Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NAIM JAN QAZI AND Another VS Respondent: Mst. WAZIRZADGAI AND 2 Other
Court Name: Peshawar High Court Judge(s): Shah Zaman Babar Title: NAIM JAN QAZI AND Another vs Mst. WAZIRZADGAI AND 2 Other Case No.: F. A. O. No. 10 of 1967 Date of Judgment:1974-07-03 Reported As: PLD 1974 Peshawar 74 Result: Petition dismissed
JUDGMENT
JUDGMENT These two first appeals (No. 10/67 and No. 11/67) one preferred by Naim Jan and Mst. Yaqut Jan against Mst. Wazirzadgai and another heirs of Qazi Abdul Wahid deceased and Mst. Mada Matan; and the other appeal by Naim Jan and Mst. Yaqut Jan against Faqir Mohammad Khan, are disposed of by a single judgment as they arise out of the two consolidated applications by the appellants with respect to the revocation of the succession certificates, granted to the respondents in each of the appeals. In each of the appeals order dated 4-9-67 whereby the Senior Civil Judge, Peshawar, rejected the application for the revocation of the succession certificates is challenged. 2. Qazi Mohammad Akbar Khan resident of Navi Killi, Tehsil Char--sadda, District Peshawar, had two wives. Mst. Umatur Rehman was the sole daughter from one wife while Qazi Abdul Wahid and Afst. Mada Matan were the children from the second wife. It is alleged that Mst. Umatur Rehman lived in house No. 1356-A G.P.O. Lane, Peshawar Cantonment; while her consanguine brother and sister lived in Navi killi. The record shows that Mst. Umatur Rehman was aged about 35 years. She was an ailing lady and had been under treatment for her illness since long. On 6-3-62 Mst. Umatur Rahman was wedded to Faqir Mohammad Khan resident of village Cham--kani, Tebsil Nowshera (Line Superintendent, Electricity WAPDA) before the Nikah Registrar of village Chamkani. Mst Umatur Rehman besides other movable and immovable property had the following debts; Saving Bank Accounts and Saving Bank Certificates in G.P.O., Peshawar S. No. Amount of debt including interest & date of applica--petition for certificate. Description and date instrument if any, by which the debt is secured. 1
---
## Page 2
Rs. 8,61 Vide Saving Account No. 14255 2. Rs. 7,270 S. Account No. 259660. 3. Rs. 1,000 Saving Certificate No. N.D.S. G./F.O. 86793. 4. Rs. 1,000 S. Certificate No. N.D.S.C.F.O. 86794. 5. Rs. 1,000 S. Certificate N.N.D.SC.F.O. 86795. 6. Rs. 1,000 Saving Certificate No. N.D.S.C.G.O. 35657. Total Rs.1,6131 Mst. Umatur Rehman died or. 8-9-1962. On 14-3-64, Qazi Abdul-Wahid and his sister Mada Matan lodged an application (No. 11/2 of 1964) under section 372 of the Succession Act, 1925 for the grant of succession certificate with respect to the above-mentioned debts. They cited Faqir Mohammad as respondent in the case. The applicants prayed for the grant of the succession certificate with respect to half of the total debts as their Shari Shares. Faqir Mohammad also lodged a similar application (No. 17/2 of 1964) for grant of the succession certificate on 7-4-64 for half share of the total amount of debts referred to above. Qazi Abdul Wahid, Mst. Mada Matan and general public were arrayed as respondents. 3. Both the applications were entertained by the Senior Civil Judge, Peshawar. The learned Senior Civil Judge, Peshawar, by his order-dated 9-6-64 granted Qazi Abdul Wahid and Mst. Mada Matan a succession certificate with respect to half share out of the above-mentioned total debts. He also granted Faqir Mohammad on the same date a succession certificate with respect to the remaining half of total debts. Proper succession certi--ficates were handed over to the respective applicants on 17-6-64. 4. It is alleged that Naim Jan is maternal uncle's son as well as adopted son of Mst. Umatul Rehman, while Mst. Yaqut Jan is the maternal aunt (Khala) of Mst. Umatur Rehman. Naim Jan and Mst. Yaqut Jan both residents of house No. 1356-A G.P.O. Lane, Peshawar Cantt. 