1. ' ABDUL RASHEED KALWAR, J.--- This is civil appeal filed by the appellant against the respondents being aggrieved by the order, dated 12-3-2008 passed by IV-Additional District Judge, Hyderabad in Succession Application No,100 of 2006.
2. ' The respondents Nos.1 and 2 are brothers of deceased Mst. Mumtaz Begum whereas the respondents Nos.3 and 4 are also, sisters of the deceased. The present appellant was the husband of deceased Mst. Mumtaz Begum. The respondent No,1 had filed Succession Application No,100 of 2006 under section 372 of Succession Act against the respondents Nos.2 to 4 and the appellant.
3. The deceased was issueless, but the appellant and the respondents were the legal heirs. The deceased lady had left behind following sums for which the respondent No,1 had sought the grant of succession certificate from the lower Court:---{{TABLE}}
(i) Gratuity
(ii) Group Insurance
(iii) Pension
(iv) Salary of earned leave for 64 days Financial Assistance Rs,3,46,475 Rs,4,80,000 Rs,2,653.87 P.M.
4. Rs,31,797.58 Rs,5,00,000 {{TABLE}} ' Except the appellant none of the legal heirs objected to grant of Succession Certificate in favour of the respondent No,1, but the appellant had filed objections before the lower Court, inter alia, he has stated that the respondent No,1 had filed another Succession Application No,16 of 2006 which was pending at that time in respect of certain other amounts left by the deceased. Appellant had objected to the entitlement of succession certificate in respect of the sums mentioned in the succession application, however, he had conceded to the fact that Item No,4 i.e, salary of earned leave for 64 days amounting to Rs,31,797.58 was only amount to be distributed among the legal heirs and the appellant claimed himself to be a sharer in that amount as per his share being one of the legal heirs. Regarding rest of the amount mentioned in the succession application he has stated that these amounts are not the "Tarka"/inheritance of the deceased, therefore, same cannot be distributed between the legal heirs. Appellant claims to be entitled for all these amounts except at S.No,4 being the nominee of the deceased.
5. ' Learned Judge of the lower Court did not agree with the contentions raised by the appellant and appointed the Nazir of the Court to collect all the amounts and distribute in all the legal heirs as per the shares determined by the Sharia vide order, dated 12-3-2008.
6. ' Learned Advocate for appellant has argued that except the salary amount of earned leave for 64 days none of the amount of "Tarka" inheritance of the deceased and he has assailed the order of trial Court, saying that only appellant is entitled for all other amounts. He has drawn my attention towards the provisions of West Pakistan Civil Servant Pension Rules, 1963 and Central Employees Benevolent Fund and Group Insurance Act, 1969. He has relied upon PLD 1991 SC 731 (Shariat Appellate Bench). He contends that the order of the lower Court is contrary to law and is liable to be set aside.
7. ' Learned Advocate for respondents has supported the impugned order and has relied upon 1999 YLR 759 (Karachi) and 2006 YLR (Lahore) 3236.
8. ' I have heard learned Advocate for the parties and perused the record.
9. ' There is no dispute between the parties in respect of their relationship with the deceased. So also none of the parties denies each others status as legal heir of the deceased. The respondents do not deny the appellant's status as nominee of the deceased. The amounts mentioned in the schedule of succession application are neither denied nor disputed. The controversy between the parties is that the respondents treat the appellant as husband and one of the legal heirs of the deceased lady. Therefore, they deem him to be entitled to the extent of share as per Sharia in all the sums mentioned in schedule "A" of the succession application. In this manner, they are accepting impugned order as correct one. The appellant claims all sums i.e, gratuity, group insurance, pension and financial assistance as shown at S.No,(i), (ii), (iii) and (v) exclusiyely being nominee of the deceased. He also claims share as per Sharia in Item No,(iv) i.e, salary of earned leave for 64 days being husband of the deceased. Therefore, he assailed the impugned order.
10. ' The gratuity and the pension as in the present case are governed by the provisions of West Pakistan Civil Servants Pension Rules, 1963. The Rule 1.6(H) the West Pakistan Civil Servant Pension Rules, 1963 defines that except:--- "When the term "pension" is used in contra distinction to gratuity, pension includes gratuity."
