P L D 1994 Karachi 237 (PLP)

against Provident Fund

Rs.2,00,000.00 (e) Group Insurance

Rs.3.00.000.00 Total .-- Rs.8.51.428.40 There was no dispute as regards the first three items mentioned above, that is, Miscellaneous Heads, Pension, and Provident Fund Dues that these amounts formed part-of the estate of the deceased which devolves on all the legal heirs according to the Muslim Law of Inheritance. However, there was some difference of opinion as regards the other two items, namely, Death Claim Insurance against Provident Fund and Group Insurance. By order dated 28-3-1993, after hearing learned counsel for the parties, it was held that the amount payable as Group Insurance does not form part of the estate of the deceased and is to be paid according to rules and instructions of PIA in that behalf. It was also noted that as Mst. Kaniz Fatima, the first widow, was the nominee of the deceased, she was- entitled to receive the said amount payable as Group Insurance and she may apply to PIA for payment of the said amount and for such payment production of any Succession Certificate was not required to be produced by the nominee. It may be observed here that according to the copy of the Nomination Form dated 16-8-1977, signed by deceased Muhammad Tufail, the first nominee was shown as mother of the deceased who had died earlier; the second nominee was shown as Mst. Kaniz Fatima, first widow, and the third nominee was shown as Chiraghdin, father of the deceased, who had also died earlier. The question of Death Claim Insurance against Provident Fund was left to be determined later. I have heard learned counsel on the question whether the said amount forms part of the estate of the deceased or not and I have come to the conclusion that the said amount, that is, the amount payable as Death Claim Insurance against Provident Fund, is not part of the estate of the deceased. Such amount is not payable to the deceased during his lifetime. If he had retired or left service, he would have been entitled to the Provident Fund including the contribution of the employer plus profits/interest in his Provident Fund Account. In case, an employee dies before he retires on reaching the age of superannuation or for any other reason, he cannot claim the amount payable as Death Claim Insurance against Provident Fund. The employee has, therefore, no control over such amount in so far as its ~B disbursement is concerned during his lifetime. The amounts become payable .only on the death of the employee and according to the rules and scheme of PIA., such amount is payable to the nominee of the deceased. I am, therefore, of the view that the amount payable as Death Claim Insurance against Provident Fund, is payable to the nominee who can claim the same from PIA, and for collection of such amount, production of a Succession Certificate by the nominee is not required. In so far as Defence Saving Certificates of the face value of Rs.45,000 are concerned, Mr.M. Aziz Malik has stated that these certificates, purchased by deceased Muhammad Tufail in his name, are in possession of Mst. Sakina and the same will be deposited with the Nazir of the Court. The Defence Saving Certificates may be deposited with the Nazir within one month from today. There was some dispute over the Car being Registration No.D-9502, as to whether it is in running condition or not. According to the petitioner, the Car is in running condition and in possession of Mst. Sakina but Mr. Aziz Malik, on instructions, states that the Car is in possession of Mst. Kaniz Fatima (first widow). Mr. Nazir Hussain Saban Allana, learned counsel for the first widow Mst. Kaniz Fatima, states, on instructions, that the car was in possession of Mst. Sakina but she left it with Mst. Kaniz Fatima after the death of the deceased but the said Car is not in running condition and is lying with her in useless shape incapable of being repaired without heavy expenditure, which is not possible. As regards the Bank Account, there is no dispute. In so far as the Plot in PIA Cooperative Housing Society at Lahore, is concerned, there is no dispute that the said plot belonged to the deceased at the time of his death and as such it forms part of the estate of the deceased. There is, however, dispute in respect of the other two immovable properties. In so far as Plot No. R-12, measuring about 120 square yards situated in Al-Syed Centre, Quaidabad, Landhi, Karachi, the same stands in the name of the deceased, but according to the petitioner, the said plot had been gifted to her by the deceased during his lifetime and as such it is claimed by Mr. Fariduddin that the said plot does not form part of the estate of the deceased. The claim regarding the oral gift of the said property is contested by Mr. M. Aziz Malik and by Mr. Nazir Hussain Saban, Allana, but this dispute cannot be determined in the present petition for the grant of Letters of Administration. The parties are at liberty to get this question determined in a civil suit. This property, namely, Plot No.R-12, measuring about 120 square yards situated in Al-Syed Centre, Quaidabad, Landhi, Karachi, is therefore, excluded from the purview of the present petition for grant of Letters of Administration. As regards the other immovable property, being . a House/Quarter bearing No.G-21/3, on a 80 square yards plot situated in Malir Extension Colony, Mr. Nazir Hussain Saban Allana, Advocate for Mst. Kaniz Fatima (first widow), claims that this property was gifted by the deceased through clause 11 of the registered lease deed executed by KDA in favour of deceased Muhammad Tufail. Mr. Nazir Hussain Saban Allana based the entire claim of Mst. Kaniz Fatima on the basis of clause 11 of the lease deed which reads as follows: "

