' FAISAL ARAB, J.---Javed Iqbal Ghaznavi died issueless on 1-12-2003. He was survived by his mother Sardar Rehmat Begum, one widow Rehana Ghaznavi, one brother Pervez Iqbal Ghaznavi and four sisters Sardar Shamim Akhtar, Sardar Qadim Akhtar, Sardar Naeem Akhtar and Sardar Ameen Akhtar. Through this petition the brother of the deceased sought letter, of administration as well as succession certificate in relation to moveable and immovable assets left by his deceased brother Javed Iqbal Ghazanavi.
2. There is no controversy with regard to the distribution of immovable properties of the deceased among all his heirs. However, the widow of the deceased claim that she is exclusively entitled to receive all such service benefits to which the deceased as Assistant Vice-President of Muslim Commercial Bank was entitled which could be defined as employer's grant or concession under the service rules and she being the beneficiary is entitled to it the exclusion of all other heirs of her deceased husband.
3. Similar controversy is involved in another SMA bearing No,142 of 2007.
4. The controversy being purely of legal nature needs' no evidence but can be resolved by examining the nature of benefit in order to determine whether it is a heritable benefit or is to be paid to only those who have been made its beneficiary by the employer under the service rules and regulations.
5. In support of their respective contentions. The counsel for the parties have relied upon the cases of Amtul Habib and others v. Musarrat Parveen and others reported in PLD 1974 Supreme Court 185; Mirza Muhammad Amin v. Government of Pakistan reported in PLD 1982 FSC 143; Federal Government of Pakistan v. Public-at-large reported in PLD 1991 Supreme Court 731 and Ameeran Khatoon v. Mst.Shamim Akhtar and others reported in 2005 SCM R 512.
6. In the case reported in PLD 1974 Supreme Court 185 the issue that came before the Hon'ble Supreme Court was whether the person who has been nominated by the deceased employee as beneficiary of the property after him was entitled to be declared owner to the exclusion of the other heirs of the deceased employee and the Hon'ble Supreme Court held that unless a nomination amounts to a valid gift inter vivos, it cannot pass title to the nominee nor can the making of a nomination give the right to the nominator to change the law (,f succession at his own choice. It was further held in the said case that a nomination can neither be treated as a will nor a gift nor a trust but is merely a mandate, the validity of which expires with the death of the mandator. It was also held in this case 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 only can collect as a trustee the amount for the benefit of all persons entitled to inherit from the deceased employee. Thus, the nomination cannot be treated as a gift or a will but it only gives the right to the nominee to receive the benefits as trustee of all the other heirs.
7. In the case reported in PLD 1982 Federal Shariat Court 143, the issue with regard to distribution of provident fund, death gratuity and family pension came up for decision and it was held that provident fund, if not paid to a deceased employee during his life time, become part of heritable asset and despite nomination by the deceased employee is to be distributed among all the heirs according to the personal law of the deceased employee. However, with regard to entitlement of death gratuity and family pension, it was held that these financial benefits are to be treated as a gift or concession given by the government in order to maintain the widow or certain members of the family of the deceased and therefore are not heritable by all the heirs of the deceased but are payable only as per the rules which governs the distribution of death gratuity and family pension.
8. In the case reported in PLD 1991 Supreme Court 731 the five member's bench of the Shariat Appellate Court while discussing entitlement of benevolent fund held that had the employee reached his age of superannuation and thereafter died, nothing would have become payable from the Benevolent Fund and therefore such a benefit which does not translate into a debt of the deceased employee against the employer cannot form part of the estate of the deceased so as to become distributable among all his heirs.
9. In the case reported in 2005 SCM R 512 the Division Bench of the Honourable Supreme Court while recognizing the principle laid down by the five member bench of the Shariat Appellate Bench of the Supreme Court in the case of Federal Government of Pakistan v. Public-at-Large reported in PLD 1991 Supreme Court 731, mistakenly interpreted it conversely which appears to be typographical error as service benefits granted towards Benevolent Fund or Group Insurance were not treated as heritable benefits in terms of the principle laid down in PLD 1991 Supreme Court 731.
10. On the basis of terms and conditions of service or under any law or an award, an employee may become entitled to certain financial benefits. Some of these financial benefits are of a nature that they become payable to the employee at the time when his service comes to an end, whereas some benefits are those that are paid from time to time to an employee after his service has come to an end and under the service rules and regulations have to be continued even after his death to certain members of his family. Then there are some financial benefit which on account of death of an employee, while in service, become payable in lump sum to certain members of the family of the deceased employee. Generally all financial benefits that an employer pays under rules and regulations of service to an employee or after his death to certain members of his family are categorized as pensioner or retirement benefits, gratuity, death gratuity, death compensation, provident fund, benevolent fund, group insurance, medical grants, benefits under an award etc.
11. Whether an employee dies while in service or dies after his service has come to an end, in both the cases there can bd a situation where he may not have received certain financial benefits from his employer that had already accrued to him before his death. Such unpaid financial benefits i.e, those benefits that had already accrued to an employee during his lifetime but remained unpaid to him shall become part of the estate of the deceased employee and are to be distributed among all his heirs according to the personal law of the deceased employee and it matters not whether any of those financial benefits falls under any of the two categories of benefits defined by Shariat Appellate Bench of the Honourable Supreme Court in the case of Government of Pakistan v. Public- at-large reported in PLD 1991 SC 731. The reason being that any of the two categories of financial benefits upon their accrual i.e, upon becoming due for payment to the employee himself had become absolute right of the deceased employee during his lifetime. It was the right of the deceased employee to receive such accrued benefits in his lifetime but on account of his death he could not receive them. All such dues after the death of the employee have to be treated as part of his leg's and inheritable by all his heirs. Thus all financial benefits that had already accrued on the date of the death of the deceased employee and were payable to him but remained unpaid during his lifetime would become part of his estate and are to be distributed among all his heirs, However, the financial benefits that have accrued after the death of the deceased employee need to be first classified on the basis of interpretation given in the case of Government of Pakistan v.
Public at large reported in PLD 1991 Supreme Court 731. If a financial benefit is definable under the category of a 'grant' or 'concession' on the part of the employer as interpreted in the forgoing referred case, then if such benefits have accrued for payment after the death of the employee, then the same is not to be treated as part of the estate of the deceased employee as they on the basis of principle laid down in PLD 1991 Supreme Court 731 are not heritable benefits. Such financial benefits being grant or concession of the employer and have become due for payment after the death of the deceased cannot be regarded as absolute right of the employee to receive it from the employer during his lifetime. Such benefits cannot be treated as 'Tarka' i.e, stated of the deceased but grant or concession of the employee and having become due for payment after the death of an employee are to be payable to such persons only who are made beneficiaries of such benefits under the rules and regulations of service. The persons who are otherwise heirs of the deceased employee but not described as beneficiaries of such benefits cannot claim any share in such benefits.
12. Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remain unpaid during his lifetime when the same becomes heritabl4 and is to be distributed amongst all his heirs. However, a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer, then whatever amount that become payable after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service. It is the discretion of the employer to make rules and regulations in relation to any grant or concession that is intended to give to an employee or after his death to any member of his family.
13. Thus benefits such as special retirement benefits, special, compensation group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grant and concession on the part of employee and pay abele after the death of the employee cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulation of service provided by the employer. Let the service benefits be distributed in terms of this order.
14. Both the SMAs stand disposed of accordingly.