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ZAHID YOUNUS versus IN THE MATTER OF MRS. KHAIR UN NISA

Sections Act 291, 299 and 373 of the Succession Act (19XX of 19X) - Rules of the Sindh Chief Court (O section), R400 - Security Certificate and Letters of Administration - Bail Bonds - Power of Court - Appellant's Letter Applied for an Administration Grant in respect of immovable property belonging to his deceased mother. A single High Court judge approved the Letter of Administration in the name of the appellant, subject to his bail bail / security bond - where the court granted the lawyer's request for administration letters, the court was not authorized to deal with the bail. , Under the Succession Act 1925 under the Succession section 281 (2) (b) of the Letter Administration, was a condition under which the court had no discretion to demand bond from such person. A probate was granted just as 'word' was used, so it was arbitrary - where the case before the court did not come under S Success 373 (3) or (4) Succession Act, 1925. E-Court was authorized to deal with security when issuing security certificate but in connection with matters falling under section 373 (3) or (4) of the Succession Act 1925, the court did not grant succession certificate without first obtaining security from the applicant. Could have Sindh was in the nature of subordinate legislation under 400 of the Rules (A Section) of the Chief Court and could not extend the effect of section 291 of the Succession Act, 1925, as it was a fundamental provision of the law between which to the limit. Both, the basic provisions of section 291 of the Succession Act, 1925, will control the 400R of the Sindh Chief Court Rules (section) where there is no specific way to do something

P L D 2017 Sindh 555

Before Ifran Saadat Khan and Muhammad Humayan Khan, JJ 

ZAHID YOUNUS—Appellant in the matter of Mrs. KHAIR UN NISA (deceased)

High Court Appeal No.233 of 2015, decided on 5th December 2016.

Succession Act (XXXIX of 1925)---—Ss. 291, 299 & 373—Sindh Chief Court Rules (O.S.), R.400— Succession certificate and Letters of Administration—Surety bond— Powers of Court—Appellant filed application for grant of Letters of Administration in respect of immovable properties which belonged to his deceased motherSingle Judge of High Court granted Letter of Administration in the name of appellant, subject to his furnishing surety /security bond—Validity—Where Court granted Letters of Administration to petitioner on his application, the Court had no power to dispense with the surety, which was a condition precedent for issuance of Letters of Administration—Under S.281(2)(b) of Succession Act, 1925, there was no discretion with Court to demand a bond from a person to whom a probate was granted in as much as the word ‘may’ had been used therefore, it was discretionary—Where the case before Court did not fall under S«373(3) or (4) of Succession Act, 1925, the Court had discretion to dispense with the security while granting Succession Certificate but in respect of cases falling under S.373(3) or (4) of Succession Act, 1925, the Court could not grant Succession Certificate without first obtaining security from petitioner—Provision of R.400 of Sindh Chief Court Rules (O. S.) was in the nature of subordinate legislation and it could not over-ride the effect of S.291 of Succession Act, 1925, as the same was a substantive provision of law— To the extent of inconsistency between the two, the substantive provisions of S.291 of Succession Act, 1925, would prevail over R.400 of Sindh Chief Court Rules (O.S.)—Where a particular procedure was prescribed for doing something that thing must be done according to that procedure otherwise the entire proceedings would be illegal or irregular—Single Judge of High Court had rightly decided application in accordance with law and the order did not require any interference in intra-court appeal—Appeal was dismissed in circumstances. [p.558] A & E

Muhammad Shafiq's case PLD 2014 Sindh 541; Kamran Mirza v. Moazzam Mirza PLD 2014 Sindh 500; Mst. Razia Khatoon's case 1996 MLD 873; Ramchandra Ramratan v. Ramgopal Onkarji and others AIR 1957 Mad. Bh. 31 and Muhammad Javed Akhtar’s case 1987 CLC 262 ref.

Mst.Rukhsana v. Province of Sindh and others 2013 CLC 370 rel.

Muhammad Arif Sheikh for Appellant.

Date of hearing: 24th November, 2016.

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