Tariq Saleem Sheikh, J. This petition is directed against order dated 27-09-2019 passed by the learned Additional District Judge, Muzaf fargarh, whereby the Petitioner 's appeal under section 388(2) of the Succession Act, 1925 (the "Act"), was dismissed.
2. Brief facts giving rise to the petition are that Rana Muhammad Akram was an ASI in the Punjab Police who was martyred in 2013. He has certain service benefits which are to be distributed amon g his legal heirs. On 31-07-2013 Petitioner No. 1 herself and on behalf of her minor children (Petitioners No. 2 to 8) filed an application under section 372 of the Act titled "Shahnaz Begum etc. v. Public-at-large" in the Civil Court at Muzaf fargarh for grant of Succession Certificate to collect the aforesaid benefits. On 18-02-2014, Respondents No. 4 & 5 made another application titled "Haseena Bibi etc. v. Public-at-large etc." in the same court claiming share therein for being the deceased' s second widow and son respectively . The learned Senior Civil Judge consolidated both the applications and through order dated 16-01-2019 upheld the claim of Respondents No. 4 & 5. The Petitioners appealed which failed. Hence, this petition.
3. The learned counsel for the Petitioners contends that the proceedings on an application under section 372 of the Act are of a summary nature and the court is not competent to decide intricate questions of fact such as legal character of a party or parties. Thus, the orders passed by the learned courts below are without jurisdiction. Even otherwise, they have not appreciated the evidence properly which has caused serious miscarriage of justice. Their finding that Respondents No. 4 & 5 are also the legal heirs of Muhammad Akram deceased is based on conjectures and surmises so it cannot be sustained.
4. The learned counsel for Respondent s No. 4 & 5 has vehemently opposed this petition and supported the impugned order .
5. Arguments heard. Record perused.
6. The Act, as its Preamble elucidates, consolidates the law relating to intestate and testamentary succession in the country . Part-X (sections 370 to 390) contains provisions for grant of Succession Certificate in respect of debts and securities not covered under sections 212 and 213 of the Act. In Banarsi Dass v. Mrs. Teeku Dutta and another [(2005) 4 SCC 4491] the Supreme Court of India observed that the object of the said certificate is to facilitate collection of debts on succession and protect the people who deal with the representatives of the deceased.
7. The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death or, if at that time he had no fixed place of residence, the District Judge within whose remit any part of the deceased' s property may be found, is competent to grant the Succession Certificate. Section 373 stipulates that if the District Judge is satisfied that the application is maintainable he shall hear the parties on the day fixed by him and then proceed to decide in a summary manner the right to the certificate. Section 373(3) lays down that if the Judge cannot decide that right without determining questions of law or fact that are extremely intricate and it is difficult to determine them in a summary proceeding, he may nevertheless grant a certificate to the applicant having prima facie the best title thereto. Section 373(4) enjoins that when more than one person apply for a certificate the Judge shall have regard to the extent of interest and the fitness in other respects of the applicants. Section 375(1) empowers the Judge to require the grantee of the certificate to furnish a bond with one or more 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 whole or any part of those debts and securities. Under section 375(2) the Judge may, on such terms and conditions as he may deem fit, assign the bond or security to some other proper person as trustee for all the persons interested.
8. Rich jurisprudence has developed on Part-X, ibid, particularly sections 370 to 388. The following principles may be culled from the cases decided by the courts:
(i) Succession Certificate can be prayed for and granted only in respect of debts and securities and not for any other kind of property .
(ii) Succession Certificate neither gives any general power of administration on the estate of the deceased nor establishes title of the grantee as the heir of the deceased. It only furnishes the grantee with authority to collect debts due to the deceased and allows the debtors to make payments to him withou t incurring loss. Section 381 of the Act raises a conclusive presumption against the debtors that the person holding the certificate is entitled to receive the debts specified therein and af fords full indemnity to the person discharging the debt in good faith.
(iii) Application for Succession Certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of a portion thereof. Hence, it is not necessary for an applicant to include all of them in one application.
(iv) The right to certificate is not the same thing as the right to the estate. A certificate cannot be granted to a stranger . Therefore, the person to whom the certificate can be granted must have some interest in the estate.
(v) The proceedings under sections 370 to 375 of the Act are summary in nature which implies that the inquiry , if any, must be short leading up to and resulting in a rapid decision. At the same time, the court is not relieved of the obligation to hear the parties and take sufficient evidence to enable it to determine who is the person best entitled to the certificate and decide other points necessary for disposal of the application.
(vi) Since the proceedings under the Act are of summary nature, intricate questions cannot be resolved therein.
Where the issue is whether a particular person is the legal heir of the deceased, the matter should be left to the civil court.
(vii) In the summary inquiry the court has only to ascertain as to who is entitled to the certificate. That being the limited purpose of the inquiry the findings of the court would not operate as re judicata in subsequent proceedings.
