2009 PLC (C (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Petitioner seeks leave to appeal against the judgment, dated 24-9-2003 passed by Lahore High Court, Lahore.

2. Succinctly stating the facts of the case are that on account of death of Muhammad Ayub son of petitioner, she filed an application before the Civil Judge, First Class Mianwali for obtaining succession certificate in respect of the assets left by him, detail whereof is mentioned in the application. Learned Civil Judge on 11th April, 2002 allowed the succession application whereby respondent Mst. Shamim Akhtar widow of deceased Muhammad Ayub was also declared entitled to receive pension of the deceased. Respondent being aggrieved from the judgment of learned Civil Judge preferred appeal, which came up for hearing on the file of Additional District Judge, Mianwali who on 25th March, 2003 accepted the same. Against the judgment of the appellate Court petitioner preferred revision which has been dismissed vide impugned judgment, dated 24th September, 2003. As such instant petition for leave to appeal has been filed.

3. It may be noted that before the learned Additional District Judge (appellate Court) precise question for consideration was as to whether the amount of Benevolent Fund and Group Insurance falls within the definition of "Tarka" left by the deceased because parties were at variance in respect of these two types of assets of the deceased. Learned Judge on having taken into consideration the law laid down by this Court in the case of Wafaqi Hakomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 concluded that the amount of Benevolent Fund and Group Insurance does not fall within the definition of 'Tarka'. Concluding para. from the judgment for convenience is reproduced hereinbelow:

"(9) In matter relating to the issuance of succession certificate the orders are not passed about the property which falls within the definition of "Tarka". The heads referred to by the appellant in this appeal containing amount in the light of precedented law is not "Tarka" and the appellant is entitled to have exclusively while the learned trial Court held that she was only entitled to get her share as legal heir of the deceased. The order passed by the learned trial Court is not within the ambit of law, therefore, it is liable to be set aside, hence, appeal is accepted and the impugned order is set aside in terms narrated above. There is no order as to costs, file of this appeal be consigned to the Record-office after due completion and record of the learned Lower Court be sent back immediately."

4. Learned counsel vehemently contended that as petitioner Mst. Ameeran Khatoon being the mother of deceased Muhammad Ayub was nominee, therefore, she was exclusively entitled for the amount of benevolent fund and group insurance. In this behalf he has stated that there is distinction in the definition of "family" under the Insurance Act and the Rules of the United Bank. Similarly the definition of benevolent fund, which has been relied upon by the High Court deals in respect of definition of family under the Benevolent Fund Rules of Federal Government, therefore, this definition would not be attracted to the facts of the present case.

5. The above question has already been answered by this Court in the judgment reported in the case referred to hereinabove. Relevant para. therefrom is reproduced hereinbelow for convenience. Applying above test on the facts of instant case we are persuaded to hold that deceased Muhammad Ayub was not entitled for the Benevolent Fund and Group Insurance during his life time and on his death, such amounts shall be deemed to be owned by him. Thus they will devolve upon his legal heirs being his 'Tarka'. Therefore, petitioner would not be entitled exclusively to claim these amounts except to the extent of her entitlement as per Shariat with other legal heirs of the deceased as it has been held by this Court in the case of Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC

185. Thus for the foregoing reasons the petition is dismissed and leave declined. M.B.A./A-121/SC Petition dismissed.