Muhammad A.I Yahya S/o Gul Shahzada, resident of Habibullah .Colony Abbottabad died on 4th January, 1992 in Libya. His dead body was brought to Pakistan and was buried in native town. Mst.
Shagufta Nasreen his widow, Sabah Yahya and Hina Yahya two minor daughters born out of their wedlock, filed an application in the Court of Senior Civil Judge Abbottabad exercising the power of Guardian Judge, Abbottabad for issuance of succession certificate in respect of the property the detail whereof was given in the schedule attached with the application. Mst. Hikmat-un-Nisa another widow of deceased Muhammad A.I Yahya, Mst. Roshan Jan mother of the deceased, Mst.
Tayyab Nisa sister and Umar Farooq Shah brother were made respondents in the said application.
The learned lower Court while seized of the application, pending adjudication. Mst. Roshan Jan died, and therefore, her legal heirs were brought, on file in order to inherit their respective shares which were to devolve on Mst. Roshan Jan in case of her survival as the Muslim Family Law Ordinance entitles the pre-deceased son to the legacy of their father to the extent of his respective share. As such it was rightly held by the learned trial Judge that legal heirs of Mst. Roshan Jan were entitled to their due shares in the assets of Muhammad A.I Yahya.
2. The application for issuance of succession certificate was opposed by the respondents on the ground that the applicants before the trial Court, have already received the amount which fall to their share. It was also the stand of the respondents that the pension, house rent of property situated in Islamabad and that golden ornaments etc. Have been not included in the schedule filed with the application. It was contended that the application being filed with mala fide intention by withholding the details of main assets not being furnished the respondents are entitled to their share in the said assets and belonging which were owned by the deceased. The learned trial Court by relying on section 370 of Succession Act, 1925 refused to grant any relief as there is a restriction provided by the Act (ibid) to the grant of certificate in respect of certain articles mentioned therein.
The learned trial Court also repelled the request of the respondents in respect of income from movable and immovable property of the deceased in favour of the respondents as the same could be agitated/secured by filing money suit in the Court of competent jurisdiction. It was also observed in the order of the learned trial Court that if the grievance of the respondents is in respect of suppression or withholding of details of certain assets which are either in possession of the applicants or have been used by them the respondents under the law were not debarred in filing as many applications as they like in respect of each item. Not only the respondents in the application but any other person having any claim in the legacy of the deceased is entitled to file an application for the grant of succession certificate in the suit property if he can through legal evidence establish his right therein.
3. The objection that the legal heirs of Mst. Roshan Jan (mother of the deceased) could not have been brought on the record was also held to be devoid of any force as they were already respondents in their own capacity as brother and sister of the deceased Muhammad A.I Yahya from whose legacy they were claiming their respective shares. The respondents in the application were given their due shares by giving direction to the concerned authorities to work out their respective shares. The trial Court'confined itself to the assets and property which was annexed to the schedule.
4. Feeling aggrieved the respondents filed an appeal in the Court of learned District Judge, Abbottabad on 14-7-1996. The same was returned on 19-11-1996 being not competent as in view of the learned District Judge the appeal could competently be filed before the High Court and not the District Judge. A reference was made to a reported judgment of this Court in PLD 1974 Peshawar page 74, AIR 1939 Peshawar page 30 and AIR 1938 Peshawar page 62. On return of the appeal the appellants came before 'this * Court on 25-11-.1996.
5. As under Article 156 of Limitation Act an appeal to the High Court could be preferred within a period of 90 days as such the application under section 5 read with section 14 of the Limitation Act was also filed with the appeal seeking condonation of delay on the ground that the appellants were pursuing their cause, bona fidely and in good faith by filing appeal in the Court of District Judge instead of High Court and as such requested that the appeal be treated within time.
Reliance was placed on 1990 SCMR 768 Islam Din v. Allah Nawaz which judgment has referred PLD 1977 SC 102 wherein it was held that section 15 of the Limitation Act permits the exclusion of time only for proceedings 'prosecuted in good faith', and therefore; in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith by presenting his appeal in the wrong Court. 'Good faith' has been defined in clause (7) of section 2 of the Limitation Act as 'nothing shall be deemed to be done in good faith which is not done with due care and attention'.
Applying to law as laid down by the august Supreme Court it appears that due care was taken to file the appeal in this Court within shortest possible time i.e. The appeal was returned on 19-11-1996 and was filed in the High Court on 25-11-1996.
