1. MUHAMMAD SALEEM JESSAR, J.---Through this Miscellaneous Appeal filed under section 299 of the Succession Act, 1925, appellant has challenged the Order dated 27.05.2014 passed by the Respondent viz. IV-Additional District Judge, Karachi East whereby he dismissed the Petition / Application filed by the appellant under sections 278 and 372 of the Succession Act, 1925 for grant of Succession Certificate.
2. Brief facts giving rise to the filing of instant Misc. Appeal are; that the appellant filed S.M.A. No,328/2014 praying therein for grant of Succession Certificate in respect of immoveable property viz. House No,51-Z-1, Block-2, P.E.C.H.S. Karachi left by his deceased mother namely Mst. Ayesha Bano. It was claimed by the petitioner that the property in question was purchased by his father namely Mohammad Bhai Vohra from one Afzal Ahmed Khan son of late Abrar Ahmed Khan on 21st February, 1963 in the name of his mother deceased Mst. Ayesha Bano. He further stated that the said property belongs to Pakistan Employers Co-operative Housing Society, Karachi therefore, being the only surviving legal heir of the deceased, he wrote a letter dated 07.5.2008 to the Secretary of the aforesaid Housing Society requesting therein for transfer of the property in question in his name. However, in reply the Society demanded the order of the competent court of law declaring the petitioner as legal successor in respect of the subject property. It was further stated in the reply that as per record of the Society, the subject property is registered in the name of one Afzal Ahmed Khan. It was further stated that although there was a Power of Attorney executed by the said Afzal Ahmed in favour of petitioner's father Mohammad Bhai wherein mentioning an Agreement between petitioner's deceased mother Mst. Ayesha Bano and the said Afzal Ahmed Khan, but the property was never got transferred and registered in the name of the deceased as per procedure of the Society. In the circumstances, the petitioner filed the aforesaid S.M.A. which was dismissed by the impugned order. The reason for dismissal of the S.M.A. obviously was that in the record of the Society the subject property was not entered in the name of petitioner's deceased mother. The petitioner has challenged the impugned order in the instant appeal.
3. I have heard learned counsel for the appellant and have gone through the material available on the record.
4. Learned counsel for the appellant contended that learned Additional District Judge while passing the impugned order erred in law and on facts. He further contended that the court below did not properly take into consideration the tactual as well as legal aspects of the case and has passed the impugned order in a hasty and mechanical manner. He further contended that no cogent reasons have been assigned by the court below for dismissal of the petition and the impugned order is a non-speaking order, thus the same is not sustainable in the eye of law. He further contended that the court below also ignored the principles of law settled by the superior courts on the relevant point and has dismissed the petition without following such dictum. He prayed for allowing the appeal and setting aside the impugned order and grant of petition of succession certificate.
5. It is an admitted position that the petitioner had filed the petition in the .District Court for gram of Succession Certificate mainly on the ground that the subject property was purchased by his father in the name of her mother Mst. Ayesha Bano through a sale agreement, as such she became the owner of the subject property and after her death, being her only surviving legal heir, was entitled to get subject property transferred and registered in his favor. It is not disputed that during the life time of petitioner's late mother the said property was not got transferred and registered in her favor in the record of Pakistan Employers Co-Operative Housing Society, Karachi. After her death the petitioner made a written request to the said Society for transferring the same in his favour which request was declined on the ground that the property was still in the name of actual owner namely Afzal Ahmed Khan and not in the name of petitioner's deceased mother. In the circumstances when the property was not registered in the name of the deceased, then how could it be transferred in the name of the petitioner after death of his mother. Needless to emphasize that it is the duty of learned District Judge / Additional District Judge that before granting Succession Certificate / Letter of Administration, he would verify as to whether the property in respect whereof petition has been tiled actually subsists in the name of the deceased of whom the petitioner in the SMA claims to be the legal heir and, if on verification it comes to the notice of the Court that, in fact, the subject property is not registered in the name of the said deceased, obviously the Court is left with no other option but to decline the request for grant of Succession Certificate / Letter of Administration.
6. Another worth-importance point in this case is that the petitioner claims the title / ownership of her deceased mother in respect of the subject property on the basis of a sale agreement allegedly entered into between the aforesaid Afzal Ahmed Khan and her deceased mother. In his connection suffice it to say that title / ownership of an immoveable property cannot he claimed on the basis of an unregistered sale agreement as it does not confer any ownership right upon the purchaser. In the case of Mohammad Yousuf v. Munawar Hussain and 5 others reported in 2000 SCMR 204. Honourable Supreme Court held as under: "The agreement to sell by itself cannot confer any title on the Vendee because the same is not a title deed and such document does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character." In view of above, the appellant has miserably failed to prove title/ownership of his deceased mother in respect of the subject property therefore, the prayer made in the SMA was rightly declined by learned Additional District Judge.
7. In view of above factual as well as legal position, I do not find any illegality or material irregularity in the impugned order as such it does not call for any interference by this Court. Accordingly instant Misc. Appeal being devoid of merits is hereby dismissed along with pending Misc. Applications. Before parting with this order, I would like to refer to the order dated 23.08.2016 passed in the present appeal by my learned brother, his Lordship, Mr. Justice Nadeem Akhtar, J. wherein it was observed as under: "This miscellaneous appeal has been filed against the order passed on 27.05.2014 in SMA No, 328/2014, whereby the said SMA filed by the present appellant in respect of an immoveable property of his late mother was dismissed on the ground that the said immovable property was not in the name of the deceased in the record of the Society concerned. It is my tentative opinion that there is no defect in the impugned order as while deciding the SMA filed by the appellant, the learned District Judge was duty-bound to ascertain whether the immovable property in question was in the name of the deceased or not. Once he came to the conclusion that the said property was not in the name of the deceased, the SMA could not be granted. It is also my tentative opinion that the appellant or the other legal heirs of the deceased ought to have filed a civil suit, seeking a declaration that the deceased was the owner of the property in question."
8. I am also of the same opinion. In view of above, the appellant would be at liberty to seek his remedy admissible / available under the law including filing of civil suit for aforesaid declaration.