NAZAR AKBAR, J.---This SMA has been filed for grant of succession certificate and letter of administration in respect of the movable and immovable properties left by the deceased Siddiqui Sultan Ahmed, who died in July, 2017. It is for the first time that I have come across, an application under Section 39 Rules 1 and 2 C.P.C. filed in the proceedings under Sections 278 and 372 of the Succession Act, 1925 for restraining operation of an account which was not in the name of deceased. Not only this, the account sought to be seized or restrained to be operated by the account holder namely Safia Mustajab Hussain is not even legal heir or relative of the deceased Siddiqui Sultan Ahmed. Para-5 of the instant Succession Petition is outside the scope of Section 372 of the Succession Act, 1925. Both para-5 of the petition and Section 372 of the Succession Act, 1925 are reproduced below:-
5. That the bank account mentioned at Serial No.B(ii) was opened and operated solely by the deceased individually. However, for the reasons best known to the deceased, it was titled as Safia Mustajab Hussain. The lady Safia Mustajab Hussain is mother of one Muhammad Ali who was brought up, educated and patronised by the deceased like a son. After the deceased had undergone surgeries for groin and amputation caused by uncontrolled diabetes followed by renal complications and dialysis every alternate day, the deceased became increasingly dependent on the above named Mr. Muhammad Ali Indeed, substantial balance lying in the said account was deposited by the deceased. The lady Ms. Safia Mustajab Hussain resident of House No.138, Street No.36, Khayaban-e-Bukhari, Phase-VI, DHA, Karachi has no right to claim the money lying in the said account. The petitioner had initially transferred bulk of fund from the said account into her account and of her daughter as per the instructions of the deceased by utilizing the signed blank cheques and pay-order form but has re-credited the money in order to place the same at disposal of this Hon'ble Court. Even the above named Mr. Muhammad Ali is holding some funds belonging to the deceased in bank account held in his name, details whereof are not known to the petitioner. Although the above named Mr. Muhammad Ali had initially approached the petitioner asking for cheque book pertaining to the said account but upon learning about transfer of funds by the petitioner, became violent and abused the petitioner. Now, Mr. Muhammad Ali and his mother Ms. Safia Mustajab Hussain are trying to obtain another cheque book and/ misappropriate the balance amount lying in the said account which needs to be protected urgently. 372. Application for Certificate. (I) 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, or 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 certificate is applied for.
2. The perusal of above provision of law clearly suggests that the inclusion of names of Mst. Safia Mustajab Hussain and Mohammad Ali in the success petition was against the mandate of Section 372(1) of the Succession Act, 1925 for the simple reason that the said two persons are neither family members of deceased Siddiqui Sultan Ahmed nor they are near relatives (clause (c) above). Bank Account which was not operated by the deceased cannot be part and parcel of the debts and securities of the deceased (clause (f) above). A bank account of a person, who is alive and operating it, cannot be considered to be bank account of another person to be included in the "debts and securities" of the later on his death. Here I believe subsection (2) of Section 372 of the Succession Act, 1925 needs to be kept in view which is reproduced below:-
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 deem to have committed an offence under section 198 of the Pakistan Penal Code.
3. Petitioner in para-5 has herself conceded that the account is in the name of lady Safia Mustajab Hussain for the "reasons best known to the deceased" then how could she believe that it was opened and operated by her deceased husband. The petitioner's mere oral assertion that account number at serial No.5(ii) in the name of Safia Mustajab Hussain was opened and operated by deceased in absence of supporting document can "not be believed to be true". If it was operated by the deceased, on his death its operation would automatically be stopped as his signature would be required for its further operation. Something, never claimed by deceased in his lifetime should not have been verified by the petitioner without any reason to believe it to be true.
Nevertheless, if it be true, it cannot be asserted in succession petition since such assertion would be an independent in grant of succession and it would, therefore, be against requirement of clause
(e) of Section 372(1) of the act quoted above. Assets of a stranger are not supposed to be included in the assets of a deceased in succession matters, if the legal heirs of the deceased have any claim against Mst. Safia Mustajab Hussain, they may sue her independently. In succession matter, Court is not supposed to pass a judgment and decree of declaration that the Bank account of a third party was in fact an account of the deceased without recording of evidence of the petitioner and the account holder who is not amongst the legal heirs of the deceased. In Succession matters only legal heirs of the deceased can be party and that, too, if they have no dispute even inter se.
4. In view of the above, the application [CMA No.1278/2017] is dismissed. Interim order passed earlier stands vacated. The official of the Bank Islami present in Court is directed to de-freeze the account No.001449469116 in the name of Mst. Safia Mustajab Hussain. The petitioner is also directed to amend the schedule of the movable properties and bring it in accordance with law.
Copy of this order be sent to the Manager, Bank Islami, Gulshan-e-lqbal, Karachi Branch for their record.