2001 PLP 1 (MLD)

(2) Whether the plaintiff No.1 is entitled for her share according to Sunni Muslim Law amounting to Rs.2,83,550? (3) Whether the plaintiff No.2 is entitled for his shares according to Sunni Muslim Law amounting to Rs.1, 83 550? (4) Whether the plaintiff is entitled for her dower amount of Rs.40,000? (5) Whether the defendant No. l purchased Saving Certificate in the name of plaintiffs Nos.2 and 3 are sufficient satisfaction of their shares absolving the defendant No. l of obligation of distribution? (6) Whether the debts of the deceased were paid by the defendant No. 1, if so, to what extent? (7) Whether the debts of the deceased exceeded the amount received from defendant No.2 and nothing heritable thereafter? (8) Whether the plaintiffs are entitled to the reliefs claimed? (9) What should the decree be? In the trial Court, respondent No. l examined herself in support of her case and was duly cross-examined by the Advocate for both, the appellants and respondent No.4/defendants. During the course of her examination-in-chief, she produced several documents in evidence as Exhs.P/1 to P/3 and closed her side. Respondent No.4 examined herself in Court and she was duly cross-examined by the respondents Nos. 1, 2 and

3. During the course of her examination-in-chief, she produced several documents as Exhs.D/1 to D-6 and D/8. She also examined one Maqbool Ahmed, an employee of UBL Airport Branch, Karachi, who produced a letter addressed to the Manager UBL Airport Branch, Karachi, and signed by deceased Shaikh Shafiuddin as Exh. 'E'. Appellants/defendant No.2 did not lead any evidence. On the basis of the evidence produced before it, the trial Court decided the aforesaid issues as under:-- Issues Nos. 1; 2, 3 and 4 In the affirmative Issue No.5 In the negative. Issued No. 6 In the negative. Issued No.7 In the negative. Issued No.8 , In the affirmative Issue No. 9 On the basis of its findings on the aforesaid issues, the trial Court dismissed the suit against the appellants and respondent No.4 jointly and severally with no order as to costs. Feeling aggrieved and dissatisfied with the aforesaid judgment and decree of the trial Court, M/s. PIAC have filed this 1st Appeal. I have heard the arguments of M/s. Amir Malik, Muhammad Amin and S.M. Saeed, the learned counsel for the appellants; respondents Nos. l, 2 and 3; respondent No.4 respectively, have perused the material on record and the relevant provisions of law applicable to the facts of this case. Mr. Amir Malik the learned counsel for the appellants has attacked the judgment and decree of the trial Court on two grounds, firstly, that deceased Shaikh Shafiuddin had filed a nomination as Appendix "C" in accordance with rule 32.8.6 nominating his mother to be a person entitled to receive his dues payable by the appellants at the time of his death during the course of his employment. He also referred to rule 32.8.8, according to which the appellants were required to hold the amount lying in the credit or due to be credited in the account of a deceased employee in trust for such person as would have been nominated or appointed by the deceased employee in accordance with the aforesaid rule 36.8.6. My attention was also drawn to rule 32.9.3 which speaks of nomination for the purpose of Provident Fund/Gratuity as well as rule 32.9.6 which authorizes an employee to cancel the nomination at any time and furnish or send a fresh nomination form. Relying on the aforesaid rules of the service rules and regulations framed for the employees of the appellants, Mr. Amir Malik submitted that the nomination furnished by deceased Shaikh Shafiuddin in favour of his mother, respondent No.4, was never withdrawn or cancelled and till the time of his death remained in force and in the event the appellants were under a moral and legal obligation to make payment of the sum of Rs.5,18,258 held by them towards the Provident Fund, death claim, voluntary insurance and group insurance in respect of deceased Shaikh Shafiuddin as and when it was brought to their knowledge that the said employee had died. It was also submitted by him that the appellants had acted in accordance with the provisions of law and in a bona fide manner with honest intention and the trial Court wrongly held the appellants to be jointly liable for the decree passed against respondent No.4 in respect of the amounts, which were claimable by respondents Nos.1, 2 and 3/plaintiffs, out of the aforesaid amount of Rs.5,18,

