Shahid Ali Khan Vs Olas Khan etc

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R. No. 245-P/2025 Shahid Ali Khan Vs. Olas Khan Etc

Date of hearing 08/06/2026

Present:

For petitioners Mian Iftikhar Jan, Advocate For respondents Mr. Muhammad Haroon, Advocate

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - The petitioner has questioned the legality and propriety of the judgment and decree dated 31.01.2025 passed by the learned Additional District Judge-I, Tehsil Pabbi, District Nowshera, whereby the appeal filed by the respondent against the judgment and order dated 02.03.2024 of learned Civil Judge-I, Tehsil Pabbi, District Nowshera, granting succession certificate, was allowed. Learned trial Court had granted a succession certificate by holding that the respondent/applicant was the sole legal heir of the deceased, Awalsuf Khan, and that the petitioner was not entitled to inherit the estate of the deceased. However, it was further held that the petitioner had proved the factum of debts to the extent of Rs. 2,33,00,000/- outstanding against the deceased and was, therefore, entitled to recover the said amount from the funds lying in the bank prior to distribution of the estate. The learned appellate Court, however, reversed the findings of the learned trial Court to the extent of the alleged debts.

2.Mr. Mian Iftikhar Jan, learned counsel for the petitioner, contended that the deceased, Awalsuf Khan, was survived by his brothers, namely Olas Khan, Khawaja Muhammad, Nisawar Khan, Alif Khan, Himat Khan, and Yousuf Khan, as well as his sisters, Mst. Niamat Bibi and

Dawat Bibi. However, neither they nor their legal heirs were impleaded as parties to the proceedings. He submitted that the petitioner, being the son of Himat Khan, is the nephew of the deceased and, therefore, entitled to inherit his lawful Sharia share in the estate of Awalsuf Khan and to the issuance of a succession certificate to that extent. He further argued that the petitioner had proved the amount paid to Awalsuf Khan during his lifetime, which constituted a debt recoverable from the estate prior to its distribution. According to the learned counsel, the learned appellate Court failed not only in the correct application of law but also in proper appreciation of the evidence while reversing the findings of the learned trial Court regarding the debts. He further submitted that both the Courts below failed to determine the estate of Awalsuf Khan amongst all his legal heirs. It was also argued that the remaining legal heirs, namely the brothers and sisters of the deceased, were not impleaded in the application, rendering the proceedings incompetent from their inception.

3.Conversely, Mr. Haroon Khan, Advocate, learned counsel for the respondent, contended that under the principles of Islamic law, a nephew does not inherit in the presence of a full brother of the deceased. He submitted that this aspect had rightly been decided by the learned trial Court. As regards the alleged debts, he argued that the petitioner had miserably failed to prove the same and that the learned appellate Court had rightly allowed the appeal. He accordingly supported the impugned judgment and prayed for dismissal of the instant petition.

4.Arguments heard. Record perused.

5.Admittedly, the respondent filed an application for the grant of a succession certificate on the plea that his brother, Awalsuf Khan, had passed away on 06.06.2020 leaving behind certain bank accounts, namely Account No.

0010020453880023 maintained at Allied Bank, Sunehri Masjid Road Branch, Peshawar, and Account No. 0010020453880030 maintained at Allied Bank, Kotli Saleh Khana Branch, Nowshera, in respect whereof he was entitled to the issuance of a succession certificate. The application was filed on 02.09.2020.

6.During the pendency of the proceedings, the petitioner filed an application seeking impleadment on the ground that he was the nephew of the deceased. He pleaded that the deceased was the son of Qeemat Khan, who had seven sons and two daughters, and that the petitioner was the son of Himat Khan, one of the deceased's brothers, who had already passed away. The application was dismissed by the learned trial Court, whereafter the appeal also failed. Consequently, Civil Revision No. 973 of 2021 was filed before this Court, which was allowed on 13.02.2023 with directions to determine (i) who were the legal heirs of Awalsuf Khan, and (ii) whether Awalsuf Khan had incurred any debts on account of expenses allegedly incurred by the petitioner and other family members on his medical treatment, and, if so, the quantum thereof.

7.Upon remand, the learned trial Court directed the petitioner, after his impleadment, to file a written statement. The petitioner questioned the maintainability of the application on various legal and factual grounds. On the divergent pleadings of the parties, the learned trial Court framed the following issues:

1.Whether the petitioner has a cause of action? OPP 2. Who are the legal heirs of the deceased, Awalsuf Khan? OP Parties

3.Whether Awalsuf Khan had incurred any debt in the form of medical expenses allegedly borne by respondent No. 2/Shahid Ali Khan, and, if so, whether such expenses constitute a debt and what was the quantum thereof? OPR

8.The parties were directed to produce their evidence. After filing the list of witnesses, the respondent examined Saifullah Khan, Patwari Halqa Saleh Khana, as PW-1, Mohsen Ali Khan, son of Olas Khan and attorney of the respondent, as PW-2, and Lambardar Hukam Gul as PW-3, whereafter he closed his evidence. The petitioner examined Ejaz-ur-Rahman as his attorney and thereafter closed his evidence.

