These two first appeals (No. 10/67 and No. 11/67) one preferred by Naim Jan and Mst. Yaqut Jan against Mst. Wazirzadgai and another heirs of Qazi Abdul Wahid deceased and Mst. Mada Matan; and the other appeal by Naim Jan and Mst. Yaqut Jan against Faqir Mohammad Khan, are disposed of by a single judgment as they arise out of the two consolidated applications by the appellants with respect to the revocation of the succession certificates, granted to the respondents in each of the appeals. In each of the appeals order dated 4-9-67 whereby the Senior Civil Judge, Peshawar, rejected the application for the revocation of the succession certificates is challenged.
2. Qazi Mohammad Akbar Khan resident of Navi Killi, Tehsil Char--sadda, District Peshawar, had two wives. Mst. Umatur Rehman was the sole daughter from one wife while Qazi Abdul Wahid and Afst.
Mada Matan were the children from the second wife. It is alleged that Mst. Umatur Rehman lived in house No. 1356-A G.P.O. Lane, Peshawar Cantonment; while her consanguine brother and sister lived in Navi killi. The record shows that Mst. Umatur Rehman was aged about 35 years. She was an ailing lady and had been under treatment for her illness since long. On 6-3-62 Mst. Umatur Rahman was wedded to Faqir Mohammad Khan resident of village Cham--kani, Tebsil Nowshera (Line Superintendent, Electricity WAPDA) before the Nikah Registrar of village Chamkani. Mst Umatur Rehman besides other movable and immovable property had the following debts; Saving Bank Accounts and Saving Bank Certificates in G.P.O., Peshawar S. No. Amount of debt including interest & date of applica--petition for certificate.
Description and date instrument if any, by which the debt is secured.
1 Rs. 8,61 Vide Saving Account No. 14255 2.
Rs. 7,270 S. Account No. 259660.
3.
Rs. 1,000 Saving Certificate No. N.D.S. G./F.O. 86793.
4.
Rs. 1,000 S. Certificate No. N.D.S.C.F.O. 86794.
5.
Rs. 1,000 S. Certificate N.N.D.SC.F.O. 86795.
6.
Rs. 1,000 Saving Certificate No. N.D.S.C.G.O. 35657.
Total Rs.1,6131 Mst. Umatur Rehman died or. 8-9-1962. On 14-3-64, Qazi Abdul-Wahid and his sister Mada Matan lodged an application (No. 11/2 of 1964) under section 372 of the Succession Act, 1925 for the grant of succession certificate with respect to the above-mentioned debts. They cited Faqir Mohammad as respondent in the case. The applicants prayed for the grant of the succession certificate with respect to half of the total debts as their Shari Shares. Faqir Mohammad also lodged a similar application (No. 17/2 of 1964) for grant of the succession certificate on 7-4-64 for half share of the total amount of debts referred to above. Qazi Abdul Wahid, Mst. Mada Matan and general public were arrayed as respondents.
3. Both the applications were entertained by the Senior Civil Judge, Peshawar. The learned Senior Civil Judge, Peshawar, by his order-dated 9-6-64 granted Qazi Abdul Wahid and Mst. Mada Matan a succession certificate with respect to half share out of the above-mentioned total debts. He also granted Faqir Mohammad on the same date a succession certificate with respect to the remaining half of total debts. Proper succession certi--ficates were handed over to the respective applicants on 17-6-64.
4. It is alleged that Naim Jan is maternal uncle's son as well as adopted son of Mst. Umatul Rehman, while Mst. Yaqut Jan is the maternal aunt (Khala) of Mst. Umatur Rehman. Naim Jan and Mst. Yaqut Jan both residents of house No. 1356-A G.P.O. Lane, Peshawar Cantt. 'Instituted an application (No. 42/6 of 1964), under section 383 of the Succession Act for the revocation of the succession certificate granted to Faqir Mohammad Khan on 9-6-64 Faqir Mohammad Khan was arrayed as respondent in the matter. Both of them also lodged a similar application (No. 43/6 of 1964) for the revocation of the succession certificate granted to Qazi Abdul Wahid and Mst. Mada Matan on 9-6-64. The revocation of two succession certi--ficates was sought on the following grounds:
(a) That the succession certificate has been obtained without any entitle--ment.
(b) That the succession certificate is obtained by the, respondents by means of untrue allegations of facts and fraud.
The applicants to both the cases relied on an unregistered will dated 4-9-62 by Mst. Umatur Rehman in favour of the two applicants in each case (as the executors of the will). The applicants averred that according to the terms of the will the two Saving Bank Accounts mentioned at serial Nos. 1 and 2 of the details of debt above (mentioned at S. No. 'A' of the will) although solely in the name of Mst. Umatur Rehman, in fact represented the amount of joint income from the property of both the testator and Yaqut Jan and as such Mst. Yaqut Jan applicant No. 2 was entitled to half of that amount as of right, and out of the remaining amount of Rs. 7.933.44 represented according to the will. Thus she claimed the amount of Rs. 7,933.44 allowing the interest. In both the applications Naim Jan averred that according to the terms of tile will dated 4-9-62 out of the amount of the four saving certificates, total Rs. 8,000, he was entitled to Rs. 2,000 according to the will of Mst. Umatur Rehman, he had to spend Rs. 3,000 on the obsequies of the testator and the remaining Rs. 3,000 were to be spent as "Sadqa-i-Jarya", on the construction of mosques etc.
5. Both these applications were contested by Faqir Mohammad in Case No. 42/6 and Qazi Abdul Wahid and Mst. Mada Matan in Case No. 43/6. Abdul Wahid died during the pendency of the proceedings and his legal representatives who are respondents Nos. 1 and 2 to Appeal No. 10/67 were brought on record. (Vide statements of the counsel for the parties dated 13-11-64. Both the Applications Nos. 42/6 and 43/6 of 1964 were consolidated and proceedings were recorded to file No. 43/6 of 1964. The objectors examined several witnesses in support of their applications but I will discuss the evidence of witnesses relevant to the discussion of the present appeals.
6. Aminuddin (O. P. W. 16) is the witness of the will-deed copy Exh. G.P.W. 16/1. This witness deposed in cross-examination that the execu--tant was related to him. His (Aminuddin's) maternal grandfather was the son of the maternal aunt of the mother of the deponent, the mother's name of the executor was Khairun Nisa: he (the witness) did not know Faqir Mohammad respondent; he also did not know Qazi Abdul Wahid; he did not know whether the executant was married or not; that the will-deed was executed in the residential house of Mst. Umatur Rehman at Peshawar Cantt.; that he had got the same relationship with Naim Jan objector as with Mst. Umatur Rehman; and that he did rot know if Qazi Akbar Jan had other children besides Umatur Rehman deceased.
7. Aminul Haq (O. P. W. 17) is another marginal witness of the will --deed copy Exh. O. P. W.16/1. This witness stated in cross-examination that Mst. Umatur Rehman did not observe parda from him, that she was not related to him but she was his neighbourer, that be did not know if rust. Umatul Rehman was married or not; that she used to say that she had a brother; that the will-deed was executed about 15 days prior to the death of the testator; that Qazi Naim Jan used to live with Mst.
Umatur Rehman; that to his knowledge Mst. Umatur Rehman bad no sister; he did not know Faqir Mohammad respondent; that he came to the residential house of Umatur Rehman after her death; and that he did not know whether Mst. Umatur Rehman was married to Faqir Mohammad or not.
8. Mohammad Ashraf (O.P.W. 18) is the third attesting witness of the will copy Exh. O. P: W. 16/1. This witness testified in cross-examination that Mst. Umatur Rehman did not observe parda from him; that Mst. Umatur Rehman was young at the time of her death when she was 35 years of age: that Qazi Naim Jan is his relative and that he knew him since long, that the wife of his paternal uncle is his sister; that Mst. Umatur Rehman had a brother; that he was her consanguine brother ; that he did not know his name; that he did not know , anything about the sister of Mst. Umatur Rehman; that Qazi Naim Jan was about one year's age when his mother died and he was brought up by Mst.
Umatur Rehman; that she was 45 years of age at the time of her death; that it was possible that she was of ten years of age when she began bringing up Qazi Naim Jan; that he did not know anything personally about this; that Mst. Umatur Rehman's mother was the sister of Qazi Naim Jan's father; that Mst. Yaqut is the maternal aunt of Mst. Umatur Rehman, testator; that Mst. Yaqut Jan had lived in one house with her; that she was present at the time of the execution of the will- deed; that the Nikah of Mst. Umatur Rehman was performed with Faqir Mohammad respondent but `Rukhsati' had not taken place ; that the Nikah of Faqir Mohammad was performed with Umatur Rehman about a year prior to her death; that Naim Jan was his (witness's) friend; and That the will- deed was written ten-twelve days prior to the death of Mst. Umatur Rehman.
9. Mian Muhammad Mirza (O.P.W. 19) is the scribe of the will-deed Exh. O.P.W. 16/1. He stated in cross-examination that the will deed was scribed by him at the house of the testator; that Mst.
Umatur Rehman was about 47 years of age; that she was also present at the time of the will-deed being scribed; that Mst. Yaqut was also present at that time.
10. Naim Jan objector No. 1 (O.P.W. 20) deposed that Qazi Abdul Wahid and Mst. Mada Matan, in collusion with Faqir Mohammad obtained succession certificates in respect of the deposit of Mst.
