ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

 

S.M.A.No.45 of 2014

 

Date

Order with signature of Judge

 

 

1.       For hearing of CMA No.1185/2014.

2.      For orders on CMA No.770/2014

3.      For hearing of main petition.

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M/s. Farooq H. Abbasi and Naved Ahmed Khan, Advocates for the petitioner.

Ms. Yasmin Sultana, State Counsel.

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MRS. ASHRAF JAHAN, J.:- This order will dispose of the present S.M.A filed by Mst. Mehrunnisa under section 372 of the Succession Act, 1925, with the prayer that the Succession Certificate / Letter of Administration may be issued in favour of the petitioner in respect of the movable and immovable properties mentioned in Schedule A & B respectively.

As per contents of the S.M.A, the Petitioner is the widow of deceased Syed Mohammad Zoha son of Moulvi Syed Abdullah (Late), who expired on 05.02.2003. The deceased was issueless and at the time of his death he had left behind only one widow Mehrunnisa aged about 61 years as his parents had already died during his lifetime. It is further mentioned that the deceased was a businessman and he was maintaining and operating the following accounts:

S.No.

Name of the Bank

Amount

(i).

Account No.105802010010603, MCB Bahadurabad Branch, Code No. 1058 Karachi

Rs.1,16,81,940.28

(ii).

Account No.6-1-29-20610-714-100919, Habib Metropolitan Bank, Alamgir Road Branch, Main Alamgir Road Bahadurabad, Karachi

Locker No.34 Security deposit

Rs.3,93,282.19

Rs.10,000/-

(iii).

Account No.093210001120

United Bank Limited, Bahadurabad Branch, Code No.0932, Karachi.

Rs.6,80,435.96

 

 

Total: 1,27,65,657.43

It will be relevant to mention that prior to this S.M.A, another S.M.A No.85 of 2003 was filed before the District & Sessions Judge, Karachi (Central). During the pendency of that S.M.A, Nazir was deputed to open the locker and to prepare the inventory of the items kept in the locker and as per the inventory golden ornaments, prize bonds and allotment orders as well as sublease of some plots were found in the above locker. The above S.M.A could not be disposed of for want of pecuniary jurisdiction and the Petitioner was advised to approach this Court for obtaining Succession Certificate in the matter.

Subsequently, the present petition was filed on 11.03.2014 and the Petitioner herself appeared before the Court but as per order dated 04.07.2014, it was observed that she is not in proper mental state. Therefore, again learned counsel for the Petitioner filed an application under Order 32 Rule 1 read with section 151 CPC, praying therein that the Petitioner has lost her mental equilibrium and she is not in a position to continue with these proceedings intelligently, therefore, her nephew namely Abdul Hafeez, with whom she is residing, may be appointed to act as her guardian. In the present matter, the Nazir was also appointed to make inquiry in respect of legal heirs of the deceased so also police inquiry was conducted. The report of Nazir is on record, whereby he informed that the present Petitioner is the only legal heir of Syed Mohammad Zoha and she is living with her real nephew Abdul Hafeez, who is looking after her. The publication in this matter was also made, but none has come forward to object or to contest this S.M.A.

On 17.12.2014 learned counsel for the Petitioner has filed statement that some further investigations and inquires are required to be made regarding issuance of letter of administration in respect of immovable properties, whose documents were found in the locker, therefore, for the time being he may be allowed to press this petition only to the extent of movable properties mentioned in the schedule A of the properties. Accordingly, he has filed another schedule of movable properties on 22.12.2014.

I have heard learned counsel for the Petitioner as well as learned State Counsel. It is contended by learned counsel for the Petitioner that at present the Petitioner is the only legal heir of the deceased, therefore, while applying doctrine of return (Radd), she is entitled for all the movable properties left by the deceased.

On the other hand, learned State Counsel stated that only 1/4th of the said movable properties will go to the issueless widow as provided under the law.

I have considered the arguments and have perused the case record. Admittedly as per claim of the Petitioner, she is the only surviving legal heir of the deceased Syed Mohammad Zoha, as at the time of his death he was issueless and his parents had also expired during his lifetime. Despite publication of notice no other person has come forward to claim himself to be the legal heir of the deceased in any capacity or to object grant of succession certificate in favour of the Petitioner. In such circumstances, firstly the Petitioner would inherit from the estate of the deceased 1/4th of the estate as sharer and the remaining 3/4th will revert to her on the doctrine of return (Radd) as mentioned in section 66 of Mohammadan Law by F.D.Mulla. This being the legal position, in my opinion succession certificate is to be issued in exclusive name of the Petitioner as the sole legal heir of the deceased.

However, there is another aspect of the case, which relates to the mental health of the Petitioner and needs serious consideration. The Petitioner has appeared before the Court on few dates of hearings and the Court has noticed that she is mentally not fit enough to safeguard her own interest. It is for this reason that her nephew Abdul Hafeez Qureshi, who is looking after her has also moved an application under order 32 rule 2 C.P.C, which in substance is an application seeking relief for his appointment as guardian under order 32 rule 15 C.P.C. In my opinion, in the facts and circumstances of this case appointment of guardian of the Petitioner to properly look after and protect her interest in respect of amount lying in the bank accounts shown in schedule A and movable properties shown in schedule B is necessary. But at the same time appointment of the nephew as sole guardian of the Petitioner can be risky and unsafe, as it is the bounden duty of the Court to look after all these aspects of the matter before granting succession certificate in favour of party through her guardian. In view of the facts discussed above, I deem it proper to grant succession certificate in respect of bank accounts shown in schedule A and moveable property shown in schedule B in favour of the Petitioner by appointing the nephew of the Petitioner Abdul Hafeez and the Nazir of this Court to act as joint guardians of the Petitioner for this purpose. It is further ordered that the Nazir of this Court will maintain proper account about the income generated from the substantial amount available with the Petitioner in the bank accounts shown in schedule A as well as of the one hundred prize bonds of the denomination of Rs.40,000/- each and 4 prize bonds of Rs.7500/- each, which shall be submitted before the Court on yearly basis. For this purpose the huge sums shown in the three bank accounts shall be immediately invested in some national saving scheme of Government of Pakistan in favour of the Petitioner. Further no movable property of the Petitioner shown in schedule B be disposed off without prior permission of this Court. For immediate use of the Petitioner a sum of Rs.5,00,000/-(Five hundred thousands) may be separately kept to meet her medical and day to day expenses.

 

J U D G E

Announced on_________