11. The pension and gratuity are the grants of the Government in favour of the servant. Rule 1.9 of West Pakistan Civil Servants Pensioni. Rules, 1963 clearly laid down conditions for grant of the pension.
12. The said rule reads as follows:--- "1.9. No pension may be granted to a Government' servant dismissed or removed for misconduct, corruption subversive activities or inefficiency, but, if he deserves special consideration he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him had he retired on invalid pension."
13. ' There are four kinds of pensions. They are classified in aforementioned rules in Chapter III, which are as follows:--- "3.1 Classification of pension.--- Pensions are divided into four classes:---
(a) Compensation pension.
(b) Invalid pension.
(c) Superannuation pension.
(d) Retiring pension.
14. ' Due to death of the deceased lady before retirement her case falls in classification of invalid pension. But it is separately defined in Rule 4.6 sub-rule (4) of the West Pakistan Civil Servant Pension Rules, 1963 which reads as under:--- "(4) In the event of death before retirement pension for the purposes of this rule shall be calculated as if the Government servant retired on invalid pension on the date of his death, but it shall be admissible from the day following the death of the Government servant,"
15. ' However, the definition of invalid pension is given in Rule 3.3, which is as follows:--- "An invalid pension is awarded on his retirement from Government service, before reaching the age of superannuation to a Government servant who by bodily or mental infirmity is permanently incapacitated for further service on production of a medical certificate prescribed in sub-rule (3)."
16. ' For the purpose of distribution of pension of deceased Government servant, Rule 4.10 provides as follows:--- "4.10(a) Family for the purpose of payment of family pension shall be as defined in sub-rule (1) of Rule 4.7. It shall also include the Government servant relatives mentioned in clause (d) of rule 4.8.
17. (2)(A) A family pension sanctioned under this section shall be allowed as under:--- (i)(a) To the widow of the deceased, if the deceased is a male Government servant, or to the husband, if the deceased is a female Government servant.
(b) If the Government servant had more than one wife, and the number of his surviving widows and children does not exceed 4, the pension shall be divided equally among the surviving widows and eligible children. If the number of surviving widows and children together is more than 4, the pension shall be divided in the following manner viz.; each surviving widow shall get 1/4th of the pension and the balance (if any) shall be divided equally among the surviving eligible children.
18. Distribution in the above manner shall also take place whenever the Government servant leaves behind surviving children of a wife that has predeceased him in addition to the widow and her children, if any.
(c) In the case of a female Government servant leaving behind children from a former marriage in addition to her husband and children by her surviving husband, the amount of pension shall be divided equally among the husband and all eligible children. In case the total number of beneficiaries exceeds four, the husband shall be allowed 1/4th of the pension and the remaining amount distributed equally among the eligible children.
(ii) Failing a widow or husband, as the case may be, the pension shall be divided equally among the surviving sons not above 24 years and unmarried daughters.
19. ' Note.--- In working out the share of the various heirs under sub-clauses (A)(i) and (ii), the amount shall be calculated to the nearest Paisa.
(iii) Failing (i) and (ii), to the eldest widowed daughter.
(iv) Failing (i) to (iii) to the eldest widow of a deceased son of the Government servant.
(v) Failing (i) to (iv), to the eldest surviving son of a deceased son of the Government servant.
(vi) Failing (i) to (v), to the eldest unmarried daughter of a deceased son of the Government servant.
(vii) Failing these to the eldest widowed daughter of a deceased son of the Government servant.
(B) if the family pension is not payable under clause (A), it may be granted---
(i) to the father:
(ii) failing the father, to the mother;
(iii) failing the father and mother, to the eldest surviving brother below the age of 21 years;
(iv) failing (i) to (iii), to the eldest surviving unmarried sister: if the eldest sister marries or dies then the next eldest;
(v) failing (i) to (v) to the eldest surviving widowed sister;
(vi) failing (i) to (v) to the divorced daughter;
(vii) failing (i) to (vi) to the divorced sister.
(3) No family pension shall be payable under this section.---
(a) to an unmarried female member of a Government servant's family in the event of her marriage.
