Syed Deedar Hussain Shah, J.--By this common judgment we propose to decide Civil Petitions Nos, 234 and 486 of 2003; which are directed against the judgment of the Peshawar High Court, Peshawar, dated 20.1.2003 passed in Civil Revision No, 270 of 2001, as question of law and facts are identical in both of them.
2. Briefly stated, the facts of the case are that the Civil Judge, Peshawar, issued a succession certificate regarding National Saving Certificates of Rs, 21,10,000/- belonging to Bahadur Khan who died on 23.2.1998 in England. Petitioner Zafar Ali Khan, brother of the deceased, moved the application for the grant of succession certificate. Four other brothers of late Bahadur Khan i,e, Malik Safdar Ali Khan, Sikandar Ali Khan, Bahadur Nawaz Khan and Dr. Umar Ali Khan were impleaded as Respondents Nos, 2 to 5, whereas the widow Jean Margar Et. Khan; son Andrew Khan, daughter Rachel Khan, resident of 55 China Walk, West Dorest, England were arrayed as Respondents Nos, 6 to 8; whereas the Officer Incharge of National Saving Centre was impleaded as Respondent No,
9. Though the wife and children of late Bahadur Khan were impleaded as respondents, yet there was a question of their entitlement to any share in the inheritance of the deceased on the ground that they belonged to the Christian faith. In this regard reference was made to a Fatwa' in support of the plea that non-Muslims cannot inherit from their Muslim progenitor. Except. Dr. Umar Ali Khan, the other brothers supported the application and also the ground that Respondents Nos, 6 to 8 were not entitled to inherit as legal heirs of the deceased. Dr. Umar Ali Khan in his reply stated that he had lived in England for seven years during which period he remained in touch with his brother Bahadur Khan and his family, and according to him the wife of his brother converted to Islam before the marriage and the children were born as Muslims.
Notice of the application was served on. Respondents Nos, 6 to 8 at their address in England. The decesed's son Andrew Zakir Khan replied to the Court refuting the assertion made in the application regarding his faith and that of his mother and sister. He enclosed with his reply a certificate of conversion of his mother to Islamic faith issued by the Islamic Culture Centre, 146 Park Road London, dated 9.9.1982. The learned trial Court after framing necessary issues and hearing the parties observed that Respondents Nos, 6 to 8 were Muslims, therefore, they were entitled to the grant of succession certificate vide order dated 18.5,2000. Against the aforesaid order, petitioner Malik Safdar Ali Khan filed appeal, which was heard by the Additional District Judge, who maintained the order of the trial Court vide judgement dated 21.5.2001. Petitioner's revision was also dismissed by the learned High Court vide impugned judgment, Hence, these petitions.
3. Ch. Mushtaq Ahmad Khan learned counsel for the petitioners, inter alia, contended that the trial Court miserably failed to frame any issue on the question of religion of Respondents Nos, 6 to 8 which, in fact, was the only issue between the parties; that Zafar Ali Khan filed application for the grant of Succession Certificate pertaining to the National Saving Certificate amounting to Rs, 21,00,000/- purchased by the deceased and Zafar Ali Khan was shown as nominee; that according to Sections 362, 372 and 373(1) of Succession Act, 1925, the Succession Certificate could not be granted to non-applicant; that the nominee in the National Saving Certificates is to get the same.
Learned counsel referred to Rules, 13, 15 and 16 of the Special Saving Certificates Rules, 1990, which read as under :-- III-NOMINATION 13--(1) In the case of purchase of a certificate by individual or individuals, whether adult or minor, holding the certificate singly or jointly, nomination may be made by the purchaser(s) of certificate in the application form at the time of the purchase, specifying the amount, whether whole or in part receivable by the nominee on the death of the purchaser(s).
(2).............................................................................
(3)Nomination made under sub-rule (1) of the Rule shall cease to have effect in case the nominee dies before the death of the holder or before he has received any sum thereunder.
