2006 PLP 1589 (CLC)

MUHAMMAD SADIQ LEGHARI, J.

The facts leading to this appeal are that Mrs. Naseem Akhtar was serving as UDC in PTCL. She had one son namely, Muhammad Faisal and two daughters Farah Ambreen and Hina Ambreen from her husband Khuda Bux. In June, 1999 she fell sick and was admitted for treatment in Liaquat National Hospital, Karachi where she breathed her last on 18-6-1999.

2. After death of the lady her mother Rasoolan Begum filed SMA No.108 of 2000 in the Court of District Judge, Karachi (East) for grant of Succession Certificate in respect of the legal monetary claims (

1. Group Insurance, Benevolent Fund,

2. Pension/Commutation

3. General Provident Fund 4. 180 days salary) to be paid by PTCL on death of Nasreen Akhtar. In the application she pleaded that Khuda Bux Pechoho husband of Naseem Akhtar had divorced her in her life time was and as such not entitled to get any share out of the claims.

3. Khuda Bux intervened the proceedings and filed objections claiming therein that Naseem Akhtar was and had remained as his wife till her death. He further pleaded that Mst. Rasoolan the mother of Naseem Akhtar had no right in the monetary claims to be paid by PTCL due to demise of Naseem Akhtar. Learned VIIIth Additional District Judge, Karachi dismissed the application (SMA No.108 of 2000) on 9-3-2001 repelling the plea of Rasoolan Begum about divorce to Naseem Akhtar holding further that she (Rasoolan Begum) had no right over the monetary legal claim payable on demise of Naseem Akhtar. The decision was upheld by this Court while dismissing Appeal No.59 of 2000 filed by Rasoolan Begum. The matter was not agitated further by Rasoolan Begum.

4. Thereafter Khuda Bux who was admittedly residing in District Malir Karachi filed SMA No.4/02 before the learned District Judge Malir for grant of succession certificate in respect of the same legal monetary claims. Mst. Rasoolan Begum together with the above named son of Naseem Akhtar intervened the proceedings and filed an application under section 371 of Succession Act read with Order VII, Rule 10, C.P.C. for return of the main succession application to Khuda Bux for want of jurisdiction. The ground advanced through that application was that at the time of her death Naseem Akhtar was residing within limits of District East, Khrachi and not within the Malir District. The learned First Additional District Judge Malir dismissed that application by order, dated 22-9-2003. After that the SMA filed by Khuda Bux was granted by order, dated 28-7-2004 declaring him alone to be entitled to receive the monetary claims of Naseem Akhtar.

5. Both of the above orders have been challenged by the appellant through present miscellaneous appeal.

6. While arguing on behalf of the appellants Mr. Karamatullah, Advocate contended that the learned First Additional Sessions Judge Malir failed to consider the evidence on the question of divorce pronounced by Khuda Bux to Naseem Akhtar. He further contended that in SMA the learned Additional District Judge had to decide the question of inheritance under the principle of Muhammadan Law but he travelled beyond the scope of the Succession Act and took decision on the basis of Liberalized Pension Rules. The learned Advocate further contended that the learned Additional District Judge illegally held respondent Khuda Bakhsh entitled to monetary claims including the salary of 180 days and other 17 days salary. In support of his arguments the learned Advocate referred to the decision of the Honourable Supreme Court in case of Ameeran Khatoon PLD 2005 SC

512. He also contended that the. age of Muhammad Faisal son of Naseem Akhtar was not more than 18 years at the time of the demise of his mother, therefore, he was entitled to the benefits even under Liberalized Pension Rules but the learned Additional District Judge did not grant him any share from the claims.

7. Mr. Abbadul Hassnain, learned counsel appearing for 'respondent Khuda Bux defended the impugned decision but not totally. He argued that the question of so-called divorce allegedly pronounced by Khuda Bux to his wife Naseem Akhtar was considered and decided up to the level of High Court in the earlier round of litigation starting from SMA No.108 of 2000 filed by Rasoolan Begum. He further contended that the learned First Additional District Judge, Malir had rightly held Khuda Bux to be entitled to get the claims of Benevolent Funds and Group Insurance and Commutation. However, GPF and the salary of 180 days and other 17 days were heritable by the family of Naseem Akhtar. In support of his view he referred to the decision of Shariat Appellate Bench consisting of six Honourable Members in the case of Mirza Muhammad Amin v. Government of Pakistan PLD 1982 FSC 143.

8. Mr. Hasnain further contended that the decision referred to by the appellant's counsel i.e. 2005 SCMR 512 is based upon the principle laid down in the case of Mirza Muhammad Amin supra. Even otherwise the decision being of only of two Honourable Judges can not over-ride .the decision in the case of Mirza Muhammad Ameen supra which is earlier one and was passed by the six Honourable Judges.