(b) to a widowed female member of a Government servants' family in the event of her remarriage.
(c) to the brother of a Government servant on his attaining the age of 21 years.
(d) to a person who is not member of a Government servants' family.
(4) A family pension awarded under this section shall not be payable to more than one member of a Government servants' family at the same time except as provided in sub-clause (A)(i) and (ii) of sub-rule (2) above.
20. (5)(a) If the pension ceases to be granted before the expiry of the period for which it is admissible on death or marriage of the recipient or on account of other causes, to persons falling under sub- clauses (A)(i) and (ii) of sub-rule (2) above, the amount shall be granted to other recipients in equal shares.
(b) If a family pension awarded under the section other than that mentioned in clause (A)(i) to (ii) of sub-rule (2) of this rule ceases to be payable before the expiry of the period up to which it is admissible on account of death or marriage of the recipient or other causes, it shall be reprinted to the person next lower in order mentioned in sub-rule (2).
(6) Government shall have discretion to make such modification in the mode of allotment or conditions of tenure set forth in sub-rules (2) to (5) above as they may consider desirable to suit special circumstances of the beneficiaries.
(7) A family pension sanctioned under this section shall be payable in addition to any extraordinary pension or gratuity that may be granted to the members of a Government servants' family under any other rules in force for the time being.
(8) Future good conduct of the recipient is an implied condition of every grant of family pension under this section."
21. ' The view taken in reported case 1999 YLR 759 at relevant page 761 declaring pension dues as "Tarka" of the deceased is distinguishable from facts, circumstances and legal position in the present case. The assets of deceased, subject-matter of the case of Fatima Bibi 1999 YLR 759 were pertaining to PIA employee who was not governed under the West Pakistan Civil Servants Pension Rules, 1963. These rules have not been declared un-Islamic by any Court of law. Both the case-laws do not discuss the provision of West Pakistan Civil Servant Pension Rules, 1963. Besides it the gratuity and pension in present case have been made payable after death of deceased, therefore, same are not "Tarka" in view of dicta laid down in Honourable Supreme Court authority reported in PLD 1991 SC 731.
22. In view of above cited provision of law and the above discussion, pension cannot be distributed among the respondents in any way. Being brothers and sisters respondents are totally excluded to receive the pension due to survival of the husband of the deceased, who is appellant and is exclusively entitled to receive pension. The respondents do not fall in any category of persons as prescribed by West Pakistan Civil Servants Pension Rules, 1963 for receiving pension of deceased.
23. ' For the purpose of payment of gratuity, rule 4.7 of same rules provides the list of relatives of the deceased of a Government servant, who are covered under the definition of "Family". The text is reproduced herein under:--- "4.7(1) The term "family" for the purpose of payment of gratuity under this section shall include the following relatives of the Government servants.
(a) Wife or wives, in case of a male Government servant;
(b) Husband in the case of a female Government servant;
(c) Children of the Government servant;
(d) Widow or widows and children of a deceased son of the government servant;
(e) Divorced daughter and sister.
24. ' Note (i) A child means a legitimate child or an "adopted child" if under the personal law of the Government servant concerned adoption is legally recognized as conferring the status of a natural child.
25. ' Note (ii) If it is proved that the wife has been judicially separated from the Government servant or has ceased under the customary law of the community to which she belongs to be entitled to maintenance, she will no longer be deemed to be a member of the family unless_the Government servant has himself intimated in writing to the Accounts Officer/head of the Office that she will continue to be so regarded.
26. ' Note (iii) In the case of a female Government servant, if the wife intimates in writing to the Accounts Officer/head of the Office that her husband should not be included as a member of the family, then he will no longer be considered a member of the family unless subsequently she cancels in writing her intimation excluding him."
27. ' The rule 4.8 of West Pakistan Civil Servants Pension Rules, 1963, provides 'procedure and also mentions the list of relatives, who can receive the gratuity and those who cannot receive the same.
28. It reads as under:--- "4.8 When the amount of gratuity has become payable, it shall be the duty of the Accounts Officer to make payment according to the following procedure:---
(a) The amount of gratuity or any part thereof to which the nomination relates, shall become payable to his/her nominee or nominee in the proportion specified in the nomination.