15. In any case where-- (a)a holder dies without making any nomination under Rule 13 or after having made such nomination, it has ceased to have effect under Rule 13(3); (b)..............................................................................
(c)the probate of the will of - the holder or the letters of administration of his estate, or a succession certificate under the Succession Act, 1925 (XXXIX of 1925), is not produced to the officer or authority authorized in this behalf within three months of the death of the holder payment of the sum or part thereof, as the case may be, shall be made to the person who appears to be entitled to receive it or to administer the estate of the deceased holder, by the authority empowered by the Central Government in this respect and to the extent to which it is so empowered.
16. It shall be open to nominee under Rule 13 to receive the amount due to him on the death of the holder either immediately or on maturity of the certificate."
Learned counsel further submitted that the judgments of the learned Courts below are based on conjectures and surmises and are against the facts and law; that the learned trial Court did not frame any issue on the point of faith of Respondents Nos, 6 to 8 in order to determine their religious faith; that this failure on the part of the learned trial Court has caused grave miscarriage of justice to the petitioners, therefore, leave to appeal may be granted.
4. On the other hand, Raja Muhammad Ibrahim Satti, learned counsel appearing on behalf of Respondents Nos, 5 to 8 contended that Zafar Ali Khan after the decision of the learned Civil Judge did not file appeal against the grant of Succession Certificate in favour of Respondents Nos, 6 to 8, which means that he was fully satisfied with the aforesaid judgment; whereas other brothers of the deceased, namely, Zafar Ali Khan and Safdar Ali Khan petitioners filed appeals before the District Judge and Revisions in the High Court. He also referred to the application made by Zafar Ali Khan and his evidence recorded by the trial Court specifically cross-examination.
5. We have considered the arguments of learned counsel for the parties and gone thorough the material available on record. It would be pertinent to re-produce below the relevant parts of the application (available at Pages 51 & 52 of paper book - CP. 234/03) made by Zafar Ali Khan before the trial Court for the grant of Succession Certificate in respect of the property left by Bahadur Khan deceased :-- "4. That Respondents Nos, 6 to 8 cannot claim to be Sharie {{URDU TEXT}} heirs of the deceased, hence they are not entitled to any share in the legacy of the deceased. (Fithwa Sharie is attached herewith).
7. That the petitioner wants to obtain the Succession Certificate in his sole name, but the petitioner undertakes to pay due shares to the other co-sharers, who are declared by the Court to be entitled to the payment of any amount in the legacy of the deceased according to their proportionate Share share."
At page 64 of the same paper book in cross-examination Zafar Ali Khan stated as follows: A person declaring himself as a Muslim by reciting Kalma is considered to a Muslim. I am not ready to accept Respondents Nos, 6 to 8 as Muslim even if they Recite Kalma before this Hon'ble Court. Volunteered that for money they may do it. I don't have any documentary proof or an independent witness to corroborate the fact of Defendants Nos, 6 to 8 Christian-hood."
In this respect it would be more advantageous to refer here Sections 7 and 49 of Mahommedan Law, 1987, which read as under :-- CHAPTER II. CONVERSION TO ISLAM
7. Who is a. Muslim : Any person who professes the Muslim religion, that is, acknowledges (1) there is but one God, and (2) that Mahomed is His Prophet, is a Muslim. (a) Such a person may be a Muslim by birth or he may be a Muslim by conversion. (b) It is not necessary that he should observe any particular rites or ceremonies or be an orthodox believer in that religion; no Court can test or gauge the sincerity of religious belief. (c) It is sufficient if he professes the Muslim religion in the sense that he accepts the unity of God and the prophetic character of Mahomed.
The mere recital of Kalma is enough for a person to become a Muslim."
"CHAPTER VII.
HANAFI LAW OF INHERITANCE
49. Classes of heirs : There are three classes of heirs namely : (1) Shares, (2) Residuaries, and (3)
Distant Kindred :
(1) "Shares" are those who are entitled to a prescribed share of the inheritance ;
(2) "Residuaries" are those who take no prescribed shares, but succeed to the "residue" after the claims of the shares are satisfied;
(3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries."
