1. ' MUHAMMAD RIAZ AKHTAR CHAUDHARY, J.--- This appeal is directed against the judgment of learned District Judge, Mirpur, dated June 23, 1998 whereby the Succession Certificate regarding the estate of late Sheikh Muhammad Ayub, was issued in favour of respondents Nos.1 to 3.
2. ' The succinct facts forming the background of the instant appeal are, that respondent No,1, moved an application before the learned District Judge, Mirpur stating therein, that his brother Sheikh Muhammad Ayub died in United Kingdom. He had accounts in various Banks at Mirpur. He died issueless. He left behind two widows and one brother, respondents Nos.1 to 3, as his legal heirs.
3. ' On 26-5-1998, the appellant moved an application before the learned District Judge claiming therein, that before the death of Sheikh Muhammad Ayub, he executed a 'Will' in favour of his widow, Brenda Ayub, respondent No,3 and the petitioner-appellant, Shamim Akhtar, therefore, he may be impleaded as party and the Succession Certificate may be issued in his favour, according to the said ' This application was contested by the respondent No,
1. The learned District Judge vide order, dated 23-6-1998, dismissed the said application and issued the Succession Certificate in favour of respondents Nos.1 to 3. This Certificate has been challenged through the instant appeal.
4. ' Mr. Abdul Majeed Mallick, the learned counsel for the appellant, strenuously argued that the learned District Judge has wrongly dismissed the application for impleading the appellant as party. It was argued by the learned counsel that through the aforesaid Sheikh Muhammad Ayub bequeathed the amounts of the Bank accounts maintained in the Allied Bank of Pakistan. Zonal Branch and Askari Commercial Bank Limited, Allama Iqbal Road, Chowk Shaheedan, Mirpur, to the appellant. The appellant was a necessary party but the learned District Judge has wrongly rejected the application.
5. ' He further submitted that it is an admitted fact that late Sh. Muhammad Ayub was a British National. He was domicile of United Kingdom, therefore, the law regarding the 'Will' applicable in United Kingdom, shall prevail in the instant case. It was also argued by the learned counsel that section 5 of the Succession Act, contained that the succession of the moveable property of a person will be regulated by the law of the country in which he was domiciled at the time of his death. He submitted that the law of United Kingdom did not contain any prohibition on the will of the entire estate. It was further submitted that according to English law, a person can execute the Will of his entire property. It was next submitted by the learned counsel that usually, the General Public is impleaded as party in an application for the grant of Succession Certificate. The purpose of impleading the public-at-large is to invite objections from the general public, thus, there was no justification for refusing the petitioner-appellant to implead him as party. There was a 'Will' in his favour. The learned counsel also submitted that it was enjoined upon law learned District Judge to implead the appellant as party. It was the fundamental duty of the learned District Judge to decide the case after considering the will executed by late Sheikh Muhammad Ayub, but the learned District Judge did not consider the Will.
6. ' The learned counsel was confronted, that under section 373 of the Succession Act, an application for grant of Succession Certificate is to be decided in a summary manner, then, how such detailed enquiry regarding the 'Will' would be permissible?
7. ' The learned counsel submitted that this approach is wrong. A Succession Certificate must be issued after detail enquiry because in this application, the rights of the parties have to be determined. He referred PLD 1975 Kar. 979, PLD 1968 Lah. 520 and 1995 CLC 1553, in support of his contentions.
8. ' While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondents, Raja Muhammad Siddique Khan, vehemently argued that the order of learned District Judge is based on sound and sagacious reasonings which warrants no interference. It was submitted by the learned counsel that it is admitted fact between the parties that Sheikh Muhammad Ayub died on 28-4-1998 in England. He submitted that the Will which was produced by the appellant along with the application, did not reveal that it was ever presented by late Sheikh Muhammad Ayub before any authority during his lifetime. It was produced before U.K. Islamic Centre, Family Affairs, on 11-6-1998 after the death of late Muhammad Ayub. He submitted that this is a fake and fictitious document. If it would have been executed by late Sheikh Muhammad Ayub in his life, then, it would have definitely been produced before any authority by him during his life. It was further submitted by the learned counsel that even otherwise the alleged Will did not come within the ambit of Will. He referred Content No,4 of the Will and submitted that nowhere in this Content, it was stated that he has bequeathed the amounts lying in the Banks to Shamim Akhtar, but he has just authorised him to operate the said accounts. At the most it could be termed as power of attorney which has no legal validity after the demise of late Sheikh ,Muhammad Ayub. It was next submitted by the learned counsel that section 373 of the Succession Act contained that an application for succession shall be decided in a summary manner. The Court has just to take the tentative view. It could not go into the intricate questions of facts and law. He referred unreported Judgment of Supreme Court, Azad Jammu and Kashmir, titled Nadeem Sarwar v. Mst.