258. The second ground on which the judgment and decree of the trial Court was assailed was that the entire amount of Rs.5,18,258 did not represent the estate or Tarka of deceased Shaikh Shafiuddin and there were several amounts, such as, voluntary insurance, group insurance as well as death claim, which do not form the estate or Tarka of a deceased Muslim for distribution amongst the heirs/next of kins of a deceased Muslim. In support of his above contention, he had placed reliance on the following cases:-- (1) Federal Government of Pakistan v. People at large (PLD 1991 SC 731). (2) Mirza Muhammad Amin etc. v. Government of Pakistan (PLD 1982 FSC 143): and (3) Mst. Rukia and another v. Ghulam Shah and another (PLD 1994 Peshawar 1). Mr. Muhammad Amin, the learned counsel for respondents Nos. l, 2 and 3/ plaintiffs, on the other hand submitted that the appellants had acted in a most careless and negligent manner in making payment of the dues held by them on behalf of deceased Shaikh Shafiuddin, which they were holding in trust, on behalf of the heirs of deceased Shaikh Shafiuddin after his death and that after having been informed by respondent No. l that deceased Shaikh Shafiuddin was survived by respondent No. l as his widow and respondents Nos.2 and 3 as his minor children, the appellants were required to exercise extra care, caution and diligence in parting .with the dues of deceased Shaikh Shafiuddin and making payment of the same to respondent No.4, who was only entitled to 1/6 share out of the amount paid to her while the remaining 5/6 share belonged to respondents Nos. 1, 2 and

3. It was submitted that the trial Court had rightly held them to be jointly responsible for making good the loss caused to respondents Nos. 1, 2 and 3 by the illegal, careless and negligent act of the appellants. With regard to the question as to whether the entire amount of Rs.5,18,258 held by the appellants representing the amounts in lieu of certain benefits could be considered to be the Turka/the estate of deceased Shaikh Shafiuddin so as to enable respondents Nos. 1, 2 and 3/plaintiffs to inherit in the said amount, he submitted that the amounts held by the appellants in the Provident Fund account and individual insurance as well as payable by way of group insurance, voluntary insurance and the amount payable as death claim formed an integral part of Tarka/estate of deceased Shaikh Shafiuddin and in accordance with the provisions of Muslim Personal Law/Sharia Law, respondents Nos. 1, 2 and 3/plaintiffs were entitled to inherit according to their respective shares in the aforesaid amount: Alternatively, he submitted that even if it be presumed for the sake of arguments, without conceding, that the amounts payable by way of voluntary insurance, group insurance and death claim would not form part of Tarka/estate, it would be required to be seen as to what was the object of such payments being made and who was actually to be benefited more from the funds/amounts payable to deceased Shaikh Shafiuddin under the aforesaid accounts. He further submitted- that there is no denying the fact that respondents Nos. l, 2 and 3, widow and the minor children of deceased Shaikh Shafiuddin, had no source of income and were not likely to be provided any support financially or otherwise from any quarter and that in the circumstances, they were much more in need of financial and monetary help and support. Mr. S.M. Saeed, Advocate, for respondent No.4, adopted the arguments of Mr. Amir Malik. I will first deal with the question as to whether the amount of Rs.5,18,258 in its entirety formed Tarka/estate of deceased Shaikh Shafiuddin or that contained or included certain payments under the aforesaid heads of accounts, which would not be covered by the word Tarka/estate' of deceased Shaikh Shafiuddin. The dispute with regard to the amounts is under the voluntary issuance, group insurance and death claim. Mr. Amir Malik