Mst.Mehmooda Begum vs Zubair Ahmad etc

2013 C L C 1834 [Peshawar]

Before Abdul Latif Khan, J

Mst. MEHMOODA BEGUM----Petitioner

Versus

ZUBAIR AHMAD and others----Respondents

Civil Revision No.250-P of 2012, decided on 8th April, 2013.

(a)Provident Funds Act (XIX of 1925)---

----S. 5---Specific Relief Act (I of 1877), S.42----Suit for declaration---Benevolent fund and group insurance---Inheritable right (Tarka)---Nominee, status of---Scope---Succession certificate for recovery of provident fund was issued in favour of widow but for other service benefits Trial Court also included other legal heirs of deceased in decree---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---Nominee had no right to receive amount more than her entitlement---No right conferred upon nominee as full owner as legal heir under Sharia shares would be entitled to get their respective shares---Sole duty of nominee, if any, was to collect amount on behalf of all legal heirs entitled to it under law applicable to nominator---Nomination did not operate as gift or will, therefore, could not deprive other heirs of nominator who were entitled thereunder the law of succession applicable to deceased---Provisions of section 5 of Provident Funds Act, 1925, neither vested amount in nominee nor declared her to be the owner thereof, it had given right to receive amount and nothing else---High Court declined to interfere in judgment passed by Lower Appellate Court, as no misreading or non-reading of evidence or any illegality or any material irregularity error or defect could be pointed out---Revision was dismissed in circumstances.

Wifaqi Hukumat Pakistan v. Awam-un-Nas PLD 1991 SC 731; Mst. Amiran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Mt. Latifanbhai v. Mt. Sakinanbhai AIR 1939 Sind 107; Noor Muhammad's case PLD 1951 Sind 1 and Moqadar Khan v. Burmashal Oil Distribution Company Ltd. PLD 1968 Kar. 523 ref.

(b)Islamic Law---

----Inheritance---Inheritable tarka---Nominee, status of.

Wifaqi Hukumat Pakistan v Awam-un-Nas PLD 1991 SC 731; Mst. Amiran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Mt. Latifanbhai v. Mt. Sakinanbhai AIR 1939 Sind 107; Noor Muhammad's case PLD 1951 Sind 1 and Moqadar Khan v. Burmashal Oil Distribution Company Ltd. PLD 1968 Kar. 523 ref.

Rehman Ullah for Pettioner.

Suhrab Khan for Respondents Nos.1 to 5.

Date of hearing: 8th April, 2012.

JUDGMENT

ABDUL LATIF KHAN, J.--- Facts of the case are that respondents Nos.1 to 5 filed an application for issuance of succession certificate in the Court of Senior Civil Judge/Guardian Judge Swabi against the petitioner and public-at-large. The certificate was issued in favour of the petitioner for provident fund amounting to Rs.8,19,628/- while for the rest of the service benefits the succession certificate was issued in favour of the petitioner by the trial Court vide judgment and decree dated 22-12-2011. The respondents Nos.1 to 5 filed appeal before the appellate Court, which was allowed vide judgment and decree dated 11-2-2012. Hence this revision petition.

2.Mr. Rehmanullah Khan Advocate counsel for the petitioner argued his case and relied upon the judgment in the case of Wifaqi Hukumat Pakistan v. Awam-un-Nas (PLD 1991 SC 731) contended that the amount of benevolent fund and group insurance does not fall within the ambit of "Tarka". He supported the judgment and decree passed by the trial Court which is also based upon this judgment of the apex court and prayed for the reversal judgment passed by the appeal court, impugned herein.

3.On the other hand the learned counsel appearing on behalf of the respondents relied upon the judgment of the apex Court in Mst. Amiran Khatoon v. Mst. Shamim Akhtar and others (2005 SCMR 512), supported the impugned judgment passed by the Appellate Court that the legal heirs of the deceased are entitled as per their Shari shares to the "Tarka" of deceased.

4.The precise question for determination was as to whether the amount of benevolent fund and group insurance fall within the ambit of "Tarka" left by the deceased because the stances of the parties are different in respect of these assets of the deceased. The learned trial Judge based its findings on PLD 1991 Supreme Court 731 concluded that assets of deceased in the share of benevolent fund and group insurance do not fall within the ambit of "Tarka". The hounourable apex Court in Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others (2005 SCMR 512) has dealt with the above question and held that the deceased was not entitled for the benevolent fund and group insurance during his life time and on his death such amount shall be taken to be owned by him and will devolve upon his legal heirs being his "Tarka".

5.The above question has already been answered by the apex Court in another Judgment reported as Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others (PLD 1974 SC

6.The petitioners were admittedly the brother, sister and mother of the deceased while the present petitioner is the widow of the deceased and their shares as per Shari share are not disputed and are not entitled to get in excess of their shares by depriving the other share-holder out of the legacy of the deceased. The nomination if any, neither a will nor gift and merely

confers a right to collect or to receive money. It does not either operate as a gift or as a will and therefore, cannot deprive the other legal heirs of the deceased, otherwise entitled under the law of succession applicable to the deceased.

7.In case of Mt. Latifanbhai v. Mt. Sakinanbhai (AIR 1939 Sind 107) a Division Bench of Sind Chief Court went into this matter and came to the conclusion that the provident money was the property of the deceased employee and passed on his death to his heirs whoever nominated by him from the fund and for giving sufficient quittance to the fund, the money standing to the group of Muhammadan employee in the Provident Fund at the time form part of his estate and or subject to the personal law of the succession of the deceased.

8.The view taken in the case of Noor Muhammad (PLD 1951 Sind 1) was that Provident Fund Act confers on nominee nothing more than the right to receive the amount. It does not confer on nominee the full right as an owner and does not touch the rights of others entitled to the same as legatees under the law applicable to the case.

9.The same view has also been taken in Moqadar Khan v. Burmashal Oil Distribution Company Ltd. (PLD 1968 Karachi 523). Contrary view had been taken in PLD 1991 SC 731 concluding that the amount of benevolent fund does not come within the definition of "Tarka" and the learned trial Judge has taken into consideration the law laid down by apex Court in the referred judgment. This judgment was referred before Hon'ble Supreme Court of Pakistan in case reported as (2005 SCMR 512) which was considered and held the benevolent fund and group insurance during his life time and on his death benefit, the entitlement of deceased and such amount shall be deemed to be owned by the him and would devolve upon his legal heirs, being his "Tarka".

10.The claim of the widow or nominee to the exclusion of other legal heirs beyond her entitlement as per Shariat has been dealt with by the apex Court in Amat ul Habib's case elaborately. The nominee has no right, to receive the amount more than his entitlement. No right confers upon the nominee as full owner as the legal heirs under sharia shares would be entitled to get their respective shares. The sole duty of the nominee, if any, is to collect the amount on behalf of all the legal heirs entitled to it under the law applicable to nominator. It does not operate as a gift or will, and therefore, cannot deprive the other heirs of nominators who may be entitled there to under the law of succession applicable to the deceased. Section 5 of the Provident Funds Act neither vests the amount in the nominee nor declare him to be the owner thereof. It gives him right to receive the amount and nothing else. No misreading or non-reading of evidence or any illegality or any material irregularity or jurisdictional error or defect could be pointed out in the impugned judgment of the appellate Court.

For the foregoing reasons, I while maintaining the impugned Judgment of the Appellate Court dismiss the revision petition in hand with no order as to costs.

MH/365/P Revision dismissed.