' MUHAMMAD ALI MAZHAR, J.---This petition is brought under section 372 of the Succession. Act for the grant of succession certificate in respect of debts and securities of late Muhammad Ali son of Virjee Bhayani and Mst. Daulat W/o Muhammad Ali.
1. The names of legal heirs are mentioned in paragraph 3 of the petition. The details of debt and securities relating to both the deceased are mentioned in Annexure "A".. The note of Deputy Registrar (OS) dated 5-5-2011 shows that notices have been. Issued to all the legal heirs and publication has also been effected in daily Jang, Karachi dated 27-4-2011, but nobody has filed any objection. Today the petitioner is not present in person due to his treatment in USA, but he is being represented by his attorney namely, Riaz son of Barkat Ali Bhayani. Copy of original general power of attorney shown to the office and the same was returned after seeing the original. Photocopy of the general power attorney is taken on record.
2. The affidavit of no objection of legal heirs Aashiq Ali Bhayani is at Page No,67, and on behalf of Tajuddin, his son Shahzeen had filed affidavit of no objection on the basis of general power of attorney which is available at Page No,75 but today Tajuddin is himself present in court and he concedes to the grant of this petition and accepts the contents of affidavit filed on his behalf by his attorney to be true and correct. Affidavit of Barkat Bhayani is at Page No,71, affidavit of Sher Ali is at Page No,85, and affidavit of Karim Sherali is at Page No,89. All legal heirs have filed their affidavits of no objection and two witnesses, namely Feroze Meghani and Noor Ali Jivani are present and have also filed their affidavits that they know the family and confirmed that the petitioner has rightly mentioned the names of all legal heirs in the petition without any concealment or suppression. No objection was filed or received from any quarter and all formalities have been complied with hence there is no impediment or obstacle and or any legal disability to the grant of this petition.
3. This matter was fixed for hearing of main petition on 15-8-2011 on which date the learned Judge of this court directed NADRA for submitting "B" Forms of the deceased Muhammad Ali son of Virjee Bhayani and Mst.Daulat wife of Muhammad Ali and the petitioner was also directed to file heirship certificate. The Deputy Registrar (OS) of this court after completing due formalities in accordance with law fixed the matter in court for hearing of main petition in which neither any requirement of heirship certificate was mentioned nor any "B" Form from NADRA. The Deputy Registrar in his report dated 5-5-2011 clearly informed that publication/citation was effected in Daily Jang, Karachi on 27th April 2011 but none has filed any objection. Notices were also issued to all legal heirs through registered post A.D. And courier service and they have filed their affidavits of no objection.
4. The requirements for filing petition for Succession Certificate are provided under Section 372 of the Succession Act, 1925 which are as under:--
(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 residence;
(d) the right in which the petitioner claim;
(e) the absence of any impediment under section 370 or under any other provisions 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 certificate is applied for.
5. According to Rule 379 of Sindh Chief Court Rules (OS), application for succession certificate is required to be made in Form 25, which is provided in Appendix "A" and notice is required to be issued to the next of kin by the Registrar (OS) under Rule 392 of Sindh Chief Court Rules (OS). The aforesaid provisions of law clearly lay down that a person who has preferred a petition for succession certificate is only required to fulfil the conditions mentioned above and there is no specific provision for calling any "B" Form or heir ship certificate from the legal heirs of the deceased, nor any such provision has been brought into statute by virtue of any amendment.
6. The share of inheritance in Islamic Law becomes due only after opening out of succession. Under Chapter V, Article 39 of the Mahomedan Law the provisions for administration of the estate of deceased Muslim are provided. While Article 40 relates to vesting of estate in executor and administrator and inter alia provides that the executor or administrator, as the case may be, of a deceased Muslim, is under the provisions of the Succession Act, 1925, section 211, his legal representative for all purposes, and all the property of the deceased vests in him as such. The estate vests in the executor, though no probate has been obtained .By him. Likewise Article 44 pertains to distribution of estate and it provides that since the estate devolves the heirs at the moment of the death of the deceased, they are at liberty to divide it at any time after the death of the deceased. The distribution is not liable to be suspended until payment of the debts. (Reference can be made to Principles of Mahomedan Law by Sir Dinshah Fardunji Mulla, Pakistan Edition (Mansoor Book House).
7. Section 211 of the Succession Apt, 1925 is linked with character and property of executor or administrator and provides that the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all property Of the deceased person vests in him as such. It further states that when the deceased was Hindu, Muslim, Buddhist, Sikh or (Jaina or Parsi) an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.
8. The above provisions of law make it clear beyond all shadow of doubts that there is no statutory requirement to insist the legal heirs/petitioner to submit Form-B or heir ship certificate along with the petition either for Succession Certificate or letter of administration. It is also a fact that before the grant of petition, the court for its own satisfaction not only calls the affidavits of no objection of all legal heirs, affidavits of two witnesses who also appear in court with legal heirs and confirm the veracity of the petition including the list of surviving legal heirs, the Deputy Registrar, also issues citation in the vernacular newspaper for inviting objection not only from legal heirs in order to rule out the possibility of any dispute or contention but also from all rule out the possibility of any dispute or contention but also from all codal formalities, the matter is fixed in court for hearing of main petition. However in case of any dispute or contention regarding the parentage or legitimacy and acknowledgment or concealment or suppression of legal heirs by the other legal heirs or in case of more than one marriages of the deceased, the requirement of submitting or summoning Form-B issued by NADRA may be one of the relevant considerations to decide the factum of inheritance and status of actual legal heirs but again this will not be a sole criterion to decide. If a person before his death is failed to intimate NADRA or fill B-FORM, it does not mean that after his death, no succession certificate will be issued to the legal heirs due to non-completion or fulfilment of this only requirement and their right of inheritance will be neither suspended nor snatched away only for this reason alone. However, it is for the court to decide and in case of any reasonable doubts, dispute or contention, it can make necessary enquiry so that rights of deserving person may not be affected and surely this is one of the reasons for which, court grants succession petitions subject to furnishing of surety as per rules in order to satisfy and cope with any future claim.
9. As a result of above discussion, I am satisfied that in this case all necessary requirements have been fulfilled, nobody come forward to oppose the petition nor filed any objections in spite of issuing notices and publication in the newspaper, all legal heirs have also filed their affidavits of no objection, thus there is no impediment or legal disability to the grant of Succession Certificate.
Consequently, this succession petition is allowed. Let succession certificate be issued to the petitioner as per rules.