1999 PLP 806 (CLC)

They cannot tell' as to who has got this leave encashment and, therefore, there is no remaining salary left with the Education Department in respect of the deceased employee. According to them deceased retired on 7‑9‑1994 and died on 3‑10‑1994. It is also admitted by the parties that the deceased had the only legal heir who is surviving Mst. Umra Bevi 'who was not widow at the time of filing the succession certificate but she has become widow now.

6. I have carefully perused the judgment of learned trial Court on Issues Nos.l and 2 the learned Civil Judge held that the respondent is neither unmarried nor widow and, therefore, is not entitled to receive any family pension, group insurance, gratuity etc. and the G.P. Fund can only be given to the person for whom the Government employee has nominated and Muhammad Mumtaz has been nominated by the deceased per documentary evidence EXh.R. I and evidence of A.E.O, as R.W.2. The Appellate Court reversed this finding holding that Mst. Umra Bevi the respondent being legal heir is entitled to get the benefits and the learned trial Court was not justified in holding that Muhammad Mumtaz as nominee is entitled to receive G.P. Fund of the deceased and, therefore, this finding is set aside and Muhammad Mumtaz is entitled to nothing in inheritance of Muhammad Sharif deceased.

7. Learned counsel for the respondent while arguing has placed reliance on Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185, Majid Qadri etc. v. Abdul Qadeer and others PLD 1979 Lah. 34(2); Zafarul Hassan Qureshi v. Messrs Pakistan Tobacco Co. Ltd. etc. 1991 CLC 1580 and Federal Government of Pakistan v. The Public‑at‑Large PLD 1991 SC 731 (Shariat Appellate Bench).

8. I have heard the learned counsel for the parties and perused the evidence as well as finding of the learned Courts below. The judgment, which is very material in this respect is Federal Government of Pakistan v. The Public‑at‑ Large PLD 1991 SC

731. In this judgment the word is defined as follows:‑‑ Family means:‑‑ (a) in the case of a male Government servant wife or wives and in the case of female Government servant husband of the employee; (b) the legitimate children, parents residing with or wholly dependent upon him. In Zafarul Hassan Qureshi v. Messrs 'Pakistan Tobacco Company Ltd. and 6 others 1991 CLC 1580, it is held that:‑‑ "Muhammadan Law‑‑‑Inheritance‑‑‑Entitlement to provident fund of deceased‑‑‑Deceased had nominated a beneficiary to receive provident fund from the company where he served‑‑‑Nominee was only a trustee of such benefits which were to be distributed amongst the persons entitled to the same in accordance with law." In Karim v. Hajyani Hanifa and 4 others PLD 1970 Kar. 613, it is held that section 3, clause (2), Provident Funds Act, 1925 does not deal with the cases of those persons who are nominated under the Act. The relevant section of the Provident Funds Act, which deals with the right of the nominees, is section 5(1). It is clear from a bare reading of the section that according to this statutory provision "notwithstanding anything contained in any law for the time being in force ... any nomination duly made in accordance with the rules of the fund, which purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor, shall be deemed to confer such right absolutely. It is also clear that this right to receive absolutely by the nominee was not intended to refer merely to a right to realise. In Majid Qadri etc. v. Abdul Qadeer etc. PLD 1979 Lah. 34(2), it is held that succession certificate can be granted only in respect of debts and securities of deceased going to his heirs, Amount relating to group insurance and gratuity of deceased collected by some heirs can be included in certificate for distribution. Mst. Amtul Habib and others v. Mst. Musarrat Parveen etc. PLD 1974 SC 185 is again very important judgment where it is held that unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Mohammadan Law, because, such a gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. A nomination even under the Provident Funds Act is neither a will nor a gift nor a trust, and such a nomination is merely a mandate, the validity of which expires with the death of the mandator, and, therefore, the fund forms part of his own undisposed of estate on his death.

9. In view of the aforesaid judgments the G.P. Fund of Rs.7,683 and the proposed gratuity of Rs.2,35,132‑05 being in the nature of "Tarka" shall go to the legal heir of the deceased and in the instant case the only legal heir being the C real sister respondent No.l Mst. Umra Bevi. So far as the pension of the deceased employee is concerned the Family Pension Rules regarding the deceased employee are reproduced as follows 4.10(2)(b) ‑‑‑ If the family pension is not payable under clause (a), it may be granted‑‑ (i) to the father; (ii) failing the father, to the mother; (iii) failing the father and mother to the eldest surviving brother below the age of 21 years; (iv) failing (i) to (iii) to the eldest surviving unamrried sister if the eldest sister married or dies then the next eldest; .(v) failing (i) to (iv) to the eldest surviving widowed sister; (3) No family pension shall be payable under this section‑‑ (a) to an unmarried female member of a Government servant's family in the event of her marriage; (b) to a widowed female member of a Government servant's family in the event of her re‑marriage; (c) to the brother of a Government servant on his attaining the age of 21 years; (d) to a person who is not member of a Government servant's family. Although at the time of filing the succession certificate respondent No. l sister Mst. Umra Bevi who was not a widow sister as her husband also appeared as witness, now she has become widow and since the whole amount is still to be payable she can claim the pension of Rs.1,267‑02.

10. So far as the group insurance of Rs.35,000 is concerned according to the aforesaid judgments it does not fall in the "Tarka" it is just a grant and the gratnee has a right to nominate any one of his relative, therefore, group insurance of Rs.35,000 shall go to the petitioner as nominee of the deceased. Instant civil revision is dismissed and is partly accepted to the extent of group insurance of Rs.35,000 payable to the petitioner and the judgments of the learned Courts below stand modified to this extent. Q.M.H./M.A.K./M‑974/L Order accordingly