' SHEZADA MAZHAR, J. --- Present appeal has been filed against the judgment and decree dated 30.03.2012 passed by the learned Civil Judge, Rawalpindi whereby the suit for declaration under Section 42 of the Specific Relief Act, 1877 and for grant of perpetual injunction was partly decreed in favour of the appellants and partly dismissed.
2.' Brief facts which are necessary for the determination of the controversy between the appellants and respondents No, 1 to 4 are as under:---
(a) Usman Bin Safdar, son of the appellants, husband of respondent No, 1 and father of respondents No, 2 to 4, embraced Shandat while on duty in an air crash on 05.3.2009.
(b) Respondent No, 6 (Pakistan Air Force) gave Rs, 8,132,759.75 under the following heads:--- S.No, On account of Amount 01 Group Welfare Scheme Rs,1,600,000/- 02 Compensation out of Chief of Air Staff Aircrew Welfare Fund Rs,15,00,000/- 03 Lump sum grant of OBF (Officer Beneficiary Fund) Rs, 300,000/- 04 Assistance Package Death Compensation Rs, 10,00,000/- 05 Death Compensation Medical Welfare Scheme Officer Rs, 200,000/- 06 : Death Compensation Rs,200,000/- 07 Death Gratuity Rs,2,87,340/- 08 Lump Sum Gratuity in lieu of 1/4th Special Family Pension Rs,22,94,378/- 09 Funeral Charges Rs, 5,000/- 10 Payment of all Bank balances Rs,44,529.75 11 Finalization of Accounts Rs, 10,689/- 12 DSOP Fund (Defence Services Officers Benevolent Fund) Rs, 5,49,733/- 13 Payment un-availed Service leave Rs, 141,,090/- Total Rs,81,32,759.75
(c) In addition to the above-mentioned amounts, Respondent No, 6 also gave House No, 335 SDH, Falcon Complex, Walton, Lahore.
(d) All the monies were paid by way of crossed cheques in the name of the Respondent No, 1 which were deposited in the joint account of Appellant No, 2 and Respondent No, 1.
(e) Later Respondent No, 1 approached Banking Mohtasib, Pakistan for the release of money from the joint account on the pretext that she is entitled to receive the same to the exclusion of the Appellants and Respondents No, 2, 3 and 4. Respondent No, 1 also approached Respondent No, 6 for the transfer of the house in her name.
(f) Appellants filed civil suit for declaration and perpetual injunction wherein it was contended by the appellants that they alongwith the Respondents No, 2, 3 and 4 are entitled to their respective shares in movable and immovable properties being legal heirs of the deceased.
(g) The said suit was contested by the Respondents No, 1 to 4 and on the basis of pleadings of the parties civil Court framed as much as 10 issues. Both the parties led their respective evidence and after hearing the arguments of both the parties, Civil Judge was pleased to partly decreed the suit wherein it was held that the appellants and Respondents No, 1 to 4 shall inherit amount mentioned above against serial number 10 to 13 to the extent of their respective shares. Whereas the suit was dismissed to the extent of house and the remaining amounts mentioned at serial numbers 1 to 9.
Hence the present appeal.
3. Although in the grounds of appeal, the appellants had challenged the findings of the learned civil judge on all the heads mentioned at Serial Nos. 1 to 9 and house, however during the arguments learned counsel for the appellants have candidly agreed that the dispute is only towards the findings given regarding amount mentioned at Serial No, 1 and the house only and rest of the amounts are not in dispute.
4. Learned counsel for the appellants submits that although the impugned judgment and decree is purportedly based on earlier judgments of the Superior Courts, however the same does not fully appreciate the spirit of the said precedents and apparently has been passed without application of judicial mind. Further submits that the learned Civil Judge has mis-interpreted the relevant law and the judgment of superior Courts and principles of Shariah. Learned counsel submits that the impugned judgment and decree is based on surmises and conjectures and is result of non- reading and misreading of law and facts, Adds that the Trial Court has not appreciated the principles with respect to apportionment of properties given for honoring a deceased person and his service to the country. Learned counsel submits that if the properties given by respondent No, 6 are not appropriately apportioned and respondents No, 2, 3 and 4 are not given their due shares, a situation may arise where the said respondents will stand permanently deprived of their share in the properties given to honor the martyrdom of their deceased father and for their betterment.
Learned counsel submits that it is admitted that respondent No, 1 was nominated as the "Next of Kin" by appellant's deceased son, however the purpose of such nomination was to enable her to disposed of the properties received from respondent No, 6 to all legal heirs. In no way the nomination entitles respondent No, 1 to retain all movable and immovable properties to the exclusion of all other legal heirs of the deceased. In support of his contentions learned counsel for the appellants relied upon Wafaqi Hakoomat-e-Pakistan v. Awamunnas (PLD 1991 SC 750), Mst.
Ameeran Khatoon v. Mst. Shamim Akhtar & others (2009 PLC (C.S) 231), Muqaddar Khan v. Burmah Shell Oil Storage & Distributing Co. Ltd. Karachi & another (PLD 1968 Karachi 523), Mst. Amtul Habib & others v. Mst. Musarrat Parveen & others (PLD 1974 SC 185), Mrs. Shaista Younus Khan & 3 others v.