6. It would be pertinent to refer here the relevant portion of the case law titled Amtul Habib. v.
Musarrat Parveen (PLD 1974 S.C. 185, at page 191), which reads as under: "Apart from this, it appears to us that, unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammadan Law because, such a gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yakub, there could be no delivery of possession at the time the nomination was made, for, at that time, no plot had been allotted to him,"
"Apart from this, the decision in the case of Karim v. Hajyani Hanifa cannot be approved, for it has not taken into account a large number of decisions even under the Provident Funds Act where as contrary view has been taken by various High Courts in this sub-continent. Thus, in the case of Aimai v. Awabai Dhanjishaw Jamsetji (AIR 1924 Sindh 57), a Division Bench of the Sindh Chief Court held that a nomination even under the Provident Funds Act was neither a will nor a gift nor a trust, and that such a nomination was merely a mandate, the validity of which expired with the death of the mandator, and, therefore, the Fund formed part of his own undisposed of estate on his death."
Besides above, in an unreported judgment rendered in Civil Petitions Nos, 204 and 205 of 1996 (Mian Shamsul Haq u. Mst. Saira etc.) this Court observed as under: "2. It is a family dispute between the legal heirs of Mian Abdul Haq, who died leaving behind two widows, 9 daughters and 2 sons. The deceased had deposited Rs, 13,00,000/- in National Savings Centre, Mardan, which swelled to Rs, 24,59,000/- inclusive of profits during the lifetime of the deceased. The petitioner is alleged to have withdrawn Rs, 8,60,000/- leaving a balance of Rs, 15,99,000/- at the time of death of Mian Abidul Haq. The deceased had made nomination which did not contain the name of Mst. Saira respondent. The petitioner and the legal heirs seems to have realized the amount and distributed among themselves excluding Respondent No,
1. She, therefore, filed suit for recovery of her share, i,e, 7/104 in the amount left behind by her father. A decree in the sum of Rs, 1,07625/- with 15% profit against the defendants was passed in respect of Rs, 15,99,000/-, which was the credit balance at the time of the death of Mian Abidul Haq. Respondent No, 1 filed an appeal claiming that decree for her share in respect of Rs, 8,60,000/-drawn by fraud be also passed. The petitioners also filed cross-objection. The appeal and cross-objecting were dismissed and consequently Respondent No, 1 filed an application for execution of the decree. The petitioner raised objection that as the decree is against all the judgment debtors, it can be executed against them individually to the extent of the share they have received and the petitioner cannot be burdened with the payment of entire decretal amount to Respondent No,
1. The executing Court rejected this objection and the decree was ordered to be executed. The petitioner filed these two petitions challenging the order passed in appeal and one arising from execution proceedings. The learned Judges have taken the view that a decree passed against several judgment debtors jointly may be executed against anyone judgment debtor, who will thereafter have the right of contribution against other judgment debtors .It was also noted by them that the petitioner had received more than what was due to him in the estate left by the deceased father.
3. The learned counsel for the petitioner has raised the same contention as was raised before the High Court. The legal position enunciated by the High Court is correct and in accordance with law.
The learned counsel has not been able to show us any authority or commentary to justify his contention. Both the petitions are dismissed."
7. The Courts below after analyzing and examining the material available on record granted the Succession Certificate in favour of Respondents Nos, 6 to 8 being wife, son and daughter of the deceased. The claim of Zafar Ali Khan that he is sole person, who can receive the payment of certificate being a nominee is not acceptable because the deceased had left two children and a widow, who through cogent, natural and convincing B evidence proved to be Muslims and entitled to inherit the legacy of late Bahadur Khan. The evidence so adduced was rightly believed by the learned trial Court and the same was maintained by the First Appellate Court and upheld by the learned High Court. The contents of the application referred to by Raja Muhammad Ibrahim Satti, learned counsel for the respondents and portion of cross-examination clearly show that the petitioners are bent upon to snatch the property of late Bahadur Khan and that they do not accept the widow, son and daughter of their deceased brother. The contention that Zafar Ali Khan was nominated by the deceased in the National Saving Certificates Form cannot over-ride the provisions of Mahomedan Law; according to which legal heirs are only the persons entitled to receive the inherited property left by their father and husband. The contention of Ch. Mushtaq Ahmad Khan, learned ASC for the petitioners that Succession Certificate could only be granted to the applicant, is also not tenable, because as discussed above, deceased's two children and widow were entitled for the grant of Succession Certificate, therefore, the learned trial Court rightly granted the same in their favour.