Nevertheless, such findings do not affect the liability of any person who may receive the whole or any part of any debt or security , or any interest or dividend, to account therefor to the person lawfully entitled thereto.
(viii) The person who is entitled to inherit the property of the deceased is also responsible for his liabilities which must be recognized as charge on the property in law. The claim which is either admitted by the legal heirs of the deceased or is recognized in law and is not subject to further determination would be deemed to be a charge on the property of the deceased. The claim which requires determination by the appropriate forum cannot be treated1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 as a charge on his property . It is not the domain of the court seized of the matter relating to issue of succession certificate to adjudicate the claim of third person against the deceased for the satisfaction of such claim from his property . The proceedings under the Act are limited to the determination of the rights of legal heirs of the deceased inter se and the scope of such proceed ings cannot be enlarged to the settlement of the disputed claim and determination of liabilities of legal heirs of the deceased through the adjudication by the competent court.
(ix) Where the Judge dealing with an applicant for grant of Succession Certificate reaches the conclusion that the right belongs to the applicant, he is bound to make an order for grant of certificate to him. However , in cases which are covered under sub-section (3) or sub-section (4) of section 373, if the Judge is of the view that the right claimed by the applicant cannot be decided without determining intricate and difficult questions of law and fact or, where there are more applicants than one and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may nevertheless grant the certificate in both such cases to such of the applicants who appear to be having a prima facie best title and fitness to the grant of such certificate.
However , in respect of these two class of cases, which are covered under sub-section (3) or sub-section (4) of section 373, the power of the Judge to grant the Succession Certificate is circumscribed to the condition that he must require the person in whose favour he grants the Certificate to give sufficient security as a condition precedent for rendering the account of debts and securities received by him and for indemnity of the person who may be entitled to the whole or any part of those debts and securities.
9. A Succession Certificate granted under Part-X may be revoked on the grounds enumerated in section 383 of the Act. The order refusing or revoking a certificate is appealable under section 384 read with section 388.
10. In the instant case, the Petitioners contested the claim of Respondents No. 4 & 5 that they were widow and son respectively of the late Rana Muhammad Akram. In view of the law discussed above, the controversy between the parties could only be decided by the civil court in a regular suit and not in summary proceedings under the Act. The learned Courts below , therefore, exceeded their jurisdiction in the matter .
11. But the question is whether Respondents No. 4 & 5 can be granted Succession Certificate subject to furnishing surety bond or other security in terms of section 373(3) of the Act read with section 375(1) thereof? Before answering this question it is necessary to discuss some important cases on the subject.
12. In Mst. Jameela Akhtar v. Public-at-large (2002 SCMR 1544 ) the deceased' s sister applied for succession certificate in respect of the money lying in his bank accounts. She impleaded his two widows, Jameela Akhtar and Umat-ul-Hameed, as parties to those proceedings. Jameela Akhtar denied that Umat-ul-Hameed was the deceased' s second widow . The trial Court issued the succession certificate which included Umat-ul-Hameed' s name. The said order was upheld by the First Appellate Court and the High Court. Jameela' s plea was that the certificate could not be issued to her unless she obtained a declaration from the civil court regarding her status.
The Hon'ble Supreme Court of Pakistan held: "We find that the trial Court while granting succession certificate to Respondent No. 2, should have directed that no share of the said amount should be paid to Mst. Umat-ul-Hameed unless she gets a decree from the Civil Court about her status as widow of Muhammad Zafarullah Khan, deceased, for such, a question could not be decided in summary proceedings."
13. In Aziz Ahmad v. Hakimzadi and 7 others (2013 CLC 406) during the proceedings on an application for succession certificate certain interveners appeared and claimed that they were also legal heirs of the deceased and entitled to inherit from him. The District Judge dismissed the application directing the parties to seek declaration from the competent civil court regarding their legal status. The Sindh High Court upheld that order rejecting the contention that Succession Certificate could be granted under section 373 of the Act even if there is a dispute.
14. In Liaqat Zaman Khan and others v. Mst. Tazeem Akhtar and others (2017 YLR 150), Tazeem Akhtar filed application for issuance of Succession Certificate regarding legacy of Ahmad Zaman Khan deceased claiming to be his widow . The other legal heirs of the deceased contested it alleging that the deceased had divorced her during his lifetime. The trial court issued the certificate during pendency of civil suit for declaration. The Peshawar High Court upheld the order relying on sections 373(3) of the Act.16 17
15. Lately , in Sofia Ashfaq v. Haseeb Ashfaq Bhatti and others (PLD 2019 Islamabad 238), the petitioner married one Shahzad Gul who, she claimed, initially pronounced oral divorce on her and after seven months drew a divorce deed which she sent to the Chairman, Arbitration Council, Islamabad, for issuance of a certificate for the effectiveness of divorce as contemplated by the Muslim Family Laws Ordinance, 1961. However , before the issuance of that certificate she married Ashfaq Bhatti, a widower who had four children. About a year after that marriage Ashfaq Bhatti passed away whereupon the petitioner applied for Succession Certificate which was contested by her step children on the ground that her marriage with the deceased was not valid. In view of that objection the petitioner instituted a civil suit for a declaration that her marriage with Ashfaq Bhatti was legal and she was entitled to a share in his legacy . The Islamabad High Court allowed her application for grant of Succession Certificate, subject to furnishing of surety bond, holding that if her civil suit failed it would be revoked under section 383 of the Act and she shall return the money received by her in pursuance thereof.