Umatur Rehman in the G.P.O. Peshawar and the National Developing Certificate, that this amount was credited in the Saving Bank Account and the National Defence Certificates detailed in his objection petition; that the entire amount comes to Rs. 16,132 out of which a certificate for Rs. 8,066 was obtained by Qazi Abdul Wahid and Mst. Mada Matan and another certificate for the same amount was obtained by Faqir Mohammad that Mst. Umatur Rehman was the daughter of his paternal aunt he repeated his claim to the amount of Rs. 8,000 as entered in his favour in the will and described in detail above. He added that at the time of the death of Mst. Umatur Rehman, he was aged 30 years and as far as he recollected, he had never seen Abdul Wahid or Mst. Mada Matan ever visiting the deceased or latter visiting the former nor did he ever hear about the relationship between them. To the will referred to above, the testator stated that the nikah ceremony between her and Faqir Mohammad was performed; that Mst. Umatur Rehman however lived in her own house till her death and the Rukhsati had never taken place. In cross-examination, be deposed that he and his co-objectors learnt about the application of Faqir Mohammad on the one hand and Qazi Abdul Wahid and Mst. Mada Matan on the other to obtain certificate soon after they were granted to them. He could not say through whom he got these information; that it was correct that before getting this information neither Mst. Yaqut Jan nor he had taken any steps to get the credits of Mst. Umatur Rehman deceased; that at the time when Mst. Umatur Rehman bad died their locality was included in Ward Nos. 3/4 of the Basic Democracies; that they did not make any application to the Union Council either; that Mst. Yaqut Jan co-objector is the maternal aunt of Mst. Umatur Rehman deceased and his (the witness's) paternal aunt, that he is a science graduate of the Peshawar University; that he had been in the Custom Department for the last 20 years; and that he was an inspector at that time.
11. Mohammad Yaqoob, servant and special attorney of Mst. Yaqoot Jan (O.P. W. 21,), testified that Mat. Umatur Rehman made a will before her death true copy of which is Exh. O. P. W. 16/1 ; that at the time of her death she had handed over tire pass book etc. Pertaining to the National Savings to Mst. Yaqut Jan and Naim Jan and the witness produced the original for perusal of the Court; that the applicants Qazi Abdul Wahid, Mst. Mada Matan and Faqir Mohammad are not known to him.
On cross-examination the witness deposed that to the best of his knowledge, no nikah of the deceased Mst. Umatur Rehman was performed with Faqir Mohammad and till her death he never knew that this nikah was performed that at the time of the will being dictated by Mst. Umatur Rehman he was standing as close to her as he was then standing in Court between counsel and the parties and even at that time Mst. Umatur Rehman did not mention that her nikah was ever performed with Faqir Mohammad; that they took the matter to the Union Council also and deposited there also some cash but no settlement could be arrived at; that Faqir Mohammad also carte there; that Faqir Mohammad was claiming that he was the husband of Mst. Umatur Rehman and that he was entitled to share in her property left by her; that this was about three years ago that Yaqub Jan son was alive; that he is his servant and her lives in Peshawar Cantt.
12. Faqir Mohammad respondent (R.W. 1) deposed that Mst. Umatur Rehman was his legally wadded wife, that she was married to him in March, 1962; that Exh. R. W. 1/1 is the original nikahnama duly registered before the Registrar, Union Council Chamkani. It bears her signature; that in the same year i.e. 1962.About five or six months after his marriage she fell ill and was admitted in the L.R.H. Peshawar, that she died of cancer, about a month after the admission in the hospital; that soon after her death the father Qazi Naim and his maternal aunt instituted a case against him before the Chairman, Union Council No. 3, Peshawar Cantt he produced certified copy of the proceedings Exh. R.W. 1/3. The witness then proceeded on to state that he and Qazi Abdul Wahid and Mst. Mada Matan had applied for succession certificates separately, which were granted to them. He added that the will-deed produced by the petitioners is a forged one. In cross- examination the witness stated that Qazi Abdul Wahid was the consanguine brother of his deceased wife Mst. Umatur Rehman; that the co-applicant of Qazi Abdul Wahid i.e. Met. Mada Matan is consanguine sister of his deceased wife; that Qazi Abdul Wahid died sometime back and his legal representa--tives have already been brought on record.
13. Attaullah Khan (R.W. 2), Moosa Khan (R.W. 3) witnesses of the nikah and Mohammad Mukhtar (R.W. 4) Nikah Registrar of the Union Council, Chamkani who scribed-Exh. R.W. 1/1 were produced besides other witnesses by the respondents. It may be mentioned at this stage that the original nikahnama Exh. R.W. 1/1 describes the age of Umatur Rehman (dulhan) as 38 years. The Nikahnama purports to, have been signed by `Umatur Rehman. It will be also beneficial to mention that the will deed dated 4-9-62, produced at the time of hearing the appeal, purports to bear the signatures as well as thumb impression of Mst. Umatul Rehman the testa--tor at two places.
