MUHAMMAD NAEEM ANW AR, J. This civil revision petition is directed against the judgment & order of the learned District Judge/Zilla Qazi, Malakand at Batkhela, dated 01.07.2020 whereb y the petitioner's appeal against the judgment and order of the learned Senior Civil Judge/A'ala Illaqa Qazi, Malakand at Batkhela dated 04.06.2020 was dismissed.
02. Succinctly , facts of the case are that Respondents No. 1 to 5 filed an application before the learned Senior Civil Judge, Malakand at Batkhela for issuan ce of succession certificate about the legacy of deceased Abdul Khaliq amounting to Rs. 2468,000/- which was deposited in UBL Bahader Khan Plaza branch at Batkhela,. The present petitioner contested the application of the contesting respondents on various legal and factual grounds in her written reply . The learned trial Court framed issues in light of the divergent pleadings and after recording pro and contra evidence, accepted the application vide judgment and order dated 04.06.2020 by holding that not only the contesting respondents and the present petitioner , but the other respondents are also entitled in the legacy of deceased Abdul Khaliq. The petitioner assailed the judgment & order of the learned trial Court by filing an appeal which was dismissed by learned appellate Court vide judgment dated 01.07.2020, hence, this petition.
03. Learned counsel for the petitioner contended that it was a joint bank account of late Abdul Khaliq and the petitioner for either or survivor , with a credit of Rs.2,468,000/- or whatever may be the balance amount in the joint account of UBL branch Bahadar Khan Plaza, Batkhela, and after the death of Abdul Khaliq, the petitioner being survivor , was entitled to operate the account, with which respondents No. 1 to 5 or other heirs have no authority to operate it. He further contended that keeping in view the nature of joint account, other legal heirs could not lay their claim about the amount as it could not be held to be the legacy of the deceased. He argued that both the courts have mis interpreted the term "joint account" and have wrongly held entitled the legal heirs of the deceased, hence the findings of both the courts below are not sustainable and liable to be reversed.
4. Arguments heard and record perused.
5. It is not disputed that deceased Abdul Khaliq had two wives, four sons and four daughters, from whom one son and two daughters had predeceased their father , Abdul Khaliq. Respondents No. 1 to 5 claimed that they and the petitioner are the only legal heirs of deceased Abdul Khaliq However , learned trial Court has held the sons and daughters of the predeceased son and daughters entitled by virtue of section 4 of Muslims Family Laws Ordinance 1961. Petitioner has not disputed the legal heirs of the deceased Abdul Khaliq. Likewise, she has not denied that a son and two daughters of Abdul Khaliq have died in his life time and that date of death of Abdul Khaliq was 16.03.2019. The petitioner alleged her prerogative of the entire amount of the joint account on the plea that in the life time either she of her husband could operate the account but after the death of her husband she, being the survivor of the account, was entitled to operate the account exclusively and in that capacity no one else from the legal heirs could claim his/her entitlement.
06. No doubt that it was a joint account of the deceased and the petitioner , which was an understanding between the principle account holder , the petitioner and the Bank, for the purpose of operat ion of the account, the status of which admittedly was "either or survivor" but on the death of principle account holder the survivor or even the nominee could not claim his/her exclusively entitlement for the credit rather on the event of death the survivor or the nominee is legally bound to submit the succession certificate and the amount shall be disbursed in accordance with the law of inheritance because there is no cavil with the proposition that after the death of a Muslim, all the moveable or immovable assets/legacy left by the deceased automatically devolve upon all the legal heirs. Rel: "Mst. Parveen (Deceased) through LRs. Versus Muhammad Pervaiz and others" (2022 SCMR 64), "Faqir Ahmed Khan (Deceased) through L.Rs. Versus Riaz Ahmad and others" (2020 SCMR 346), "Ghulam Qasim and others Versus Mst. Razia Begum and others" (PLD 2021 SC 812 "Bashir Ahmad Anjum Versus Muhammad Raf fique and others" ( 2021 SCMR 772 ).
