Both the appeals are directed against the order of learned District Judge, Mirpur, passed on June 29, 1988, whereby a succession certificate was issued in the name of legal heirs of late Col. Muhammad Sarwar in respect of the following amounts left by the deceased: Rs. 1,80,000.00 in Habib Bank Ltd.
Bank Square, Nangi, Mirpur; Rs. 30,471.00 in Habib Bank Ltd., Nangi; Rs. 71.40 in Muslim Commercial Bank Ltd., Mirpur.
2. Nadeem Sarwar and others moved an application for grant of succession certificate on July 21, 1983. It was averred that Nadeem Sarwar, Usman Sarwar (minor) sons, Fozia Sarwar, Shazia Sarwar (minor), Aaisha Sarwar (minor) daughters, Robina Sarwar, daughter, Mukhtar Sarwar, widow, Mirza Begum, mother and Raja Noor Dad Khan, father of late Col. Muhammad Sarwar, were his legal heirs, as such entitled to grant of succession certificate. Mst. Ghulam Fatimah moved another application on February 23, 1984 wherein she claimed as widow of late Col. Muhammad Sarwar and Sarwar as son of the deceased. Both the applications were consolidated. Sarwar and others contested the claim of Ghulam Fatimah and Naeem Sarwar. In their objections, it was alleged that Mst. Ghulam Fatimah was divorced by Col. Muhammad Sarwar in his lifetime and Naeem was not legitimate son of Col. Muhammad Sarwar. On February 20, 1985, Muhammad Riaz and.-others also moved an application for impleading them as party. In that application it was averred that late Col. Muhammad Sarwar was a shareholder in a Factory alongwith seven other co-sharers. The amount was delivered to the late Colonel for running the factory; thus the legal heirs of the deceased were eligible to get succession certificate only to the extent of the share of the deceased. The learned District Judge, on consolidation of the applications, framed issues on April 19, 1984 and adjourned the case for arguments. This order was challenged in revision before this Court. It was alleged that the learned District Judge was not empowered to go into intricate questions of civil nature while disposing of an application for grant of succession certificate as the same were liable to be decided by a Civil Court by holding an inquiry; as such the District Judge' may be directed to avoid deciding the intricate questions. The learned Judge of the High Court, on accepting the revision petition, passed the following order on February 17, 1986:-- "In the light of what has been stated above, I hereby accept this revision petition and direct the learned District Judge to hold an inquiry and leave the parties to get a decision of intricate questions by the Court of competent jurisdiction. Keeping in view the circumstances of the case, I pass no order as to costs."
The file was received back on March 20, 1986. It was adjourned to April 20 for proper order. On that date, the applicants were ordered to lead evidence. On May 8, it was explained by the Counsel for Muhammad Suleman that the list of witnesses desired to be produced was furnished and necessary expenses were deposited. On this, the office was directed to summon the witnesses. On August 4, Mahmood Ahmad witness was present but he was sent back without recording his evidence and the case was adjourned to August 26. On that date, the learned counsel for the parties were present. The learned District Judge, by modifying his previous order, directed that first of all the claim made in the application of Muhammad Riaz and others shall be inquired into and thereafter evidence in the application of Suleman and others shall be recorded. Thus the case was adjourned for arguments to September 16. After various adjournments, on November 23, 1986, the learned District Judge decided that Muhammad Riaz alone was eligible to continue as party and all others whose names were entered in the application for arraying them as non-applicants be deleted. The case was adjourned for evidence of Nadeem Sarwar and others, and the witnesses were also summoned for December 21. On that date, the learned Counsel for the parties, by inviting the attention of the Court to the order of the High Court passed on February 17, 1986, proposed that no evidence may be recorded and the applications may be disposed of summarily. In view of the aforesaid situation, the case was adjourned for arguments. On January 17, 1987, Raja Muhammad Siddique Khan, the learned Counsel who represented the appellants, once again suggested that there was no need of recording evidence in presence of direction of the learned Judge of the High Court and agreed that the case may be disposed of summarily. On August 13, 1987, the learned District Judge made correction in the title of the application and also allowed filing of further objections. The objections were filed on February 10, 1988. On February 20, a review petition was moved containing the objection as to whether the applications were maintainable in the light of the order of the High Court passed on February 17, 1986. On April 17, 1988, in presence of the learned Counsel for the parties, it was held by the District Judge that there was enough material on record for disposal of the applications for succession certificate, as such there was no need of framing issues or recording further evidence. On hearing the arguments, the learned District Judge granted the desired certificate in the manner of the impugned order.
3. Raja Muhammad Siddique Khan, the learned Counsel, assailed the order of learned District Judge as bad in law. It was emphasised that the learned District Judge was not competent to go into intricate questions like legitimacy of Naeem Sarwar and relationship of Ghulam Fatimah as were of Col. Muhammad Sarwar unless the same was determined by a competent Civil Court. It was further argued that in case the District Judge felt necessary to decide the aforesaid points, it was enjoined upon him to allow the appellants to adduce evidence in support of their respective claims. Mr. Muhammad Sharif Tariq, who represented Muhammad Suleman appellant, argued that the learned District Judge denied the appellant his right to adduce evidence in support of his claim; as such the order was not maintainable. Mr. Muhammad Younus Surakhvi, the learned Counsel for the opposite side, however, fully supported the order of grant of succession certificate to the parties.