14. At the conclusion of the proceedings of the application for revocation the learned Senior Civil Judge for reasons of his own, held that the will slated 4-9-62 did not seem to be a genuine one, that there were lot of contra dictions in the statements of Naim Jan applicant and all the P.Ws.
Produced by the applicants, and that even after getting information about the succession certificates, the applicants did not take any steps to get the credit of Mst. Umatul Rehman deceased. He, therefore, concluded that; the applica--tions of Naim Jan and Mst. Yaqut Jan are baseless and as such by order dated, --4-9-67 rejected each of the applications and hence the two appeals.
15. The grounds in the memo of both the appeals and the prayer are common. The note is also given in each of the appeals that if the appeal is --found incompetent by the Hon'ble Court then the -same may be treated as revision petitions.
16. The principal points urged by the learned counsel for the appellants are grounds Nos. 2, 3 and 5 in the, memos of appeal. The prayer is that by accepting the appeal the order of the learned lower Court dated 4-9-67 may be vacated and the appellants may be declared as competent to, receive the certificates in question.
17. Mr. Inayat Elahi, learned counsel for the appellants in both the appeals, Mr. M. E. Hayat Khan Advocate assisted by Mr. Jalaluddin Khan, Advocate for respondents in F.A.O. No. 10/67 and Mr. D.M.
Kamil, Advocate assisted by Mr. M. F. Hayat, Advocate for the respondent in F.A.O. No. 11/67, heard.
From the arguments of the learned counsel for the parties in the two appeals the following contentions need determination.
(1) Whether on the pleadings and evidence of the applicant-appellants, the succession certificates are liable to be revoked under section 383 of the Succession Act?
(2) Whether the will dated 4-9-62; purported to, be a will of Mst. Umtal Rehman testator and relied upon by the applicant-appellants is a genuine deed?
(3) Whether the additional prayers in tire appeals can legally be granted on the basis of the will in the proceedings of revocation of the succession certificates?
(4) Whether the appeal, if any, would lie to the District Judge or the --High Court?
(5) In case the appeals are treated as revision petitions, whether proper cases for revisions are made out?
18. Part X of the Succession Act deals with the Succession Certificates. Section 383 provides for revocation of the certificate. This section reads: "393. A certificate granted under this part may be revoked for arty of the following causes, namely:-
(a) that the proceedings to obtain the certificate were defective in. Substance ;
(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
(c) that the certificate was obtained by means of an untrue allegation of, a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through, circumstances;
(e) that a decree or order made by the competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should: be revoked."
19. Let us now consider the contentions raised in the two appeals severally.
'20. The learned counsel for the appellants asserts that the case of the appellants for revocation of the succession certificates falls within the ambit of section 383 (b) (c). In the two objection applications it has been averred that the succession certificate, in each case, had been obtained without any entitlement and secondly that the succession certificate in each case is obtained by' the respondents by means of untrue allegations of facts and fraud. It has been proved on record that Faqir Mohammad is the husband of the deceased Mst. Umatur Rehman. The spouse had no child. It is also established on record that Abdul Wahid now deed and Mst. Mada Matan are the consanguine brother and sister of Mst. Umatur Rahman deceased. Faqir Mohammad. Abdul Wahid and Mst. Muda Matan are there-- fore, `Shari' heirs and successor of Mst. Umtar Rehman. Naim Jan appellant is the maternal uncle's son as well as allegedly adopted son of Umtar Rahman while Mst.
Yaqut Jan appellant is the maternal aunt (Khala) of Umatur Rehman. They are as such rot 'Shari' heirs or successors of Mst. Umtar Rehman. The alleged will was executed on 4-9-62. Mst. Umtar Rahman died on 8-9-62. Abdul Wahid and his sister Mst. Mada Matan applied for the succession certificate of the debts of Mst. Umtar Rehman on 14-3-64 while Faqir Mohammad had applied for a similar certificate on 7-4-64. It is admitted by Naim Jan objector (O. P. W. 20) in his evidence that neither he nor Yaqub Jan has taken any step to get the credits of Umtar Rehman deceased till the grant of succession certificates on 9-6-64. In the circum-- stances, therefore, Faqir Mohammad on one hand as a husband, and Abdul Wahid and Mst. Mada Matan on the other hand as consanguine brother and sister of Mst. Umtar Rehman were entitled to the grant of succession certificates according to their 'Shari' shares. Neither Naeem Jan nor Mohammad Yaqub special attorney of Mst. Yaqut Jan have uttered a word in their evidence about the disentitlement of the three successors for the succession certificates. The appellants have also averred in their objection application that the succession certificates were obtained by Faqir Mohammad, Abdul Wahid and Mst. Mada Matan by means of untrue allegations of facts and fraud In both the objection applications for revocation of the succession certificates, particulars of untrue allegations and fraud have not been stated therein. The pleadings according to law, shall contain and contain only statement of facts in a concise form of the material on which the parties pleadings relies for his claim. In ail cases, it is obligatory on the party to state in the pleadings the particulars of any misrepresentation, or fraud. Pleadings by them--selves are not evidence in a case but proceedings are to be substantiated by the evidence for their proof. To repeat again, Naim Jan or Mohammad Yaqub special attorney of Mst. Yaqut Jan or any other witness on their behalf have not produced an iota of evidence to substantiate the pleas of untrue allegations, misrepresentation of fact or fraud. For these reasons, therefore, the succession certificates granted to Faqir Mohammad to the extent of half share of the debts and to Abdul Wahid and Mst. Mada Matan to the extent of the remaining half share of debts of Mst. Umatur Rehman are not liable to be revoked under section 383 of the Succession Act.
