' This revision petition is directed against the judgment dated 1-4-1998 of the learned Additional District Judge, Lahore whereby he affirmed the order of the learned Civil Judge dated 2-12-1997, and dismissed the appeal filed by the petitioner.
2. The matter relates to the succession of late Ghulam Rasool Mehar, an Advocate of this Court, who died on 9-10-1996. He left behind a widow, four daughters, two brothers and a sister as his legal heirs. His widow Mst. Arshad Afza respondent No,1 applied for Succession Certificate impleading all the legal heirs of the deceased for the following assets:--- ' Defence Saving Certificate Rs,5,60,000.00 Termed Deposit Receipts 2,00,000.00 Growth Certificate 1,00,000.00 ' P.L.S. Account No,1772-9 Without mentioning any amount.
3. There were some proceedings while her application was pending, reference to which may not be necessary as the succession application was finally withdrawn by her on 1-2-1997.
4. On 4-7-1997 a daughter of the deceased namely Mst. Uzma Mehar (respondent No,2) applied for Succession Certificate for an amount of Rs,2,00,000. i.e, Term Deposit Receipt. In her application she impleaded all the legal heirs of her deceased father. Fateh Muhammad (petitioner) one of the brothers of late Ghulam Rasool Mehar made an application to the Court that the amount of defence saving certificate i.e, Rs,5,60,000 also be directed to be included in the application filed by Mst. Uzma Mehar and that Mst. Arshad Afza, the widow of the deceased who had already encashed the Defence Saving Certificates, be directed to deposit the said amount. She took the position by filing reply to the application that she was a nominee of the deceased who had gifted the same to her and handed over the certificates for encashment. The other legal heirs i.e, respondents Nos.2 to 6 and 8 who were daughters, a brother of the deceased Ghulam Rasool and sister Mst. Raman Bibi, made a conceding statement for issuance of certificate in favour of Mst. Uzma.
5. Petitioner Feteh Muhammad contested the proceedings and also made an application before the learned trial Court that the statement made on behalf other heirs was unauthorised and that application of Mst. Uzma was collusive and mala fide. While these proceedings were pending before the trial Court, Fateh Muhammad, petitioner also made a separate 'application before the trial Court for issuance of succession certificate including the amount of Rs,5,60,000 covered by Defence Saving Certificates, which application is being contested by other heirs of the deceased and is pending before the learned trial Court.
6. The application filed by Mst. Uzma Mehar was heard and decided by the learned civil Judge on 2-12-1997, who also disposed of various miscellaneous applications. He came to the conclusion that statement dated 19-7-1997 made on behalf of the respondents (except petitioner Fateh Muhammad) was authorised by a valid Vakalatnama executed in favour of Mr. Sohail Zahoor, Advocate. However, as to the two minor daughters of the deceased (respondents Nos.3 and 4), he ordered that their share shall remain deposited with the bank till their attaining majority. The application of Fateh Muhammad petitioner for a direction to include the amount of defence saving certificates i.e, Rs,5,60,000 was rejected for the reason that the application of Mst. Uzma was a separate and independent application concerning Rs,2,00,000 covered by Term Deposit Receipts and that Fateh Muhammad's application for succession certificate is separately pending which shall be decided after recording evidence in the matter. He, therefore, ordered the issuance of succession certificate in the name of Mst. Uzma to the extent of her share and the shares of respondents Nos.2, 5, 6 and 8 subject to furnishing surety bonds of Rs,1,50,000. A separate certificate has been ordered to be issued in the name of Fateh Muhammad petitioner to the extent of his share.
7. No one agitated the matter and felt satisfied except Fateh Muhammad petitioner who challenged the said order in appeal. His appeal was dismissed by a learned Additional District Judge, Lahore vide judgment dated 1-4-1998. Hence this petition.
8. Learned counsel for the petitioner had challenged the orders of the Courts below on the ground that the application for Succession Certificate filed by Mst. Arshad Afza, widow of the deceased covered the entire left over of the deceased and the withdrawal of the application unconditionally afterwards was a mala fide act to encash the amount covered by the defence saving certificates and to deprive the other legal heirs of their shares from the same. His contention was that approbation and reprobation was not permissible. It was contended that in the application filed by her, there was no mention of the gift of defence saving certificates to her and that she was estopped later on to take such a position. It was further contended by him that on 2-12-1997, when the order was passed by the learned trial Court on the succession application of Mst. Uzma Mehar, the succession application filed by Fateh Muhammad was pending, therefore, till decision of that application, the decision on the application filed by Mst. Uzma Mehar could not have been taken and should have been kept pending. He submits that after having made a conceding statement in the application filed by her mother (later withdrawn by the mother) she was estopped to file any application. The principle of waiver is pressed against her and referred to PLJ 1986 Lahore 88, PLD 1985 Lahore 380, 1990 CLC 1324. It is also submitted that the petitioner has been condemned unheard in the application as the same was not fixed for hearing when it was decided by the learned civil Judge on 2-12-1997.
9. On the other hand learned counsel for the respondents has contended that the application filed by Mst. Uzma was independent and separate and could not be linked either with the previous application filed and withdrawn by Mst. Arshad Afza nor with the application filed by Fateh Muhammad which is pending. She had made a specific claim to a specified amount and has rightly been decided by the Courts below. It was contended by him that the dispute about the validity of gift regarding defence saving certificates in favour of Arshad Afza is raised by Fateh Muhammad in his succession application which is still pending before the learned trial Court and issues have already been framed therein. It is contended that the proceedings in an application regarding certificate are of summary nature to be decided on prima facie satisfaction of the Court and referred to section 373(3), of the Succession Act, 1925. He contends that no estoppal or waiver can be invoked against Mst. Uzma. He controverted the allegation of the petitioner that the application has been decided without hearing the petitioner.
