Order with signature of Judge
For hearing of main application
Date of hearing: 20-2-2008
Mr. Munir ur Rehman, Advocate for the Petitioner
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This SMA has been filed by one Syed Ali Zamin Naqvi son of Syed Moavin Hussain Naqvi through Mr. Munir ur Rehman, Advocate in respect of the properties of Mst. Syeda Mubina Khatoon Naqvi widow of Syed Sharifuddin Haider Naqvi, who has died at Karachi on 27-1-2003. The original death certificate of deceased has been filed along with the petition who stated to have been residing in House No.A-59, Block-R, North Nazimabad, Karachi. The case of the Petitioner is that the deceased had executed a “Will” during her lifetime attested by 9th Judicial Magistrate, Karachi East on 07-5-2002 in presence of two witnesses in respect of her debts and securities amongst her legal heirs. It is stated that deceased was issueless and her husband had also died before her death and at the time of her death she had left only two legal heirs as her next of kin as per her Will/Wasiatnama. The legal heirs are Syed Ali Zamin Naqvi, nephew, who is Petitioner in this case and Syed Amina Naqvi, niece of the Petitioner. The deceased belongs to Fiqah-e-Jafria. Deceased had two brothers namely Syed Hussain Ahmed Naqi and Syed Husnain Ahmed Naqi. It is stated in the petition that both the brothers had disappeared about 30 years ago and presumption is that they are not alive. The Petitioner is the son of sister of Mst. Syeda Mubina Khatoon, but he does not know the whereabouts of his both uncles named above. The Petitioner does not even know whether those uncles were married or not and whether they have any children or not. There is another SMA No.57/2006. This SMA was dismissed by this Court by order dated 19-9-2006. The order dated 19-9-2006 is reproduced hereunder: -
“19-9-2006.
Mr. Saiful Islam, Advocate for the Petitioner. Mr. Zahid Hussain Shah, learned Civil Judge & Judicial Magistrate, Obaro is present in pursuance of direction of this Court. He has examined the Will/Wasiatnama at Pages 19 to 25 and says that the same has not been attested by him as on 07-5-2002 he was posted at Nawab Shah therefore the signature on the said Will/Wasiatnama is forged and fake.
In view of the statement of the learned Magistrate the learned Counsel for the Petitioner does not press this SMA, which is accordingly dismissed.
Judge
I had appointed Dr. Faroqh Naseem, Advocate as Amicus Curie who has given his opinion as under: -
2. According to me the following are the principles of law, which are relevant in a case where legal heirs are alleged to be missing: -
(a) the court’s attention is drawn to Articles 123 and 124 of the Qanoon-e-Shahadat Order, 1984. According to Article 123 if it is shown that a particular person was alive within the last 30 years, the burden of disproving the latter or proving the death will be upon the person who alleges that the person is/was dead. Article 123 is however, subject to Article 124, according to which if it is proved that a person is not heard of four 7 years by those who would naturally have heard of him, if he had been alive, the burden of proving that he was alive then shifts upon the person who alleges that the said person is/was alive;
(b) in this case the matter is to be resolved by the application of Article 124, which has an over-riding affect upon Article 123;
(c) reference is invited to Mst. Rashida Begum v. Muhammed Ameen 2001 MLD 725 wherein it was held that where the brothers and sisters of the deceased had not heard of him for seven years, if was for the third person alleging the deceased to be alive to prove that he was alive.
(d) Article 123 and 124 of the Qanoon-e-Shahadat only create a presumption of death but the actual date of death has to be proved by positive evidence i.e. in the manner in which any other fact is proved. In this regard reference is invited to Lal Chand v. Mahant Ramrup AIR 1926 PC9, Hayat v. Niamat Bibi PLD 1978 Lahore 245, Muhammed Sarwar v. Fazal Ahmed PLD 1987 SC1, Sakhi Muhammed v. Allah Bibi PLD 1988 SC 682, Jayalakshmi v. R.Gopala AIR 1995 SC 995 and Muhammed Ali v. Hassan 2007 CLC 1629;
(e) in particular, in the case of Sakhi Muhammed v. Allah Bibi (cited supra) the Hon’ble Supreme Court was further pleased to observe that the Court was not precluded from determining the actual date of death or the fact that the death had occurred after the expiry of seven years;
(f) reliance is also placed on Muhammed Saleem Ullah v. ADJ Gujranwala PLD 2005 SC 511 for the point that the right of a missing legal heir did not get destroyed unless the presumption of death had arisen, but such presumption cannot be raised without proper adjudication, based upon legal evidence, that no other legal heir had existed at the time of opening of the succession. In other words, although the presumption of death may arise, the fact that no other legal heir had existed requires proof;
(g) in Bal Krishna Koundar v. Amir Thavalli Ammal AIR 1959 Madras 526 it was held that the fact that the person was not heard of for seven years, requires evidence;
