AZIZ-UR-REHMAN, J.---By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 07.08.2014 by the five [05] legal heirs of Abdul Wahab [Late], who was son and one of the 5 legal heirs of the deceased viz. Abdul Ghani son of Abdul Rehman, who is said to have passed away on 17.08.1978, at Karachi, the Petitioners herein, have sought the following prayers:-- "a). In view of the aforesaid facts and circumstances, it is respectfully prayed by the Petitioners that this Hon'ble Court may be pleased to call for record and proceeding of the SMA No,107/2012 from the Court of District Judge Karachi (Central) and M.A. No,40/2012 from Record Room and after perusal of the same this Hon'ble Court may be pleased to set-aside the Order dated 24.05.2012 passed by the trial Court and order of Single Bench, which are illegal, without jurisdiction, without applying judicial mind, and have no force at all. b). This Hon'ble Court may be pleased to set-aside the order of Lower Court/Single Bench and after hearing the both the parties and pursuing the record grant the petition and may be pleased remand back the matter to Lower Court and direct that after recording the evidence resolve the issue, which involve in the matter and decide the matter as afresh. c). Any other better relief which this Hon'ble Court may deem fit and proper under the circumstances of the case."
2. Precisely, the relevant facts of the case arising to the filing of the instant Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are that one Abdul Ghani son of Abdul Rehman expired intestate at Karachi, on 17.08.1978, leaving behind the following adult legal heirs:- i. Abdul Wahab Son [Petitioners' predecessor] ii.Abdul Rasheed Son [Respondent No.1 herein] iii.Mst. Aqila BegumDaughter iv. Mst. Azra Naz Daughter v. Mst. Uzma Daughter
3. Upon the death of father of the aforesaid adult legal heirs, Respondent No,1 herein viz. Abdul Rasheed S/o Abdul Ghani [Late], filed a Petition under section 278 of the Succession Act, 1925 [XXXIX of 1925], bearing SMA No,107 of 2012 vis-a-vis the only immovable Property i,e. Quarter No,89/3, Sector No,51D, Refugee Colony, North Karachi [hereinafter 'subject property'], valued at Rs,15,00,000/- in the Court of District Judge, Karachi, Central. Notice of the aforesaid Petition was also published in 'DailyUmmat' dated 07th March, 2012.
4. Except, predecessor of the present Petitioners viz. Abdul Wahab [Late], all the other legal heirs of the deceased Abdul Ghani son of Abdul Rehman, filed their 'AFFIDAVIT OF NO OBJECTIONS' in favour of Abdul Rashid/Respondent No,1 herein. Besides, two witnesses in support of the Petition under section 278 of the Succession Act, 1925, had also filed their affidavits.
5. The main objections, raised by predecessor of the present Petitioners against the granting of 'Letter of Administration' in favour of Respondent No,1 herein, were to the following effect and extent:- i. that since, Abdul Ghani 5/0 Abdul Rehman has died in Karachi, on 17th August, 1978, as such, SMA No, 107 of 2012 filed after a delay of 33 years is without any reasonable explanation, thus being time bared, is liable to be dismissed 'in limine'. ii. That the property allotted by the rehabilitation commissioner, Karachi, was in favour of three persons i,e. Parents and the objector himself [i,e. Abdul Wahab], as such, the SMA No,107 of 2012, in respect of the said property as having been shown an exclusive property of the deceased Abdul Ghani is / was not maintainable under law. iii. that, at the time of allotment of the said quarter there was only one room and it was the objector viz. [Abdul Wahab], who had reconstructed the property/Quarter and had also born the expenditure of huge amount exclusively. Iv. That the parents of the objectors viz. Abdul Wahab died in year, 1978 and thereafter, it was the objector who maintained all his one minor brother [Respondent No,1 herein] and three sisteRs, Further, the objector had/has also solemnized the marriages of three [03] sisters and for all such marriages, the expenditures were also born by the Objector that is to say in the sum of Rs,2,00,000/- on each marriage. v. That the Respondent No,1 herein, under law needed to file a suit for 'partition' before concerned authority as, in the SMA No,107 of 2012, evidence could not be produced / recorded or otherwise, issue of 'ownership' of the 'subject property' could not be decided without recording evidence of the parties.