21. Let us now consider the genuineness of the alleged will dated 4-9-62 of Mst. Umtar Rahman. The original will when examined sows that it purports to bear the signatures and thumb-impression of Mst. Umtar Rehman at two places. The nikahnama Exh. R. W. I/L produced by Faqir- Mohammed respondent also purports to be signed by Mst. Umtar Rahman. By a visual comparison of the signatures purporting to be that of Mat: Umatur Rahman on nikahnama and the two signatures on the will, I am of the view that the three signatures resemble each other. The execution of nikahnama is proved by the evidence of the three attesting witnesses and the scribe. To determine whether this will-deed is genuine, it will have to be established by the appellants that the testator executed the will in her right mind and that with disposing mental capacity, without any use of undue influence on her. In the will, Mst. Umtar Rahman has stated that she is- a patient suffer--ing with tumour (Rasoli), blood pressure and that on account of the intensity of the decease she has become infirm and weak. The various prescriptions and other documents placed on record by the objectors also established the fact that the lady was imbeciled since long. Faqir Mohammad, her husband, Chas deposed that she was admitted in the Lady Reading Hospital and was suffering from cancer. It can also be presumed from the proceedings before the Chairman, Union Council, copy Exh. R. W. 1/3, that Umatur Rehman had remined a patent in the Lady Reading Hospital for about three-four months. The will was executed on the 4th of September 1962, and the testator died four days thereafter viz. On 8-9-62. With regard to the Saving Bank Accounts and Certificates as S. No. A & B, the testator had stated in the will that grand total of both the amounts of the A & B comes to Rs. 15,930.44 and that this amount is her personal property and she is entitled to give it away, but later on in the will the testator has stated that the amount in the Saving Bank Account was deposited out of a joint income from the property belonging to her and Mst. Yaqut Jan. It is established from the objectors' evidence that the will was scribed in house No. 1356-A G.P.O. Lane, Peshawar Cantt where Naim Jan and Mst. Yaqut Jan both resided and that it wasscribed in their presence P. W. Aminulla Haq an attesting witness of the will Chad deposed that the will deed was executed about 15 days prior to the death of the testator; while Mohammad Ashraf P. W., the other attesting witnesses has deposed that the will deed was written ten-twelve days prior to the death of Mst. Umtar Rahman. The testator described herself in the will as daughter of Qazi Mohammad Akbar Khan and wife of Faqir Mohammad, case Qazi Kheil, P. W. Aminul Haq, an attesting witness of the will, had signed the will in English. This witness stated in cross-examination that he did not knew whether Mst. Umatur Rehman was married to Faqir Mohammad or not. P. W. Aminuddin, another attesting witness of the will stated in cross-examination that he did not know Faqir Mohammad respondent although he admits that he was related to the testator. P. W. Mohammad Yaqub special attorney of Mohammad Yaqut Jan and her servant has deposed that he was present at the time the will-deed was scribed and was standing close to Mst. Amatur Rehman. But he stated that Mst. Amatur Rehman did not mention that her nikah was ever performed with Faqir Mohammad.
Amatur Rahman gives her age as 47 years in the will-deed. In the Nikahnama her age is entered as 38 years. Muhammad Ashraf P. W. Gives her age to be 35 years. In the will, the tastator has described Naim Jan as her adopted son. P. W. Mohammad Ashraf has deposed that Qazi Naim Jan was about one year of age, when his mother died and be was brought up by Amtar Rehman. He also stated in cross-examination that she was 45 years of age and Lt the time of her death, it is possible that she (Mst. Amtar Rehman) was ten years of age when she began bringing up Qazi Naim Jan. P. W. Naim Jan, appellant, has stated that Amtar Rahman was the daughter of his paternal aunt but he never deposed that he was brought up by Amtar Rahman as her adopted son. He further stated that at the time of the death of Mst. Amtar Rehman he was aged about 30 years. The witness had staled in cross-examination that be is a science graduate and had been in service of the Custom Department for the past 20 years. This statement was recorded on 7-6-66.