'Instituted an application (No. 42/6 of 1964), under section 383 of the Succession Act for the revocation of the succession certificate granted to Faqir Mohammad Khan on 9-6-64 Faqir Mohammad Khan was arrayed as respondent in the matter. Both of them also lodged a similar application (No. 43/6 of 1964) for the revocation of the succession certificate granted to Qazi Abdul Wahid and Mst. Mada Matan on 9-6-64. The revocation of two succession certi--ficates was sought on the following grounds: (a) That the succession certificate has been obtained without any entitle--ment. (b) That the succession certificate is obtained by the, respondents by means of untrue allegations of facts and fraud. The applicants to both the cases relied on an unregistered will dated 4-9-62 by Mst. Umatur Rehman in favour of the two applicants in each case (as the executors of the will). The applicants averred that according to the terms of the will the two Saving Bank Accounts mentioned at serial
---
## Page 3
Nos. 1 and 2 of the details of debt above (mentioned at S. No. 'A' of the will) although solely in the name of Mst. Umatur Rehman, in fact represented the amount of joint income from the property of both the testator and Yaqut Jan and as such Mst. Yaqut Jan applicant No. 2 was entitled to half of that amount as of right, and out of the remaining amount of Rs. 7.933.44 represented according to the will. Thus she claimed the amount of Rs. 7,933.44 allowing the interest. In both the applications Naim Jan averred that according to the terms of tile will dated 4-9-62 out of the amount of the four saving certificates, total Rs. 8,000, he was entitled to Rs. 2,000 according to the will of Mst. Umatur Rehman, he had to spend Rs. 3,000 on the obsequies of the testator and the remaining Rs. 3,000 were to be spent as "Sadqa-i-Jarya", on the construction of mosques etc. 5. Both these applications were contested by Faqir Mohammad in Case No. 42/6 and Qazi Abdul Wahid and Mst. Mada Matan in Case No. 43/6. Abdul Wahid died during the pendency of the proceedings and his legal representatives who are respondents Nos. 1 and 2 to Appeal No. 10/67 were brought on record. (Vide statements of the counsel for the parties dated 13-11-64. Both the Applications Nos. 42/6 and 43/6 of 1964 were consolidated and proceedings were recorded to file No. 43/6 of 1964. The objectors examined several witnesses in support of their applications but I will discuss the evidence of witnesses relevant to the discussion of the present appeals. 6. Aminuddin (O. P. W. 16) is the witness of the will-deed copy Exh. G.P.W. 16/1. This witness deposed in cross-examination that the execu--tant was related to him. His (Aminuddin's) maternal grandfather was the son of the maternal aunt of the mother of the deponent, the mother's name of the executor was Khairun Nisa: he (the witness) did not know Faqir Mohammad respondent; he also did not know Qazi Abdul Wahid; he did not know whether the executant was married or not; that the will-deed was executed in the residential house of Mst. Umatur Rehman at Peshawar Cantt.; that he had got the same relationship with Naim Jan objector as with Mst. Umatur Rehman; and that he did rot know if Qazi Akbar Jan had other children besides Umatur Rehman deceased. 7. Aminul Haq (O. P. W. 17) is another marginal witness of the will --deed copy Exh. O. P. W.16/1. This witness stated in cross-examination that Mst. Umatur Rehman did not observe parda from him, that she was not related to him but she was his neighbourer, that be did not know if rust. Umatul Rehman was married or not; that she used to say that she had a brother; that the will-deed was executed about 15 days prior to the death of the testator; that Qazi Naim Jan used to live with Mst. Umatur Rehman; that to his knowledge Mst. Umatur Rehman bad no sister; he did not know Faqir Mohammad respondent; that he came to the residential house of Umatur Rehman after her death; and that he did not know whether Mst. Umatur Rehman was married to Faqir Mohammad or not. 8. Mohammad Ashraf (O.P.W. 18) is the third attesting witness of the will copy Exh. O. P: W. 16/1. This witness testified in cross-examination that Mst. Umatur Rehman did not observe parda from him; that Mst. Umatur Rehman was young at the time of her death when she was 35 years of age: that Qazi Naim Jan is his relative and