1. ' AFTAB AHMED GORAR, J.--- CMA 539/2015 has been filed by the petitioner under section 375 of the Succession Act, 1925 read with Rule 400 of the Sindh Chief Court Rules (O.S.) with a prayer to exempt the petitioner from furnishing the surety/security and the Letters of Administration may be issued on the execution of personal bond. It is submitted on behalf of the petitioner that all the legal heirs of the deceased are adult/major and the matter is non-contentious. In support of the prayer made in the application, reliance has been placed on the case reported as Kamran Mirza v.
2. Moazzam Mirza (PLD 2014 Sindh 500) wherein similar relief was extended mainly on the ground that matter was non-contentious and during the entire proceedings, no objection was filed by any one.
3. ' The instant petition under section 278 of the Succession Act, 1925 has been filed for issuance of Letter of Administration in respect of immovable properties belonging to deceased Mrs. Khair un Nisa. As now-a-days it has become a normal practice that after grant of, Succession Certificate or Letters of Administration, application is moved for exempting the petitioner to furnish surety/security and for issuance of Succession Certificate/Letters of Administration on execution of personal bond, I propose to deal with this point elaborately.
4. ' So far as Letters of Administration is concerned, section 291 of the Succession Act, 1925 is relevant for the purpose of dealing with the matter regarding furnishing of surety or sureties by the petitioner in whose favour such Letters of Administration is granted. Section 291 reads as under:--- "291. Administration bond.--- (1) Every person to whom any grant of letters of administration, other than a grant under section. 241, is committed, shall give a bond to the District Judge with one or B more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.
(2) When the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person
(a) the exception made by subsection (1) in respect of a grant under section 241 shall not operate;
(b) the District Judge may demand a like bond from any person to whom probate is granted."
5. ' From the perusal of above-quoted provision of law, it is clear that consequent upon grant of Letters of Administration, it is incumbent upon the person in whose favour such Letters of Administration has been granted, to furnish a bond with one or more surety or sureties for due collection and administration of the estate of the deceased. While elaborately dealing with this point, this honourable Court in the judgment authored by honourable Mr. Justice Saeeduzzanian Siddiqui, as he then was, passed in the case of Muhammad Javed Akhtar reported in 1987 CLC 262 held as under:- "The language of section 291 of the Act leaves no discretion with the Judge, while granting Letters of Administration to a petitioner, to dispense with the execution of the bond or providing surety or sureties as the case may be. The word "shall" used in subsection (1) of section 291 is used in an imperative sense in contradiction to sub-clause (b) of subsection (2) of the same section, where it is discretionary with the Judge to demand a bond from a person to whom a probate has been granted ... I am in no doubt that, while in cases of grant of Letters of Administration, the execution of the bond with surety or sureties is a must, as provided under section 291(1) of the Act, the same is discretionary with the Court, while dealing with a case of grant of probate pursuant to a will."
6. ' It was further held as. Under:--- "I am, therefore, of the view that, under section 291 of the Succession Act, an applicant in whose favour Letters of Administration have been granted by the Court must execute a bond with one or more sureties, as directed by the Judge, as a condition precedent for the issuance of Letters of Administration, and, that, under this section, the Court has no power to dispense with the sureties, altogether while granting Letters of Administration. However, the case of grant of probate, which is governed by subsection (2) of section 291 is different, but , it is not necessary to express any conclusive opinion here at this stage, as, in none of the cases before me, the question of grant of probate is involved." (Emphasis is supplied for sake of convenience)
7. So far as the point regarding furnishing of surety or, security by a petitioner to whom a Succession Certificate is granted is concerned, section 375 of the Succession Act, 1925 is relevant in this connection, therefore, before proceeding further, it would be advantageous to reproduce hereunder the said section:--- "375. Requisition of security from grantee of certificate.--- (1) The District Judge shall in any .Case in which he proposes to proceed under subsection (3) or subsection (4) of section 373, and may, in any other case, require, as condition precedent to the granting of a certificate, that the person to whom he proposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or other sufficient security, for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities.
(2) The Judge may, on application made by petition and on cause shown to his satisfaction, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as he thinks fit, assign the bond or other security to some proper person, and that person shall thereupon be entitled to sue thereon in his own name as if it had been originally given to the Judge of the Court, and to recover, as trustee for all persons interested, such amount as may be recoverable thereunder."