6. In response to the Objections raised by the predecessor of the present Petitioners viz. Abdul Wahab, a detailed 'COUNTER AFFIDAVIT' was also filed by Respondent No,1, wherein, all the Objections allegations/assertions raised by Abdul Wahab [Late] were specifically and vehemently denied as being false, fabricated and baseless. In reply, filed by Respondent No,1 herein, it was specifically denied the said Abdul Wahab and/or widow of Abdul Ghani son of Abdul Rehman, as alleged, were in any manner, allottee of the 'subject property' /' Quarter' .
7. Lastly, on 24.05.2012, when SMA No,107 of 2012, came-up before the Court, then, learned District Judge, Karachi, Central, after hearing learned counsel, for the predecessor of the Petitioners and Respondent No,1, and also keeping in view 'AFFIDAVIT OF NO OBJECTIONS' of all other 'legal heirs' of deceased Abdul Ghani S/o Abdul Rehman and of 'two witnesses' as well was pleased to ALLOW the Petition under section 278 of the Succession Act, 1925 [XXXIX of 1925], in favour of Respondent No,1 herein, however, subject to `furnishing surety' in the sum of Rs,15,00,000/- [Rupees fifteen lacs only] and P.R. Bond in the like amount. Besides, direction was also issued to the Petitioner in SMA 107 of 2012 [Respondent No,1 herein], to get the names of all five [5] legal heirs including the objector/ Predecessor of the present Petitioners viz. Abdul Wahab mutated in the relevant record.
8. The objector [Predecessor of the present Petitioners], however, feeling 'aggrieved' and 'dis- satisfied' with the aforesaid ORDER dated 24th May, 2012, filed M.A. No,40 of 2012 [Abdul Wahab v.
Abdul Rasheed and others], before this Court wherein, inter alia a prayer was also made to the effect and extent that the 'IMPUGNED JUDGMENT' dated 24.05.2012, passed by learned DISTRICT JUDGE KARACHI, CENTRAL, in SMA No,107 of 2012 [Abdul Ghani v. Abdul Wahabj, be set aside, as the same besides, erroneous has been passed without appreciating the actual facts available on record in its true perspective.
9. The above M.A No,40 of 2012 [Abdul Wahab v. Abdul Rasheed], when, came-up before this Court on 10.04.2014 then, this Court was pleased to dismiss the same however, without any costs. The 'operative part' of the said Judgment dated 10.04.2014 passed by a Single Bench of this Court [High Court], reads as follows:- "In view of this legal and the factual position, I am not inclined to agree with the contentions advanced on behalf of the appellant and do not find any cogent reason to interfere with the findings arrived at by the learned District Judge while passing the impugned order.
Above are the reasons for the short order announced on 08.04.2014, whereby this appeal was dismissed in limine. However, the appellant would be at liberty to avail any remedy available under the law for redressal of his grievances, if any. "[Underlining is ours]
10. This time, the legal heirs of ABDUL WAHAB [Late], who was an objector in SMA No,107 of 2012 feeling aggrieved with impugned 'Judgment' dated 10.04.2014, passed by Single Bench of this Court in M.A. No,40 of 2012 preferred to file the instant Constitution Petition under Article 199 of the Constitution of ,Islamic Republic of Pakistan, 1973. On 12.04.2016, when again the above Petition came-up before this Court then, the following order was passed:- "The Petitioner and his counsel were absent on the last two (02) dates of hearing and today a request for adjournment has been made on behalf of the Petitioner's counsel on the ground that he is unwell. This petition has been filed against the judgment delivered by a learned single Judge of this Court in Misc. Appeal No,40/2012. The petition, on the face of it, is not maintainable as no writ can be issued by this Court against any of its Benches. However, since request for adjournment has been made on personal ground, we are granting last and final opportunity to the Petitioner's counsel to satisfy this Court about the maintainability of this petition. It is clarified that if learned counsel for the Petitioner fails to appear or assist the Court on the next date the etition shall be dismissed. Mr. Qaim Ali Advocate holding brief for Mr. Inayat Hussain Shah Bukhari Advocate for Petitioner undertakes to communicate this order and the next date to the latter.To come-up on 28.04.2016 at 11 a.m." [Underlining is ours]
11. For and in view of the above 'ORDER '/' NOTE OF CAUTION' regarding the maintainability of the instant Constitutional Petition, on 28,04.2016, when again the instant constitution petition came-up before us then, we heard Syed Anayat Hussain Shah Bukhari, learned counsel for the Petitioner, Mr. Mehar Khan, learned counsel for the Respondent No,1 and also gone through available record before us minutely.