10. This was the first application for Succession Certificate which was filed by the petitioner and no previous application had been filed by her. Admittedly she is daughter of the deceased and is entitled to have her share in the assets, of her late father. The application for succession was earlier filed by respondent No,1, the mother of respondent No,2. Although a statement was made on behalf of respondent No,2 yet that application was withdrawn and no determination and allocation of shares and assets took place. Any statement made in the said application cannot be used as estoppel or waiver against respondent No,1. The judgment relied upon by the learned counsel for the petitioner Sayed Altaf Hussain Shah v. Dr. Muhammad Din and others (PLD 1985 Lahore 380) is not applicable to this case inasmuch as waiver was considered in that case as an intentional relinquishment of one's known right. That was a case of transfer of evacuee property and the principle was applied in that context. In the instant case respondent No,2 never relinquisheC her right in the assets of her father and the statement made in the previous application was only to the effect that certificate may be issued in favour of her mother. The judgment reported in PLJ 1986 Lahore 88 is the same judgment discussed above. The other case cited by the learned counsel for the petitioner Muhammad Aminuddin Qureshi v. Salahuddin (1990 CLC 1324) incorporates the principle that" such abandonment of right must also be responsible for inducing defendants to alter his position to his disadvantage or bring about a situation when it would be inequitable to give plaintiff the relief sought by him." This principle is not attracted to the facts of the instant case inasmuch as in the previous petition filed by Mst. Arshad Afza, both Mst. Uzma and Fateh Muhammad were respondent in the said proceedings and there was no question of inducing Fateh Muhammad for any statement made on behalf of Mst. Uzma Mehar. All these rulings proceeded on their own facts and are not applicable to this case. The argument of the learned counsel for the petitioner that application for succession filed by respondent No,2, the daughter of the deceased was hit by the principle of estoppel or waiver is, thus, not tenable. The petition filed by her was competent in law seeking her own share in the assets of her father.
11. The contention of the learned counsel for the petitioner that the application for succession made by respondent No,2 was collusive or mala fide is not borne and (from any material on the record).
Both acted independently. The mother had her own sharia and legal right to apply for Succession Certificate qua her share in the assets of the deceased whereas respondent No,2 who was daughter of the deceased could ask for the succession certificate in her own right for her own share.
12. The other submission of the learned counsel for the petitioner that respondent No,1 should have included the entire movable assets of the deceased in her petition for Succession Certificate, is also not supported by any provision of law. The provisions of section 372(3) of the Succession Act, 1925 envisages the application for a part/portion of the assets. If respondent No,1 had left out any portion of assets of the deceased that could not be a ground for refusing the issuance of the certificate regarding the assets mentioned in her application.. It was laid down in Malik Fateh Muhammad and others v. Malkani Bhag Bhari (PLD 1950 Lahore 352), which was a case relating to the succession of Nawab Sardar Allah Bakhsh Khan Tiwana that not only a Succession Certificate is contemplated regarding a portion of the estate of the deceased but separate certificate can also be issued under the law. The principle was further adopted and followed in Mrs. Sufia Khanum and others v. Abdul Haq Khan and others (PLD 1968 Dacca 952). Therefore, the application of respondent No,1 regarding a portion of the estate of the deceased was competent in law and she could not be forced to include the entire assets of her deceased father in her application.
13. Learned counsel for the petitioner further submits that since Fateh Muhammad petitioner had also filed proceedings for Succession Certificate regarding the estate of the deceased, therefore, the application filed by respondent No,2 should have been either kept pending or decided together by the learned Civil Judge is also not acceptable for more than one reasons. The object of Succession Certificate as contemplated by part X of the Succession Act, 1925 is to provide speedy remedy and quick decision in succession matters so that the legal heirs of the deceased may have their share in the movable assets, ascertained, allocated and disbursed. There may be a needy family requiring immediate disbursement of amount to meet their emergent and day to day needs of life. One can imagine that when the only bread earner of the family expires what type of problems a family is faced with. The objective of following summary procedure as laid down in section 373 in the Act is also indicative that the Judge proceeding with the application is to look into the prima facie right of the applicant in issuing the certificate. The intricate question are kept aside and the certificate is to be issued keeping in view the object of law. It was observed in Fateh Muhammad case that one of the object of Act is to facilitate the collection of debts by the heirs of the deceased to to enable them to obtain a valid discharge and that grant of separate certificates does not defeat these objects. Reference is also made for this purpose to PLD 1973 Note 129 at page 197.
14. Since in the petition for Succession Certificate filed by Fateh Muhammad petitioner an issue regarding validity of the gift of defence Saving Certificate claimed by respondent No,1, the widow of the deceased, had been raised, the same requires determination of the respective claims. The learned civil Judge, therefore, rightly kept those proceedings pending where the respective parties will have their rights and claim established by leading the evidence. The application filed by respondent No,2, the daughter of the deceased, had no such dispute as the amount of term deposit receipt was not disputed by any of the parties nor her right to claim her Sharia share in the same. The learned civil Judge has proceeded rightly in issuing the succession certificate to her as well as to Fateh Muhammad petitioner to the extent of their shares. The order of the learned civil Judge is in accordance with the object Policy and purpose of Succession Act, 1925, and does not call for interference by this Court.
15. The contention of the learned counsel that the learned civil Judge has passed the order without hearing him is seriously controverted by the learned counsel for the respondents. The reference to the grounds of appeal and revision petition filed before this Court, does not find mention any of such grievance, which appears to be an afterthought, having no real basis. The same is repelled.
16. In this view of the matter this petition is dismissed. No orders as to costs.