6. The question of limitation that has been dilated upon in the preceding para mainly because a different view has been taken in a reported judgment titled Sheikh Muhammad Mushtaq v. Public- at-large (PLD 1994 Lahore 373) wherein the forum for appeal against the order of Civil Judge in case of succession certificate is held to be before a District Judge and not the High Court. The learned counsel for the appellant has, therefore, relied on PLD 1994 Lahore 373 read with section 5, section 7(2) and section 14 of the Limitation Act by advancing alternative argument that firstly his appeal before District Judge was competent and even if not so the same is within time before this Court.
7. On merits the learned counsel for the appellant submitted that the learned trial Court was wrong in adding the legal heirs of Mst. Roshan Jan in the same application and in his view they should have filed an independent application for their due shares. He also argued that if some property/assets were left out by the applicants before the trial Court, they were not entitled to the succession certificate and hence the order dated 23-5-1996 of the Senior Civil Judge, Abbottabad was bad in law:
8. The learned counsel for the respondents submitted that the appellants have intentionally chosed wrong forum by filing appeal before the District Judge as such no protection is available to them under section 5, section 7(2) and section 14 of the Limitation Act. He also submitted that the appeal is only competent before this Court and not the District Judge.
9. The main controversy involved in this case can be resolved by determining the forum of appeal against the order of the Senior Civil Judge in case of grant/refusal or revocation of succession certificate.
10. Chapter X of Succession Act, 1925 deals with succession certificate. Section 371 provides the forum to which the application for succession certificate is to be -made while section 372 provides the manner, the procedure and the parties to the proceedings for succession certificate. Both the sections are reproduced for ready reference:-- "371. Court having jurisdiction to grant certificate.--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 jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part."
"372. Application for certificate.--(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (V of 1908), for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Pakistan Penal Code (XLV of 1860); (3,1 Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof."
11. Section 384 provides for filing of appeal wherein the forum of appeal from the order of District Judge in case of granting/refusing or revoking a certificate in Part X of the Act (ibid) is High Court whereas section 388 of the Act (ibid) empowers the Provincial Government to notify any Court inferior in grade to a District Judge with powers to exercise the functions of a District Judge under Part X of the Act (ibid). The section is reproduced below:- "388. Investiture of inferior Courts with jurisdiction of District Court for purpose of this Act.--(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 were a District Judge: Provided that an 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 sub section authorises 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 (V of 1908), as applied by section 141 of that 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. "
12. The two sections namely, 384 and 388 on plain reading appear to be not in consonance with each other because in the later any order passed by any Court inferior to the District Judge in respect of succession certificate appeal is provided before the District Judge while in the former the forum of appeal from the order of District Judge is High Court. To my mind it appears that section 388 is an exception to section 384 of the Act for the reason that section indicates the later intention of the Legislature wherein the forum of appeal is the District Judge and not the High Court.
The Provincial Government when notify a Court inferior to the District Judge for the purpose of part X of the Act it only empowers the said Court to exercise same powers as are exercisable by the District Judge under the said part. The notification cannot equate the designation of inferior Court to that of the District Judge. Secondly no notification can be in derogation or in conflict with the Statutes itself. As the law provides that appeal shall lie to the District Judge and not to the High Court then by no stretch of imagination one can say that by virtue of notification of the Provincial Government the forum of appeal provided under the Statute shall cease to exercise its Statutory powers.
13. What is observed above is not to nullify the effect of section 384 of the Act (ibid). It appears that under section 388 the Courts inferior to District Judge are vested with the powers to entertain applications for succession certificate in order to reduce the over burden work of the District Judge who is exercising power in the whole District in respect of many other matters. The option, is left to the party filing application for succession certificate to file the same either directly before the District Judge who may entertain the same in its original jurisdiction and if so the appeal would lie to the High Court under section 384 of F3 the Act. In other cases the District Judge may refer the case to any Court inferior to it duly notified by the Provincial Government in official Gazette to entertain the said application for succession certificate. In this view of the matter and by interpreting the two sections of law an interpretation which create convenience to the parties and is more liberal is to be construed. I, therefore, hold that the proper forum for appeal is. The Court of District Judge and not this Court when order is passed by an inferior Court. I refrain from making any observation on the merits of the case and will send this case to the District Judge, Abbottabad to hear the appeal on merits. The parties are directed to appear before District Judge, Abbottabad on 19-6-1997.