12. Mr. Anayat Hussain Shah Bukhari, learned counsel for the Petitioners [legal heirs of Abdul Wahab [Late]] while, arguing the case vehemently contended that the Respondent No,1, as being one of the legal heirs Abdul Ghani, had filed a petition under section 278 of the Succession Act, 1925 [XXXIX of 1925], for grant of a 'LETTERS OF ADMINISTRATION' in respect of subject property i,e. Quarter No,89/3, Sector No,51D, Refugee Colony, North Karachi, however, after a delay of 33 yeaRs, Per learned counsel in view of the long long delay in filing of the petition under section 278 of the Succession Act, 1925 [XXXIX of 1925], the same was not maintainable as being hopelessly time barred and as such, it was liable to be dismissed in limine. Next it was also contended that the 'subject property', in fact was allotted by Rehabilitation Commissioner Karachi, to one Abdul Ghani S/o Abdul Rehman, Abdul Wahab [Late], and widow of the said Abdul Ghani [Late]. According to Mr. Anayat Hussain Shah Bukhari, learned counsel for the Petitioners, at the time of allotment of the 'subject property', only one room, was existed thereon. The remaining construction, per Mr. Anayat Hussain Shah, learned counsel for the Petitioners, was later on, raised by predecessor of the present petitioners viz. Abdul Wahab upon expending huge amounts.
13. Further, upon the death of both the parents, the Petitioners' predecessor thereafter, had also spent huge amounts on the marriages etc. Of three 'sisters' and 'Respondent No,1'. Learned counsel for the Petitioners next contended that Respondent No,1 herein, instead of filing a suit for partition, in his own wisdom, however, chosen to file Petition for grant of a 'Letter of Administration' under section 278 of Succession Act, 1925 [Act XXXIX of 1925], which according to the learned counsel for the Petitioners, was not an appropriate remedy under the law. The dispute vis-a-vis the 'ownership' in respect of the 'Subject Property' could not have been resolved that is to say, without recording evidence of parties. Mr. Anayat Hussain Shah Bukhari, lastly urged, that the petition for GRANT OF A LETTER OF ADMINISTRATION, in favour of Respondent No,1, in actual fact, was/is liable to be dismissed muchless, after receiving its' share by Respondent No,1, in the 'Subject Property'. As far as, the question maintainability of the instant Petition is concerned, Per Mr. Anayat Hussain Shah Bukhari, the instant petition as 'framed' and 'filed' is maintainable as according to him no other remedy is available to the Petitioner.
14. Conversely, Mr. Meher Khan, learned counsel for the Respondent No,1 forcefully contended that Respondent No,1 and other legal heirs i,e. Three sisters and one Abdul Wahab S/o Abdul Ghani [late], indeed, are/were lawfully entitled to have their respective shares in the 'subject property', left behind by the deceased viz. Abdul Ghani as per Sharia. Learned counsel, forcefully urged that in the matters of 'LETTERS OF ADMINISTRATION' and 'SUCCESSION CERTIFICATE', no limitation, as alleged, is applicable.. According the learned counsel for the Respondent No,1, in the matter of 'LETTERS OF ADMINISTRATION', the Court merely 'determines' the question about the 'assets' left behind by a 'deceased' and 'inherited' by the legal heiRs, [In the case in hand, the legal heirs mean the legal heirs of the deceased Abdul Ghani referred to in 'PARA-2' hereinabove]. Mr. Mehar Khan, further contended that the 'subject quarter' /'Subject Property', in actual fact, was allotted to the deceased viz. ABDUL GHANI S/0 ABDUL REHMAN by REHABILITATION COMMISSIONER under REHABILITATION POLICY for to provide 'SHELTER' under Special Act. The contention of the petitioners' counsel that Respondent No,1 viz. Abdul Rashid, as alleged, has ever received his share was also strenuously controverted by Respondent No,1 as being wrong and without any foundation. Lastly, learned counsel urged that the 'LETTER OF ADMINISTRATION' vis-a-vis the only 'immovable property' left behind by the father of the Respondent No,1 and others including predecessor of the Petitioners viz. Abdul Wahab, was not only rightly granted by the learned District Judge, Karachi, Central but also has rightly been upheld through the 'impugned Judgment' dated 10.04.2014, passed by a Single Bench of this. Court.
