' SADIQ HUSSAIN BHATTI, J.---The appellant has assailed the order dated 18-8-2011, passed by III Additional District Judge, Malir, Karachi whereby S.M.A. No. 37 of 2010, filed by the respondent No.1, was allowed.
2. Facts of the case, relevant for disposal of the instant appeal, are that one Muhammad Naeem Ikram son of Haji Muhammad Ikramuddin, died at Karachi on 19-10-2009. His widow, respondent No.1, filed S.M.A. No. 37 of 2010 before the District Judge, Malir, praying for issuance of succession certificate in respect of recovery of final service dues of her late husband amounting to Rs.761,146.
The appellant filed an application therein under Order. VII, Rule 11, C.P.C. He also filed Preliminary Legal Objections by filing an application under section 151, C.P.C. In the said SMA and also filed an application under sections 192 and 193 of the Succession Act, 1925 read with section 151, C.P.C. In these two applications the appellant mainly raised two objections: (i) that the respondent No.1/petitioner has not set forth the true assets/debts of the deceased in the SMA and (ii) that the respondent No.1 / petitioner has not disclosed the names of all the legal heirs of the deceased in the SMA. The learned trial Court, after hearing the parties, allowed the SMA filed by the respondent No.1 vide order dated 18-8-2011, which has been assailed by the appellant through the instant appeal.
3. Mr. Shakir Hussain, learned counsel for the appellant, submitted that the deceased left behind a widow and five daughters only and he was not survived by either his mother or father or by a son.
Therefore, in view of the Islamic law of inheritance, his brothers and sisters would also be treated as legal heirs of the deceased. He also submitted that the respondent No.1 has not disclosed the complete list of the properties, both moveable and immovable, left behind the deceased and if the same are mentioned the value of the SMA would have exceeded the limit of the pecuniary jurisdiction of the Additional District Judge. In this view of the matter, according to the learned counsel for the appellant, the learned Additional District Judge, Malir was not justified in allowing the SMA filed by the respondent No. 1.
4. On the other hands Mr. S. Amir Azam, learned counsel for the respondent No.1, submitted that the respondent No.1 has only filed SMA in respect of service benefits of the deceased, amounting to Rs.761,116. He stated that since the said amount comprised of benevolent fund, group insurance etc., which do not form part of "Tarka", therefore, the same is not to be distributed among all legal heirs of the deceased but only to the family members of the deceased. In this regard he also referred to Group Insurance "Act, 1969 wherein term "family" has been defined.
5. The main dispute in this case is whether appellant and his brothers and sisters are also to be treated as legal heirs of the deceased in respect of the salaries, financial aid and group insurance, in respect whereof respondent No.1 filed SMA No.37 of 2010.
6. The -learned Additional District Judge, Malir, while allowing. The SMA filed by the respondent No.1, has dealt with this aspect of the case and, after referring to the above cited case (PLD 1991 SC 731) held as under:-- "In present case the petitioner being widow of the deceased has only sought succession to the extent of amount of Rs.7,61,116, the service benefits of the deceased, so keeping in view this aspect I have taken guidance from the case-law reported in PLD 1991 SC 731, in placitum 4, the honourable Supreme Court was pleased to hold that benevolent fund, group insurance do not fall under the definition of Tarka, it is also held in above mentioned authored by the honourable Supreme Court that Benevolent Fund and group insurance are donations (Attia) and are not Tarka.
Simultaneously, the pension and gratuity amount also do, not fall under the domain of Tarka, therefore, the same could not be distributed in sibling of the deceased and admittedly the objector is the brother of the deceased, who does not come under the domain of family of the deceased."
7. The word which is used for the estate left behind by the deceased and which is distributable among his legal heirs as per their respective shares, is "Tarka". In the case reported as "Wafaqi Hukumate-Pakistan v. Public at Large (PLD 1991 SC 731) "Tarka" has been defined as "maal"
(property) which not only includes "property" but also right to property. It has further been explained that right to property A means a property which is due to the deceased from any other person and which, though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his life time. Thus, in Tarka all moveable and immovable properties owned and possessed by the deceased at the time of his death and also those sums which are due to the deceased from any other person are included.
8. A similar issue came up for hearing before my learned brother Faisal Arab J. In the case; In the matter of Succession of the assets,-Securities, Properties and Accounts of late Javed Iqbal Ghaznavi (PLD 2010 Karachi 153), wherein his lordship held as under:-- "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 ally part of it remains unpaid during his lifetime then the same becomes heritable 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 of concession that is intended to give to an employee or after his death to any member of his family.
"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 payable 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 regulations of service provided by the employer. Let the service benefits be distributed in terms of this order".
9. As mentioned in para 2 of the memo of this appeal, the amounts claimed by the respondent No.1 in the SMA are basically death benefits of the deceased which he could not claim during his life time and, thus; the same do not form part of his Tarka and, therefore, not divisible among all the legal heirs of the deceased. In this view of the matter the said amount of Rs.761,146 is not inheritable by all the legal heirs of the deceased but is to be paid to the family of the deceased for their sustenance and maintenance.
10. Learned counsel for the appellant, in his arguments, referred to section 2(5) of the Group Insurance Act and stated that the family has been defined therein as wife/wives or husband, parents, minor brothers, unmarried/divorced and widowed sisters of the employee residing with and wholly dependent upon him/her. In the present appeal it is not the C case of the appellant that either he or any of his brothers or sisters was residing with the deceased and was wholly dependent on him. On the contrary, it is claimed that a hefty amount was given to the deceased by his elder brother Muhammad Saleem for construction or renovation of his house. Even otherwise, the appellant cannot plead the case of others as they are not before this Court.
11. Learned counsel for the appellant relied on the case of Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others (2005 SCM R 512) but in that case the dispute was not between brothers and sisters of the deceased with the wife and daughters of the deceased, rather the dispute was between mother and the widow of the deceased, both of whom were dependent on the deceased.
Thus, this case is not relevant for the purpose of this appeal as it is distinguishable on facts.
12. So far as the objection of the appellant that the deceased owned other movable and immovable properties also is concerned, the trial Court held that "in this respect he has not presented any cogent, concrete and valid documents to strengthen his case." I am also of the opinion that mere words of the appellant are not enough and he was required to support his claim by cogent documentary evidence.
13. The upshot of the above discussion is that the impugned order does not suffer from any infirmity and accordingly, this appeal is dismissed. In case there are any other properties of the deceased which form his Tarka, then the brothers and sisters of the deceased may agitate their case before the competent forum which would be decided on its own merits.