8. ' Having minutely examined the above-quoted provision of law, it transpires that in cases where the Court 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, as contemplated in subsection (3) of section 373 of the Act and, in a case when there are more applicants than one for a certificate, and it appears to the Court that more than one of such applicants are interested in the estate of the deceased, as envisaged in subsection (4) of section 373 of the Act, 1925, the Court while granting a certificate to the petitioner, by virtue of word "shall" having been used in subsection (1) of section 375, has no discretion to dispense with the condition precedent to the grant of Succession Certificate i,e, furnishing of surety or security. Unlike to above, with regard to other cases, the word "may" has been used, therefore in such cases the Court has the discretion to dispense with the condition of furnishing the surety or security. In the case of Muhammad .Laved Akhtar, supra, while dealing with this point, after quoting section 375 of the Succession Act, 1925, it was held as under:--- "It is significant that, in the same subsection (1) of section 375 of the Act the legislature with reference to different situations used two different expressions namely "shall" and "may" to express their intention. The word "shall" in section 375 is used with reference to the class of cases, which fall under subsection (3) or subsection (4), of section 373, and in which, in spite of involvement of intricate and difficult questions of law and fact, the Court decides to proceed in a summarily manner to determine the right to the grant of Succession Certificate to the applicant. In such cases, the provisions of subsection (1) of section 375 make it incumbent on the Judge to order issuance of the Certificate, subject to the furnishing of a surety in addition to the execution of the bond. However, where the case for grant of Succession Certificate does not fall under subsection
(3) or subsection (4) of section 373, it is discretionary with the Court to require the person in whose favour the Certificate is issued to give security as a condition for grant of the Certificate. I, therefore, agree with the contention of the learned counsel, Mr. Iqbal Kazi that, except in cases, which are covered under subsection (3) or subsection (4) of section 373 of the Succession Act, in all other cases the Court, while granting the Succession Certificate, will have a discretion either to insist or not to insist upon furnishing of security by the applicant according to the circumstances of each case."
9. ' It appears that the listed application has been filed under section 375 of the Succession Act, 1925 read with Rule 400 of the Sindh Chief Court Rules (O.S.), therefore it also seems to be necessary to deal with the provisions of Rule 400 of the SCCR (OS) which is reproduced as under:--- "400. Unless otherwise ordered by the Court or in non-contentious matters 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 is made or Succession Certificate issued: ' Provided that, if the value is under Rs,500, one surety only may be taken."
10. ' This point was also dealt with in the case of Muhammad Javed Akhtar, supra, by holding:--- "The learned counsel for the petitioner emphasized on the opening words of this Rule, "Unless otherwise ordered by the Court" contend that the above expression used in the rule makes it' abundantly clear that there is a discretion with the Court to make an order for dispensing with the surety which, in the absence of such a discretion, has to be furnished by an applicant both in the cases of Letters of Administration and Succession Certificate. I have already referred to the provisions of law under which Letters of Administration and Succession Certificate are granted to an applicant, and, in a detailed discussion, I have reached the conclusion that, while granting Letters of Administration, the Court has no discretion to dispense with the surety and execution of the bond while, in some class of cases, where Succession Certificate is granted by the Court and the cases do not fall under subsection (3) or subsection (4) of section 373 of the Act, the Court has discretion to dispense with the furnishing of security by the applicant. Rule 400 of the Sindh Chief Court Rules (O.S.) relied by the learned counsel for the parties is in the nature of subordinate legislation, and it cannot over-ride the effect of section 291 or section 375 of the Succession Act.
11. The expression "Unless otherwise ordered by the Court" is, therefore, restricted to the class of those cases in which the Courts grant Succession Certificate and which do not fall either under subsection (3) or subsection (4) of section 373 of the Succession Act. It cannot be overlooked that Rule 400 applicable to the Original Side of this Court and which regulates the furnishing of security in cases of grant of Succession Certificate and Letters of Administration is in the nature of subordinate legislation, and, if it is in any manner in conflict with the substantive provision of law, which deals with the procedure or grant of Letters of Administration and Succession Certificate, then to the extent of inconsistency between the two, the rule must give way to the provisions of the Act. However, it is not necessary to examine this question here, as it has not been contended before me by any of the learned counsel that there is any inconsistency between Rule 400 of the Sindh Chief Court Rules (O.S.) and section 291 or section 375 of the Succession Act. I am, therefore, of the view that, in spite of the existence of Rule 400 on the Original Side Rules, an applicant for grant of Letters of Administration has to furnish security along with the execution of the bond, while obtaining Letters of Administration."
12. ' I am in respectful agreement with the above view and accordingly hold that Rule 400 of SCCR (O.S.) is in the nature of subordinate legislation, as such it cannot over-ride the effect of the substantive provisions of law i,e, section 291 or section 375 of the Succession Act. In this view of the matter, it may be observed that, at the most, the discretion as reflected in Rule 400 would be confined to only those cases in which the Courts grant Succession Certificate and which do not fall either under subsection (3) or subsection (4) of section 373 of the Succession Act.
13. ' In the case-law relied upon by the petitioner's counsel i,e, PLD 2014 Sindh 500, stress is laid down only on Rule 400 of the Sindh Chief Court Rules (0.5.) and no reference is made to the provisions of substantive law i,e, section 291 or section 375 of the Succession Act. In the said case-law, reference was made to the case of Mst. Razia Khatoon reported in 1996 MLD 873, however the said case is also not helpful to the petitioner as it was in respect of Succession Certificate and not Letters of Administration, whereas the instant relates to Letters of Administration.
14. ' The upshot of above discussion is that so far as Letters of Administration is concerned, the discretionary power does not vest in the Court to dispense with the condition of furnishing surety, however, the Court has got such discretion in respect of Succession Certificates, but that too only in those cases which do not fall under subsection (3) or E subsection (4) of section 373 of the Succession Act. As in the instant case, the petitioner has sought Letters of Administration as only immoveable properties are involved, the prayer made in the listed application cannot be granted.
15. Accordingly, the application (CMA 539/2015) stands dismissed.