Even if it is presumed that Naim Jan entered in service at the age of about 20-21 years, he would be about 37 years of age when the will was executed. Considering the age of Amtur Rahman to be about 35-38 years, it is unbelievable that she being herself a minor child when the mother of Naim Jan died would bring up Naim Jan as her adopted son. The evidence of Faqir Muhammad husband of Amtar Rahman appears to be correct that she died of cancer a month after remaining as indoor patient in the Lady Reading Hospital, Peshawar. From all this discussion, it is amply established that at the time of the execution of the will she was imbecile on account of the intensity of the disease with which she was suffering. She was not a free agent, and possessed of no sufficient mental capacity to grasp the full significance of the document to which she was putting her signature being under the influence of the appellants. The evidence on record as such proves that the will- deed relied upon by the appellants is not a true and genuine document representing the wishes and will of the testator. The conclusion of the learned Senior Civil Judge in this report appears to be correct.
22. In both the objection petitions for the revocation of the certificate under section 383 of the Succession Act, the applicant-appellants have simply prayed that the succession certificate to each case dated 9-6-64 in favour of the respective respondents relating to the debts of Mst. Amtar Rehman be revoked. In the memos of each of the appeals, it has been prayed that the impugned order of the learned lower Court dated 4-9-67 be vacated and the appellants be declared as competent to receive the certificates in question. Needless to say that the additional relief as in the memo of appeal has not been prayed in the applications for revocation Rule 7 of Order VII lays "7. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the 'alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
The learned counsel for the appellants argued that the additional relief can be granted to the appellants by way of general or other relief which may always be given as the Court may think just.
The argument is not weighty.1 General or other relief is the one which ensues from the relief specially stated in the plaint; as for instance the Court can award interest on the sum found due to the plaintiff or grant the mesne profits, or grant declaratory decree where the suit was for possession or direct accounts in a suit for money. The additional relief claimed by the appellant can, therefore, not be granted to them as it has not been specifically stated in the plaint. The appellants have based their claim for the succession certificate on the basis of the will executed in their favour. The succession certificates are granted under Part X of the Succession Act while the provisions for probate, letters-of-administration and Administration of assets of the deceased are the subject of Part IX of the Succession Act. Section 217 (Part IX) of the Act provides "217. Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of adminis--tration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be in accordance with the provisions of this part."
23. Mr. Ma F. Hayat learned counsel for the respondents vehemently contended that the appeal, if any, would lie to the Court of the District Judge and not to the High Court. Before entering into discussion on the point, it will be beneficial and to facilitate appreciation of the point, to reproduce the law relating to such matters as under:- "Section 384 of the Succession Act---(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of District Judge granting, refusing or revoking a certificate under this part, and the High Court, may if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made there for, to grant it accordingly, in super-session of the certificate, if any. Already granted.
(2) An appeal under subsection (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908.
(3) Subject to the Provisions of subsection (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 as applied by section 141 of the Code, an order of a District Judge under this part shall be final.
Section 388----(1) The Provincial Government may, by notification in the official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this part.
(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction, with the District Judge in the exercise of all the powers conferred by this part upon the District Judge, and the provisions of this part relating to the District Judge shall apply to such an inferior Court as if it was a District Judge: Provided that at) appeal from any such order of an inferior Court as is mentioned in subsection (1) of section 384 shall lie to the District Judge, and not to the High Court and that the District Judge may, if he thinks fit, by his order on the appeal make any such declaration and direction as that subsection authorised the High Court to make by its order on an appeal from an order of a District Judge.
(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing subsection shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of the Code, be final.
(4) The 'District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.
(5) A notification under subsection (1) may specify any inferior Court specially or any class of such Courts in any local area.
(6) Any civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge."
Besides these provisions of the Succession Act, the Provisions of section 23(1)(a) of the N.W. F. P.
Courts Regulation, 1931 and section 12 of the West Pakistan Civil Courts Ordinance, 1962 (Ordinance No. II of 1962), are reproduced below:- Section 23 (1)(a) of the N: W. F. P. Courts Regulation, 1931: "23:--(1) The Judicial Commissioner may, by general or special order, authorise any Subordinate Judge to take cognizance of, and any District Judge to transfer to a Subordinate Judge under his control, any proceedings or any class of proceedings, specified in such order, under:-
(a) the Indian Succession Act, 1925, if the proceedings cannot be disposed of by the delegate:"
Section 12 of the West Pakistan Civil Courts Ordinance 1962: "12. (1) Notwithstanding anything contained in the Succession Act, 1925, the High Court may, by general or special order, authorise any Civil Judge to take cognizance of or any District Judge to transfer to a Civil Judge under his control, any proceedings or class of proceedings under the said Act.