4. It is noticed that on acceptance of the revision petition by the learned Judge of the Court, the learned District Judge was ordered to hold an inquiry by allowing the parties to get the intricate questions settled by a competent Civil Court. The order of the learned Judge of the High Court is very clear and it admits of no other interpretation except this that the inquiry undertaken by the District Judge in the applications of the parties was allowed to be completed and that the parties were left free to seek decision on intricate questions, like divorce of Mst. Ghulam Fatimah and legitimacy of Naeem Sarwar, from a competent Civil Court. The order of the learned District Judge is not found in derogation of the aforsasid direction of the High Court.
5. The law applicable to succession certificates is contained under Sections 370 to 375 of the Succession Act. Section 373 postulates that the District Judge, on satisfaction that the application is entertainable, has to hear the parties concerned on the day fixed by him and shall proceed to decide the application in a summary manner by issuing certificate to the party having right to secure the same. Subsection (3) lays down that when the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. Subsection (4) further lays down that when more than one applicants apply for a certificate and the Judge is satisfied that such applicants arc interested in the estate of the deceased, while deciding to whom the certificate is to be granted, it is enjoined upon him to have regard to the extent of interest and the fitness in other respects of the applicants. Section 375 (1) pertains to security from the person to whom certificate is issued in the light of provisions of subsections (3) and (4) of section 373. This provision applies to a case when the legal relationship of the prospective legal heirs is inter-- disputed or questioned on any ground. It is provided that when the District Judge proposes to proceed under subsection (3) or (4) of section 373, he may require, as condition precedent to the granting of a certificate, that the person to whom the certificate is proposed to be granted, shall give to the Judge a bond with one or more surety or 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 the whole or any part of those debts and securities. The Judge, on application accompanied by a bond of document containing the terms of security, may assign the bond of security to some other proper person as trustee for all the persons interested.
6. In present case, it is rightly pointed out that Usman Sarwar and other appellants disputed the relationship of Mst. Ghulam Fatimah and Naeem Sarwar with the deceased. Likewise, Muhammad Suleman addressed his claim to the amount by denying the title of others. These propositions were not likely to be decided in a summary manner. As a matter of fact, the aforesaid propositions warrant detailed inquiry and relevant evidence for their conclusive determination. This was only possible by bringing a suit in a competent civil Court. Therefore, unless the aforesaid points were conclusively determined by a competent civil Court, it was desirable that at the time of issuing the succession certificate, the District Judge should have secured bonds or security from the persons whose relationship as legal heirs of the deceased was questioned. On this premises, it was equally necessary to secure bonds or security from the legal heirs of the deceased to the tune of amount disputed by Muhammad Suleman. This has not been done. The order of District Judge is defective to that extent.
7. It is noticed from the interim orders of the learned District Judge that part of the evidence was recorded before the passing of order of this Court in revision. Subsequently, though the District Judge ordered the parties to lead their evidence but they failed to avail the opportunity on the wrong impression gathered from the order of this Court. Perhaps the learned counsel for the appellants gathered the impression that the applications were to be disposed of summarily, as such there was no need of evidence to be led on behalf of the appellants. This is why they lost the opportunity. The learned District Judge acted upon the suggestions of the learned Counsel for the parties and granted the certificate in the aforesaid manner. This omission appears to have occurred by common fault of the parties as well as the Court.
8.The Succession Act as well as the Code of Civil Procedure do not lay down any special procedure in summary inquiries. Order XXXVII of the Code postulates summary procedure on negotiable instruments. The provisions of Order XXXVII are not applicable to an application under the Succession Act. However, a summary inquiry warrants disposal of the matter on the basis of some tangible evidence appended with the pleadings of the parties or produced by them at first or second hearing of the matter. It does not entail the procedure contemplated under the Code for deciding issues in a civil suit. In present case, the parties appended some of the documents with their pleadings but unfortunately these documents are just photostat, unaccompanied by a certificate of being true copy of the original. These documents cannot be looked into evidence even in summary proceedings. The documents produced on behalf of Muhammad Suleman, prima facie, suggest that late Col. Muhammad Sarwar was a shareholder in the Factory and that the Firm was registered with the Registrar under the Companies Act. They do not take beyond that. The learned District Judge is not shown to have failed in his appreciation of the aforesaid documents.
9. As the appellants have raised objections in respect of legitimate interest and right of their opponents to secure the succession certificate, they are free to approach the Civil Court for determination of the aforesaid objections.
10. Raja Muhammad Siddique Khan, the learned Counsel, proposed that Mst. Ghulam Fatimah and Naeem Sarwar may be directed to approach the Civil Court for getting a decision in their favour in order to succeed to the estate left by the deceased. I have considered this proposition but I am unable to contribute to it as in my view, the District Judge or this Court cannot travel beyond the jurisdiction vested under law by issuing direction to either of the parties to go to Civil Court for getting a decision on the points at issue. The interested in its legitimate right whether it is appellant or respondent is free to approach the Civil Court.
11. In view of the aforesaid findings the order of the District Judge to issue succession certificate is modified in the manner that all the applicants legal heirs of the deceased shall execute bonds or furnish security to the extent of their respective shares assigned by the learned District Judge in the amount in question to the effect that in case they are not found entitled or having right in the aforesaid amount they shall account for the amount so that is it paid to the person entitled to it.
The surety bonds shall be given to the satisfaction of the District Judge Mirpur Both the appeals are disposed of in the aforesaid manner. No order as to costs.