SADRUDDIN: IN RE Versus SADRUDDIN: IN RE

1. The petitioner who claims to be the brother of deceased Mst. Gul Bano daughter of Haji Abdul Rasool, who expired at the United Republic of Tanzania on 14‑1‑1987, leaving behind next of kins mentioned in para. 3 of the petition has filed the present petition under section 372 of the Succession Act, 1925 (hereinafter referred to as the Act) in respect of two items mentioned in the schedule, namely, (i) S.B.A/c No.1060608637201 Grindlays Bank Ltd. Garden Road Branch, Karachi Rs.67,241.40, (ii) Lockers No.B‑24, Grindlays Bank Ltd. Dundas Street, Karachi approximate value is above Rs.50,000 which includes jewellery and gold ornaments. A public notice of the above petition was published in the English Morning Newspaper, dated 3‑3‑1988 and a copy thereof was also pasted at the Court Notice Board. In response to the above notice the next of kins have filed their affidavits containing no objection. The Hon'ble Chief Justice by his order dated 8‑2‑1988 appointed the Nazir of this Court as a Commissioner for opening the locker referred to hereinabove and for preparing the inventory of the articles lying therein and to assess the value. The Nazir has submitted his report dated 15‑2‑1988 in which he has given the detail of the jewellery with the weight but has not assessed the value. When the above case had come up before me for hearing on 13‑3‑1988, I had ordered that the learned counsel for the petitioner should satisfy me whether a Succession Certificate can be granted in respect of the jewellery.: On 27‑3‑1988' when the matter again came up for hearing before me ‑I also requested Messrs Khalid M. Ishaque and Khalilur Rehmah,' Advocates to assist the Court on the above question.

2. On 10‑4‑1988 M/s Khalid M. Ishaque and Khalilur Rehman have submitted that a Succession Certificate cannot be granted in respect of the jewellery. The learned counsel for the petitioner Messrs Ashraf Khan Tanoli and M. Younus Khan were unable to submit or cite any ruling contrary to what was urged by Messrs Khalid Ishaque and Khalilur Rehman. Messrs Khalid Ishaque and Khalilur Rehman have relied upon the wordings of the relevant sections, namely, 370 and 372 of the Act, which‑ read as follows;

2. "370. Restriction on rant of certificates under this Part.‑ (1) A Succession Certificate (herein after in this part re erred to as a Certificate) shall not be granted under this part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate:

3. Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased (Pakistan Christian), or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letter of administration under this Act.

(2) For the purposes of this Part, "Security" means:‑

4. (a)any promissory note, debenture, stock or other security of the Central Government or of a Provincial Government;

5. (b)any bond, debenture or annunity charged by Act of Parliament of the United Kingdom on the revenues of India;

(c) any stock or debenture of or share in a company or other incorporated;

(d) any debenture or other security for money issued by, on behalf of, a local authority;

6. (e)any other security which the Provincial Government may by notification in the official Gazette, declare to be a security for the purposes of this Part."

7. "372. Application for Certificate.‑‑ (1) Application for such a certificate shall be made to the District Judge by the petitioner signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the' signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:‑

8. (a)the time of the death of the deceased;

9. (b)the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

10. (e)the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

11. (f )the debts and securities in respect of which the certificate is applied for.

12. (2)If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deem to have committed an offence under section 198 of the Pakistan Penal Code.

13. (3)Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof."

14. 3.It may be noticed that under the above‑quoted section 3701 excluding any debt or security in respect of which right is required by section 212 or‑ section 213 to be established by letters of administration or probate, a Succession Certificate can be granted in, respect of security as defined in the above‑quoted subsection (2) of section 370, which means any promissory note, debenture, stock or other security of the Central Government or of a Provincial Government, any bond, debenture or annuity charged by Act of Parliament of the United Kingdom on the revenues, any stock or debenture of or share in a company or other incorporated; or any debenture or other security for money issued by, on behalf of, a local authority; and any other security which the Provincial Government may by notification in the Official Gazette declare to be a security for the purposes of the above para. 10 of the Act. It may further be noticed that in an application under section 372 of the Act quoted hereinabove can be made with the required particulars mentioned in clauses (a) to (e) of subsection (1) of the said section in respect of debts and securities in terms of above section 370. The above sections do not cater for jewellery or for any other item which does not fall within the ambit of subsection (2) of section 370 referred to hereinabove.

15. 4.Mr. Khalid M. Ishaque has referred to the following cases which were also referred to by Mr. Khalilur Rehman.

(i) Assam Bengal Railway Co. Ltd. Chittagong v. Atul Chandra Sen (AIR 1937 Calcutta 314), in whic:i a Division Bench of the Calcutta High Court while construing section 381 of the Succession Act, 1925 held that the same does not apply to the Provident Fund of the railway employee in deposit with the railway company, as such fund is neither a debt nor a securitv payable to the employee as mentioned in the section.