15. Heard.
16. From perusal of the record and 'ALLOTMENT ORDER' filed by the Respondeht No,1 along with Memo of petition [In short MoP] under Section 278 of the Succession Act 1925 [XXXIX of 1925], it appears that, the 'SUBJECT QUARTER'/'SUBJECT PROPERTY', was allotted in favour of Abdul Ghani [Late] S/0 Abdul Rehman. In the 'allotment order', the names of objector viz. Abdul Ghani and wife of the deceased Abdul Ghani also appear but as 'dependent of deceased' viz. Abdul Ghani S/o Abdul Rehman only. For ready reference, the re:evant portion of the ALLOTMENT ORDER is reproduced as under: GOVERNMENT OF PAKISTAN OFFICE OF THE REHABILITATION COMMISSION KARACHI.
Not Transferable Book No, 715. Serial. No,99.
ALLOTMENT ORDER Name of Locality wherefrom shifted PIIF Name of Head of Family ABDUL GHANI.
Father's Name ABDUL REHMAN Occupation SERVICE IN MILL RS,100/-.
Name of dependents with relationship and age. SS. No,261/51 RK No, 6519/5 R.C.
93865.
Name Age relation Sarwari Begum20 yearsWife.
A. Wahab 6 yearsSon.
(Emphasis supplied] The above person is temporarily allotted for residential purpose quarter 9/3 5/D in NORTH KARACHI Refugee Colony on the terms of and conditions to be laid down subsequently and subject to the conditions on the reverse.
Sd/- Rehabilitation Commissioner Karachi.
17. In the matter relating to 'LETTER OF ADMINISTRATION', it is significant to note Court merely determines the issue vis-a-vis the 'assets' left behind by the deceased and inherited by the legal heirs of the deceased. Moreover, the succession opens as soon as, when someone dies and thereafter all the legal heirs become joint owners in the property[ies] assets etc. Left behind by the deceased. In the matter of 'LETTERS OF ADMINISTRATION' of property[ies] assets neither 'the principal of res judicata' nor the 'bar of limitation' under law is applicable until and unless the property[ies] left behind by the deceased is/are distributed between all the legal heirs in accordance with law/sharia.
18. Moreover, 'under law'/'Sharia' , no co-owner, can expel or otherwise, deprive to inherit the propert[ies] to the other co-owners much-less, on the point of 'limitation' andior the principle of res judicata. The legal heirs of a deceased, it is needless to say, inherit the 'property' left behind' with all those rights which the deceased had in it. In case of any defect in the 'TITLE', the legal heirs, of course, would also inherit the property[ies] with such defect. Further, if any mutation in case if, it is made in the names of the 'legal heirs' of a deceased , then too the defect, if any, shall remain intact as it is. Each and every legal heir till the distribution of the property[ies] also remain co-owner in each and every inch of the property[iesj left behind by a deceased. Regarding this aspect of the matter, reliance can be placed on the case of Sindh Industrial Trading Estates Ltd through Secretary v. Muhammad Ilyas and another [2005 SCMR 309]. The relevant portion therefrom reads as follows:- "6 .... We are of the view that the property in question was one of the assets left by the deceased and the legal heirs inherited the same as admittedly property stood in the name of the deceased at the time of his death and even today same stands in the record of the appellant in the name of deceased. The legal heirs inherited the property in question, with whatever right deceased had in it, and if there is any defect in the title. The legal heirs had inherited the defective title and merely because the property has been mutated in the, names of the legal heirs of the deceased does not mean in any way that the defect, if any, initially intact to the said property has been wiped of nor the same disentitles the appellant to take action, if any, they intend to take against the legal heiRs,"
[underlining is ours]
19. From perusal of the impugned judgment/order it also appears that the predecessor of the present Petitioners did not bring on record any proofs vis-a-vis spending of any huge amount on construction, marriages of the 3 sisters and/or on the maintaining of Respondent No,
1. In the matter, pertaining 'LETTER OF ADMINISTRATION', the Court is only required to 'determine' the question about the assets / property[ies], left behind by a deceased and inherited by the legal heirs only. In the instant case, one Abdul Ghani S/o Abdul Rehman, has admittedly left behind only one 'immovable property' i,e. Quarter No,89/3, Sector No,51D, Refugee Colony, North Karachi. It is important to note, per the impugned judgment of this Court dated 10.4.2014, the predecessor of the present Petitioners has been left at liberty to avail any remedy available under the law for redressal of his grievance, if any. In view of this position as well, the filing of the instant petition besides in- competent in law is misconceived.