(h) in Slabo Bibi v. Gul Rehman PLD 1996 Peshawar 1 it was held that in the absence of any positive evidence pertaining to the exact date of death and in the presence of evidence that the whereabouts of the deceased were not known for the last 30 years, the Trial Court was correct in presuming that the person was dead at the date of institution of the suit;
(i) In Muslim Law there was a presumption that the person was taken to be dead at the date of his disappearance (see Ramseys Law of Inheritance Page 156, Ballie’s Mahomedan Law Page 13 and Ali Sirajyyah’s Mahomedan law of inheritance at page 65). However, it was held in Mazhar Ali v. Budh Singh (1884) 7 Allahabad 297 that these rules of Muhammedan Law ere only rules of evidence and not substantive law of succession or inheritance. It was in view of this that a Division Bench of the Allahabad High Court in Mairaj Fatima v. Abdul Waheed AIR 1921 Allahabad 175 was pleased to hold that sections 107 and 108 of the erstwhile Evidence Act, 1872 (predecessors of the present Articles 123 and 124 of the Qanoon-e-Shahadat) had successfully over-ridden and superseded the above mentioned rule of Muhammedan Law regarding missing persons. This judgment was cited and applied with approval in Aziz-ul-Hassan v. Muhammed Faruq AIR 1935 Oudh 41. It will not be out of place to mention that even in the Hindu Law a person was presumed to be dead if he was unheard of for 12 years. In Ponduri Adeyya v. Jalaldi Burreyya AIR 1923 Madras 182 it was held that the letter rule of 12 years in Hindu Law was no longer applicable after the introduction of sections 107 and 108 of the Evidence Act, 1872;
(j) In Lal Hussain v. Mst. Sadiq 2001 SCMR 1036 while it was stated that the proof that a person was alive, in terms of articles 124 of the Qanoon-e-Shahadat, was on the person alleging the same, the actual date upon which the deceased had died, which would be the date upon which the succession would open up, would have to be proved by positive evidence;
(k) In Gul Zaman v. Sher Zaman PLD 1972 AJ&K 26 it was observed that sections 107 and 108 of the Evidence Act, 1872, which are analogous to the present Articles 123 and 124 of the Qanoon-e-Shahadat Order, 1984, have laid a balance between the dictates of reality and the Roman concept embodies in the maxim “DE MORTE HOMINIS NULLA EST CUNCTATIO LONGA” (no delay is long concerning the death of a man). However, the law does not require any person to do any impossible thing. This is stated in the maxim “IMPOSOSIBILIUM NULLA OBLIGATIO EST” (there is no obligation to do impossible things). There is also another maxim i.e. “IMPOTENTIA EXCUSAT LEGEM” (which means that inability is an excuse in law). The Judge is t do the atmost to find a way out of difficulties obstructing him from doing justice.
3. In the light of the above principles and looking to the facts of the case I propose as follows: -
(a) the Nazir of the Court may be directed to issue a public notice in one English and one Urdu newspaper inviting any person to either disclose or identify themselves the legal heirs of Syeda Mubeena Khatoon, Syed Hussain Ahmed Naqvi and Syed Hasnain Ahmed Naqvi. The cost to be borne by the petitioner;
(b) in case any person comes forward and disputes the veracity of the averments in the petition, the same may be joined as respondents and the matter be converted into a civil suit and transferred to the original side of this Court, to be decided upon evidence;
(c) in case no person appears, the petitioner may be invited to lead evidence in the present SMA/Petition of relatives, neighbours and himself by way of oral or documentary evidence to prove the following: -
(i) the fact that Syeda Mubeena Khatoon was issueless and had no legal heirs except Syed Hussain Ahmed Naqvi and Syed Hasnain Ahmed Naqvi;
(ii) the fact that Syed Hussain Ahmed Naqvi and Syed Hasnain Ahmed Naqvi had no legal heirs except the ones mentioned in para 4 of the petition;
(iii) the fact that the whereabouts of Syed Hussain Ahmed Naqvi and Syed Hasnain Ahmed Naqvi were not known and they were not heard of for seven years by those who would have naturally heard of them.”
In view of the above I order issuance of Succession Certificate in the name of Nazir of this Court who will collect the amount belonging to the deceased Mst. Syeda Mubeena Khatoon from her Bank accounts mentioned in the schedule of property. Once the amount is collected the Nazir will distribute the share amongst the legal heirs after inviting objections from general public by way of advertisement in daily “JANG” and daily “DAWN” in a prominent way. Publication charges shall be paid by the Nazir from the amount collected by him from the Bank accounts of the Mst. Syeda Mubeena Khatoon. The Nazir will take once surety and personal bond from each legal heir equal to his share, which the said legal heir is drawing. In case Nazir receives any objection from other legal heirs or general public he will refer back the case to the Court for further orders and shall not distribute any amount to any one.
SMA No.54/2007 is disposed of.
JUDGE