(2) The District Judge may withdraw any such proceedings taken cognizance of by or transferred to a Civil Judge, and may either himself dispose of them or transfer them to a Court under his control competent to dispose of them: Provided that nothing herein contained shall empower a District Judge to withdraw such proceedings as have been specifically transferred from his Court by the High Court.
(3) Proceedings taken cognizance of by or transferred to a Civil Judge as the case may be, under this section, shall be disposed of by him subject to the rules applicable to like proceedings when disposed of by the District Judge."
It would be pertinent to note that by section 28 of the West Pakistan Civil Courts Ordinance, 1962 and the Schedule attached to it, the whole of Regulation No. 1 of 1931 (N.W. F. P. Courts Regulation, 1931) has been repealed. Before coming into force of the West Pakistan Civil Courts-Ordinance on 8January 1962, a similar question arose for determination, in Durga Devi v. Rup Chard Duni Chand (AIR 1938 Pesh. 62). In this case a revision petition was made by Durga Devi and one other for revision of the appellate order of the Additional Judge, Peshawar reversing the order of the Sehior Sub-Judge, Mardan by which the latter had refused to grant the succession certificate to Rup Chand etc. It was contended that the District Court had no jurisdiction to hear the appeal and the appeal from the order of the Senior Civil Judge lay to the Court of the Judicial Commissioner under section 388 of the Succession Act. It was held:- "It is not suggested by either of the learned counsel who have appeared before me that any notification has been issued under this section of the Act.
Section 23 of the N.-W. F. P. Courts Regulation of 1931 reads as follows:- The Judicial Commissioner may by general or special order authorise any subordinate Judge to - take cognizance of any District Judge to transfer to a Subordinate Judge under his control, any proceedings or any class of proceedings specified in such order under-
(a) the Succession Act, 1925, if the proceedings cannot be disposed of by the District4 Delegate.
By a general order all Subordinate Judges in this province have been authorised to take cognizance of such proceedings.
Section 30 of the same Regulation reads as follows: Save as otherwise provided by any law for the time being in force, appeals from decrees of Courts exercising original jurisdiction shall lie as follows:
(a) in a suit of the value not exceeding Rs. 5,000 to the Court of the District Judge, and .
(b) in all other cases to the Court of the Judicial Commissioner.
It is clear in these circumstances that although Senior Sub-Judges have been invested with powers to hear applications under the Succession Act, they have not been so empowered by a Notification of the Local Government published in the local official Gazette as required by section 388, Succession Act. The normal course of appeal laid down in the N.-W. F. P. Courts Regulation is therefore not affected, and the appeal in this case lay to this Court and not to the Court of the District Judge The West Pakistan High Court or the Peshawar High Court' has not passed any general order or special order under section 12 of the West Pakistan Civil Courts Ordinance to authorise any Civil Judge to take cognizance of any proceedings or class of proceedings under the Succession Act.
However, by a notification reproduced below:- "Civil Secretariat, North-West Frontier Province, Gazette Notification dated Peshawar the 5th/6th June 1939.
No. 21635-HJ.--Under powers conferred - by section 388 of the Indian Succession Act, XXXIX of 1925, the Governor, North-West Frontier Province is pleased to invest all Senior Sub-Judges in the North-West Frontier Province with power to exercise the functions of a District Judge under Part X of the said Act."
Thus the appeal, if any, lay to the HighCourt.
23-A. The learned counsel for the respondents then contended that ails order refusing to revoke succession certificate is not appeal-able because section 384(1) of the Succession Act provides that an appeal shall lie to the --High Court from an order a District Judge granting, revising or revoking: succession certificate under this Part (Part X). The learned counsel for the appellants relied on the two under-mentioned cases:-th
(1) I L R 19 Bom. 821.---In this case, one Punja died in 1889, leaving behind him his daughter Mahali.
Punja, it was alleged, had made a will appointing Kalidas and Kasandas as his executors. The executors applied for a Certificate under the Succession Certificate Act VII of 1889 to recover a debt due to the deceased's estate from one Motiram Mahali opposed this application, and claimed the certificate for herself by a separate application. The District Judge rejected Mahali's applica-- petition, and issued a certificate to the executors on 14th September 1892. thSeptember 1892, Manchharam applied for a certificate under Act VII of 1889 to recover this debt.
The District Judge rejected this application. Manchharam appealed to the High Court. To this appeal the executors were made parties at their own request. The High Court reversed the District Judge's order and remanded the case for disposal on the merits. Upon the remand the executors did not appear before the District Judge to contest Manchharam's application, and the District Judge granted him a certificate. Thereupon he applied for revocation of the certificate previously granted to the executors; and the executors in their turn applied for a revocation of the certificate granted to him. The District Judge revoked. Manchharam's certificate on the ground that he had fraudulently concealed from the Court the previous grant of a certificate to the executors."
