Through this Miscellaneous appeal, the appellant has challenged the legality of the order dated 31st October 2013 passed by IVth Additional District Judge, Hyderabad in Succession Application No, 173 of 2013 "Re-Mst. Ameena Vs Abdul Samad & Ors" whereby directing the Respondent No, 5 to withdraw all amount i,e benevolent fund, amount of compensation and other service benefits of deceased Rashid Rajput Chohan except Group Insurance amount which was already withdrawn by Appellant No, 1/Opponent No, 2; it was also directed to Appellant No, 1/opponent No, 2 to deposit group insurance amount with Respondent No, 5 for its, distribution among all legal heirs.
2. Succinctly, but relevant facts, for disposal of the instant Misc. Appeal are that Respondent No, 1/applicant filed Succession petition for issuance of succession certificate in respect of debts and securities/service benefits with power to collect the same from concerned department.
3. It is further pleaded that deceased Rashid Rajput was working in Sind11 Police as police constable; was killed(Shaheed) during snap-checking on 01.6.2012; through order No, SSC/1/12693 dated 13.6.2012 deceased was granted posthumous proniotion to higher rank of Head constable with effect from 01.6.2012 in recognition of his bravery and gallantry act; AIG/Welfare for Inspector General of Police Sindh, Karachi also issued declaration order of Shaheed and granted financial benefits/compensation amounting to Rs, 20,00,000/- (two millions ) as per policy of Government verb. Finance Department No, FD (SR III) 10(06)2006 dated 20.5.2009 alongwith pay and allowances and other benefits as specified by. Government from time to time till age of superannuation of above Shaheed. Deceased had left him surviving following Persons as legal heirs:--
(i) Erum........... Widow (appellant/Respondent No, 2)
(ii) Minahil.............. Daughter (minor)
(iii) Yesparar......... Daughter (minor)
(iv) Aisha.............. Daughter (minor)
(v) Mst. Ameena .... Mother (Respondent Nu. 1,applicant,
(vi) Abdul Samad .... Father (respondent/opponent No, 2,
4. On service of notice (s) the Appellant Opponent No, I caused appearance and filed objections.
5. The learned lower Court Judge, having heard the parties, allowed the succession petition of the Respondent No, 1/applicant vide or (ler, impugned through this Mise. Appeal.
6. Learned counsel for the appellant has argued that there is much difference between assets of the deceased liable to be distributed among the legal heirs or those which, one (employer) grants as aid/ assistance which deceased was neither owning nor possessing therefore, order impugned is illegal and not sustainable. In support of his contentions, he has relied upon Federal Government of Pakistan v. Public at large (PLD 1991 SC 731).
7. On the other hand, the learned counsel for the Respondents Nos. 1 and 2 opposed the Misc.
Appeal while arguing that order of learned lower Court is legal, valid and proper and is based on proper interpretation of the judgment of _honourable apex Court hence not open for interference and relied upon PLD 2013 Peshawar 1.
8. I have heard the respective sides and have gone through the available material.
9. At the very outset, I would like to add here that the status of the parties to be legal heirs of the deceased albeit, is not disputed but root question, involved in the matter, was always entitlement of the amount (s), including service benefits among them.
10. There can be no cavil to deny that the legal heirs are entitled to inherit what the deceased leaves behind him whether movable or immovable, including a right of claim which would be available for distribution among the legal heirs as per their legal entitlement. Let me be a little specific. Only what could be distributed among the legal heirs which the deceased was owning or possessing as owner and all other claims and rights which the deceased himself was entitled to make during his life time. It is always the left assets of the deceased which the legal heirs can distribute among them as per their legal entitlement. The 'the left assets of the deceased' has been termed as 'TARKA' which, no doubt, is inheritable by all the legal heirs as per their entitlement but this term would not include those things which would fall within meaning of ' concession' 'grant' or 'compensation' particularly when such things become due after death of the person. Another test to understand the difference between 'TARKA' liable to be distributed among legal heirs or 'other dues'. Is that: as to whether deceased during his life time could have claimed the same?
OR was the deceased entitled for the same at time of his death?
