Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:05:52 PM

Course Contents:

1.      The Succession Act, 1925 (Act XXXIX of 1925) as amended upto date.

Book Recommended:

1.      The Succession Act, 1925 by Mubasher Hussain.

Preamble of this law makes it clear that it is applied only to the matters connected with intestate and testamentary succession.

The ordinary meaning of the word “succession” is a transmission by law or by Will of a man to one or more persons of the property and the transmissible rights and obligations of a deceased persons.

Administrator means a person appointed by the competent authority to administer the estate of a deceased person when there is no executor.

Probate mean the copy of a Will certified, under the seal of a court of competent jurisdiction with a grant of administration, to the estate of the testator.

Will mean the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.

A person is domiciled in that country in which he either has or is deemed by law to have his permanent home. In its ordinary meaning domicile means the place where a man lives or has his home.  

Succession of immovable property: Where a person dies leaving his estate in Pakistan shall be governed by laws of Pakistan, whenever such person may have had his domicile at the time of his death. It means domicile of Pakistan is no more necessary. Mere situation of property in Pakistan is sufficient at the time of death for application of Pakistan law. This law is applicable on immovable property only.

Succession of movable property: Domicile effects the succession of moveable property as the law of his domiciled country governs it. Domicile should be held at the time of death.

Movable property is subject to domicile whereas immovable property is subject to situation for the purpose of succession.

Effect of one domicile: Only one domicile is taken into consideration for the purpose of disposal of his movable property. A person born in England and his father holds Pakistan domicile, shall be considered Pakistan domicile for the succession of movable property.

Domicile of origin: A person shall be considered domicile of the country in which his father was holding domicile at the time of birth of child. This law is applicable only to legitimate children. Domicile of father is considered domicile of child in case of legitimacy.

If child is born after the death of his father origin of grandfather of child shall determine the domicile of legitimate child. Whatever the domicile of grandfather is, shall be of child.

Domicile of illegitimate child: Domicile of mother determines the domicile of illegitimate child, which she holds at the time of his birth.

Validity of domicile: Domicile of father or mother continues unless new domicile is acquired.

Acquisition of new domicile: A new domicile is acquired by taking up fixed habitation in a country, which is not that of his domicile of origin. A person who resides in Pakistan and exercises any profession is not considered Pakistan domiciles. But a person who settles in Pakistan, adopts some profession, and intends to live in Pakistan till death, shall have Pakistan domicile.

Acquisition of Pakistan domicile: A person, who has been resident of Pakistan for a period of one year, may apply in writing to acquire domicile. This application is deposited in authorized office.

Non-acquisition of Pakistan domicile: Where a person is appointed and sent in Pakistan on official duty or as representative, cannot claim as resident of Pakistan thus cannot apply for acquisition of Pakistan domicile. Neither he nor his family members or servants may apply for domicile.

Validity of new domicile: Unless new domicile is acquired or old one is resumed, present domicile shall continue.

Domicile of minor: Domicile of parents is domicile of minor provided minor is unmarried and not employed. Where he marries or holds any office or employs in the service of Pakistan with the consents of his parents, he shall not remain holder of domicile of his parents.

Domicile of woman on marriage: A woman can acquire domicile by marriage in Pakistan. She acquires the domicile of her husband if not had before.

Wife’s domicile during marriage: During the course of marriage, domicile of wife shall be of domicile of her husband.

Minor’s acquisition of new domicile: Only major can apply for acquisition of new domicile. Minor cannot apply during period of minority.

Lunatic’s acquisition of new domicile: He is debarred to acquire new domicile, but the domicile held by his other persons determine his domicile.

Presumption of Pakistan domicile: Where person dies leaving movable property, it shall be presumed that he had Pakistan domicile. Where there is no proof, presumption shall go in favour of Pakistan.

Effects of marriage between holder and non-holder of Pakistan domicile: Domicile acquired on the base of marriage is not proof of acquisition of interests in property.

Succession: The ordinary meaning of the word “Succession” is a transmission by law or by Will of a man to one or more persons of the property and the transmissible rights and obligations of a deceased person.

The law of succession on death is the law governing the transmission of property vested in a person at his death to some other person or persons.

Succession certificate is a document whereby a person is appointed as administrator on the estate of deceased person. Succession certificates determine the receipt of debts and their interests. It also instructs for the distribution of estate among legal heirs keeping in view of laws relating to succession.

Object of succession certificate: Its object is to facilitate collection of debts by the person who has prima facie clear title to succession and has beneficial interest in debts. This right is decided in summary manner.

Jurisdiction of Court: Question of Jurisdiction is essentially linked up with residence of deceased. Question cannot be decided without recording evidence. There are two cases, which determine the Jurisdiction of Court for grant of succession certificate, i. e., residence of deceased or property of deceased.

1.      Residence of deceased: District Judge of the area where deceased was ordinarily resided at the time of death is the area which comes under jurisdiction of District Judge for the purpose of grant of succession certificate.

2.      Property of deceased: If deceased had not fixed residence at the time of death than situation of his property shall determine the jurisdiction of Court.

Who can obtain succession certificate: Person prima facie having best right to certificate can obtain it. Law does not afford lengthy process of settlement regarding relationship with deceased, which can only be settled by a suit.

Application for certificate: Following is the criteria to put application for the grant of succession certificate:

1.      Office: Office of the District Judge is the place where application is forwarded for such purpose.

2.      Who may apply: Any person of sound mind and not a minor can apply for certificate, provided he has interest in the estate of the deceased.

3.      How apply: Application in term of petition signed and verified by or on behalf of the applicant in the manner prescribed by Civil Procedure Code (CPC) can be filed in Court.

4.      Particulars of application:  Application must state following facts:

1.      Time of death: Application must state time of death of the deceased person. It may include death certificate issued by competent doctor.

2.      Extent of residence: Application may include the ordinarily residence of the deceased person at the time of death. In case residence was not within local limit of the jurisdiction of the concerned court then situtation of property of the deceased person within those limit shall be considered.

3.      Family information: Names of family members, other relatives, and their respective residences should be stated in application.

4.      Right: Right of the petitioner, which he claims.

5.      Absence of impediment: If there is not any prohibited degrees in the distribution of estate/legacy, it must also include in application.

6.      Receivables: If there are any debts and securities for which certificate is applied, must be stated in an application.

False information: Petition must contain all the true and correct facts required. Any wrong or false information quoted in application makes criminally liable to the petitioner. It is offence under Pakistan Penal Code (PPC).

Grant of more certificates: Court may grant more than one certificate in respect of same debt.

Procedure on application: Where Judge satisfies that there are sufficient grounds to entertain the application, he fixes the date of hearing and issues notice to applicant.

Service of notice: Notice is served in the following manner:

1.      Special service: Notice is served to the person who is best in the opinion of Judge.

2.      Affixation: This notice is also pasted in the court house according to rules made by High Court in this regard.

Summary proceedings: Court does not indulge in lengthy process to decide the case. Proceedings are dealt in summary manner on or after date, which is fixed.

Issuance of certificate: Where applicant proves the best one, court passes orders to issue succession certificate to applicant.

Effects of certificate: Succession certificate has certain effects such as:

1.      Conclusive proof: Succession certificate is the conclusive proof in respect of debts and securities specified therein against the person liable.

2.      Indemnity: It affords full indemnity to all such persons as regards all payments made or dealing had, in good faith in respect of such liabilities.

3.      Foreign certificate: Where certificate is granted to a resident within a Foreign State by the Pakistan representative, has same effects as granted in Pakistan, if it is stamped according to Court Fees Act.

Revocation of certificate: Following are circumstances in which certificate so granted may be revoked:

1.      Defective proceedings: Certificate is issued after filing an application containing certain information. Absence of one or more of them may cause revocation of succession certificate.

2.      Fraudulent acquisition: If the certificate is obtained by making any false information or by concealment of any material fact, renders certificate revoke. It is punishable offence under Pakistan Penal Code (PPC).

3.      Untrue allegation: Where certificate is obtained by untrue allegation to the applicant or other person even such allegation was made in ignorance render it revokes.

4.      Uselessness: Where circumstances renders it useless such as death of administrator or completion of Will, it makes certificate revoke.

5.      Effects of debt: Where certificate is issued to give effect of debts and securities and such obligation has been discharged. Certificate stands revoke.

Remedy available against revocation: Following remedies are available where certificate is revoked:

1.      Appeal: An appeal lie to the High Court from an order of the District Judge granting, refusing, or revoking a certificate. This appeal contain the following procedure:

(1)        Declaration: High Court, if thinks fit, declares the person to whom certificate is to be granted.

(2)        Direction to Judge: High Court directs the Judge for the grant of certificate on application being made therefore.

(3)        Suppression of certificate: Certificate so granted on the order of High Court supercedes the certificate, if any, already granted.

2.      Finality: Decision made by District Judge under order of High Court becomes final in favour of appellant.

Letter of administration: Where a person possessed property, whether real or personal, dies intestate (death without leaving Will), or without an executor, competent court grants to a proper person an authority under the seal of the court. It is called letter of administration by which the grantee, the administrator, becomes clothed with powers and duties similar to those of an executor.

If the deceased has made a Will, but failed to appoint executor, the court grants letter of administration with the Will annexed. It is granted to a person interested in the estate, i.e., advisee, legatee, or the trustee of a settlement of a land made previously to the death.

Where the deceased dies wholly intestate, administration is, except in special circumstances, e.g., insolvency, granted to person interested in the residuary estate, on application made by him, or to trustee of the settlement in respect of the settled land.

Effects of letters of administration: Letters of administration entitle the administrator to all rights as if the administration had been granted at the moment after death. It means generally, distribution of estate or execution of Will is responsibility of executor, but administrator is appointed latter. Late appointment of administrator makes no difference and considered as appointed soon after death.

To whom, letter of administration is granted: Following are the persons who may obtain letter of administration:

1.      Entitled: One who is entitled according to the rules applicable in case of such deceased. This entitlement may either cover whole estate or part of estate.

2.      Several applicants: Where more than one entitled person apply for the grant of administration, court shall exercise discretionary powers. Court shall grant administration to any person to whom court thinks fit.

3.      Creditor: Where neither appointment is made nor any person has applied for appointment, court grants letter of administration to creditor of the deceased.

To whom administration may not be granted: Following are the persons, either natural or artificial who are not competent for the grant of letter of administration:

1.      Minor: Since minor is not competent to contract, therefore he is not entertained for administration.

2.      Unsound: Just like minor, person of unsound mind is also debarred for the purpose of grant of administration. He cannot understand the requirement of administration.

3.      Association of individuals: Letter can also not be granted to association of individual.

Exception: In case of association of individuals, there is exception to this rule. If the association is company and satisfies all conditions made by Provincial Government then letter of administration can be granted to her.

Probate: It is a certified copy of Will under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.

Validity of acts of administrator: Intermediate acts of administrator do not render them validate which tend damage the estate of such deceased person died without leaving Will.

Subject of probate: Executor appointed by Will is competent to obtain certified copy of Will with a grant of administration to the estate of testator.

Mode of probate: Executor may be appointed in Will either by express or implied way.

Disentitled for probate: Following are people who are disentitled for the grant of probate:

1.      Minor: Since minor is not competent to contract, therefore he is not entertained for administration.

2.      Unsound: Just like minor, person of unsound mind is also debarred for the purpose of grant of administration. He cannot understand the requirement of administration.

3.      Association of individuals: Letter can also not be granted to association of individual.

Exception: In case of association of individuals, there is exception to this rule. If the association is company and satisfies all conditions made by Provincial Government then letter of administration can be granted to her.

Probate to several executors: Where there more than one executor are appointed in a Will, probate may be granted either simultaneously at a time or at different times. When several executors are appointed they all are entitled to probate. Their simultaneous application is immaterial.

Absence of some applicants: Where all do not apply then according to practice, probate is granted to those who apply. The grant of probate to some of the executors does not debar the rest executors to apply for probate.

Appointment of minors: If several minors are appointed as executors, probate may be granted to them at different times as and when each of them attains majority and applies for probate.

Refusal to act as executor: If the Will appoints several executors and directs them to act unanimously or by a majority, and some of them refuse to act as executors, the remaining executors can apply for probate.

Separate probate of codicil (supplement): Where codicil is discovered after grant of probate, a separate probate is granted to the executor, provided his appointment is not repealed by the Will.

Where several executors are appointed by codicil, probate shall stand revoke. Afresh probate of codicil shall be granted.

Effects of probate: After the death of executor, probate validates all intermediate acts of the executor as such.

Accrual of representation: Where several executors are appointed and one of them dies, representation shall vest to survivors.

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