2025 SCLR 26 = 2025 SCP 3 | Pakistan Kanoon

2025 SCLR 26

Other citations: 2025 SCP 3

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

Mst. Anita Anam — Petitioner

versus

General Public and another — Respondents

Civil Petition No. 256-Q of 2020, decided on 2nd January, 2025.

(Against the judgment of the High Court of Balochistan, Quetta dated 28th September, 2020 passed in Civil Revision No. 199 of 2020)

HEADNOTES

(a) Succession Act (XXXIX of 1925) —

— S. 372 — Civil Procedure Code (V of 1908), O. II, R. 2 — Application for succession certificate — Omission to sue for one of several reliefs — Scope — There is no bar under the Succession Act, 1925 in filing successive applications for the grant of a certificate, and no limitation can be imposed upon filing second application for the grant of a certificate. [Para No. 6]

(b) Succession Act (XXXIX of 1925) —

— Ss. 372 & 373 — Civil Procedure Code (V of 1908), O. II, R. 2 — Application for succession certificate — Omission to sue for one of several reliefs — Scope — The Legislature appears to have left the matter to the discretion of the Courts with an unfettered power under the Act to do complete justice in a matter — A Judge is empowered to issue more than one certificates, as provided by sub-section (3) of section 372 and sub-sections (3) and (4) of section 373 of the Act — The Act place no limitation upon the right of the parties in filing more than one application, therefore, any decision made under Part-X upon any question of right between the parties, shall not bar the trial of the same or related question in any subsequent proceedings under this Act or in any suit or other proceedings between the same parties — The Act does not restrict a person from filing application in respect of a portion of claim which he omits while filing earlier application — What is to be underlined is that the provisions of CPC cannot be applied to the matters falling under the Act, in view of the fact that being a special law, a specific procedure is provided, therefore, the provisions of Order II, Rule 2 CPC do not attract in the matters under the Act — However, where the Act is silent on matters relating to procedure for the trial of the case, the procedure provided by the CPC may be adopted to regulate the proceedings. [Para No. 6]

— Ss. 372 & 373 — Application for succession certificate — Procedure on application — Scope — Section 373 provides a simplified procedure for the Trial Court to be followed, while granting or refusing to grant a certificate — The procedure is summary in nature, only to determine a prima facie entitlement of an applicant, to receive the property of a deceased and to distribute the same amongst all those, who are legally entitled to receive their respective share — The object of summary trial provided by the Act, is to shorten the course of trial in order to ensure that justice is delivered swiftly, so as to facilitate an applicant, in order to get a certificate at the earliest, without compromising on the principles of natural justice and fair trial — Every trial under the Act shall be conducted as expeditiously as possible — The certificate is granted for a limited purpose and for a limited sphere, therefore, it is not a final and conclusive decision between the parties or those who are entitled to get their share from the left-over property of a deceased — The court is bound to decide the application by adopting a procedure provided by section 373 of the Act while granting a certificate to an applicant, provided he makes out a prima facie title to the subject matter of the certificate — While doing so, the Judge should try to confine himself to the issue of “right to the certificate” — However, where the Court considers that a question of title is involved which cannot be disposed summarily, on the basis of available material, it may refuse to grant a certificate and allow the parties to establish their right by filing a regular suit before a competent court of law. [Para No. 5]

Manzoor Ahmed Shah, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record along with petitioner.

Muhammad Riaz Akhtar Tareen, Advocate Supreme Court for petitioner in CMA 185-Q of 2024.

Muhammad Ali Rakhshani, Addl. AG Balochistan, Muhammad Ayub Tareen, Asstt. AG Balochistan, Noor Hussain Baloch, Addl. Secy S&GAD, Haji Muhammad Naeem, Addl. Secy, S&GAD (PAY), Rehmat Ullah Kakar, Dy. Secretary Finance, Abdul Wajid, Representative, AG, Balochistan for respondent no. 1.

Muhammad Mehmood Sadiq, Advocate Supreme Court for respondent no. 2.

Date of hearing: 15th August, 2024.

ORDER

Jamal Khan Mandokhail, J:–Facts in brief are that father of the petitioner, who was a District Health Officer, Health Department, Government of Balochistan, after retirement from his service, died in the year 2008. The petitioner filed an application for the grant of a succession certificate (‘Certificate”), in the court of Civil Judge/Judicial Magistrate IX Quetta, alleging that her father had left behind him the following legal heirs:

1. Mst. Anwar Sultana (first wife)

2. Abu Asar Bilal (son)

3. Anjuman Ara (daughter)

4. Shazia (daughter)

5. Mst. Hameeda Akhtar (second wife, deceased)

6. Muhammad Abu Tahir (son)

7. Sabia Sahar (daughter)

8. Anita Anam (daughter, present petitioner).

2. The petitioner claimed that being an unmarried eldest daughter of the deceased, she is entitled for her share in the monthly family pension, as provided by the Balochistan Civil Services Pension Rules, 1989 (‘the Rules’). The respondents contested the application and it was dismissed up to the High Court of Balochistan, hence, this petition for leave to appeal.

3. The learned counsel for the petitioner stated that pursuant to the amendment made in the Rules, vide notification dated 16 February 1999, the petitioner being the eldest unmarried daughter of the deceased, is entitled to the extent of her share in the monthly family pension, till her marriage. The learned counsel submitted that the High Court did not consider the amended Rules, instead, relied upon the previous unamended Rules, hence, reached at a wrong conclusion.