(b) If nomination relates only to a part of the amount of the gratuity, the part to which it does not relate shall be distributed equally only among the members of the family other than the nominee;
(c) If no valid nomination subsists, the whole amount of the gratuity shall become payable to the members of his/her family in equal shares: ' Provided that in case of (b) or (c) above no share shall be payable to---
(i) sons who have attained the age of 24 years;
(ii) sons of a deceased son who have attained the age of 24 years;
(iii) married daughters whose husbands are alive; and
(iv) married daughters of a deceased sons whose husbands are alive; ' if there is any member of the family other than those specified in sub-clauses (i), (ii), (iii) and (iv) above: ' Provided further that the widow or widows and the child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived that Government servant and had been exempted from the operation of the first proviso.
(d) when the Government servant leaves no family and the whole or part of the gratuity is not covered by a valid nomination the amount of gratuity shall be payable to the following surviving relatives, if any of the Government servant in equal shares:---
(1) brothers below the age of 21 years;
(2) unmarried and widowed sisters;
(3) father; and
(4) mother; ' Note. In the absence of any other eligible claimant gratuity would be payable to the sons and daughters of the deceased Government servant in equal shares even if the sons are over 24 years old and the daughters are married and their husbands are alive."
29. ' Further rule 4.9 of above Rule imposes further embargoes and conditions for payment of the gratuity in following terms:--- "4.9 No gratuity will be payable by Government after the death of a Government servant if he/she does not leave a valid nomination or a family as defined in sub-rule (1) of rule 4.7 or an eligible dependent relative or relatives specified in clause (d) of rule 4.8."
30. Like pension, gratuity cannot be distributed among the respondents. The above mentioned rules exclude the respondents from receiving share of gratuity due to survival of the husband of deceased. The appellant being surviving husband of the deceased Government servant is exclusively entitled to receive the gratuity whereas respondents being brothers and sisters of deceased are not entitled to receive gratuity. Nothing on record shows any status or any other degree of relationship of the respondents with deceased which may bring them within requisite category of persons eligible for receiving gratuity as laid down in above mentioned rules.
31. ' The Group Insurance is also not the "Tarka" of the deceased and to that extent the reliance is placed on Fatima Bi case reported in 1999 YLR 759 at relevant paras.6 and 9.
32. ' The part of dictum regarding pension is distinguishable because in cited case subject-matter was pension of PIA Employee what I have discussed and explained herein above. However, paras.6 and 9 of the above citation are as follows:--- "(6) In view of above. Provident fund and "pension dues" fall under the scope of Tarka and items Nos.2 to 4 viz. Death Claim, voluntary claim and group insurance are outside of it."
33. "(9) Although death claim, voluntary claim and group insurance are not Tarka to be inherited by the legal heirs, but definitely these are grant/compensation for widow and children of deceased."
34. ' Another distinguishing factor between the facts and circumstances of present case and the case of Fatima Bi v. Mehnar Gul reported in 1999 YLR 759 is that in the cited case legal heirs were widow and children of the deceased whereas in the present case the legal heirs are brothers and sisters too, therefore, the ratio of above cited case-law of Fatima Bi case cannot be extended in favour of respondents, Who are excluded by Rules to receive the group insurance. Besides it the Central Employees Benevolent Fund and Group Insurance Act, 1969 itself provides the list of persons who can receive the sums of group insurance. Section 2(5) of above said Act read as under. In this manner the distribution of group insurance is governed by statute itself.
35. "5. Family means:- (b)In case of male employee, the wife or wives of and in case of female employees the husband of the employee and
(b) The legitimate children, parent, minor brothers, unmarried, divorced or widowed sisters of employee residing with and wholly dependent upon him."
36. ' The case-law of Zahoor Mehdi Faisal reported in 2006 YLR 3236 (Lahore) is distinguishable from the facts and circumstances of present case. The relevant portion of citation at 3238 placitum-B is as under:--- "In the case of Fatima Bi v. Mehnar Gul 1999 YLR 759 it was held that although death claim, voluntary claim and group insurance are not "Tarka" to be inherited by the legal heirs but these are grant/compensation to be distributed among the legal heirs according to the Islamic share. One cannot be excluded at the cost of the other. Being compensation, the instant case would not fall within the ambit of Federation of Pakistan v. Public-atLarge PLD 1991 SC 731."