Mrs. Asia Khatoon & 3 others (PLD 1995 Karachi 560), Fatima Bi v. Mehnar Gul (1999 YLR 759) and Malik Safdar Ali Khan & another v. Public at Large & others (2004 SCMR 1219). Regarding cross objections learned counsel fully supported the judgment of the Trial Court and submitted that no evidence was produced by respondent No, 1 regarding gold ornaments and money, the same is still laying in the joint account and not a single penny has been withdrawn from the said account either by the appellants or respondent No, 1, therefore the same are liable to be dismissed.
5. On the other hand, learned counsel for respondents No, 1 to 4 forcefully supported the judgment of the learned Trial Court and submit that the same is based on the law laid down by the superior Courts. Learned counsel further submits that the judgment relied upon the learned counsel for the appellants i,e, Mst. Ameeran Khatoon v. Mst. Shamim Akhtar & others (2009 PLC (C.S) 231) was rendered in a case where leave was refused by the Hon'ble Supreme Court and it is settled principal that leave granting or refusing orders are not law and in this regard relied upon University of Health Sciences & others v. Mumtaz Ahmad & another (2010 SCMR 767). Learned counsel further submits that even as per rules of respondent No, 6, respondents No, 1 to 4 were entitled to the amounts given by the leaned Civil Judge and in this regard relied upon Exh.P.17 and P.19. In support of his contentions, learned counsel for respondents No, 1 to 4 relied upon Succession of the Assets, Securities, Properties and Accounts of Late Javaid lqbal Ghazanvi (PLD 2010 Karachi 153), Zaheer Abbas v. Pir Asif & 6 others (2011 CLC 1528), Wafaqi Hakoomat-e-Pakistan v. Awamunnas (PLD 1991 SC 731) and Messrs Pakistan International Airlines Corporation v. Mst. Alia Siddiqa & 3 others (2001 MLD 1). Regarding cross objections learned counsel submits that the Trial Court has totally ignored the material available on record. Respondent No, 1 has categorically stated in her statement that gold ornaments have been snatched from her and during the pendency of the suit admittedly appellants have returned 16 Tolas of gold ornaments to respondent No, 1, therefore it is proved that the ornaments have been snatched by the appellants. The finding of the learned Trial Court is liable to be reversed in view of the above evidence. It is further submitted by the learned counsel for respondent No, 1 that the amount was wrongly got credited in the joint account. The cheques were in the name of respondent No, 1 and the same could not be en-cashed in the joint account.
This evidence was sufficient to decide the issues No, 5 & 6 in favour of respondent No, 1, however, the learned Trial Court failed to conisider these facts while passing the impugned judgment.
6. We have heard the arguments of learned counsels for the parties and have perused the material on record and the relevant provisions of law applicable to the facts of the case.
7. We will first deal with the question as to whether the amount of Group Welfare Scheme in its entirety 's formed Tarka/estate of deceased or not?
8. Tarka/estate of the deceased consists of the immovable or movable properties, moneys and all other articles which he owned and over which he had complete control and dominion so as to enter into the transaction of sale, exchange, transfer, gift in respect of such immovable and movable properties, moneys and other goods/articles. In the light of above, it is settled that an amount which has accrued to an employee during his lifetime, whether he has received the same or not before his death, shall become part of the estate of the deceased and such amount had to be distributed among the legal heirs of the employee, as per the Personnel Law of the employee, after his death. In case an amount has accrued after his death then it is required to be seen, in the light of interpretation given by the Shariat Appellate Bench of the Hon'ble Supreme Court, whether the said amount falls in the category of Tarka/estate of the deceased or not. If the amount accrued is a "grant" or "concession" then the same will be payable to the nominee of the deceased, irrespective of the fact that the Personnel Law of the deceased states otherwise.
9. The amount of Group Welfare Scheme could not be claimed by the deceased during his lifetime nor the deceased could ask respondent No, 6 for payment under the said head which would go to establish that deceased had' power or authority to possess or claim any amount under the aforesaid head during his lifetime. This amount would have become due and payable to the deceased only after his death.
10. The Shariat Appellate Bench of the Supreme Court in Wafaqi Hakoomat-e-Pakistan v.
Awamunnas (PLD 1991 SC 731) has held that the amounts payable by way of Group Insurance did not come within the definition of estate/Tarka as the amount would not be payable to a deceased employee during the course of his employment until his death during service. In the said judgment Supreme Court has also discussed other heads and also holds that in case deceased had nominated a person for receiving the amounts/moneys under the different heads including Group Insurance, then the nominated person would be under no obligation to . Distribute them amongst the heirs of the deceased. Similar view was taken by the Sind High Court at Karachi in Messrs Pakistan International Airlines Corporation v. Mst. Alia Siddiqa & 3 others (2001 MLD 1), Zaheer Abbas v. Pir Asif & 6 others (2011 CLC 1528) and Succession of the Assets, Securities, Properties and Accounts of Late Javaid lqbal Ghazanvi (PLD 2010 Karachi 153).