that he knew him since long, that the wife of his paternal uncle is his sister; that Mst. Umatur Rehman had a brother; that he was her consanguine brother ; that he did not know his name; that he did not know , anything about the sister of Mst. Umatur Rehman; that Qazi Naim Jan was about one year's age when his mother died and he was brought up by Mst. Umatur Rehman; that she was 45 years of age at the time of her death; that it was possible that she was of ten years of age when she began bringing up Qazi Naim Jan; that he did not know anything personally about this; that Mst. Umatur Rehman's mother was the sister of Qazi Naim Jan's father; that Mst. Yaqut is the maternal aunt of Mst. Umatur Rehman, testator; that Mst. Yaqut Jan had lived in one house with her; that she was present at the time of the execution of the will- deed; that the Nikah of Mst. Umatur Rehman was performed with Faqir Mohammad respondent but `Rukhsati' had not taken place ; that the Nikah of Faqir Mohammad was performed with Umatur Rehman about a year prior to her death; that Naim Jan was his (witness's) friend; and That the will- deed was written ten-twelve days prior to the death of Mst. Umatur Rehman.
---
## Page 4
9. Mian Muhammad Mirza (O.P.W. 19) is the scribe of the will-deed Exh. O.P.W. 16/1. He stated in cross-examination that the will deed was scribed by him at the house of the testator; that Mst. Umatur Rehman was about 47 years of age; that she was also present at the time of the will-deed being scribed; that Mst. Yaqut was also present at that time. 10. Naim Jan objector No. 1 (O.P.W. 20) deposed that Qazi Abdul Wahid and Mst. Mada Matan, in collusion with Faqir Mohammad obtained succession certificates in respect of the deposit of Mst. Umatur Rehman in the G.P.O. Peshawar and the National Developing Certificate, that this amount was credited in the Saving Bank Account and the National Defence Certificates detailed in his objection petition; that the entire amount comes to Rs. 16,132 out of which a certificate for Rs. 8,066 was obtained by Qazi Abdul Wahid and Mst. Mada Matan and another certificate for the same amount was obtained by Faqir Mohammad that Mst. Umatur Rehman was the daughter of his paternal aunt he repeated his claim to the amount of Rs. 8,000 as entered in his favour in the will and described in detail above. He added that at the time of the death of Mst. Umatur Rehman, he was aged 30 years and as far as he recollected, he had never seen Abdul Wahid or Mst. Mada Matan ever visiting the deceased or latter visiting the former nor did he ever hear about the relationship between them. To the will referred to above, the testator stated that the nikah ceremony between her and Faqir Mohammad was performed; that Mst. Umatur Rehman however lived in her own house till her death and the Rukhsati had never taken place. In cross-examination, be deposed that he and his co-objectors learnt about the application of Faqir Mohammad on the one hand and Qazi Abdul Wahid and Mst. Mada Matan on the other to obtain certificate soon after they were granted to them. He could not say through whom he got these information; that it was correct that before getting this information neither Mst. Yaqut Jan nor he had taken any steps to get the credits of Mst. Umatur Rehman deceased; that at the time when Mst. Umatur Rehman bad died their locality was included in Ward Nos. 3/4 of the Basic Democracies; that they did not make any application to the Union Council either; that Mst. Yaqut Jan co-objector is the maternal aunt of Mst. Umatur Rehman deceased and his (the witness's) paternal aunt, that he is a science graduate of the Peshawar University; that he had been in the Custom Department for the last 20 years; and that he was an inspector at that time. 11. Mohammad Yaqoob, servant and special attorney of Mst. Yaqoot Jan (O.P. W. 21,), testified that Mat. Umatur Rehman made a will before her death true copy of which is Exh. O. P. W. 16/1 ; that at the time of her death she had handed over tire pass book etc. Pertaining to the National Savings to Mst. Yaqut Jan and Naim Jan and the witness produced the