Mst. JAMEELA AKHTAR vs PUBLIC-AT-LARGE and others

' MUNIR A. SHEIKH, J.---The dispute relates to inheritance of Muhammad Zafarullah Khan, deceased, respondent No,2 Mst. Zubaida Akhtar, who is admittedly his sister, made an application for issuance of succession certificate as regards amount available in the bank accounts of said Muhammad Zafarullah Khan. In the said application, she impleaded present petitioner Mst. Jameela Akhtar and Mst. Umat-ul-Hameed as widows of Muhamamd Zafarullah Khan, deceased, alongwith respondents Nos.4 to 7 who are admittedly his brothers. The present petitioner denied that Mst.

Umat-ul-Hameed, respondent No,3, was widow of Muhammad Zafarullah Khan, deceased. The trial Court through order dated 29-3-2000 held that Mst. Umat-ul-Hameed was also one of the widows of Muhammad Zafarulla Khan, deceased, alongwith the petitioner, therefore, entitled to inherit his property. The appeal filed by the petitioner was dismissed by the First Appellate Court through judgment dated 11-5-2000, against which revision petition filed by her has also been dismissed by the learned Judge in Chamber of the Lahore High Court through the impugned judgment dated 25-7-2001 against which leave is sought.

2. Learned counsel for the petitioner submitted that the evidence as regards alleged Nikah of Muhammad Zafarullah Khan, deceased with Mst. Umat-ul-Hameed was not such on the basis of which in summary proceedings, it could be held that Mst. Umat-ul-Hameed has proved that she was widow of Muhammad Zafarullah Khan, therefore, instead of allowing any share to her in the amount about which succession certificate was sought, she should have been directed to file civil suit to prove her status as widow and thereafter the amount should have been given to her.

3. We have heard learned counsel for the petitioner and Syed Zulfiqar Ali Bokhari, learned counsel for respondent No,3 Mst. Umat-ul-Hameed. We find that Nikah on which respondent No,3 placed reliance in this case prima facie appears to be a mutilated document, for the name of the bride was Surrya Begum which was scored of and below her name, Mst. Umat-ulHameed had been written. An application was made by the petitioner before the trial Court for summoning the record of the Union Council to ascertain whether the said Nikah was entered in the relevant register under the Family Laws Ordinance but no order was passed on this application.

4. We find that the trial Court while granting succession certificate to respondent No,2, should have directed that no share of the said amount should be paid to Mst. Umat-ul-Hameed unless she gets a decree from the Civil Court about her status as widow of Muhammad Zafarullah Khan, A deceased, for such, a question could not be decided in summary proceedings.

5. For the foregoing reasons, we convert this petition into appeal, the same is partly accepted and the findings recorded by the Courts below that respondent No, 3 was the widow of Muhammad Zafarulah Khan, deceased are hereby set aside and the said respondent may the a civil suit to establish her status as widow of Muhammad Zafarullah Khan, deceased and if she succeeds in getting a decree, the amount already received by her under succession certificate may be retained by her and in case the said suit is decided against her, she shall refund the same to Mst.

Zubaida Akhtar, succession certificate holder, who shall distribute the same among the remaining heirs of Muhammad Zafarullah Khan, deceased. In case, Mst. Umat-ul-Hameed files civil suit, the same shall be decided within six months positively. If no suit is tiled within two months hereafter, she shall refund the amount to Mst. Zubaida Akhtar, failing which the latter can recover it through the process of the Court.