11. The amount of Group Welfare Scheme is nothing but an insurance scheme which is payable to an employee of the Pakistan Air Force in case of his death during service. Therefore, we are of the considered opinion that the amount of Rs, 16,00,000/- is not formed part of deceased estate/Tarka and therefore not to be divided among the legal hairs of the deceased. The judgment of the Trial Court on that account is upheld.
12. Now we shall take up the issue of the house bearing No, 335 SDH, Falcon Complex, Walton, Lahore which was given to respondent No, 1 by respondent No,
6. The issue which needs to be determined by this Court is whether the nomination by the deceased for the purpose of receiving compensation will make the nominee exclusive owner of the immovable property to the exclusion of the other legal heirs of the deceased?
13. Learned counsel for respondents No, 1 to 4 stated that the house was not owned by the deceased at the time of his death and therefore not fall under the estate/Tarka of the deceased.
The house is given free of cost to the nominee of the deceased as per the rules of respondent No, 6.
14. Perusal of the record reveals that the deceased during his life-time provided detail of the beneficiary for compensation in case of fatal flying accident. Name of respondent No, 1 is appearing as the beneficiary for compensation in the form (Exh.P.7). Respondent No, 6 basing upon this information and relaying upon the Pakistan Air Force Rules (JS1 3/69) (Exh.P.29), (JSI 9/63)
(Exh.P.31) and Joint Service Instruction (Exh.P.30), gave the opinion that nominee is entitled to receive the house. The said opinion is placed as Exh.D.17 on the record of the case. The form deals with the compensation which according to the Oxford English Dictionary means something typically money, awarded to someone in recognition of losst suffering, or injury. Similarly the perusal of Rules (JSI 9/63) revels that they are related to the payment of monetary allowance and did not deal with the grant of immovable property. The house is neither money nor monetary allowance even then one can say that the house has been given as compensation or monetary allowance and therefore, payable to the nominee of the deceased, but the matter does not end here.
15. From the record it further revelled that the house was given free of cost to the deceased being member of the Air Force Officers' Housing Scheme (AFOHS). Clause 10 of the terms and condition issued on 31st of July, 2007 of AFOHS (Exh.P.3) states:--- ' Death Cases: In the event of death of a member, his/her next of kin will be allotted the house, freeof cost, at the finally indicated city from the deceased and no option for change will be allowed, provided the deceased was covered by AFOHS Family Welfare Fund. However, in case of city preference as Karachi, there will be ballot between AFOHS site Faisal and Malir. After ballot the resultant site is fixed for allotment of AFOHS house to the NOK of the deceased officer.
' This means the moment any person becomes member of the AFOHS, he/she becomes entitled to a house in chosen city either on payment of the house or free of cost to his/her nominee in case of his/her death during service.
16. From the above, it is clear that the deceased had full knowledge that the house will be allotted to him either on payment or free of cost in case of death during being member of the AFOHS.
Respondent No, 6 relaying upon the nomination by the deceased for the compensation, awarded the house to respondent No, 1 in exclusion of other legal heirs. This nomination can dis-entitle the other legal heirs of the deceased? Whether the nomination will be considered as transfer of property?
17. To us this nomination cannot be treated as a valid transfer of the house from the deceased to the nominee. Nomination is neither will nor a gift, therefore the same cannot be treated as a transfer of the immovable property. In Mst. Amtul Habib and others v. Mst Musarrat Parveen and others (PLD 1974 SC 185) the Hon'ble Supreme Court has held that 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 Muhammadon 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 present case no question of delivery of possession of the plot at the time of nomination was made, for, at that time no plot had even been allotted to him. Similar view was taken by Sindh High Court at Karachi in Muqaddar Khan v. Burmah Shell Oil Storage and Distributing Co. Ltd., Karachi and another (PLD 1968 Karachi 523) wherein it was held that brother of the deceased as his nominee cannot claim fund as having been bequeathed to him by will a fortiori when such fund non-existent at time of nomination. The Hon'ble Supreme Court in Malik Safdar Ali Khan & another v.
Public at Large & others (2004 .SCMR 1219) held that unless a nomination could amount to a valid gift inter vivos, same could not pass title to nominee in respect of immovable property.
18. From the above it is held that the house is to be devolved upon the legal heirs of the deceased which include the appellants as well as respondents No, 2 to 4. However, as the appellants have already forgone their share in favour of respondents No, 2 to 4, therefore respondent No, 6 shall transfer the house No, 335 SDH Falcon Complex, Walton, Lahore in the joint names of respondents No, 1 to 4.
19. Now with regard to the cross objections, it is admitted by the learned counsel for the respondents/objector that the amount is still lying in the account and not a single penny has been drawn from the said account. Further the finding of the learned Trial Court with regard to the "good intention" of the appellants is in accordance with law and facts of the case, therefore the same is upheld.
20. In view of the above, the present appeal is partly accepted to the extent of house No, 335 SDH, Falcon Complex, Walton, Lahore and regarding claim of Group Welfare Scheme is dismissed. The cross objections filed by the respondents are also dismissed. Civial .