8. The evidence adduced by the parties was exclusively geared towards this issue, therefore, the parties were well aware of the question involved in this case. The non-framing of specific issue on the point of religion of Respondents Nos, 6 to 8 has not caused prejudice to any of the parties. The learned High Court in its well-reasoned judgment has elaborately dealt with each and every aspect of the case, and it would be advantageous to refer here the relevant paragraphs of the impugned judgment, which read as under: "7. As regards the objection regarding the power of attorney, it may be stated that Defendants Nos, 6 to 8, though not formally represented at the hearing, sent in their reply to the Court along with the supporting documents which were placed on file. It therefore cannot be said that they had no interest in the case. They had in their reply at the very outset denied the assertion of the applicant regarding their faith. Dr. Umar Ali, brother of the applicant before the Court, and of the decadent, was himself a respondent and a necessary party to the proceedings. His testimoney as a witness relating to the religion of Respondents Nos, 6 to 8 is admissible evidence even if he had not formally appeared on behalf of the said respondents. It may however be stated that during the appellate stage Dr. Umar Ali was formally nominated by Respondents Nos, 6 to 8 to conduct the case on their behalf.
8. So far as the merits of the case are concerned, Respondents Nos, 6 to 8 had declared themselves to be Muslims. A conversion Certificate, issued by the Islamic Culture Centre, London Ex.
R.W. 2/4 alongwith the declaration of Islamic faith by Jean M. Khan (Ex.R.W. 2/1) and the Certificate of performance of circumcision operation upon Andrew Zabir Khan (Ex. R.W.2/2) were duly exhibited in evidence by Dr. Umar Ali. The original of the documents were produced before the Court and returned. The only evidence to contradict such documentary evidence is the oral assertion of the applicant Zaffar Ali Khan to the effect that during the visit of the family of his brother Bahadur Khan to Pakistan he had noticed that his wife and children did not observe the rites of Islam. The documentary evidence, coupled with the oral testimoney of Dr. Umar Ali Khan must prevail over the oral assertion of Zaffar All Khan, which even on the face of it would not be sufficient to declare Respondents Nos, 6 to 8 as non-Muslims. The apparent inconsistency in the evidence regarding time of conversion of the widow of the decadent to Islam has been explained by Dr. Umar Ali Khan in his testimoney when he was duly confronted with the anomaly. He had stated in his examination-in-chief that the wife had converted at the time of marriage in the year 1967 but explained in cross-examination that the conversion certificate, issued in the. year 1982, was obtained when it became necessary for the purpose of some Court's proceeding regarding the property left by their father, in which Malik Safdar Ali Khan had once before questioned the faith of Bahadur Khan and his family. Even if the date of conversion certificate contradicts the statement of Dr. Umar Ali Khan as to the time of conversion of his wife to Islam it establishes that at least since the year 1982 Respondents Nos, 6 to 8 had followed the Muslim faith and were thus Muslims when Bahadur Khan died in the year 1998."
9. In the light of the aforesaid reasons, there is no room to interfere with the concurrent findings of the Courts below. In our considered view, the judgment of the High Court is based on the law laid down by this Court, and there is no misreading, or non-reading of the material or misconstruction of law.
10.For the foregoing facts, circumstances, reasons and the case law, as mentioned hereinabove, we are of the considered opinion that these petitions are without merit and substance, which are hereby dismissed and leave to appeal declined.