9.The petitioner also produced documentary evidence, he exhibited the documents comprising 41 pages as Ex.RW- 1/2. Upon completion of the evidence and hearing of the parties, the learned trial Court partly allowed the application by granting a succession certificate in favour of the respondent while holding that the petitioner was not entitled to inherit the estate of his paternal uncle. However, it further held that the petitioner had proved the debts outstanding against the deceased and was, therefore, entitled to recover the same before distribution of the estate. The appeal preferred against the said judgment and order was, however, allowed.

10.One of the principal submissions advanced by the learned counsel for the petitioner was that, in view of the amendments introduced through the Khyber Pakhtunkhwa Succession (Amendment) Act, 2019, notified on 17th October, 2019, the application for issuance of a succession certificate was not maintainable before the learned trial Court. According to the learned counsel, the amended statutory framework envisages issuance of succession certificates through the National Database and Registration Authority (NADRA) under the relevant law; therefore, the proceedings initiated before the learned Senior Civil Judge were incompetent ab initio and without lawful authority. The contention, however, does not merit acceptance in the peculiar facts and circumstances of the case. Although the amended law

ordinarily provides a mechanism for issuance of succession certificates through the competent NADRA authorities, the controversy in the present matter was not confined to a simple or uncontested claim of succession. Rather, the determination of the petitioner’s status as a legal heir of the deceased involved disputed and intricate questions of law and fact, which could not conveniently be resolved through a purely administrative process. The statutory scheme itself recognizes that where complex questions relating to entitlement, heirship, or competing claims arise, the matter may legitimately fall within the jurisdiction of the Court exercising powers in succession proceedings. In such circumstances, the learned Court was competent to undertake a prima facie inquiry for purposes of determining entitlement to succession in exercise of its summary jurisdiction. The finding recorded by the learned Senior Civil Judge with respect to the petitioner’s entitlement as a legal heir, having been rendered within the ambit of succession proceedings and upon appreciation of the available material, does not call for interference in constitutional jurisdiction, particularly when no jurisdictional defect or patent illegality has been demonstrated. Therefore, the mere existence of an administrative mechanism through NADRA for issuance of succession certificates does not, by itself, render the proceedings before the learned Court incompetent where adjudication of disputed heirship or complex questions of entitlement becomes necessary.

11.Insofar as the second question is concerned, it is an admitted position that Awalsuf Khan was not survived by any sharer. Consequently, succession devolves upon the residuary (Asabah) according to the recognized order of succession. Under Sunni Hanafi law, a full brother ranks at Serial No. 5 in the table of residuary, whereas a full brother's son ranks at

Serial No. 9. It is a settled principle of Muhammadan law that, among residuary, the nearer in degree excludes the more remote. Therefore, the full brother, being the nearer residuary, excludes the full brother's son from inheritance. In the present case, the respondent, being the full brother of the deceased, rightly excluded the petitioner, who claims as the son of a predeceased full brother. The rule of exclusion applies (i.e., the nearer in degree excludes the more remote.) Reliance in this regard is placed upon “Lal and others vs. Barkhurdar and others” (1996 SCMR 1964) and “Kabir Hussain v. Mst. Iqbal Bibi” (1991 MLD 1681), “Waris Ali and others vs. Rasoolan Bibi” (PLD 2014 SC 779), “Saadullah and others vs. Mst. Gulbanda and others” (2014 SCMR 1205).

12.Moreover, Section 372 of the Succession Act, 1925 governs the issuance of a succession certificate, which is confined only to “debts” and “securities” of a deceased person, as contemplated under the provisions of the Act ibid. A succession certificate neither confers any general authority for administration of the estate of the deceased nor constitutes a declaration of title or final determination of heirship in favour of the grantee. Its scope is limited and summary in nature, intended merely to authorize the holder to realize debts and collect securities due to the deceased, while simultaneously affording indemnity and protection to debtors making payment in good faith to the certificate-holder. The underlying object of issuance of a succession certificate is, therefore, to facilitate prompt realization of debts and securities of the deceased, to regulate succession in a limited fiscal sense, to avoid multiplicity of disputes regarding entitlement, and to protect persons dealing bona fide with the ostensible legal representative from future claims or liability. It is not a

document of title, nor does it conclusively determine proprietary or inheritance rights inter se the legal heirs.

13.In addition, the Succession Act, 1925 provides a special and summary procedure for adjudication of applications seeking issuance of a succession certificate in respect of the debts and securities of a deceased person. While Section 372 regulates the institution of such proceedings, Section 381 of the Act, 1925 delineates the legal effect of a certificate so issued. The underlying object of the statutory scheme is to facilitate expeditious realization of debts and securities belonging to the estate of the deceased without embroiling the parties in protracted disputes concerning title or succession. A succession certificate, however, neither adjudicates the proprietary rights of the persons claiming interest in the estate nor conclusively determines their status as legal heirs or their respective shares in the recoverable assets. Its issuance is summary in character and confined to authorizing the certificate-holder to collect debts and realize securities due to the deceased. The legislative rationale behind such certificate is primarily to indemnify and protect the debtor or obligor making payment in good faith to the holder thereof, so that such payment may operate as a valid discharge against future claims. Nonetheless, the holder of the certificate does not acquire absolute ownership or exclusive title over the amount so recovered; rather, he remains under a legal obligation to account for and distribute the realized amount amongst all persons lawfully entitled thereto in accordance with their respective legal shares and rights. Thus, a certificate issued under the Succession Act, 1925 does not confer title, ownership, or final declaration of succession upon the grantee, but merely furnishes an enabling authority to recover debts and securities on behalf of the estate of the deceased.

14.In the same scenario, irrespective of the remand order of this court, it is a settled principle of law that any debt, liability, or lawful claim alleged to be recoverable from a deceased person does not automatically become enforceable against his legal heirs merely by reason of succession. Such liability can only be enforced against the legal representatives to the extent of the estate inherited by them and subject to a lawful adjudication by a competent Court of law. Before fastening liability upon the legal heirs, the existence, nature, and quantum of the claim must first be judicially determined through appropriate proceedings, wherein the alleged debt is established in accordance with law. A Court exercising jurisdiction in succession proceedings under the Succession Act, 1925 is not vested with authority to adjudicate disputed claims of debt, determine contested liabilities, or secure alleged recoveries in favour of an objector whose claim remains unsubstantiated and has not been crystallized through an independent suit or competent adjudication. The jurisdiction of the Succession Court is summary and limited in nature, confined merely to determining entitlement for the issuance of a succession certificate in respect of debts and securities of the deceased, and does not extend to deciding complicated questions relating to liability or recovery. In the instant matter, the objector had admittedly instituted a suit for recovery of the alleged amount along with other prayers before the competent court however, for the reasons best known to him it was dismissed as withdrawn. Therefore, the learned trial Court has transgressed the limits of its statutory jurisdiction by granting a decree for his alleged debts. Though the appeal Court has allowed the appeal but not on account of jurisdiction which order too to that extent was not correct. Such exercise of authority being dehors the law and beyond the scope of succession proceedings was without lawful jurisdiction and,

consequently, the prayer of the petitioner for recovery of debts against the deposited amount of deceased was not within the scope of the Court granting succession certificate hence, the claim of the petitioner could not be adjudicated upon along with the prayer for grant of succession certificate. It is pertinent to mention that this court allowed his application in order to implead him in the application of respondent for determination as to whether he is entitled to succeed his share in the succession of deceased. Reference may be made to the case of Mst. Neelam Ashfaq vs. Muhammad Iqbal another (PLD 2019 Sindh 247).

15.It is pertinent to observe that when learned counsel for the parties were specifically queried regarding the jurisdiction of the Succession Court to determine the alleged outstanding debts within succession proceedings, they contended that not only had the parties consented to such determination by the Court seized of the succession petition, but this Court had also previously directed adjudication of the matter through succession proceedings. The submission, however, is wholly misconceived and legally untenable. A careful examination of the earlier order passed by this Court reveals that the controversy then under consideration was confined solely to the question of impleadment of the petitioner in the succession proceedings, namely, whether he possessed sufficient legal interest to be arrayed as a party to the petition for succession certificate. This Court, while allowing impleadment, merely held that the petitioner’s entitlement, if any, could be examined after his inclusion in the proceedings. At no stage did this Court confer authority upon the Succession Court to adjudicate disputed questions of liability, determine outstanding debts, or undertake an inquiry beyond the limited statutory scope contemplated under the Succession Act, 1925.

Equally misconceived is the contention that jurisdiction stood vested in the Court on account of consent of the parties. It is by now a trite principle of law that consent, acquiescence, waiver, or concession of parties can neither create nor enlarge the jurisdiction of a Court where none exists under the law. Jurisdiction flows from statute and must be exercised strictly within the bounds prescribed by the legislature; therefore, a defect of inherent jurisdiction cannot be cured merely by agreement or consent of litigants. Consequently, any assumption of jurisdiction by the learned Court below for adjudication of disputed liabilities in succession proceedings, merely on the basis of consent of the parties, was patently without lawful authority and unsustainable in law.

16.Furthermore, a Court seized of an application for issuance of a succession certificate is obligated to follow the procedure prescribed under Section 373 of the Succession Act, 1925, which is expressly summary in character and limited in scope. Proceedings under the said provision are not intended to finally adjudicate disputed rights of succession, determine title inter se the claimants, or conclusively establish entitlement to the debts and securities of the deceased. Rather, the legislative object is confined to facilitating collection of debts and securities through a prima facie determination so as to avoid undue hardship in administration of the estate. The statutory framework itself recognizes the limitations of succession proceedings. Section 373(3) of the Act, 1925 unequivocally provides that where determination of entitlement necessitates adjudication of intricate and complicated questions of law or fact, which cannot conveniently be resolved in summary proceedings, the Court is not required to conclusively determine such controversies. Instead, it may grant the certificate to the person who appears,

on a prima facie assessment, to possess the best title thereto. Thus, the standard applicable in succession proceedings is not proof beyond dispute, but merely a tentative satisfaction regarding preferential entitlement for purposes of collection. Similarly, Section 373(4) contemplates a situation where multiple applicants claim interest in the estate of the deceased. In such circumstances, the Court may consider the nature and extent of their apparent interest, along with their fitness and suitability, while deciding to whom the certificate ought to be issued. Even then, such determination remains provisional and administrative in nature, rather than a final adjudication of proprietary rights. It is, therefore, a settled proposition of law that determination of title, declaration of inheritance rights, adjudication of disputed shares, or resolution of complex questions concerning entitlement fall beyond the jurisdictional scope of succession proceedings. A succession certificate merely authorizes the holder to recover debts and securities of the deceased on a prima facie basis and does not extinguish or determine rival claims. Any person seeking a definitive adjudication regarding title, entitlement, or extent of shares must seek recourse through a substantive suit before a Court of competent jurisdiction, wherein disputed questions of law and fact may be properly tried and conclusively resolved.

17.No doubt, the petitioner, while appearing as his own witness before the learned trial Court, merely placed reliance upon a set of documents comprising 41 pages, the admissibility and evidentiary value whereof had already been specifically objected to by the respondents. Since, the resolution of the controversy pertaining to the alleged outstanding amount against deceased and question relating to determination of alleged debts and liabilities of the deceased falls outside the limited and summary jurisdiction of a Court seized of

succession proceedings under the Succession Act, 1925, whose mandate is confined to a prima facie determination for issuance of a succession certificate and not adjudication of disputed claims requiring detailed evidence. Such contested questions could only have been adjudicated through a substantive suit before a Court of competent jurisdiction. The record further reveals that the petitioner had, in fact, availed the appropriate legal remedy by instituting a suit for determination and recovery of the alleged claim; however, the same was subsequently withdrawn by him of his own accord. Having voluntarily abandoned the proper forum for adjudication, the petitioner cannot now seek revival or determination of the very same disputed claim through succession proceedings, nor can the matter be remanded for such purpose, particularly when the legal impediment has arisen due to the petitioner’s own conduct. A litigant cannot be permitted to create a procedural vacuum by withdrawing the competent proceedings and thereafter seek to circumvent the statutory limitations governing succession jurisdiction.

18.The learned appellate Court has rightly appreciated the legal and factual controversies involved in the matter, which justifiably culminated in the acceptance of the appeal. The findings recorded by the learned appellate Court are founded upon a proper appraisal of the material available on record and a correct understanding of the limited scope and jurisdiction governing succession proceedings under the law. Learned counsel for the petitioner has remained unable to point out any illegality, material irregularity, jurisdictional defect, misreading, or non-reading of evidence in the impugned judgment, particularly with regard to the grant of succession certificate in favour of the entitled party. It is by now a settled proposition of law that a Court exercising jurisdiction

in succession proceedings is not competent to adjudicate disputed liabilities of the deceased, determine contested debts, or pass orders fastening financial obligations upon the estate, as such matters fall beyond the summary scope contemplated under the Succession Act, 1925, and are required to be determined through independent substantive proceedings before a Court of competent jurisdiction. Since no lawful order regarding the alleged liability of the deceased for payment of disputed amounts could have been passed by the Court granting the succession certificate, the interference made by the learned appellate Court to that extent was fully justified and in consonance with the settled principles of law. The impugned judgment, being well-reasoned, legally sound, and based upon proper appreciation of the evidence and applicable legal framework, warrants no interference in the exercise of revisional jurisdiction, which is otherwise limited in scope and cannot be invoked merely to substitute one plausible view with another in the absence of patent illegality or jurisdictional error. The revision petition in hand is thus dismissed. No order as to costs.

Announced:

Dated: 08/06/2026.

JUDGE

Ashfaq Ahmad (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar