MUHAMMAD MOOSA K. LEGHARI, J.--- C.M.A. No,2708 of 2004. This is an application for exempting the petitioner from filing "B" Forms of the legal heirs of the deceased. As all the persons alleged to be the legal heirs of the deceased are major and have filed photocopies of their N.I.C. and moreover, the fact of the persons mentioned in the petition being the legal heirs of the deceased has not been disputed, the application is granted.
C.M.A. 2709 of 2004. Through this application the petitioner has prayed for a direction to three organizations mentioned therein to produce certain documents in respect of the assets of the deceased. Consequent upon issuance of notice to the said organizations, the required documents have already been brought on record. In the circumstances, this application having served its purpose, is disposed of accordingly.
C.M.A. 663 of 2005. Through this application, the petitioner has prayed for permission to amend the petition so as to include certain assets of the deceased in the schedule of the properties which, according to the petitioner, have been taken by legal heirs Nos,(a) and (c) after the death of the deceased. The legal heirs Nos,(a) and (c) viz. Mst. Mehrunnisa Ishaque, widow of the deceased and Miss Seema Ishaque, one of daughters of the deceased respectively have filed objections to this application.
This S.M.A. was filed by the petitioner Javed Ishaque for grant of Letters of Administration in his favour in respect of the movable and immovable properties owned by his deceased father namely Muhammad Ishaq who died on 24th February, 2004 at Karachi. In para.4 of the petition, names of legal heirs have been disclosed. Along with the petition a list of the properties/assets left by the deceased has been tiled as Annexure "A".
2. In support of the petition, the legal heirs namely, Mst. Amber Shakeel, Mst. Shabnam Shokat and Ms. Huma Ishaque, daughters of the deceased, filed affidavits thereby stating their No Objection to the grant of Letters of Administration in favour of the petitioner. However, the abovesaid legal heirs Nos,(a) and (c) did not file their affidavits of No Objection.
3. Subsequent to filing of the petition, notices were issued to the legal heirs of the deceased.
Besides, publication was also effected in the newspaper. Consequent upon service of the notices, the abovesaid two legal heirs viz. Mehrunnisa, and Miss Seema Ishaque, widow and daughter of the deceased respectively, put their appearance through their Advocate Mr. Arshad Lodhi.
4. During the pendency of the petition, petitioner filed C.M.A. No,2708 of 2004 with the prayer to issue direction to (i) Messrs Siddiq Mayari, Member Karachi Stock Exchange Guarantee Ltd. where allegedly considerable amount of investments made by the deceased was lying, (ii) Bank Al- Habib, Barkat-e-Hydari Branch as, according to the petitioner, after the death of the deceased widow of the deceased had withdrawn heavy amount of the deceased from the joint bank account maintained in the said Bank and (iii) Messrs Dewan Salman Fibre Ltd. where allegedly the deceased had share-holdings of a considerable amount. Upon service of notices of the said application, the abovesaid three entities filed their respective reply. One Ms. Zohra M. Siddiq claiming to the widow and successor of Siddiq Mayari, Member Karachi Stock Exchange, in her reply stated that after the death of deceased Muhammad Ishaque, all the shares of the deceased in the C.D.C. Account were transferred to her nominee/widow, Mst. Mehrunnisa. Similarly, Bank Al- Habib in its reply stated that the account maintained in their Bank was a joint account in the name of the deceased Muhammad Ishaque and his wife Mehrunnisa and the same was operable singly with the mandate that in case of demise of either account-holder, the balance to the credit was to be paid to the survivor, as such after demise of the deceased Muhammad Ishaque on 23-2-2004 the balance amount was paid to his widow, Mst. Mehrunnisa. Messrs Dewan Salman Fibre Ltd. made a statement to the effect that all the finance certificates of the deceased Muhammad Ishaque had been fully redeemed and all the redemption warrants had been dispatched to the registered address of the deceased.
5. After such information/documents having been placed on record, the petitioner moved this application for amendment.
6. The abovesaid legal heirs Nos,(a) and (c) have opposed this application. In their objections, they have taken a plea that during his lifetime the deceased had appointed Mst. Mehrnnisa, widow of the deceased, as his nominee, as such after his death she exercising her legal right, had withdrawn the amount of shares. She has also not disputed to have received the amount lying in the joint bank account maintained in Bank Al-Habib and the dividends lying in Messrs Dewan Fibre Limited.
However, she has stated that the petitioner Javed Ishaque had managed to obtain cheque book of Bank Account No,13225 maintained in the UBL, New Karachi Branch and then fraudulently drawn an amount of Rs,55,00,000 from the said account, as such he is liable to deposit the said amount.
7. The arguments advanced at the bar have been considered and the material placed on record has been perused.
8. The main controversy to be resolved for disposal of this application is, whether the nominee viz. widow of the deceased after his death is entitled to appropriate the entire estate of the deceased and secondly, whether she after the death of the deceased was entitled to own the amount lying in the bank 'account jointly maintained by the deceased and Mst. Mehrunnisa in the life time of the deceased.
9. Learned counsel for the petitioner in support of his contention that nominee after the death of the nominator does not become entitled to sum due under certificates etc. to the exclusion of other legal heirs, has relied upon the decisions reported in 2004 SCM R 1219 and AIR 2000 SC 2747.
10. The Honourable Supreme Court in the case of Malik Safdar Ali Khan and another v. public-at- large and others reported in 2004 SCM R 1219 has elaborately dealt with the point of entitlement of the 'Nominee' after the death of 'Nominator'. In the said case reference was made to the earlier case reported in PLD 1974 SC 185 wherein following observations were made by the apex Court:-- "Apart from this, it appears to us 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 Muhammadan Law because, such a gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted."
In the case of Safdar Ali Khan (supra) it was held:-- "The claim of Zafar Ali Khan that he is sole person, who can receive the payment of certificate being nominee is not acceptable because the deceased had left two children and a widow, who through cogent, natural and convincing evidence proved to be Muslims and entitled to inherit the legacy of late Bahadur Khan The contention that Zafar Ali Khan was nominated by the deceased in the National Savings Certificates Form cannot override the provisions of Mahmomedan Law; according to which legal heirs are only the persons entitled to receive the inherited property left by their father and husband."
The Indian Supreme Court in the case reported in AIR 2000 SC 2747 held:-- "Any amount paid to the nominee after valid deductions becomes the estate of the deceased.
Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased-holder."
11. Learned counsel appearing for legal heirs Nos,(a) & (c) was not in a position to controvert the above legal proposition.
12. As regards the amount lying in the joint bank account admittedly received by Mst. Mehrunnisa, the only plea taken is that since during the lifetime of the deceased, with the consent of the deceased joint account was opened and the account being "either or survivor" was being operated by either of them and after the death of the deceased Muhammad Ishaque, his widow viz. Mst.
Mehrunnisa was legally entitled to draw the balance amount lying in the said bank account.
13. It appears that in the objections filed by Mst. Mehrunnisa there is not a single word that any part of the amount lying in the joint bank account was owned by her or that she had also deposited her own funds in the said bank account. In the circumstances, the position of the joint bank account also seems to be at par with the shares lying in C.D.C. Account of the deceased in which Mst.
Mehrunnisa was appointed as a `Nominee'.
14. In view of the settled law quoted above, I cannot take a different view and I am bound to follow the dictum laid down by the apex Court. Resultantly, it is held that the amounts left by the deceased which were received by Mst. Mehrunnisa in the capacity of 'Nominee' of the deceased and as 'Joint Account Holder' as well as the dividends received by her from Messrs Dewan Salman Fibre Limited after the death of deceased Muhammad Ishaque, devolved upon all his legal heirs of the deceased Muhammad Ishaque and all the legal heirs are entitled to get their respective shares from the said assets as per Islamic Law of inheritance.
15. Accordingly, this application is allowed. Amended petition to be filed within one week. After the required amendments are made in the petition, the matter may be fixed for hearing of main application.