to the administrator any general or special direction in regard to the estate or its administration. Under section 214 of the Succession Act it has been laid down that no Court shall inter alia proceed upon an application for execution of decree unless the person claiming produces Letters of Administration evincing grant to him of Letters of Administration or a Succession Certificate granted in Part X and having the debts specified therein. The word debt has been defined in subsection 2 of section 214 to mean any debt, except rent, revenue or profit payable in respect of land used for agricultural purposes. So the land, revenue, profit payable in respect of agricultural lands are specifically excluded to form part of claim to a Succession Certificate in respect of any debts. This is because they are perhaps considered as debts included in the Estate just like balance such consideration of an immovable property due to the deceased.
20. The word assets has not been defused under the Succession Act. However according to the Judicial Dictionary 13th Edition K J AIYAR the word "assets" include lands and buildings but the latter do not exhaust assets which an individual can hold. In other words, the assets of an individual are not merely the items of properties which he holds, but also such items minus the liabilities the individual has to discharge thereon and under section 73 of the C.P.C. It means the proceeds of the sale of property in execution proceedings and does not include money paid into court under Order XXI, Rule 55, C.P.C. The right to share of the income would also be included in an assets whereas according to the Black's Law Dictionary 6th Edition word "assets" means property of all kinds real and personal tangible and intangible including inter alia for certain purposes obtained and causes of action which belonged to any person. The word debt is not defined under the General Clauses Act, 1897. Instead the phrase "Government Debts" has been defined and means:- "Government Debts" and equivalent expression shall include debts due to the Central Government, any Provincial Government, the Secretary of State in Council, the Secretary of State, or the Crown Representative.
21. The phrase "movable property': under the same has been defined to mean property of every description, except immovable property. The phrase "Immovable Property" means to include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. In Transfer of Property Act, 1882 the phrase Immovable Property has been defined so as not to include standing timber, growing crops or grass: and the word "actionable claim" has been defined to mean a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing conditional or contingent. Property is generally defined as the right and interest which a man has in lands and chattels to the exclusion of others:-- "The term property' is a generic term of extensive application, and while strictly speaking it means only the right which a person has in relation to something, or that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects, it is frequently used to denote the subject of the property, or thing itself which is owned or in relation to which the right of property exits. In the former sense it extends to every species of valuable right or interest, in either real or personal property, or in easements, franchises, and incorporeal hereditaments, and in the latter to everything which is the subject of ownership, or to which the right of property, may legally be attached, or in other words every class of acquisitions which a man can own or have an interest in it means not only the physical property but also rights in property. Property includes Shamilat Deh and property into or for which some has been converted or exchanged or anything acquired by such a conversion or exchange. A good will of a business is a property. It includes agricultural property. It includes an actionable claim, and, annuity, a copy right in a literary composition, all rights relating to physical objects. Interest of a person in possession without title, the interest of a lessor, right of a person to recover arrears of rent. All the properties need not be transferable or attachable, saleable or even heritable."
22. ' Under section 370 of the Succession Act it is provided:- "370. Restriction on grant of certificates under this part (1) A succession certificate (hereinafter in this part refused to as a certificate) shall not be granted under this part with respect to any debt or security to which right is acquired by section 212 or section 213 to be established by letters of administration or probate: (Both of these sections do not apply to Muslims.)
23. ' Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claming to be entitled to the effect of a deceased (Pakistan Christian), or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letter of administration under this Act.
(2) For the purposes of this part, "security" means:-
(a) any promissory note debenture stock or other security of the (Central Government) or of a (Provincial Government):
(b) amy bond, debenture, or annuity charged by Act of Parliament (of the United Kingdom) on the revenues of India;
(c) anti stock or debenture of or share in a company or other incorporated;
(d) any debenture or other security for money issued by, on behalf of a local authority;
(e) any other security which the (Provincial Government) may by notification in the (Official Gazette), declare to be a security for the purposes of this part.
24. ' Under section 300 of the Succession Act, 1925 the High Court and the District Judge have concurrent jurisdiction. Fetters have been placed on exercise of this jurisdiction by the provisions of Civil Court Ordinance, 1962. Another question which may well arise is whether section 300 of the Succession Act providing for concurrent jurisdiction over the "Subject-Matter" without pecuniary limits would have the overriding effect on the Sindh Civil Court Amendment Ordinance, 2002 or the like statutes previously existing --- Quaere. Under section 7 of the Civil Courts Ordinance, 1962 the District Judge has pecuniary jurisdiction in proceedings in which the value of the subject-matter does not exceed thirty lacs. The word proceedings would mean proceedings for the Succession Certificate and or Letters of Administration as the case may be independently of each other when such proceedings have been initiated separately for grant of Succession Certificate and Letters of Administration. Under such circumstances the District Judge has no power to consolidate the two suo moto and return the one and dismiss the other as infructuous as has been done in this case by the learned lower court. Even in case of return in contemplation under Order VII, Rule 10, C.P.C. The litigant is given an opportunity to correct the valuation. It is also not clear if the original value of the immovable property was lesser than the market value shown in the Schedule. The word proceedings in 1990 CLC 366 (Iqbal Sultan v. Miss Chand Sultan and 2 others) was dilated upon as follows:- "In contentious matters the proceedings are to take, as nearly as may be, the form of a regular suit, according to the provisions of Civil Procedure Code. There is nothing in section 295 or any other provision of the Succession Act which provides that the proceedings are to take the form of suit only up to any particular stage i.e, up to the recording of evidence, and not thereafter. It does not say that in contentious matters the judgment, the decree or the execution of the decree shall not be, as nearly as may be' in the form of a suit. The word "proceedings" cannot be restricted to the recording of evidence, but will cover all the proceedings that take place in a contentious matter, including judgment, decree and the execution thereof. In such cases the judgment, decree and its execution have to take, as nearly as may be, the form of a suit, according to the provisions of Civil Procedure Code. The decree in a contentious matter can be either a decree in Form No, 32 of Appendix 'A', if the parties have no objection to it, or if the Court feels that the interests of justice will be fully and completely served by granting decree in such a form. But if the court feels that the interests of justice cannot be fully and completely served otherwise than by granting a decree resembling that of a suit for administration then not only section 254 of the Succession Act authorizes. Empowers and enjoins the Court to do so but even in the exercise of its inherent powers Court am always do so."
25. Accordingly the word proceedings would mean the proceedings for grant of the Succession Certificate or Letters of Administration and when each has been instituted separately the valuation of the subject-matter as disclosed in each proceedings shall have to be taken into account separately for the purposes of determination of the pecuniary jurisdiction. It would be however open to a legal heir to make a consolidated claim by including the assets and the debts and securities in the same application and if resultantly the valuation exceeds the amount of thirty lacs file the same before the High Court. This is true for Karachi only where the pecuniary jurisdiction inter alia of a District Judge has been limited to thirty lacs under the Civil Courts Ordinance.
26. ' For the foregoing reasons the impugned order dated 28-5-2009 passed by Learned Vth Additional District Judge Karachi East is set aside and the matters are remanded for adjudication of the two SMAs separately and speedily in accordance with Law after due service of notice upon Mst.
27. Parveen alias Munni through S.H.O. Of the area.
28. ' The appeals stand disposed of accordingly.