' ZAFAR AHMED RAJPUT, J:- This High Court Appeal is directed against the order dated 1-10-2012, passed by the Single Judge of this Court in S.M.A No. 207 of 2008, whereby application (C.M.A.
No.730 of 2012) under section 151, C.P.C., filed by the appellant/petitioner for seeking amendment in the said Succession Petition, was dismissed.
2. Briefly stated, the facts of the case are that the appellant had filed S.M.A. No. 207 of 2008, under section 278 of the Succession Act, 1925 for grant of Letter of Administration in respect of the estate of his deceased father, Muhammad Ayub, who died at Karachi on 8-11-1987 leaving behind him the surviving legal heirs, as mentioned in the paragraph No.4 of the said S.M.A. On 26-11-2003 the S.M.A.
Was allowed subject to rules, however, the appellant could not arrange the security and meanwhile two of the legal heirs of deceased Muhammad Ayub, namely, Mrs. Nargis Bano (daughter) and Muhammad Anis (son) also died on 18-9-2009 and 27-2-2011, respectively. Mrs. Nargis Bano was survived by a husband and two daughters. The residue from the share as would have been received by Mrs. Nargis Bano, therefore, is to be inherited by her brothers and the sisters.
Likewise, Muhammad Anis was survived by a widow with the result his brothers and sisters who are already included among the legal heirs of deceased Muhammad Ayub became entitled to the share as would have been received by Muhammad Anis.
3. Under the said circumstances, the appellant filed C.M.A. No.730 of 2012, under section 151, C.P.C.
Praying therein to allow him to amend the Succession Petition by impleading three legal heirs of deceased Mrs. Nargis Bano and widow of deceased Muhammad Anis amongst the list of legal heirs of deceased Muhammad Ayub. The said application was dismissed by the learned Single Judge of this Court vide Order dated 1-10-2012 on the ground that application for amendment in pleadings in a disposed of matter was not maintainable and the learned Single Judge left it open for the legal heirs of deceased Mrs. Nargis Bano and Muhammad Anis to apply afresh for Succession Certificate/Letter of Administration for the debts and securities belong to them. It is the order against that this High Court Appeal has been filed.
4. With the above background, while appointing M/s. Mushtaq A. Memon, Advocate and Khowaja Shams-ul-Islam, Advocate as Amicus Curiae, the legal issue requiring consideration in the present High Court Appeal was noted by this Court in the Order dated 26-2-2014, as follows: "In this case a legal issue has been raised that whether after grant of application for letter of administration/succession certificate a subsequent application could be filed for impleading legal heirs or a new application for letter of administration on fresh cause of action is required to be filed".
5. Heard the learned counset for the appellant, learned Amicus Curiae, and perused the material available on record.
6. Mr. Syed Masroor Ahmed Alvi, the learned counsel for the appellant has inter alia contended that the learned Single Judge of this Court, while rejecting the application of appellant for amendment in Succession Petition, did not consider the fact that the Letter of Administration cannot be issued in the name of deceased. He further contended that the order for grant of Letter of Administration was/is a formal order and since Letter of Administration was not issued, Succession Petition was/is deemed to be pending; therefore, the application filed by the appellant for amendment of Succession Petition was maintainable and liable to be allowed.
7. Mr. Mushtaq A. Memon Advocate, the learned Amicus Curiae, interpreting section 376 of the Succession Act, 1925 and Rule 400 of Sindh Chief Court Rules (O.S.) and referring the case of Miss Soonabai Hormusji Patel v. Mr. Dhunjishaw Hormusji Patel (PLD 1993 Karachi 619) has maintained that the principle of liberal construction as would advance the cause of justice can similarly be applied to the present case. He has further maintained that the difficulty seems to have been invited by the appellant himself by filing an application for amendment of pleadings and the learned Single Judge appears to have rightly held that an application for amendment of pleadings could not be maintained in a disposed of matter. However, applying the principal of advacement of justice and alleviation of technical rigours, the said application can be treated as motion for invocation of section 376 of the Succession Act, 1925 and the discretionary power of the Court be exercised to extend the grant of the share as would have been inherited by Mrs. Nargis Bano and Muhammad Anis out of the original estate of deceased Muhammad Ayub. In this regard, the learned Amicus Curiae has relied upon the case of Mst. Baigan v. Abdul Hakeem and another (1982 SCMR 673) and Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555) whereby it was held that mentioning of wrong provision can always be corrected by the Court of Law.
8. Mr. Khawaja Shams-ul-Islam Advocate, the learned Amicus Curiae has also supported the contentions of Mr. Mushtaq A. Memon, Advocate.
9. At the outset, it is necessary to mention that the jurisdiction for grant of Letter of Administration is exercised under Succession Act, 1925, read with Chapter XXII of the Sindh Chief Court Rules (O.S.).