submitted that deceased Shaikh Shafiuddin was not entitled to receive any amount under the aforesaid three heads of accounts during his lifetime nor could have asked the appellants for payments of any amount under the aforesaid three heads of accounts, which would go to establish that he had no power of authority to possess or claim any amount under any of the aforesaid three heads of accounts during his lifetime. These amounts would have become due and payable to him only after his death according to Muslim Law/Sharia Law. Turka/estate of the deceased consists of the immovable or movable properties, moneys and all other articles which he owned and over which he had complete control arid dominion so as to enter into the transaction of sale, exchange, transfer, gift in respect of such immovable and movable properties, moneys and other goods/articles. The Appellate. Shariat Bench of the Supreme Court of Pakistan in the case of Federal Government of Pakistan v. People at large (PLD 1991 SC 731) pronounced that the amounts payable by way of group insurance arid benevolent fund did not come within the definition of estate/Tarka, on which a deceased could claim ownership during his lifetime inasmuch as the deceased employee could not have received any amount from the Benevolent Fund during his lifetime until he had retired or had been removed from service on account of physical or mental disability. The amount to be received by way of group insurance would not be payable to a deceased employee during the course of his employment until his death during the course of service. The Supreme Court had also taken into consideration the question of death claim/gratuity and observed that the same was in the nature of a grant or a gift and would not form the estate or Tarka of a deceased on the ground that during his lifetime, he had no dominion, ownership or entitlement to claim the same. On the above pronouncement and observation, the Supreme Court held that the amounts payable under the heads Benevolent Fund, Group Insurance and Death Claim/Gratuity would not form the estate or Tarka of a deceased Muslim so as to be heritable by his heirs. The Supreme Court further pronounced that in case the deceased had nominated a person for receiving the amounts/moneys under the aforesaid heads of accounts, then he would be under no obligation to distribute them amongst the heirs of the deceased. As regards the payment made under the head voluntary Insurance, it appears that the deceased apart from the group insurance claim, had also taken an Insurance Policy voluntarily. The status/position of Voluntary Insurance/Policy would not be on the same footing or pedestal as group insurance scheme/policy. In voluntary insurance scheme/policy also, the deceased would not be entitled to receive the amount until his death if the policy effected by him was a life policy. In case the voluntary insurance policy was for -a fixed period of years, then no evidence has been brought on record as to within what period of time the policy was to mature and as to p whether at the time of his death, the said period of time had expired so as to entitle deceased Shaikh Shafiuddin to receive the amount of voluntary insurance during his lifetime. In the absence of any material or evidence to decide the aforesaid pertinent question, it cannot be said that the amount due and payable to deceased Shaikh Shafiuddin under voluntary insurance scheme/policy had become due and payable to him during his lifetime and formed the estate or Tarka so as to be heritable by respondents Nos. l, 2 and 3/plaintiffs. On the basis of the above, the only amount which could be said to form the property/estate or Tarka of deceased Shaikh Shafiuddin would be a sum of Rs.27,576 due and payable under the Provident Fund, a sum of Rs.182 being the outstanding salary and a sum of Rs.15 which was to be refunded by the Income Tax Department making a total of Rs.27,