9. Ghulam Fatima and others, Judgments of the High Court, Azad Jammu and Kashmir titled Usman Sarwar v. Muhammad Suleman and Muhammad Afsar v. Haji Muhammad Hanif etc. ' We have heard the learned counsel for the parties, perused the relevant record and given our utmost muse to the respective arguments advanced by the learned counsel for the parties.
10. ' The contemplate perusal of the record shows that Succession Certificate regarding the accounts of Late Sheikh Muhammad Ayub
(1) Askari Commercial Bank Ltd. Chowk Shaheedan Mirpur;
(2) Habib Bank Main Bazar Mirpur; and
(3) Faisal Bank Ltd. Chowk Shaheedan, Mirpur. ' was issued. According to the alleged 'Will' the appellant was only entitled to challenge the certificate to the extent of Askari Commercial Bank Ltd. Chowk-Shaheedan Mirpur and the Allied Bank of Pakistan Zonal. Branch, Mirpur, therefore, he has no claim on the amount of Faisal Bank Ltd.
11. And Habib Bank Ltd. Mirpur. The learned counsel for the appellant also conceded and contested the Certificate to the extent of Askari Commercial Bank Ltd. Chowk-Shaheedan Mirpur, alone.
12. ' The primary question requiring determination in the instant case is, whether an application for the grant of Succession Certificate would be disposed of in a summary manner or it would be disposed of through a detailed enquiry?
13. ' Section 373 of the Succession Act contained that an application for the grant of Succession Certificate should be decided in a summary manner. Section 373(3) further contained that if any question of law or fact is intricate or difficult and could not be resolved through summary proceeding, then the Court may grant a certificate without resolving such intricate or difficult question of fact or law. For having true perception we would like to reproduce section 373 of the Succession Act, which reads as under:--- "373. Procedure on application.- (1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing:---
(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given; and
(b) to be posted on some conspicuous part of the Court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit; ' and upon the day fixed, or as soon thereafter, as may be practicable, shall proceed to decide in a summary manner the right to the certificate.
(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.
(3) -If the Judge cannot decide the right to the certificate without determining questions of law or fact which -seem to be to 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.
14. The aforesaid provision clearly conveys that an application for Succession Certificate is to be decided in a summary manner. If intricate and difficult questions of law and fact are involved then the Court may grant the certificate without resolving such intricate and difficult questions. The Court has to dispose of the application after a summary enquiry. The same like proposition arose before the High Court of Azad Jammu and Kashmir in Civil Appeal No,30 of 1988 titled "Usman Sarwar v. Ghulam Fatima etc." It was held by the then learned Chief Justice, that an application for Succession Certificate shall be decided in a summary manner, he may nevertheless grant a certificate to the applicant, if he appears to be the person having prima facie the best title thereto.
15. We would like to reproduce the relevant portion of the said judgment, which is as under: "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 entertain able, 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 application if he appears to be the person having prima facie the best title thereto."
16. ' The aforesaid view was also affirmed by the Supreme Court of Azad Jammu and Kashmir in Civil Appeal No,38 of 1990 titled "Shahzia Sarwar and others v. Ghulam Fatima and others, decided on 22-5-1991. It was held by the learned Supreme Court that the question involved in the case was too intricate and difficult for determination in a summary proceeding, therefore, the learned District Judge has rightly issued the Certificate. We would like to reproduce the relevant portion of the Judgment which is as under:--- "If it is to be proved that Nadeem is not a legitimate son of the deceased, it is a question which is too intricate and difficult for determination in a summary proceeding", within the meaning of subsection 3 of section 373. The subsection (3) in full runs as follows:--- "373. Procedure on application.---
(1) ...........................
(2) If 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.
17. ' It may be seen that it is clearly laid down in this provision of law that the learned District Judge has to grant a certificate to a person who appears to be a person having prima facie the best title. In light of this provision, the learned District Judge acted rightly in finding that Mst. Ghulam Fatima and Nadeem Sarwar were such persons within the meaning of the aforementioned provisions of law. The succession certificate issued under the Succession Act is always subject to ultimate adjudication by a Civil Court and is, therefore, tentative in nature...".
