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Transfer Application No.447/C of 1984, decided on 18th December, 1984.

--S. 371--Civil Procedure Code (V of 1908), Ss. 23 & 24--Succession Certificate--Jurisdiction of Court--Question of jurisdiction is essentially linked up with residence of deceased--Question could not be decided without recording evidence--Such an exercise, held, beyond scope of proceedings under sections 23 & 24 of Civil Procedure Code, 1908.--[Jurisdiction].

--S.371--Civil Procedure Code (V of 1908),Ss. 23 & 24--Succession Certificate--Party raising objection as to jurisdiction of Court--Jurisdic tional issue, held, to be decided first before proceeding with decision on merits by treating it as a preliminary issue.--[Jurisdiction] Malik Muhammad Nawaz for Petitioner.

Nasim Hassan for Respondents.

Date of hearing: 18th December, 1984.

This order shall dispose of two transfer applications bearing Nos.447/C and 527/C, both of 1984, as they relate to the same matter and between the same parties. It shall, however, remain on the file of TA.447/C-84.

2. The dispute between the parties relates to the grant of succession certificate in respect of estate of late Maj. (Rtd.) Abdur Rehman. Mrs. Shamim Akhlaq, daughter of the deceased and applicant in T.A. No.447/C-84, has applied to the Civil Court at Lahore, for grant of said certificate, and this matter is pending in the Court of Syed Iftikhar Hussain, Civil Judge, Lahore. On the other hand, the father of the deceased and others who have been arrayed as respondents in the said transfer application, have moved the Court of Raja Muhammad Shafiq Javed, Civil Judge, Kharian. These two cross transfer applications have been filed by the parties for transfer of case of other party from one Court to the other.

3. In such like cases the jurisdiction of the Court is to be governed by section 371 of the Succession Act, 1925 which is reproduced below:

"The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place or residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part."

Upon the language of section 371 it is obvious that the question of jurisdiction

Essentially linked up with the residence of the deceased. The parties are, however, at variance on this issue. It being so, the matter cannot be decided without recording evidence. Such an exercise would be beyond the scope of these proceedings.

I am informed that the deceased's father and others in their written statement, filed before the Civil Court, at Lahore, have raised an objection to the jurisdiction of that Court. It will be, therefore, appropriate that the jurisdictional-issue, is decided first by the Lahore Court before proceeding with the decision on merits. In case the Court comes to the conclusion that it has no jurisdiction, the application shall have to be returned to the applicant for its presentation before the proper forum.

4. Accordingly it is directed that the objection to the jurisdiction, shall be treated as a preliminary issue and disposed of first, in accordance with law, expeditiously, preferably by 14th March, 1985.

5. Both the parties are directed to appear before the learned Civil Judge, on 22-12-1984, so that if need be, he may expedite the hearing of the case. Till the decision of the jurisdictional issue, the proceedings in the case before Kharian Court, shall remain stayed. Both the transfer applications stand disposed of and the parties are left to bear their own costs.

M.Y.H. Case remanded.