773. Out of this amount, respondent No.4 would have been entitled to inherit to the extent of 1/6 while respondents Nos.1, 2 and 3 would have been entitled to inherit to the extent of 5/6 which would come to about Rs.23,

000. It is to be noted that respondent No.4 on account of her natural love and affection for her two grand sons, had purchased Defence Saving Certificates in the sum of Rs.25,000 in the name of each of her two grand sons, photostat copies of which are available on the record of the trial Court as Exhs. D/7 and D/8. Mr. Muhammad Amin, learned counsel appearing on behalf, of respondents Nos. l, 2 and 3 submitted that respondents Nos. l, 2 and 3 were entitled to receive the amount out of the death claim of Rs.1,89,000 granted in favour of deceased Shaikh Shafiuddin as the same was for the benefit of dependents of deceased Shaikh Shafiuddin which included respondents Nos. l, 2 and 3, and his nominee, respondent No.4 (mother) was not entitled to take over the entire amount herself and deprive respondents Nos. l, 2 and

3. In support of his above contention, he placed reliance on the case of Mst. Rukia and another v. Ghulam Shah and another (PLD 1994 Peshawar 1.) I have gone through the afore-cited case and with respect submit that I cannot subscribe to the view expressed by the Peshawar High Court in the afore-cited case in the face of clear, definite and specific observations and pronouncements made by the Supreme Court with regard to the nature of death claim/insurance. Even otherwise, this contention would not place any responsibility on the appellants as they had made the payment under this head to respondent No.4 in accordance with the nomination form singed by the deceased nominating his mother, respondent No.4 to receive the same and, had not acted in a negligent and imprudent manner in doing so. The case of the appellants is that they had no knowledge that deceased Shaikh Shafiuddin was survived by a widow and two minor sons as the deceased had not given such information to the Personal Department of the appellant. It is an admitted position that the deceased had filled in the nomination form nominating his mother as the first nominee for receiving the amount, which was to be found due and payable by the appellant to him at the time of his death. The original nomination form was summoned by me and from perusal thereof, it was revealed that names of three persons were mentioned therein as nominees but it did not contain the name of respondent No.1/plaintiff No.1 Mst. Alia Siddiqui or her minor sons. It is also established from the material on record that the payment of the sum' of Rs.4,31,882 was made over by the appellant/Messrs PIAC to respondent No.4 before they had received any intimation or letter from respondent No.1/plaintiff No.1 to the effect that the deceased was survived by her and her two minor sons, In this connection, reference is made to the letter of the appellants/Messrs PIAC dated, 30-11-1992 addressed to respondent No.1/plaintiff No.1, whereby they informed respondent No.1/plaintiff No.1 to submit Succession Certificate for releasing pension in her favour. They also submitted that respondent No. l/plaintiff No. l had served a legal notice on respondent No.4/defendant No.1, wherein it was stated that she by declaring herself as the sole surviving heir had recovered all the dues and claims of deceased Shaikh Shafiuddin from the appellant/Messrs PIAC and after recovering the same, instead of distributing the same amongst the legal heirs of deceased Shaikh Shafiuddin, had utilized/pocketed the same and that the appellant/Messrs PIAC were not served with any legal notice, which clearly goes to establish that they were not being held responsible. The finding of the trial Court that appellant/Messrs PIAC were also jointly and severally liable for making over payment to respondents Nos.1, 2 and 3/plaintiffs Nos.1, 2 and 3 in accordance with their respective shares out of the amount/moneys left behind by deceased is not based on any principle of law. The appellant/Messrs PIAC in making over the payment of all the dues of the deceased did not commit any illegality, negligence or imprudence and had made the payment in accordance with the requirements of the service rules/regulations inasmuch as deceased Shaikh Shafiuddin had nominated respondent No.4/defendant No. l as his nominee to receive the amount due, and payable to him by the appellant/Messrs PIAC. In the circumstances, I am unable to uphold the judgment and decree of the trial Court holding appellant/Messrs PIAC jointly and severally liable and responsible alongwith respondent No.4/defendant No. l of making payment of the respective shares of respondents Nos. 1, 2 and 3/plaintiffs Nos.1, 2 and 3 out of the amount/moneys paid to respondent No.4. In determining the issue of respondent No.4 for making payment of the respective shares to respondents Nos. l, 2 and 3/flaintiVs Nos. l, 2 and 3 out of the amount/moneys belonging to deceased' Shaikh Shafiuddin winch she had received from the appellant/Messrs PIAC the trial Court had held her, to be liable and had dismissed her claim that the amount was spent/utilized to discharging the debts of the deceased which he owned, and further held that it was to be presumed that the amount/moneys was utilized/pocketed by respondent No.4/defendant No.1. In any case, appellant/Messrs PIAC, cannot be held responsible to make payment of the respective shares which they would entitle to in the aforesaid amount/moneys to respondents Nos. l, 2 and 3/plaintiffs Nos. l, 2 and 3 for their act of payment thereof to respondent No.4 in accordance with service rules/regulations. The appellants cannot be said to have acted negligent, carelessly or imprudently in making the payment of the outstanding dues of deceased Shaikh Shafiuddin to respondent No.4 as she was duly authorized or nominated by her deceased son to receive the same. The responsibility to make payment of the respective shares to respondents Nos. 1, 2 and 3 out of the amount received by her, in case the entire amount formed the estate or Tarka of the deceased, lays on respondent No.4 and the' appellants could not be saddled with the same. It is also pertinent to note that the amount due and payable by the appellants to the deceased had been paid to respondent No.4 before they had received any intimation from respondent No. l that the deceased had left behind a widow and two minor sons. In the circumstances, the trial Court had wrongly held the appellants to be jointly and severally liable for payment of the shares to respondents Nos. l, 2 and 3 according to Shariah out of the amount due and u payable by them to deceased Shaikh Shafiuddin and which they paid to respondent No.4 as nominee of the deceased. The responsibility of such payment was solely on respondent No.4 provided that the entire amount or some of it formed the estate/Tarka of the deceased. On 15-5-2000 by a short order, this appeal was allowed and the judgment and decree of the trial Court in Suit No. 120 of 1993 was set aside as against the appellant/Messrs PIAC for the reasons to be recorded later. These are the reasons for the aforesaid short order. Q.M.H./M.A.K./P-14/K Appeal allowed.