07. When the facts are admitted to the extent of all the legal heirs of deceased of Abdul Khaliq and the suit was tried and concluded to its logical conclusion than merely on the basis of survivorship the petitioner could not be held to be the sole owner by excluding the other legal heirs. In "Mst. Charjo and another v. Dina Nath etc." (AIR 1937 Lah.196) it was observed that in the matter of grant of succession certificate, the Court has to hold merely a summary inquiry for certificate to facilitate collection of debts and for giving valid discharge and it neither gives an absolute right nor does it bar a regular suit for adjustment of the claims inter se. Moreover , this controversy was put to rest by the Supreme Court in the case of "Ch. Habib Ullah v. Sheikhupura Central Cooperative Bank Ltd."
(PLD 1987 S.C 53 ) wherein it was held:- "Advancement, joint account. -Where a Muslim died leaving deposit in the joint names of himself and his daughter , payable to either of survivor , such, deposits did not constitute a gift in the nature of advancement to the daughter in the absence of proof of specific intention. There is a widespread practice in India to make transfer Benami, without the slightest intention. to transfer the beneficial interest; hence, the burden of proving the intention of an advancement is on the person who asserts it, though, in the case of close relative s, very little evidence is enough to establish' the claim. Mujtabai Begum v . Mahbub Reiman (AIR 1959 Madh. Pages 359, 364) ."
8. Besides, a similar issue came up before the Court in the case of "Guran Ditta vs. T. Ram Ditta (AIR 1928 PC 172) when a dispute arose about the amount deposited by husband in the joint accou nt with his wife. As per the facts of that case, Teku Ram had deposited Rs.1,00,000 with Peshawar Branch Alliance Bank of Shimla in the name of himself and his wife payable to either or survivor . After evidence, it was proved that amount was deposited by the husband. It was held "that wife is not entitled for the entire amount as the same was not gifted out to his wife. The contention of survivor mention ed in the opening form of Bank account was repelled." Moreso, even a nominee is not entitled to receive the entire amount left behind by the deceased. Such nomination could not override provision of Islamic Law of inheritance; therefore, no legal heir could be deprived from receiving their respective share. In this respect reference can be made to the case of "Malik Safdar Ali Khan v. Public at Larg e and others" ( 2004 SCMR 1219 ).
09. Next contention of the learned counsel for petitioner about the gift of the property by the deceased in favour of petitioner is also misconceived for lack of evidence. It is pertinent to mention that petitioner has appeared before the learned trial Court through Muhammad Salim Khan son of Sher Afzal Khan, who happened to be her special attorney and the power of attorney got exhibited as Ex. DW-1/2, however , he has not uttered a single word about the alleged gift. It is also significant to mention that the plaintif fs have alleged that except them and the petitioner no one is entitled for the legacy in consonance with the injunction of Islam especially , when section 4 of MFLO of 1961 has been declared to be against the injun ctions of Quran and Sunna. True, that vide judgment in the case of "Allah Rakha and others Vs. Federation of Pakistan and others" (PLD 2000 FSC 1) section 4 of Muslim Family Laws Ordinance has been declared as repugna nt to the Islamic Shariat yet such verdict has been challenged before the Supreme Court of Pakistan and thereb y the operation of the verdict stands suspended automatically till the disposal of appeal as provided under Article 203D of the Constitution of Pakistan, 1973. The grandson, therefore can inherit the share of his predeceased father from his grandfather . Ref: "Mst. Fazeelat Jan and others Versus Sikandar through his Legal Heirs and others" ( PLD 2003 SC 475 ).
10. Pursuant to above, I am of the view that the findings recorded by learned trial Judge and affirmed by learned Appellate Court are not only in consonance with the record of the case but the same are also in accordance with the law on the subject, which, in the circumstances are immune from interference. Rel: "Muhammad Feroz and others Vs. Muhammad Jamaat Ali" (2006 SCMR 1304 ), "Rashid Ahmad Vs. Said Ahmad" (2007 SCMR 926), and "Mst. Zaitoon Begum Vs. Nazar Hussa in and another" (2014 SCMR 1469 ). The civil revision is devoid of force which is dismissed in limine . The listed application C.M No. 95-M/2020 also meets the same fate.