9. As regards the divorce allegedly pronounced by Khuda Bux the contention of Mr. Abbadul Hasnain has force. In SMA No.108 of 2000 filed Mst. Rasoolan Begum the evidence produced by the parties on the issue of divorce was considered and finding was recorded in negative. That decision was maintained by this Court in appeal. After that the point was not agitated further in that round of litigation. In SMA filed by Khuda Bux also learned First Additional District Judge has rightly held that Khuda Bux had not pronounced Talaq to his wife. The finding does not suffer from any infirmity.?????????

10. After the above I take up the question of Benevolent Fund and Group Insurance. They are established and regulated by Federal Employees Benevolent Fund and Group Insurance Act, 1969 (hereinafter referred to as "the Act of 1969". Benevolent Fund is established under section 11 of the Act whereas the Group Insurance is established under section 17 of the same Act. The employee subscribes towards the Benevolent Fund and also deposits fixed premium towards Central Employees Insurance Funds compulsorily. As both the compulsory payments/deductions are under the terms of the contract of the service the employee cannot claim refund thereof as his right during his life time even after the event of the retirement from service. The only exception to that is the removal or retirement of the employee has becoming on completely incapacitated physically and mentally to discharge the duties before attaining the age of superannuation. Thus, it is evident that Benevolent Fund and Group .Insurance are not Tarka of the deceased employee. The decision of the Honourable Appellate Shariat Bench of the Supreme Court in the case of Mirza Muhammad Ameen (supra) has settled the legal position on the point.

11. Since present is the case of the payments of the grants from Benevolent Fund and Insurance Fund on the demise of an employee before the retirement it is to be made as provided by the provisions of sections 14 and 19 of the Act of 1969. They provide for the payment of the Benevolent grant and the sum insured to a person or persons nominated by the employee. In absence of any valid nomination made by the employee the amounts are to be paid directly to the members of his family for just and equitable utilization for the maintenance and benefit of all the members of the family.

12. Family has been defined by subsection (5) of section 2 of the Act, 1969. It means wife/wives or husband of the employee as the case may be; and the legitimate children,' parents, minor brothers unmarried/divorced and widower sisters of the employee residing with and wholly dependent upon him/her. Thus, the husband or wife/wives become entitled to the grants under all circumstances without any condition whereas the remaining can get only when they were residing with and were wholly dependent upon the deceased employee. In present case the mother Rasoolan Begum, son Faisal were not residing in the house of applicant/husband Khuda Bux Pechoho and deceased Naseem Akhtar nor they claim to be wholly dependent upon her. The two daughters of the deceased employee also do not claim to be wholly dependent upon her. One of them namely Farah Ambreen had married and 'was residing with her husband before the demise of Naseem Akhtar and the other being unmarried was residing with parents but no evidence is on record to establish that she was wholly dependent upon her mother. Thus, the grants from Benevolent Fund and Group Insurance Fund are to be paid to Khuda Bux Pechoho the husband of Naseem Akhtar.

13. As regards the General Provident Fund (the amount deposited by the employee and profit thereupon) the employee was entitled to receive that amount on her retirement. It therefore, comes within the purview of Tarka to be inherited by the legal heirs left by deceased Naseem Akhtar case of Mirza Muhammad Ameen (supra) furnishes guidance on this point also. The department shall make the payment accordingly.

14. The pension and commutation is to be paid to the family of the employee in the event of death under the provisions of Rules 4.6, West Pakistan Civil Services Pensions Rules, 1963. Under the said Rule family means wife/wives or husband as the case may be, children and widow or widows and children of deceased sons of the employee. However, sons attaining the age of 24 years, sons of deceased son attaining the age of 24 years, married daughters whose husband are alive and married daughters of deceased sons whose husband are alive shall not get any share. Thus mother does not included the family defined by Rule 4.6(1). Out of three children namely son, Muhammad Faisal, daughters Hina Ambreen and Farah Ambreen the last one was married and was living with her husband at the time of the death of her mother, therefore, she too will stand excluded. Only husband Khuda Bux Pechoho, son Muhammad Faisal and daughter Hina Ambreen shall get the family pension and gratuity in equal shares as provided by Rule 4.8(c).

15. As concern 180 days salary and the other dues of salary if any, they are to be treated as estate left by deceased employee and are to be inherited by her legal heirs together with General Provident Fund, in accordance with Muhammadan Law. The department shall make payment accordingly.

16. The impugned decision is modified as above and the appeal is disposed of accordingly. H.B.T./N-19/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.