11. That the Second Party (i.e. deceased) names Kaniz Fatima w/o Muhammad Tufail as his/her successor in case of his/her death before acquiring ownership of the house:" It was pointed out to the learned counsel for Mst. Kaniz Fatima that this nomination or transfer in future in effect amounts to a Will and is invalid in Muslim law. Mr. Nazir Hussain Saban Allana had taken time previously to study the question and he was not able to advance any argument that-the said clause 11 was not a Will. On the basis of clause 11 Mst. Kaniz Fatima cannot claim the said property. No submission was made that the said Quarter/House was transferred to Mst. Kaniz Fatima by deceased Muhammad Tufail during his lifetime by any other mode. It is, therefore, held that there cannot be any dispute that the said House/Quarter forms part of the estate of the deceased and Mst. Kaniz Fatima cannot claim the said property as having been transferred to her by deceased Muhammad Tufail during his lifetime. According to Mr. Fariduddin, all formalities have been complied with except for objections received from the clients of Mr. Ajeebullah Advocate, no other adverse claim or objection has been received. The claim of Mr. Ajeebullah's clients has already been conceded by other learned counsel and, as observed, an amended petition was filed showing the clients of Mr. Ajeebullah also as legal heirs of the deceased entitled to inherit according to the Muslim Law of Inheritance. Notice of the petition has been published and also pasted on the Court Notice Board. In the circumstances, it is directed that Letters of Administration may be issued in favour of petitioner Mst. Shamim Akhtar widow of Muhammad Tufail in respect of the following estate of the deceased: (a) The three amounts lying with PIA under the Miscellaneous Heads, Pension and Provident Fund dues. (b) Amount lying to the credit of the deceased in Account No.PLS 1710-3, in Habib Bank Limited, PIA Branch, Karachi. (c) Defence Saving Certificates of the value of Rs.45,000, (d) Motor Car, bearing Registration No.D-9502, Toyota Corolla, 1976 Model. (e) 10 Marlas plot situated in PIA Cooperative Housing Society, Lahore. (f) House/Quarter bearing No.G-21/3 on 80 square yards in Malir Extension Colony. The Letters of Administration may be issued on petitioner furnishing a personal bond and one surety. Within one month of collection of the amounts, the same will be distributed by the petitioner amongst the legal heirs according to the Muslim Law of Inheritance or in case some difficulty is experienced by the petitioner, the shares of other next-of-kins can be deposited with the Nazir of this Court. The two immovable properties will be got mutated by the petitioner in the names of all the legal heirs according to the Muslim Law of Inheritance. Possession of the Car will be handed over to the Nazir, who may sell the car after notice in one newspaper. The parties shall have the right to participate in the auction. The amount received from the sale of the car will be distributed amongst legal heirs according to Muslim Law of Inheritance after adjustment of the advertisement and other charges. AA./S-1046/K Order accordingly,