2022 PLP 1034 (MLD)

KAUSAR SULTANA HUSSAIN, J.

Through instant Miscellaneous Appeal, the appellants have challenged the order dated 18.03.2020 passed by learned 1st Additional District Judge Kotri in Civil Miscellaneous Application No.31/2020, whereby their application filed under Section 383 of the Succession Act, 1925 (Act-1925) for revoking Succession Certificate issued under Section 372 of the Act-1925 in favor of respondent No.1 namely Imran Ali vide order dated 27.02.2019, has been dismissed.

2. To be precise the facts of the case are that on 26.01.2019 respondent No.1 filed Succession Application No.07 of 2019 before the 1st Additional District Judge, Kotri for grant of Succession Certificate under Section 372 of Succession Act, 1925 (Act-1925) in respect of all service benefits of his deceased father namely Shahzado, who was an employee of WAPDA and died during service on 10.12.2018.

3. While going through the record it reveals that the respondent No.1 Imran Ali being real son of the deceased Shahzado, through filing a Succession Application under Section 372 of the Act 1925 was claiming right of inheritance in respect of the following service benefits of his deceased father:-

1. Salary Bill (10 days). Rs.20,740/-

2. Lump Sum (365 days). Rs.473,520/-

3. WAPDA Welfare Fund. Rs.1,740/ Per Month

4. Commutation/ Gratuity. Rs. 1,206,545 / 53.

5. Pension (Per month). Rs.34,087/90.

6. Group Life Insurance. Rs.600,000/-

7. Ex-Gratia (if applicable as per enquiry committee report). Rs.2,500,000/- Record further shows that the deceased Shahzado was survived by the following legal heirs:- S. No. Legal Heirs Age Relation 01 Mat. Lailan Khatoon 59 years 2nd wife 02 Mst. Sasui 47 years 1st wife 03 Imran Ali 25 years Son 04 Zahid Ali 24 years Son 05 Rehan Ali 23 years Son 06 Shoaib Hussain 21 years Son 07 Abu Bakr 19 years Son 08 Ali Hyder 15 years Son 09 Sardar Khatoon 30 years Daughter 10 Asia Khatoon 28 years Daughter 11 Allahdad 10 years Son

12. Razia Khatoon 29 years Daughter

4. The Succession Application filed by the son of the deceased namely Imran Ali was contested by all the LRs of the deceased Shahzado and they all filed their respective affidavits of no objection in favor of lmran Ali (son) including both widows of the deceased (appellants of instant miscellaneous appeal) and they all had appeared before learned Additional District Judge Kotri, who had allowed the Succession Application on the basis of affidavits of no objection of the LRs of deceased vide order dated 27.02.2019 and Succession Certificate was issued accordingly in favor of petitioner Imran Ali.

5. On 17.03.2020 both widows of the deceased Shahzado filed Civil Miscellaneous Application No.31 of 2020 before the same Court in the said disposed of Succession Application No.07/2019 under Section 383 of the Act-1925 for revocation of the Succession Certificate issued in favor of respondent No.1 on the following grounds:- i. That both the applicants (widows) were designated as nominees by the deceased himself. As such, only they are legally and lawfully entitled to receive the service benefits from the employer. ii. That the applicants are illiterate and pardanasheen ladies and were ignorant of the service benefits left by their deceased husband. iii. That learned trial Court erroneously concluded that the said service benefits left by the deceased form part of his estate of his "Jarka" and must be distributed to the legal heirs of the deceased as per Muhammadan Law. iv. That the deceased, being an employee of a Federal Department i.e. WAPDA, is governed by the Federal Employees' Benevolent Fund and Group Insurance Act 1969; that Respondent No.01 is not a family member as per the definition provided in Section 2(5) of the Act, as such, he could not file an application for issuance of the succession certificate in his favour. Similarly, respondent No.5 and respondent No.10 do not fall within the definition of family as mentioned in the Act, as such, none of them are legally entitled to claim any right/share over such service benefits. Even otherwise, the said service benefits do not form part of the deceased employee's Tarka since they are not inheritable.

6. The learned let ADJ Kotri while deciding the said application of the appellants bearing No.31/2020 filed under Section 383 of the Succession Act, 1925 had reached at the following conclusion:- "Further, Section 383 of Succession Act, 1925 provides to revoke the certificate on following conditions:- a. That the proceedings to obtain the certificate were defective in substance; b. that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment front the Court of something material to the case; c. that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; d. that the certificate has become useless and inoperative through circumstances; e. that a decree or order made by a competent court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked. It is evident that documents enclosed with the instant subsequent application under section 383 were neither produced with the earlier succession application No.7/2019 under section 372 of Succession Act 1925 nor it was claimed by the present applicants that they were nominated by deceased. I have due respect and regard for my superior courts but the facts of cited cases do not attracts the facts of present case as in earlier matter, both the widows of deceased and daughter and sons had appeared and matter was decided accordingly. Considering the above facts and circumstances, I am of the view that the instant subsequent succession application U/ S 383 of Succession Act, 1925 is not maintainable, I therefore, dismissed the same."

7. The appellants against the said order of learned Additional District Judge, Kotri, have filed the instant Miscellaneous Appeal No.13 of 2020.