original for perusal of the Court; that the applicants Qazi Abdul Wahid, Mst. Mada Matan and Faqir Mohammad are not known to him. On cross-examination the witness deposed that to the best of his knowledge, no nikah of the deceased Mst. Umatur Rehman was performed with Faqir Mohammad and till her death he never knew that this nikah was performed that at the time of the will being dictated by Mst. Umatur Rehman he was standing as close to her as he was then standing in Court between counsel and the parties and even at that time Mst. Umatur Rehman did not mention that her nikah was ever performed with Faqir Mohammad; that they took the matter to the Union Council also and deposited there also some cash but no settlement could be arrived at; that Faqir Mohammad also carte there; that Faqir Mohammad was claiming that he was the husband of Mst. Umatur Rehman and that he was entitled to share in her property left by her; that this was about three years ago that Yaqub Jan son was alive; that he is his servant and her lives in Peshawar Cantt. 12. Faqir Mohammad respondent (R.W. 1) deposed that Mst. Umatur Rehman was his legally wadded wife, that she was married to him in March, 1962; that Exh. R. W. 1/1 is the original nikahnama duly registered before the Registrar, Union Council Chamkani. It bears her signature; that in the same year i.e. 1962.About five or six months after his marriage she fell ill and was admitted in the L.R.H. Peshawar, that she died of cancer, about a month after the admission in the
---
## Page 5
hospital; that soon after her death the father Qazi Naim and his maternal aunt instituted a case against him before the Chairman, Union Council No. 3, Peshawar Cantt he produced certified copy of the proceedings Exh. R.W. 1/3. The witness then proceeded on to state that he and Qazi Abdul Wahid and Mst. Mada Matan had applied for succession certificates separately, which were granted to them. He added that the will-deed produced by the petitioners is a forged one. In cross- examination the witness stated that Qazi Abdul Wahid was the consanguine brother of his deceased wife Mst. Umatur Rehman; that the co-applicant of Qazi Abdul Wahid i.e. Met. Mada Matan is consanguine sister of his deceased wife; that Qazi Abdul Wahid died sometime back and his legal representa--tives have already been brought on record. 13. Attaullah Khan (R.W. 2), Moosa Khan (R.W. 3) witnesses of the nikah and Mohammad Mukhtar (R.W. 4) Nikah Registrar of the Union Council, Chamkani who scribed-Exh. R.W. 1/1 were produced besides other witnesses by the respondents. It may be mentioned at this stage that the original nikahnama Exh. R.W. 1/1 describes the age of Umatur Rehman (dulhan) as 38 years. The Nikahnama purports to, have been signed by `Umatur Rehman. It will be also beneficial to mention that the will deed dated 4-9-62, produced at the time of hearing the appeal, purports to bear the signatures as well as thumb impression of Mst. Umatul Rehman the testa--tor at two places. 14. At the conclusion of the proceedings of the application for revocation the learned Senior Civil Judge for reasons of his own, held that the will slated 4-9-62 did not seem to be a genuine one, that there were lot of contra dictions in the statements of Naim Jan applicant and all the P.Ws. Produced by the applicants, and that even after getting information about the succession certificates, the applicants did not take any steps to get the credit of Mst. Umatul Rehman deceased. He, therefore, concluded that; the applica--tions of Naim Jan and Mst. Yaqut Jan are baseless and as such by order dated, --4-9-67 rejected each of the applications and hence the two appeals. 15. The grounds in the memo of both the appeals and the prayer are common. The note is also given in each of the appeals that if the appeal is --found incompetent by the Hon'ble Court then the -same may be treated as revision petitions. 16. The principal points urged by the learned counsel for the appellants are grounds Nos. 2, 3 and 5 in the, memos of appeal. The prayer is that by accepting the appeal the order of the learned lower Court dated 4-9-67 may be vacated and the appellants may be declared as competent to, receive the certificates in question. 17. Mr. Inayat Elahi, learned counsel for the appellants in both the appeals, Mr. M. E. Hayat Khan Advocate assisted by Mr. Jalaluddin Khan, Advocate for respondents in F.A.O. No. 10/67 and Mr. D.M. Kamil, Advocate assisted by Mr. M. F. Hayat, Advocate for the respondent in F.A.O. No. 11/67, heard. From the arguments of the learned counsel for the parties in the two appeals the following contentions need determination. (1) Whether on the pleadings and evidence of the applicant-appellants, the succession certificates are liable to be revoked under section 383 of the Succession Act? (2) Whether the will dated 4-9-62; purported to, be a will of Mst. Umtal Rehman testator and relied upon by the applicant-appellants is a genuine deed? (3) Whether the additional prayers in tire appeals can legally be granted on the basis of the will in the proceedings of revocation of the succession certificates? (4) Whether the appeal, if any, would lie to the District Judge or the --High Court? (5) In case the appeals are treated as revision petitions, whether proper cases for revisions are made out? 18. Part X of the Succession Act deals with the Succession Certificates. Section 383 provides for revocation of the certificate. This section reads: "393. A certificate granted under this part may be revoked for arty of the following causes, namely:-
---
## Page 6
(a) that the proceedings to obtain the certificate were defective in. Substance ; (b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case; (c) that the certificate was obtained by means of an untrue allegation of, a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; (d) that the certificate has become useless and inoperative through, circumstances; (e) that a decree or order made by the competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should: be revoked." 19. Let us now consider the contentions raised in the two appeals severally. '20. The learned counsel for the appellants asserts that the case of the appellants for revocation of the succession certificates falls within the ambit of section 383 (b) (c). In the two objection applications it has been averred that the succession certificate, in each case, had been obtained without any entitlement and secondly that the succession certificate in each case is obtained by' the respondents by means of untrue allegations of facts and fraud. It has been proved on record that Faqir Mohammad is the husband of the deceased Mst. Umatur Rehman. The spouse had no child. It is also established on record that Abdul Wahid now deed and Mst. Mada Matan are the consanguine brother and sister of Mst. Umatur Rahman deceased. Faqir Mohammad. Abdul Wahid and Mst. Muda Matan are there-- fore, `Shari' heirs and successor of Mst. Umtar Rehman. Naim Jan appellant is the maternal uncle's son as well as allegedly adopted son of Umtar Rahman while Mst. Yaqut Jan appellant is the maternal aunt (Khala) of Umatur Rehman. They are as such rot 'Shari' heirs or successors of Mst. Umtar Rehman. The alleged will was executed on 4-9-62. Mst. Umtar Rahman died on 8-9-62. Abdul Wahid and his sister Mst. Mada Matan applied for the succession certificate of the debts of Mst. Umtar Rehman on 14-3-64 while Faqir Mohammad had applied for a similar certificate on 7-4-64. It is admitted by Naim Jan objector (O. P. W. 20) in his evidence that neither he nor Yaqub Jan has taken any step to get the credits of Umtar Rehman deceased till the grant of succession certificates on 9-6-64. In the circum-- stances, therefore, Faqir Mohammad on one hand as a husband, and Abdul Wahid and Mst. Mada Matan on the other hand as consanguine brother and sister of Mst. Umtar Rehman were entitled to the grant of succession certificates according to their 'Shari' shares. Neither Naeem Jan nor Mohammad Yaqub special attorney of Mst. Yaqut Jan have uttered a word in their evidence about the disentitlement of the three successors for the succession certificates. The appellants have also averred in their objection application that the succession