(ii) Tulsi Debya v. Bibhuti Bhusan Goswami & others (AIR 1937 Calcutta 423). In the above case a Division Bench of the Calcutta High Court while construing section 372 of the Act held that a debt is a sum of money which is now payable or will become payable in future by reason of a present obligation; and that a sum of money which i‑q due on the life assurance policy of the husband and payable to him if he were living on the date of maturity of the policy or to his heirs on his death if earlier, is a debt as described in section 372.

(iii) Mst. Shyam Sundari Devi and others v. Sarti Devi and others (AIR 1962 Patna 220). In the above case a learned Single Judge of the Patna High Court while construing sections 370 to 381 of the Act held that a Succession Certificate can be asked for and granted only in respect of debts and securities and not for any other kind of propertv and it cannot be granted or asked for in respect of ornaments pledged by the deceased with a Bank by way of security for the debt which the Bank had advanced since it is not a debt due from the Bank.

(iv) Dina Nath v. $alkrishna and another (A I R 1963 Allahabad 46) V 50 C 19), in which a learned Single Judge of the Allahabad High Court while construing word "Debt" used in section 370 of the Act has held that the above word has not been defined in the Act and, therefore, what is ordinarily understood by that word is a liability from one person to another whether in cash or kind, secured or unsecured, whether ascertained or ascertainable, arising out of any obligation, express or implied. It was also held that where a lady died during the Kumbh tragedy and the ornaments found on her body were taken possession of by the District Authorities, the refund of those ornaments became an obligation on the authorities to hand over the same or their value to the rightful claimant of the deceased; and that for such a liability an application for a Succession Certificate could be made in law and it was a fit case in which a Succession Certificate should be granted.

(v) State Bank of India v. Netai Ch. Porel (AIR 1982 Calcutta 92). In the above case a Division Bench of the Calcutta High Court while construing section 370 of the Act held that ornaments kept in safe deposit locker in the Bank not being a debt or a security within the meaning of the above section cannot be a subject‑matter of a Succession Certificate.

16. It may be advantageous to reproduce the relevant observations on the point in issue from the above case, which reads as follows:

17. "In ordinary parlance debt means a sum certain due from one person called the debtor to another called the creditor. In Stroud's Judicial Dictionary a debt is defined as a sum payable in respect of a liquidated monev demand recoverable by action. One of the essentials of a debt is an ascertained amount or readily calculable amount. In that sense the State Bank of India in this case could not be said to stand in the position of a debtor nor could Juthi‑kabala be called a creditor in respect of the ornaments. But that apart the more important distinguishing point is that unlike in cases of debt, the Bank had no right of disposition of any kind in respect of those ornaments. The Bank stood in the position of a bailee or a trustee to whom though possession was entrusted, there was no intention of transferring the ownership. It is settled law that debt is not trust and any and every liability irrespective of its true legal character does not become a debt. Since succession certificate can be granted only in respect of debts and securities and not for any other kind of property, we are of the opinion that in this case succession certificate could not be granted."

(vi) Muhammad Sadiq and 2 others v. Fakhari Pasha and 3 others (1985 C L C 2211). In the above case a learned Single Judge of the Peshawar High Court while construing section 373 of the Act has held that the object was to facilitate collection of debts by person who had prima facie clear title to succession and had beneficial interest in debts, which question is to be decided summarily.

18. On the other hand Messrs Ashraf Khan Tanoli and Younus Khan, learned counsel for the petitioner has referred to four orders passed in S.M.As. namely, S.M.A. No. 44 of 1979 decided on 18‑10‑1980, S . M . A . No. 66 of 1982 decided on 11‑11‑1982, S . M . A . No. 90 of 1984 decided on 6‑4‑1986 and S.M.A. No. 284 of 1985 decided on 11‑2‑1986, by learned Single Judges of this Court granting Succession Certificates in respect of jewellery. The above orders do not contain any reason nor the above question has been adverted to and, therefore, the are of no help.

19. 5 .I am inclined to hold that a Succession Certificate can b granted either in 'respect of debt which in ordinary parlance means an ascertained or ascertainable sum due and payable by someone t B the deceased or to his estate or in respect of security as defined by subsection (2) of section 370 reproduced hereinabove and that jewellery does not fall either in the category of a debt or securities as defined by the Act.

20. With due deference, I am unable to agree with the view of the learned Single Judge in the above Allahabad case, which in my humble view, seems to be contrary to the language of the relevant sections of the Act, whereas the other judgments referred to particularly of the Calcutta High Court 1982 is directly on the point in issue, which seems to be in consonance with the provisions of the Act.

6. I would, therefore, grant the above petition in respect of above item No. 1, namely, S.B. Account No. 1060608637201 Grindlays C Bank Limited, Garden Road Branch, Karachi Rs.67,241.40 as per rules but the petition in respect of 'the second item is rejected.

21. Before parting with the above judgment, I may record my appreciations as to the valuable assistance rendered by Messrs Khalid M. Ishaque and Khablur Rehman, Advocates as amicus curiae in the above petition.

22. A . A . /S‑188/ K Application partly allowed.