8. I have heard the learned counsel for the parties and also have perused the principle laid down in the judgment passed by Honorable Shariat Appellate Bench and reported in PLD 1991 Supreme Court 731 "The Federal Governments v. Public at Large". The Shariat Appellate Bench while deciding the matter had given detailed findings and reasoning about funds which were due and could be claimed during lifetime of the deceased and the funds which cannot be claimed during his lifetime. In instant matter the son of the deceased was granted Succession Certificate by learned 1st Additional District Judge Kotri on his claiming the service benefits of his deceased father duly supported by other LRs including present appellants. The Shariat Appellate Bench in the judgment mentioned supra declared with detailed reasons that benevolent fund, group insurance, gratuity, pension payable to the family after death of the employee are not the assets of the deceased but these comes within the ambit of grants, hence cannot be distributed amongst the LRs. of deceased as per law of inheritance. In the same judgment the Shariat Appellate Bench also defined the family members under the law. I would like to reproduce hereunder the definition of family of the employee as provided in Section 2(5) of Federal Employees' Benevolent Fund and Group Insurance Act, 1969:- "Section 2(5) "family" means,_ in the case of a male employee, the wife or wives, and in the case of a female employee the husband of the employee; and the natural sons upto the age of twenty-one years, provided they are not handicapped or mentally retarded; and parents, minor brothers, unmarried, divorced or widowed daughters and sisters of the employee wholly dependent upon him."

9. In the light of abovementioned definition of the "family" of Government employee, I have gone through the contents of the Succession Application filed by the son of the deceased under Section 372 of the Act-1925. The service funds claimed by the respondent No.1 / son of deceased are salary dues, leave encashment, Wapda Welfare Fund, Commutation./ Gratuity, Pension, Group Life Insurance and Ex-Gratia (if applicable as per inquiry committee report). Out of above mentioned heads of funds, the Respondent No.1 Imran Ali on behalf of all LRs of the deceased could have claimed only salary dues and leave encashment as these funds could have been claimed by the deceased during his lifetime. None of rest of heads which includes Wapda Welfare Fund, Gratuity, Pension, Group Life Insurance and Ex-Gratia are such funds which could have not been claimed by the deceased during his life time so they cannot fall within the definition of assets left by the deceased.

10. The learned 1st Additional District Judge Kotri had allowed the succession application filed by the respondent No.1/ petitioner/ son of the deceased on behalf of the LRs with direction to the Accountant of District and Sessions Court Jamshoro to collect the dues from concerned department and subsequently distribute the shares amongst the LRs of the deceased according to Mohammadan Law against receipts except minors Ali Hyder and Allahdad, which shall be deposited in Government's profitable scheme and the guardian of the minors was allowed to collect the benefit of the same on every six months and utilize the same for the maintenance of minors and submit report, however, the widows / appellants were allowed to receive family pension amount of deceased being entitled for it.

11. The upshot of above discussion is that the appellants who being widows and nominees are entitled for those funds of the deceased employee which he could not have claimed in his life, time i.e. Gratuity, Group Life Insurance, Family Pension, Wapda Welfare Fund and ex-gratia, accordingly employer don't need a succession certificate for releasing the same to the family as per section 2(5) of the Act, 1969. As such issuance of Succession Certificate for these benefits is against the law. However, as far as salary dues of Rs.20 740/- and lump sum (365 days) leave encashment are concerned, the Succession Certificate already granted by learned trial Court in favor of respondent No.1 is hereby modified in terms of above discussion.

12. In respect of the point of limitation learned counsel for the appellants submitted that it has been held by the Honorable Supreme Court of Pakistan in 2018 SCMR 762 that no question of limitation arises in a case of revocation of the succession certificate filed under Section 383 of the Act-1925; even otherwise, the impugned order is nullity in law, thus, no question of limitation arises in the instant case as laid down in various judgments of the Honorable apex Court. He relied upon the case laws reported in 1996 SCMR 856, 2005 YLR 1096 and 1985 CLC 1411.

13. Since learned Additional District Judge Kotri while granting succession certificate in favor of respondent No.1 had ordered to Accountant of District and Sessions Court Jamshoro to collect dues from concerned department and distribute the same amongst the LRs of the deceased, therefore, the Accountant of District and Sessions Court Jamshoro is directed to submit his report in this regard to the Trial Court within 15 days of this order. Two sons of the deceased namely Ali Hyder and Allahdad being minors aged about 15 years and 10 years respectively are also entitled to receive the service benefits of the deceased as per their share. The natural sons of the deceased who are up to the age of 21 years, the daughters who are either un-married, divorced or widowed (God forbid) being family of the deceased are also entitled for service benefits of their deceased father. The concerned authority of WAPDA may release such funds to the appellants who shall distribute the same to the family members who fall within the definition of family as provided in Section 2(5) of the Act-1969. The order dated 27.02.2019 passed in Succession Application No.07/2019 is hereby modified as discussed above and order dated 18.03.2020 passed in Civil Miscellaneous Application No.31/2020 by learned 1st Additional District Judge, Kotri is hereby set-aside. Instant M.A. No.13/2020 is hereby disposed of in the above terms with no order as to costs.

14. It is further reiterated / ordered that any other grant /package or plot especially and specifically meant for the family of any deceased Government servant shall also be dealt with in the manner as discussed above and will be disbursed to the family of the deceased as per definition of family as envisaged in Section 2(5) of the Federal Employees' Benevolent Fund and Group Insurance Act, 1969. Office is directed to send a copy of this judgment to learned Registrar of this Court to circulate the same amongst all the learned District Judges and Additional District Judges of the province of Sindh for their guidance. MH/L-3/Sindh Order accordingly.