4. The learned counsel for the respondent opposed the contention and stated that the application of the petitioner was not maintainable in view of the fact that earlier in the year 2009, she had filed an application for the grant of a Certificate only in respect of an amount left by the deceased in his bank account, and had omitted to claim her right out of the monthly family pension. He contended that once a certificate was granted by the Trial Court to the petitioner, her second application to seek her omitted claim, was not maintainable, in view of bar contained in Order II Rule 2 of the Code of Civil Procedure, 1908 (‘CPC’). Besides, the learned counsel added that the petitioner is otherwise not entitled for the family pension as she by concealment of facts, has already received an amount of Rs.11,00,000/-, therefore, the present application based on mala fide intention, has rightly been dismissed concurrently by the fora below.

5. Arguments heard and have perused the record. So far as the legal objection raised by the respondent with regard to maintainability of the application is concerned, it is important to mention here that the issuance of a certificate is governed by the Succession Act, 1925 (‘the Act’), being a special law. Section 373 of the Act provides a simplified procedure for the Trial Court to be followed, while granting or refusing to grant a certificate. The procedure is summary in nature, only to determine a prima facie entitlement of an applicant, to receive the property of a deceased and to distribute the same amongst all those, who are legally entitled to receive their respective share. The object of summary trial provided by the Act, is to shorten the course of trial in order to ensure that justice is delivered swiftly, so as to facilitate an applicant, in order to get a certificate at the earliest, without compromising on the principles of natural justice and fair trial. Every trial under the Act shall be conducted as expeditiously as possible. The certificate is granted for a limited purpose and for a limited sphere, therefore, it is not a final and conclusive decision between the parties or those who are entitled to get their share from the left-over property of a deceased. The court is bound to decide the application by adopting a procedure provided by section 323 of the Act while granting a certificate to an applicant, provided he makes out a prima facie title to the subject matter of the certificate. While doing so, the Judge should try to confine himself to the issue of “right to the certificate”. However, where the Court considers that a question of title is involved which cannot be disposed summarily, on the basis of available material, it may refuse to grant a certificate and allow the parties to establish their right by filing a regular suit before a competent court of law.

6. The Legislature appears to have left the matter to the discretion of the Courts with an unfettered power under the Act to do complete justice in a matter. A Judge is empowered to issue more than one certificates, as provided by sub-section (3) of section 372 and sub-sections (3) and (4) of section 373 of the Act. The Act place no limitation upon the right of the parties in filing more than one application, therefore, any decision made under Part-X upon any question of right between the parties, shall not bar the trial of the same or related question in any subsequent proceedings under this Act or in any suit or other proceedings between the same parties. The Act does not restrict a person from filing application in respect of a portion of claim which he omits while filing earlier application. What is to be underlined is that the provisions of CPC cannot be applied to the matters falling under the Act, in view of the fact that being a special law, a specific procedure is provided, therefore, the provisions of Order II, Rule 2 CPC do not attract in the matters under the Act. However, where the Act is silent on matters relating to procedure for the trial of the case, the procedure provided by the CPC may be adopted to regulate the proceedings. Admittedly, the earlier certificate issued to the petitioner was in respect of the amount left by her late father in his bank account, whereas, through the second application, she is claiming her share in the monthly family pension. As discussed herein that there is no bar under the Act in filing successive applications for the grant of a certificate, no limitation can be imposed upon filing second application for the grant of a certificate. However, any person aggrieved from the order granting an earlier certificate, has a right to avail his remedy provided by law, subject to all just exceptions. The findings of the High Court, by non-suiting the petitioner on the ground that her second application was barred by Order II Rule 2 of the CPC, are contrary to the provisions of the Act, therefore, the impugned judgment is not sustainable.

Merits:

7. The claim of the petitioner is based upon rule 4.10(2) of the Rules, as amended, which is reproduced herein below:

“4.10(2)

(i) —

(ii) Substituted with “failing (i) to (iii) the eldest surviving unmarried daughter till her marriage, and if the eldest daughter marries or dies the next eldest daughter till her marriage will draw the family pension.”

After amendment in the Rules in the year 1999, an eldest unmarried daughter of a deceased Govt. Officer is made entitled to draw her share in a monthly family pension, till her marriage. The Rules further provide that, in case, the eldest daughter marries or dies, the next eldest unmarried daughter of the deceased will become entitled to draw her share out of the family pension, till her marriage. The petitioner is claiming to be an eldest unmarried daughter of late Dr. Muhammad Abu Amar. Though the respondent did not rebut her such status either before the fora below or even before this Court, but there is no finding to such extent. The High Court’s decision is based upon the unamended Rules. It seems that the amended Rules have escaped the notice of the High Court, hence, it reached to a wrong conclusion, which is an illegality. Under such circumstances, the impugned judgments are not sustainable.

Thus, in view of the above, the petition is converted into an appeal and is allowed. The judgments dated 28.05.2019, 15.07.2020 and 28.09.2020 of the Trial Court, the Appellate Court and that of the High Court, respectively are set aside. In order to determine the status, entitlement and share of the petitioner in the family monthly pension, the matter is remanded back to the Trial Court to conduct summary proceedings, as provided by section 373 of the Act, keeping in view the rights of the remaining surviving legal heirs. The Trial Court should proceed with the matter expeditiously and to decide the same preferably within a period of sixty days, after service of notices upon the parties.

Appeal allowed

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