20. The instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the 'IMPUGNED JUDGMENT' dated 10.04.2014 Annexure 'A' to Moll, passed by a Single Bench of this Court. in our view besides, in-competent in law is not maintainable as by now, it is a well settled principle of law, that one bench of High Court cannot issue a 'writ' against another Bench of the same High Court or against another High Court. In other words, no 'writ petition' under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973, can be entertained either against High Court or Hon'ble apex Court. Reliance in this regard can be placed on the cases Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others [PLO 2010 SC 61] and lig Shahab Marna,. Bholll v. Pakistan Railways through Divisional Superintendent and another 2014 PLC 356. The relevant observations/portions therefrom are respectively reproduced as follows:-
[i] "101 ....What emerges from the provisiens'of clause (5) of Article 199 of the Comte:talon as alto from some precedent cases is that writs should not issue from one High Court to another High Coun or from one Bench of a High Court to another Bench of the some High Coon because that could seriously undermine and prejudice the smooth and harmonious working of the Superior Courts. But this should never be understood to mean that no writ could ever issue to a Judge in his personal capacity or where a Judge wets working as a PERSONA DESIGNATA. Two passages from a judgment of this Court delivered in ABRAR HASSAN'S CASE (PLD 1976 SC 315 at 342 and 350) which contain the views of Satoh-ad-Din J. and Muhammad Gut 4 (as their lordships then were), respectively. could offer the requisite guidance and are reproduced below:-- Per Salah-ud-Din. J.
The propriety of maintaining comity amongst the members of the superior judiciary is not a rule of law, and certainly can not outweigh the imperative necessity of correctly 'interpreting the Constitution. It must be left to the good sense of the gentlemen who are members of the Superior Count to behave in a manner which their high offices require.'[Underlining is ours]
[ii] "10. ....that no writ will issue to a High Court and Supreme Court is based on sound principles; and if one Judge of a High Court were to issue a writ to another Judge under Article 199 the Judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. In the case of Muhammad Introit (supra), it was held inter aria by a learned Division Bench of the Peshawar High Cow that Article 192 of the Constitution emphatically specify the constituents of a High Court. the Chief Justice and the Judges of the High Court it is well-settled that each Judge of the High Coun acts on High Court, and any direction or order by the Single Bench or for that matter by the Division Bench, would amount to its issuance against a Judge who is the component of a High Court; the jurisdiction exercised by the High Coon whether in a Bench of a Single Judge or the Bench of more Judges, the order would be expressed in the name of High Court and not in the name of individual Judge, while interpreting Article 199(5) of the Constitution with regard to the definition 'person', included Supreme Court or High Court or a Tribunal under the law relating to the Armed Forces of Pakistan from its purview, no writ or order can be issued to the High Coon or Supreme Court under Article 199 of the Constitution as it amounts issuance of the same against the Supreme Court or High Court itself and the administrative or executive orders passed by the Chief Justice of the High Court or the Registrar while acting under the orders of the Hon'ble Chief Justice, also enjoy the protection falling under the ambit of Article 199(5) of the Constitution."[Underlining is ours]
21. Besides, the instant petition filed under Article 199 of the Constitution. of Islamic Republic. of Pakistan, 1973 against the 'IMPUGNED JUDGMENT' of 10.04.2014 of a Single Bench of this Court could not have been entertained / registered by the office, in view of observation / direction of the Division bench of this Court in the case of Syed Qasim Human v. Syed Mehdi Hussain and 2 others IPLD 2015 Sindh 4411. The relevant observations therefrom are reproduced hereinbelow:--
7. "This petition should not have been entertained or registered by the office in the first instance.
The Registrar of this Court is directed to place a copy of this order before the Non'ble Chief Justice for his lordship's perusal and for taking action, if his lordship deems fit and proper, against such negligent staff/employees of this Court who were responsible for entertaining and registering this Constitutional Petition against the order passed by the learned skngle Judge of this Court.'
[Underlining is ours]
22. For and in view of all the above, the instant Petition after having been found as not maintainable, was dismissed by our 'short order' dated 28.04.2016. For ready reference. 'our short order' dated 28.04.2016 is reproduced hereinbelow :-- Tor reasons to follow, this petition is dismissed with costs of Rs.50,000.00, which shall be paid by the petitioner with the Nazir of this Coon within thirty (30) days from the dose of the reasons, who shall utilize the some in the Benevolent Fund of the employees of this Court,"
23. These arc the detailed reasons for our 'short order' dated 28.04.2016 whereby, the instant Petition after having been found incompetent in law and not maintainable. was dismissed with cost of Rs.50.000.00 [Rupees Fifty Thousand only) to be paid/deposited by the Petitioners with NAZIR of this Coun within 30 days, which amount thereafter, shall be utilized in the 'Benevolent Fund' of the EMPLOYEES of this Court.