At page 825, it was observed:-- "Mr. Motilal, for the executors, urged a preliminary objection that no --appeal lay from an order refusing to revoke a certificate. He contended that section 19 only contemplated appeals from orders granting or refusing or revoking a certificate. We do not think there is much force in this objection. Manchharam had clearly a right to appeal against the orders revoking his certificate, and the order refusing to revoke the executors' certificate was in fact the same-- order with a different application. Moreover, the section clearly" reserves the revisional powers of this Court as supplementing its appellate jurisdiction."
(2) Mst. Sharifun Nisa v. Qazi Masoom A.I and others ((1920) 56 I C 380): "No appeal lies from an order refusing to cancel a succession certificate, it being not an order granting, refusing or revoking a certificate."
"An order on an application to revoke or cancel a succession certificate amounting to a refusal to revoke does not fall under section 384 and is not appealable and 19 Bom. 821 and (1920) 56 1 C 380, distinguished."
"The learned Assistant Government Pleader has raised a preliminary objection that no appeal lies against the order. He relies on section 384, Succession Act, under which an appeal lies from an order granting, refusing or revoking a certificate under Part X, Succession Act. The application to the lower Court was to cancel or revoke a certificate already granted and the order thereon amounted to refusal to revoke or cancel it, and such an order of refusal to revoke did not fall under that section. On behalf of the appellant, reliance is placed on two decisions, 19 Bom. 821(1) and 42 All. 347(2). In the former case, there were two applications for revoking the certificates granted to two different persons with respect to the same estate, and this Court held that one of the parties had already a right to appeal against the order revoking his certificate and the order refusing to revoke his rival's certificate was is fact the same order on a different application. It was held on that ground that the appeal was really preferred against the order revoking a certificate. In the Allahabad case also the decision was based on a similar ground. In the present case, however, the certificate was granted to the appellant alone and his application is to revoke or cancel that certificate. The order thereon amounts to a refusal to revoke and does not fall under section 384. It must, therefore, be held that the appeal is not com--petent. Mr. Thakor for the appellant, however contends that he has also filed a revisional application and that this Court should set aside the order of the lower Court in revision. As observed in 19 Bom 821(1) it would be open to this Court to interfere if a proper case for revision is made out."
24. As prayed in the Memo of appeal, the learned counsel for the appellants then argued that both the appeals be treated as revision petitions in view of subsection (3) of section 384 of the Succession Act. As observed in the first case cited by the learned counsel for the appellant (95 Bom. 821), it would be open to this Court to interfere if a proper case for revision is made out. This Court has, therefore, to determine whether the subordinate Court has acted in the exercise of its jurisdiction illegally or with material irregularity so as to bring the case within the purview of section 115 of the Civil Procedure Code. As discussed earlier, the applicant-appellants have made out no case on the basis of the pleadings and the evidence for revocation of the succession certificates granted to the respondents in each of the appeals. In Khawaja Noor Muhammad v. Namdar (PLD 1969 Lah. 105), the petitioner Khawaja Noor Muhammad brought an application under section 383 of the Succession Act against Namdar respondent in the Court of Administrative Civil Judge, Jhang praying that the succession certificate issued by the Court in favour of the respondents in respect of the assets of Pir Durki Shah be cancelled. The observations of the learned Judge in paras Nos.4 and 5 of the judgment are worthy of reproduction for the appraising of the point with respect to the competency of the revision petition:-- "4. Coming to the question of revocation, some of the causes for such an order under section 383 of the Succession Act are that the proceedings to obtain the certificate were defective in substance; that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of some thing material to-the case; that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently. The words "defec--tive in substance" have been held to mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. This has not been established before the trial Court, nor has learned counsel for the petitioner been able to point out any such defect in the previous proceedings. As regards the alleged fraudulent nature of the proceedings or making of a false suggestion or concealment of something material, the finding of the trial Court is in the negative. Again, the petitioner has not been able to establish that the allegation of fact essential in point of law to justify the grant was an untrue allegation.
5. According to N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras AIR 1949 P C 156, if the High Court is satisfied that (a) the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and
(c) that in exercising jurisdiction the Court has not acted illegally or with material irregularity, it has no power to interfere because it differs however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. The Administrative Civil Judge has decided the questions of fact raised before him and whether he has decided the same rightly or wrongly, he had jurisdiction to decide the case and even if he has decided wrongly, no case is made out under section 115 of the Code of Civil Procedure. I, therefore, decline to interfere:"
25. Each of the revision petitions is dismissed. Parties to bear their own costs in each case.
K.B.A.