Indeed, there does not appear any direct provision as could answer the difficulty which is faced by the appellant. However, the Court is not divested of the power to meet like situation, once discretion is invoked by devoting itself to the cause of advancement of justice. The provision contained in Section 376 of the Succession Act, 1925 and Rule 400 of the Sindh Chief Court Rules (Q.S.) permit relaxation of the letter of law instead of applying stringent and literal interpretation of the said provisions. For the sake of convenience, the provisions of Section 376 of the Succession Act, 1925 and Rule 400 of the Sindh Chief Court Rules (O.S.) are reproduced as under:
376. Extension of certificate.--(1) A District Judge may, on the application of the holder of a certificate under this Part, extend the certificate to any debt or security not originally specified therein, and every such extension shall have the same effect as if the debt or security to which the certificate is extended had been originally specified therein.
(2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividends on, or the negotiation or transfer of, any security to which the certificate has been extended may be conferred, and a bond or further bond or other security for the purposes mentioned in section 375 may be required, in the same manner as upon the original grant of a certificate.
400. Amount of administration bond and succession certificate bond.--Unless otherwise ordered by the court or in non-contentious matter by the District Delegate, an administration bond or succession certificate bond shall be given with two or more sureties, approved by the Nazir, for the amount of the value of the property for which the grant or succession certificate issued: ' Provided that, if the value is under Rs. 500, one surety only may be taken.
10. The above provisions have come under consideration in the case of Miss Soonabai Hormusji (supra) Wherein Mr. Justice Wajihuddin Ahmed (as his lordship then was) passed the judgment. In the said case Succession Certificate was granted in respect of two deceased Parsi gentlemen and one lady, who died leaving behind them three legal heirs. After the grant of Succession Certificate, two out of the three legal heirs too expired, before the estate of deceased could be distributed.
Consequently, two separate petitions for grant of Succession Certificate in respect of the deceased next of kin were filed. In addition to the above, a miscellaneous application was filed in the original proceedings for grant of extended succession Certificate covering the estate of both the legal heirs who had died after the grant of Succession Certificate, as above. Upon objections raised by the office to the effect that initial Succession Certificate could only extend to the living next of kin and in case of any of them dying later, could not be modified. The learned Judge, dealing with the above situation at the touchstone of section 376 of the Succession Act, 1925, read with Rule 400 of Sindh Chief Court Rules (O.S.), has held that the principal of extension of Certificate postulate under the above referred provision "should be extendable to situation where death of a next of kin occurs after the grant but before the distribution" It has further been found that if a purely technical view of the matter was taken, the extension of the certificate would endure only to the extent of personal share of the petitioner and other living next of kin from the original estate. By further holding that in appropriate cases reprieve is possible, the extension of the Succession Certificate was ordered as to include the estate left by the next of kin who had died after the grant of Succession Certificate.
11. In the case in hand, the direction contained in the impugned order requiring legal heirs of deceased Mrs. Nargis Bano and Miammad Anis to apply afresh for grant of Succession Certificate or Letter of Administration is bound to delay the distribution of estate of deceased Muhammad Ayub and would be extremely cumbersome if several proceedings for grant of Succession Certificate or Letter of Administration are filed. The majority of legal heirs of the deceased Mrs. Nargis Bano and Muhammad Anis are already before the Court and forcing them in to further proceedings under intestate jurisdiction, shall only add to enforcing procedural technicalities. Rules of procedure are mere tools designed to expedite the decision or resolution of cases and other matters pending in court. Hence, rules of procedure should not be applied in a very rigid, technical sense; they are used only to help in securing substantial justice. A strict and rigid application of rules, resulting in technicalities that tend to frustrate rather than promote substantial justice, must be avoided. Corollary to this, it is settled that liberal construction of the rules may be invoked in situation where there may be some excusable formal deficiency or error in a pleading, provided that the same does not subvert the essence of the proceeding. Reference in this regard may be made to the case of Jameel Ahmed v. Late Saifudin through Legal Representative (1997 SCMR 260), Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678). We are, therefore, of the view that under foregoing facts and circumstances of the case in hand the provision contained in section 376 of the Succession Act, 1925 and Rule 400 of the Sindh Chief Court Rules (0.S.) should have been liberally construed in order to promote their objective of ensuring the just, speedy and inexpensive disposition of every action and proceedings in like cases.
12. Consequently, we allow this High Court Appeal and while setting aside the impugned Order, the matter is remanded to the learned Single Judge to treat the application (C.M.A. No. 730 of 2012) under section 151, C.P.C., filed by the appellant/petitioner for seeking amendment in the said Succession Petition as one for grant of extended Letter of Administration under section 376 of the Succession Act, 1925 and to consider its grant subject to the fulfillment of the following required of the rules. i. Despite disclosure of names of legal heirs of the next of kin surviving Mrs. Nargis Bano and Muhammad Anis, a notice may be published in the newspaper inviting objections, if any, against the extended grant and to ascertain the existence or otherwise of other legal heirs of the said next of kin. ii. In the event of no objection, extended. Letter of Administration may be granted requiring the appellant to submit extended Letter of Administration Bond as per rule. Iii. The appellant shall also submit the respective shares of all the next of kin and their legal heirs before the learned Single Judge of this Court in accordance with Sharia, as requirement of Form 24, appendix "A" of Sindh Chief Court Rules (0.S.).
' Before parting with the order we would like to record our appreciation for the able assistance provided to us by the learned Amicus Curiae namely M/s. Mushtaq A. Memon and Khawaja Shamsul Islam; Advocates.