18. ' It has also been resolved by the learned Supreme Court that an application for Succession Certificate should be disposed of through summary proceeding. We are bound by the Judgment of the Supreme Court. The same view also finds support from CLC 1985 page 2211 relevant page 2213 which reads as under:--- "The object of a succession certificate is to facilitate the collection of debts by a person who has prima facie a clear title to the succession and has beneficial interest in the debts. The persons who have a counter claim can establish the same by a Civil Court inasmuch as the Court is required by section 373 of Succession Act to decided in a summary manner the right to the petitioner."
19. From the aforesaid observations, it is crystal clear that application for Succession Certificate should be disposed of through a summary enquiry, and difficult and intricate questions of law and facts should not be resolved by the Court while considering the application for Succession Certificate. Such questions could only be resolved by the Civil Court of competent jurisdiction.
20. ' Now, the question emerges whether the points involved in the application moved by the appellant for impleading him as party, were of such nature which could be disposed of through summary enquiry?
21. ' In the instant case, the appellant relied on the aforesaid 'Will' and submitted that through this "Will', the deceased Sheikh Muhammad Ayub has bequeathed the amounts of the Bank accounts to him, while the learned counsel for the respondents contended, that the execution of the 'Will' is doubtful, because this Will was not presented before any authority during the life of the deceased. It was produced before certain authorities after the death of late Sheikh Muhammad Ayub. This question is a question of such nature which could not be resolved through summary enquiry. It could only be resolved after a detailed enquiry by the competent Civil Court. Moreover, content No,4 of the ' Will' contained that the appellant will operate the accounts. For having true perception, we would like to reproduce Content No,4 of the alleged 'Will' which reads as under:--- "4. I am a depositor in the Allied Bank of Pakistan, Zonal Branch in Mirpur, Azad Jammu and Kashmir (Pakistan) and Askari Commercial Bank Limited, Allama Iqbal Road, Chowk Shaheedan in Mirpur Azad Kashmir (Pakistan), and I appoint the suit Shamim Akhtar Khan of 42 Manley Road, Old Hamolg IAU. After my death my true executor to operate the said banking accounts and to draw, sign, endorse, negotiate cheques and to deposit and withdraw monies and from the said accounts."
22. ' The learned counsel for the respondents submitted that this content nowhere contained that late Sheikh Muhammad Ayub bequeathed the amounts of the accounts to the appellant. At the most, he authorised him to operate the accounts. It could be treated as power of attorney which had lost its sanctity after the death of Sh. Muhammad Ayub. This question is also' intricate question of fact and law which could not be resolved through the summary enquiry.
23. The application moved by the appellant before the learned District Judge for impleading as party did not contain such questions which could be disposed of through a summary enquiry, but all the questions raised by the appellant could be decided by the competent Civil Court after detailed enquiry. The appellant has also filed a civil suit, therefore, the learned District Judge has rightly disallowed the application for impleading as party.
24. ' The contention raised by the learned counsel for the appellant, that the appellant was the domicile of United Kingdom and was a British National, therefore, the law of United Kingdom regarding the ' Wills' shall be applicable in the instant case. This too is an intricate question of law and fact, which could not be resolved through a summary enquiry. The case-law referred by the learned counsel for the appellant is distinguishable because in the cases referred by the learned counsel, such questions were resolved by the Civil Courts in civil suits.
25. ' It is pertinent to note that in the instant case, the dispute between the parties, remains only regarding the account of Askari Commercial Bank Limited, Chowk Shaheedan, Mirpur, while the appellant has no concern with the accounts maintained in the Faisal Bank and Habib Bank Ltd., Mirpur. Therefore, in order to guarantee the amount of Askari Commercial Bank Ltd., Chowk Shaheedan, Mirpur, it deems proper that it should be protected by obtaining security. Thus, it is hereby ordered that respondent No,1 shall furnish the personal bond and the surety bond, equal to the amount deposited in the Askari Commercial Bank Ltd., Chowk Shaheedan, Mirpur, to the satisfaction of learned District Judge, Mirpur. The Succession Certificate shall become applicable to the extent of Askari Bank Ltd., Chowk Shaheedan Mirpur, only after furnishing the requisite bond, while the Succession Certificate regarding other two accounts shall be applicable as issued by the lower Court.
26. ' The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed.