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November 07,2016

Dying many times over

Barrister Mohammad A Qayyum

It is commonplace to hear that the civil adjudication system in Pakistan is broken and makes the litigant die many times over, not just proverbially but also in its delays in that it is a generational struggle for a family to get its rights established and executed through a court.

In those senses, the civil law system does make the public die many times over. There is, however, one other way in which the system effectively makes a person die more than once. Ironically, that happens when a person actually dies.

When a person dies, these days, his legal heirs need to initiate and follow through not one proceeding to transfer the assets of the deceased to his legal heirs, but two. One has to get a succession certificate to get his movable assets – bank accounts, etc – transferred in the name of his legal heirs. Moreover, to get his immoveable properties such as land – and strangely enough vehicles – transferred to his legal heirs’ names, one needs to file a suit for declaration and proceed with the same in the civil court. In that sense, a person dies twice in a very real and inconvenient way in the eyes of the law, once for dealing with his moveable properties and once for dealing with his immoveable properties.

The reason behind this strange division is historical: the law developed that way – into two streams. The Succession Act 1925 deals with succession matters related to moveable properties ie cash and stock, such as share certificates, cash, bank accounts, etc. Immoveable properties such as land, building, vehicles (!) require a decree of court in favour of legal heirs in a suit for declaration under the Specific Relief Act 1877. There is the remedy of dealing with both in what is known as an ‘administration suit’ but it is much too obscure and these days normally not used.

So, as regards the aforementioned two streams, the reason given is that it is done this way because that is how it has been done for a while. The point of this piece is: why does it have to continue in this way? I propose that both immoveable and moveable assets should devolve in the same proceedings in court, or even more radically, that parties ought not be required to go to court at all.

Death is inevitable. Inheritance cases will always keep coming to courts, but must they come twice? Must the witnesses come to court twice? Must notices be issued to parties twice? Must two plaints be filed? Two replies? Twice as much paper used? Two judgements be written by judges?

All this amounts to pointless duplication of process and effort. The litigant also has to pay two separate fees. The paying of fees twice might have something to do with why administrative suits are not filed these days and two separate proceedings are initiated. If this is the case, the courts need to move to insist that only administration suits will be entertained or two will proceedings will be merged into one. There might be some resistance among my fellow lawyers, but they need to realise there is more and better work around or that they can compensate by charging more for an administration suit.

The more fundamental point of this piece is to propose a novel approach, an approach shared by our incumbent attorney general of Pakistan who similarly previously pushed for the idea. Why do cases need to be filed for inheritance at all? In most cases, properties should automatically devolve onto legal heirs of record without there being a need for filing proceedings in court.

Nadra retains a record of family units. Simply, after intimation of the death of a person and perhaps upon passage of a brief period of time in which some other claimants might be allowed to raise claims, all assets should automatically get transferred into the name of the persons on record as legal heirs of the deceased. Only if a person wants to challenge such automatic devolution should they be required to go to court.

This would infinitely reduce the inconvenience to the legal heirs of most deceased persons and reduce the burden of the courts as well. It would require the person disputing succession as per record to challenge it in court and not have grieving families and heirs drag themselves through the process of the court.

In conclusion, while we wait to move towards overcoming delays in our system of civil adjudication in other matters, we can take a small step by following through on this proposal and let the dead die only once in matters relating to devolution of all of their assets on their heirs.

The writer is an advocate of the Supreme Court of Pakistan and the managing partner of Qayyum & Associates at Lahore.

Email: maqqayyums.com


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