ZAFAR AHMED RAJPUT, J.---By this common order, I intend to dispose of all the three listed applications.
2. This petition was filed on 11.12.2001 by the petitioner Syeda Firdous Azara Bukhari in the testamentary and intestate jurisdiction of this Court under section 278 of the Succession Act, 1925 ("The Act") for the grant of Letters of Administration in respect of the immovable property i,e, Plot bearing No,2A-97, Al-Fatah Housing Society, Shah Faisal Colony, Karachi, ad-measuring 114 sq. yds. with construction thereon ("the subject property"), left by Syed Maqbool Hussain Shah ("the deceased"), the father of the petitioner, who died at Karachi on 02.08.1997. It was case of the petitioner that at the time of his death, the deceased left behind him, the petitioner and two sons, namely, Syed Ghulam Abbas and Syed Ghulam Shabbir as his legal heirs according to Fiqh-e- Jafaria (Asna Ashri) Muslim Laws. It was averred that the original sale deed of the said property was missing by one of the heirs, namely, Syed Ghulam Abbas on 08.06.1998 and in this respect a report was lodged by the said legal heir at P.S. Airport.
3. The matter came up before this Court on 19.08.2002 when this Court allowed the petition as per rules while observing that legal heirs had filed their affidavits of no objection; the notice of the petition was also published in daily Nawa-i-Waqt, Karachi and it was fixed on Court notice board but no adverse claim was received. It was, thereafter, on 13.10.2015, the applicants/objectors, namely, Mst. Sabeen Mohsin, Syed Muhammad Aun Ali and Syed Muhammad Mutaqi, daughter and sons of Syed Ghulam Abid Bukhari, filed C.M.A. No,1132/2015, under section 5 of the Limitation Act, 1908, C.M.A. 1133/2015, under section 263 of the Act and C.M.A. No,1134/2015, under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C.
4. Learned counsel for the applicants/ objectors has contended that the petitioner is real paternal aunt of the applicants/objectors, who obtained the Letter of Administration in this case by playing fraud and concealing real facts from this Court; that the true fact of the case is that the deceased, who was grandfather of the applicants/objectors had purchased the subject property under Conveyance Deed dated 19.02.1977 from its previous owner, namely, Mustaqeem Ahmed and; thereafter, he executed registered Declaration and Confirmation of Oral Gift dated 26.03.1998 in favour of their father, namely, Syed Ghulam Abid Bukhari, who also received physical possession of the subject property and later he died on 26.06.1996, while their grandfather died on 02.08.1997 and their mother Mst. Shugfta Bukhari also expired on 11.09.2000. He has further contended that after the death of their father, the applicants/objectors and their mother shifted at Lahore and in order to save the property from Qabza group, they handed over the subject property to petitioner and when in the year 2015, the applicants/ objectors disclosed their intention to petitioner to sell out the subject property, she invited them to Karachi for discussion, consequently on 12.10.2015, the applicant/objector No,3 met with her, who showed him Letter of Administration dated 19.08.2002, granted by this Court and disclosed that the subject property is her exclusive property as the other legal heirs of the deceased, the uncles of the applicants/objectors, namely, Syed Ghulam Abbas and Syed Ghulam Shabbir have relinquished their shares in her favour. On that, the applicant/ objector No,3 showed the original sale deed and gift deed to the petitioner but she directed the applicant/objector No,3 not to raise any claim in respect of subject property. The learned counsel for the applicants/objectors has further contended that the petition filed by the petitioner for grant of Letter of Administration in respect of the subject property was itself not maintainable, as the subject property was already gifted out by the deceased and, therefore, the same was not inheritable property for the legal heirs of the deceased, and the applicants/ objectors are the real owners of the subject property after death of their father as per Sharia by virtue of inheritance, who are in possession of original title documents including Declaration of Oral Gift Deed, therefore, the Letter of Administration, dated 19.08.2002, is liable to be revoked, as the same was obtained by the petitioner by fraud, misrepresentation and concealment of facts.
5. On the other hand, learned counsel for the petitioner has contended that the applicants/objectors have no locus standi to maintain this application and they failed to produce any proof in support of their claim, which is time barred also. He has further submitted that the petitioner has already paid amount to all legal heirs including the applicants/objectors as per their shares in the subject property after the death of their father and with their consent she completed all the legal formalities for the transfer of the subject property and it was, thereafter, the applicants/objectors filed the listed applications with mala fide intention and ulterior motive, hence there is no element of concealment, fraud or misrepresentation in obtaining Letter of Administration. He has also contended that after receiving the amount as per their shares, the applicants/ objectors are stopped from raising any claim in respect of the subject property after lapse of 13 years. The learned counsel for the petitioner, however, has admitted that the applicants/objectors are the daughter and sons of late Syed Ghulam Abid Bukhari, who was the son of the deceased and died in his life time, and they are in possession of the original title documents of the subject property.
6. In rebuttal, learned counsel for the applicants/objectors has denied receiving any share from petitioner.
7. Heard the learned counsel for the parties and perused the material available on record.
8. It may be examined that the petitioner has contended in her petition that the original sale deed of the subject property was missed by one of the legal heirs of the deceased, namely, Syed Ghulam Abbas on 08.06.1998, who in respect thereof, lodged the report at P.S. Airport, which is annexed with the petition as annexure-B. It reflects from the report that the said Syed Ghulam Abbas on 08.06.1998 lost the original property documents while going to college. It is at one hand not conceivable for what purpose, he was carrying title documents of the subject property to his college, on the other hand, it has not been denied by the petitioner that the same are in possession of applicants/objectors. It has also not been denied by the petitioner that the subject property, which was purchased by the deceased from one Mustaqeem Ahmed under Conveyance Deed bearing registration No,1073 dated 19.02.1977 was subsequently gifted out by him to his son, namely, Syed Ghulam Abid Bukhari, the father of the. applicants/objectors under Declaration and Confirmation of Oral Gift, registered at No,235 with Sub-Registrar T-Division-III, Karachi on 26.03.1989. As such, the deceased ceased to have any right, title or interest in the subject property the moment he executed Declaration and Confirmation of Oral Gift in favour of father of applicants/objectors. Hence, the subject property was not available as the estate of the deceased for distribution among his legal heirs. Due to this reason, this petition could not be filed in respect of subject property, as such, the petitioner had no locus standi to file this petition for the grant of Letter of Administration and in this respect the claim of the petitioner was based on misrepresentation of facts and, prima facie, she deliberately committed fraud upon this Court by pleading such facts, which were not correct even to her own knowledge also by concealing such facts, which were true and were in her knowledge but the same were not disclosed by her before this Court.
9. Section 263 of the Act deals with such cases, wherein the grant of Letter of Administration may be revoked/annulled, provided "just cause" is shown. For the sake of convenience, the provisions of section 263 (ibid) are reproduced as under:- 263. Revocation or annulment for just cause.
The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation. Just cause shall be deemed to exist where:-- (a)the proceedings to obtain he grant were defective in substance; or (b)the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c)the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d)the grant has become useless and inoperative through circumstances; or (e)the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
10. After examining the facts of the case and above-mentioned provisions, it appears for my understanding that this case falls under the explanation (a), (b) and (c) of section 263 (ibid), for the reason, as observed above, the subject property was not available as the estate of the deceased for distribution amongst his legal heirs; and thus the petitioner had no locus standi to file this petition, or to seek Letter of Administration in respect of subject property, therefore, the proceedings were defective in substance from the very inception. Further, as observed above, the entire claim of the petitioner was based on misrepresentation of facts and she deliberately committed fraud upon this Court by pleading such facts, which were not correct even to his own knowledge and also by concealing such facts, which were true, but same were not disclosed by her before this Court.
11.As regards the objection raised by the learned counsel for the petitioner with regard to locus standi of the applicants/objectors and delay in filing application under section 263 of the Act, it may be relevant to mention here that since the Letter of Administration has been obtained by the petitioner by playing fraud and misrepresentation in respect of the property, which was in fact not available as the estate of the deceased for distribution among his legal heirs, which was in fact owned by the father of applicants/objectors, the applicants/objectors have definitely locus standi to maintain this application.
12.So far the question of limitation is concerned, it may be seen that soon after getting knowledge about issuance of Letter of Administration the applicants/objectors filed the application for its revocation. Even otherwise, delay per se in applying for revocation of grant of Letter of Administration is no bar to revocation in absence of any finding of acquiescence or waiver. In this regard I rely upon the case of Syed Mohsin Ali v. Mst. Hajra and others (PLD 2014 Sindh 10), wherein learned Division Bench of this Court while referring the case of Mt. Sheopati Kuer v. Ramakant Dikshit and others, AIR (34) 1947 Patna 434, has held that: "mere delay in applying for revocation of grant of Letters of Administration is no bar to revocation in the absence of any finding of acquiescence or waiver. The petitioner has not alleged that the applicants/intervenors/objectors had acquiesced or waived their right to seek revocation or annulment of the grant. In any event, the applicants/ intervenors/ objectors have specifically mentioned the dates when the impugned orders and grant came to their knowledge. We have no doubt in our minds that section 263 (ibid) vests a judicial discretion in the Court to revoke or annul a grant for just cause. Further, the words "defective in substance" appearing in Explanation (a) to section 263 (ibid), undoubtedly imply that the defect must be of such a nature as to substantially affect the regularity, correctness and execution of the previous proceedings. We are of the firm opinion that the facts and circumstances of this case are of such nature that the Court can initiate proceedings suo motu for revocation or annulment of the grant."
13.So far the contention of learned counsel for the petitioner in respect of payment of share to applicants/objectors is concerned, I have found it baseless, as when the subject property was at all not available for inheritance as the estate of the deceased, no question of payment of share to applicants/objectors arises, who are infact the owner of the subject property.
14. For the foregoing facts and reasons, C.M.A. No,1132/2015, under section 5 of the Limitation Act, 1908 and C.M.A. No,1133/2015, under section 263 of the Succession Act, 1925 are allowed.
Consequently, order passed in the petition on 19.08.2002 is hereby set aside/recalled, and the grant of Letter of Administration in favour of the petitioner is hereby revoked/ annulled. C.M.A.
No,1134/2015, under Order XXXIX, Rules 1 and 2, C.P.C. being infructuous, is dismissed.
15.The petitioner is directed to surrender before the Nazir of this Court within fifteen days hereof, the original as well as the certified copies of the revoked/annulled Letter of Administration and all the original as well as true copies of the title documents of the subject property, including the lease in her favour and mutation, if any, obtained and made by her on the strength of Letter of Administration. Upon receipt of the above, the Nazir is directed to cancel/deface the Letter of Administration and to keep it in his safe custody and to move to concerned office for the cancellation of lease deed/mutation, if any, made subsequent to the grant of Letter of Administration in favour of petitioner. In case, the petitioner fails to comply with this order, the Nazir shall refer the matter to this Court for further orders immediately upon expiry of the stipulated period of fifteen days.
16.The office is directed to immediately send a copy this order to the Nazir for compliance.