37. ' The cited judgment is not in respect of group insurance, but general insurance pertaining to death claim. It has been based on the dictum laid down in Fatima Bibi case (supra). In Fatima Bi case only widow and minor daughter from other wife, but in the present case brothers and sisters are claiming share in group insurance. Section 2(5) of Central Employees Benevolent Fund and Group Insurance Act, 1969 has the mention of wife and daughters, which is in conformity with dictum in Fatima Bi's case. The ratio of said case-law does not cover brothers and sisters, in existence of scheme provided under section 2(5) of Central Employees Benevolent Fund and Group Insurance Act, 1969. In view of provision of section 2(5) of Central Employees Benevolent Fund and Group Insurance Act, 1969, the appellant is entitled not because of his nomination but due to provisions of Central Employees Benevolent Fund and Group Insurance Act, 1969. The above mentioned provisions of said Act are declared not in conflict with Qur'an and Sunnah by Honourable Supreme Court vide judgment reported in PLD 1991 SC 731.
38. ' The financial assistance facility was started by the Finance Department, Government of Sindh vide order No,FD(SR-III)3/84-2004, dated 1.3-6-2005 for financial assistance of the families of the deceased civil servant who dies during his/her service. Following documents were required for the purpose of processing the case of Financial Assistance (1) Death certificate of the deceased-civil servant (2) N.I.C. Of the deceased (3) legal heir-ship certificate of the claimants, duly attested by the Heads of the Departments concerned.
39. ' In order to resolve the controversy about distribution of the Financial Assistance of the deceased, the guidance is taken from Amtul Habib's case of Honourable Supreme Court. The dictum laid down in Mst. Amtul Habib v. Mst. Musarrat Parveen case reported in 1974 SC 185 is reproduced as under for the purpose of:--- "We are of the opinion, however, that the correct view has been taken in the cases referred to earlier, namely, that the nomination merely confers a right to collect the money or to "receive the money". It does not operate either as a gift or as a will and, therefore, cannot deprive the other heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased. The nominee thus, collects as a trustee for the benefit of all persons entitled to inherit from the deceased employee."
40. The amount of financial assistance by its nature is not falling within the definition of Tarka as it was not the asset of deceased in her life time but same is grant of Government, granted on death of deceased. This view' of mine finds support from the analogy of Honourable Supreme Court available in the case-law reported in PLD 1991 SC 731. None of the parties counsel had been able to cite any provision of law which may have provided a mechanism for distribution of the amount of Financial Assistance. This amount may not be a Tarka, but still some formula for its distribution is to be employed for equitable and just distribution of amount among the legally entitled recipients.
41. The mention of heir-ship certificate in the list of requisite document imply that intention of the granting authority i.e, Government of Sindh is to distribute the same among all legal heirs of the deceased civil servant. In the case of financial assistance there is no legal requirement for appointing nominee. Then provision of Islamic Law of inheritance shall come into play, because the parties are Muslim and deceased was also Muslim. Even otherwise, in view of dictum laid down in Amtul Habib case (supra). The nominee is only entitled to receive the amount for distribution among other legal heirs.
42. ' Under this situation, appellant and respondents are entitled to receive their share from financial assistance as per Islamic Law of Inheritance.
43. The net result of the above discussion is that appellant is entitled to receive gratuity, pension and group insurance exclusively and the respondents as well as appellant are entitled to have their share according to Sharia in salary of earned leave for 64 days and financial assistance of Rs,five lacs. The order, dated 12-3-2008 passed by IVth Additional District Judge, Hyderabad is partially modified accordingly and the Nazir of the lower Court to execute the order, dated 12-3-2008 to the extent of amount of salary of earned leave for 64 days and financial assistance and distribute the amount among the appellant and the respondents as directed in the said order, dated 12-3-2008.
44. ' With these observations, appeal is partially allowed and partially dismissed.