' UMAR ATA BANDIAL, J.---Asif Jamshed Qadri, deceased left behind one widow Mst. Fouzia Jamshed (first wife) who has two children, one son and one daughter as heiRs, The deceased had also married Mst. Nayab All whom, he divorced during his life. He has three children from her, one son and two daughteRs, As such the deceased was succeeded by five children and a widow. For his group insurance claim from the respondent State Life Insurance Corporation ("SLIC") the deceased nominated his wife Mst. Fouzia Jamshed for collection of all payments.
2. Upon his death on 23-8-2004, his children from Mst. Nayab Ali (divorced wife) applied to the SLIC for a death claim on 30-8-2004. Thereafter on 6-12-2004 they filed a declaratory suit impleading the SLIC as a party. During pendency of the suit, on 21-2-2005 the said minors also applied for succession certificate in respect of the group insurance claim of their deceased father. The SLIC filed written statement in the suit on 13-4-2005. On account of their pending succession certificate application the plaintiff heirs withdrew their suit on 18-7-2005. Consequent upon the withdrawal of the suit, the SLIC paid the group insurance claim of Rs,9,98,500 to the wife of the deceased Mst.
Fouzia Jamshed on 14-10-2005.
3. Meanwhile, succession certificate was granted in the name of the plaintiff heirs of the deceased according to their respective shares. The widow of the deceased filed appeal against the terms of the succession certificate which was dismissed on 29-10-2007. A revision petition by the said widow was accepted and the matter was remanded on 14-7-2009 by this Court. However, in remand her appeal was again dismissed on 1-2-2010 and has attained finality. The conclusion arrived by the learned courts below is that the group insurance claim of the deceased Asif Jamshed Qadri forms part of his "Tarka" and that his three children from his divorced wife are entitled to their respective shares in his. Tarka under Sharia.
4. The present petition is filed by the three plaintiff heirs of the deceased ("petitioners") against the SLIC for failing to honour their right to receive shares in his "Tarka". The defence taken by the learned counsel for SLIC is based upon the provisions of section 19 of Central Employees Benevolent Fund and Group Insurance Act, 1969 ("Act') wherein it is provided, as follows:-- "On the death of an employee, the sum assured shall be paid to such member or member of his family as he might have nominated in accordance with the rules in full or in the shares specified by him at the time of making the nomination".
5. Learned counsel for the SLIC contends that based on the above noted provision of the Act, the Shariat Appellate Bench of the Hon'ble Supreme Court in Govt. Of Pakistan v. Public at Large (PLD 1991 SC 731) opined that a group insurance claim does not form part of the "Tarka" of a deceased.
That law was considered by the Hon'ble Supreme Court in Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others (2005 SCM R 512) wherein it is held as follows:-- "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".
6. Indeed in the Govt. Of Pakistan case (ibid) the Hon'ble Supreme Court clarifies at page 750 of the law report that the validity of the procedure for payment of group insurance clarim under Islamic Law is not a matter under consideration of the learned five member Bench. Therefore, observations in the said behalf are stricto sensu not the ratio decidendi of the judgment.
7. In the present case, the dispute between the petitioner heirs of the deceased regarding entitlement to shares in his group insurance claim was within the knowledge of the SLIC on account of a declaratory suit filed by the petitioneRs, Therefore unless the dispute was proved to have been resolved or settled, the SLIC ought not to have released payment of the claim to the nominee. This is because the provisions of section 73 of the Insurance Ordinance, 2000 read with Rule 8 of the Insurance Rules 2002 pertaining to the right of nomination are inoperative where the insurer has express notice about a dispute regarding entitlement to insurance money. In so far as statutory direction given in Section 19 of the Act is concerned, it may be observed that on similar facts as in the present case the Hon'ble Supreme Court in Mst. Ameeran Khatoon's case mentioned above has held the payment of group insurance claim to constitute a part of "Tarka" of the assured. This Court is bound by the view taken by the Hon'ble Supreme Court in the said precedent which is framed by keeping in sight the earlier judgment given in Govt. Of Pakistan v. Public at Large (PLD 1991 SC 731).
8. Accordingly, on the view taken above, the SLIC had in the present case an obligation under the law to honour the entitlement of the heirs of the assured in accordance with the law of Sharia. That obligation was, however, ignored on the basis of statutory provisions that are subject to Islamic provisions under Articles 2-A and 203 of the Constitution. The entitlement of the heirs of a deceased assured to the payment of group insurance claim has been affirmed by the Hon'ble Supreme Court in Mst. Ameeran Khatoon's case. Accordingly, the respondent SLIC was bound by its duty under law to respect such entitlement of the petitioneRs, The petitioners shall accordingly be paid by SLIC their respective shares/amount due to them under the group insurance claim arising from the death of the deceased assured within one month from the date of receipt of a certified copy of this order.