16. An earlier case, cited as Usman Sarwar (minor) and others v. Ghulam Fatimah and others (1990 CLC 756), was decided by the High Court of Azad Jammu & Kashmir on the same lines as the cases mentioned in the previous two paragraphs.
17. There is a stark distinction between the cases of Jameela Akhtar and Aziz Ahmad on the one hand and those mentioned in paragraphs (14) to (16), above, on the other . In Jameela Akhtar 's case the Nikahnama relied upon by Umat-ul-Hameed was dubious and seemed to have been interpolated while in Aziz Ahmad' s case it was contended that the intervener who claimed to be Mst. Phapi was not the same lady whom the deceased married. In contrast, in all the other three cases the marriage of the women with the deceased was admitted. In Liaquat Zaman Khan and Usman Sarwar the question was whether the deceased had divorced the lady in his lifetime while in Sophia Ashfaq the issue was whether the claimant' s Nikah was valid if the Chairman, Arbitration Council, had issued the certificate of effectiveness of divorce in respect of her first marriage after she tied nuptial tie with the deceased. In the instant case, neither there is any allegation of fraud against Respondents No. 4 & 5 nor a dispute about their identity . Importantly , in their statements before the learned Senior Civil Judge the Petitioner and her witnesses admitted that the police department had found in its domestic inquiry that they were rightful claimants.
18. In the peculiar circumstances of the case it is just and proper that this Court should exercise the discretion vested in it under section 373(3) of the Act read with section 375(1). Accordingly , it is directed as under: i) Succession Certificate shall be issued to Respondents No. 4 & 5 subject to their furnishing a bond with two sureties for a sum equal to the amount of the share to which they may be entitled to receive from the service benefits of Rana Muhammad Akram deceased; ii) The finding of the learned courts that Respondent No. 4 & 5 were the second widow and son respectively of Muhammad Akram deceased are set aside. They shall immediately file a civil suit to establish their status as such. iii) If Respondents No. 4 & 5 succeed in getting a decree, they would be entitled to retain the money received by them under the Succession Certificate. iv) If Respondents No. 4 & 5 do not file a civil suit as aforesaid or if it is instituted but decided against them the Petitioner may apply for revocation of Succession Certificate under clause (e) of section 383 of the Act.
19. This petition stands disposed of in the above terms. . The term "security" has been defined in section 370(2) of the Act. . Approvingly cited by this Court in Mst. Samina Sikandar v . Public-at-large ( PLD 201 1 Lah. 192 ). . Section 388 of the Act empowers the Provincial Government to invest, by notifica tion in the official Gazette, any court inferior in grade to a District Judge with power to exercise the functions of a District Judge under Part X of the Act. . They have been reproduced as nearly as possible in the language of the court concerned. . Shyam Sundari Devi and others v . Sarti Devi and others (AIR 1962 Pat. 220). . Samina Sikandar v . Public-at-large ( PLD 201 1 Lah. 192 ) . Ganga Prasad v . Mt. Saeedan and others (AIR 1952 All. 801). . Section 372(3) of the Act.1 2 3 4 5 6 7 8 . Fateh Muhammad v. Mst. Arshad Afza (1999 MLD 1481 ). Also see: Muhammad Hayat and others v.
Muhammad Said (PLD 1950 Lah. 352) and. Sufia Khanam and others v. Abdul Huq Khan and others (PLD 1968 Dacca 952). . In re: Mst. Zubaida Khatoon (PLD 1973 Note 129). . Samina Sikandar v . Public-at-large ( PLD 201 1 Lah. 192 ). . Lahore High Court Rules and Orders V olume-II, Chapter 6 Part-B Rule 3(d). . Allah Nawaz Khan and 2 others v. Farida Fatima Khanum and 11 others (1999 MLD 2738 ), Rukhsana Kausar and another v. Additional District and Sessions Judge, Khanewal and 11 others (2000 CLC 585), and Sofia Ashfaq v . Haseeb Ashfaq Bhatti and others (PLD 2019 Islamabad 238). . Mst.Jameela Akhtar v. Public-at-large and others (2002 SCMR 1544 ), and Aziz Ahmed v. Hakimzadi and 7 others ( 2013 CLC 406 ). . Section 387 of the Act and V.K. Kamalam v . Panchali Amma and others (AIR 1988 Kerala 265). . Dr. Saleem Javed and others v . Mst. Fauzia Nasim and others ( 2003 SCMR 965 ). . Muhammad Javed Akhtar v . Public-in-large ( 1987 CLC 262 ).