certificates were obtained by Faqir Mohammad, Abdul Wahid and Mst. Mada Matan by means of untrue allegations of facts and fraud In both the objection applications for revocation of the succession certificates, particulars of untrue allegations and fraud have not been stated therein. The pleadings according to law, shall contain and contain only statement of facts in a concise form of the material on which the parties pleadings relies for his claim. In ail cases, it is obligatory on the party to state in the pleadings the particulars of any misrepresentation, or fraud. Pleadings by them--selves are not evidence in a case but proceedings are to be substantiated by the evidence for their proof. To repeat again, Naim Jan or Mohammad Yaqub special attorney of Mst. Yaqut Jan or any other witness on their behalf have not produced an iota of evidence to substantiate the pleas of untrue allegations, misrepresentation of fact or fraud. For these reasons, therefore, the succession certificates granted to Faqir Mohammad to the extent of half share of the debts and to Abdul Wahid and Mst. Mada Matan to the extent of the remaining half share of debts of Mst. Umatur Rehman are not liable to be revoked under section 383 of the Succession Act. 21. Let us now consider the genuineness of the alleged will dated 4-9-62 of Mst. Umtar Rahman. The original will when examined sows that it purports to bear the signatures and thumb-impression of
---
## Page 7
Mst. Umtar Rehman at two places. The nikahnama Exh. R. W. I/L produced by Faqir- Mohammed respondent also purports to be signed by Mst. Umtar Rahman. By a visual comparison of the signatures purporting to be that of Mat: Umatur Rahman on nikahnama and the two signatures on the will, I am of the view that the three signatures resemble each other. The execution of nikahnama is proved by the evidence of the three attesting witnesses and the scribe. To determine whether this will-deed is genuine, it will have to be established by the appellants that the testator executed the will in her right mind and that with disposing mental capacity, without any use of undue influence on her. In the will, Mst. Umtar Rahman has stated that she is- a patient suffer--ing with tumour (Rasoli), blood pressure and that on account of the intensity of the decease she has become infirm and weak. The various prescriptions and other documents placed on record by the objectors also established the fact that the lady was imbeciled since long. Faqir Mohammad, her husband, Chas deposed that she was admitted in the Lady Reading Hospital and was suffering from cancer. It can also be presumed from the proceedings before the Chairman, Union Council, copy Exh. R. W. 1/3, that Umatur Rehman had remined a patent in the Lady Reading Hospital for about three-four months. The will was executed on the 4th of September 1962, and the testator died four days thereafter viz. On 8-9-62. With regard to the Saving Bank Accounts and Certificates as S. No. A & B, the testator had stated in the will that grand total of both the amounts of the A & B comes to Rs. 15,930.44 and that this amount is her personal property and she is entitled to give it away, but later on in the will the testator has stated that the amount in the Saving Bank Account was deposited out of a joint income from the property belonging to her and Mst. Yaqut Jan. It is established from the objectors' evidence that the will was scribed in house No. 1356-A G.P.O. Lane, Peshawar Cantt where Naim Jan and Mst. Yaqut Jan both resided and that it wasscribed in their presence P. W. Aminulla Haq an attesting witness of the will Chad deposed that the will deed was executed about 15 days prior to the death of the testator; while Mohammad Ashraf P. W., the other attesting witnesses has deposed that the will deed was written ten-twelve days prior to the death of Mst. Umtar Rahman. The testator described herself in the will as daughter of Qazi Mohammad Akbar Khan and wife of Faqir Mohammad, case Qazi Kheil, P. W. Aminul Haq, an attesting witness of the will, had signed the will in…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.