If the answer to above proposition is in 'affirmative' then such things would also form the part of the 'TARKA' liable to be distributed among the legal heirs but if the answer is in 'negation' then that would be liable to be given as per terms under which such 'concession' grant' or 'compensation' are directed to be disbursed. The claim or question of entitlement of the legal heirs would have no relevance for such amount.
11. It is pertinent to mention that one must always keep in mind another difference between 'TARKA' and those falling within meaning of 'concession' grant or 'compensation. The former is the absolute property of the deceased therefore, the same shall be governed by law of inheritance of the deceased while the later was/is not the property of the deceased but it was by one (employer e.t.c) after death of the person hence if the person, (giver) wants it to be given only to one out of hundred legal heirs of the deceased, the other would not be legally justified to object the same because such 'concession' grant' or 'compensation' is to be dealt as per wishes of the giver. Thus it could be the giver (employer e.Te) who is the chooser for entitlement of the amount being given by him(employer
12. Regarding the status of the 'group insurance' of a deceased employee the law stood clear that this being falling out of scope of 'TARKA' hence would not be available for its distribution among the legal heirs but would be dealt as per relevant rules and procedure, so framed by the employer (government) for such purpose.
13. I have gone through the case laws, referred by the learned lower Court including one, reported as 2005 SCMR 512 wherein 'amount of benevolent fund and Group Insurance' was held to be part of 'TARKA". Without prejudice to the binding effect of decision of honourable Supreme Court of Pakistan, I would state that in this Judgment the honourable Supreme Court referred to the landmark case of Wafaqi Hukumat-e-Pakistan v. Awamunas (PLD 1991 SC 731) and at no place disagreed with the same. It is always to be kept in mind that in said judgment (,PLD 1991 SC 731) the 'Benevolent & Group Insurance amount' were held to be not part of 'TARKA' and since the judgment (2005 SCMR 512), nowhere, disagreed nor declared the decision of judgment (PLD 1991 SC 731) to be not legal hence the differing conclusion, being with reference to said judgment was already discussed by this Court IN THE MATTER OF SUCCESSION OF THE ASSETS, SECURITIES, PROPERTIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNAVI reported as, PLD 2010 Karachi 512 that:
9. In the case reported in 2005 SCMR 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 report in PLD 1991 SC 731, mistakenly interpreted it conversely which appears to be typographical error as service benefits wanted towards Benevolent fund or Group Insurance were not treated as heritable benefits in terms of the principle laid down in PLD 1991 SC 731.
(underlining has been applied for emphasis).
14. At this juncture, it would be worth to add here that 'Benevolent fund & Group Insurance' amount were held as not part of 'TARKA" and the case law (PLD 1991 SC 73k) is continuing holding the field and is being followed thus the binding effect thereof within meaning of Article 189 of the Constitution has to be given due regard. Further, the status of Benevolent fund and Group Insurance to be not part of 'TARKA' was confirmed IN THE MATTER OF SUCCESSION C OF THE ASSETS, SECURITIES, PROPERTIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNAVI reported as PLD 2010 Karachi 512 that:
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 remains unpaid during his lifetime when 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 pay able 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 and 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 payable after the death of 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. In ' the case of Muhammad Naseem Ahmed (PLD 2014 SINDH 290), it is held as under:--
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 Hukumat Pakistan s. 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 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 movable 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. In ' the case of Miss Riffat Yaseen (2014 CLC 126), it is held as under:-- ' General Provident Fund, leave salary, leave encashment and gratuity would fall in TARKA while group insurance, financial assistance and benevolent fund are not falling in TARKA (as same are grant of concession)
15. In view of above discussion, I am of the clear view that the learned lower Court wrongly held the ' group insurance amount' to be part of ' TARKA' hence direction, given by lower Court, to applicant for distribution of the group insurance among all legal heirs is entirely misconceived.
16. I have also gone through the case law, reported as PLD 2013 Peshawer-1 wherein while following the principle, so decided in the case of PLD 1991 SC 731, it was held that 'compensation package comes within the definition of TARKA'. In this regard, it would be pertinent to mention here that above case is not applicable in Province of Sindh as according to Notification by K.P.K. Government that amount was payable to legal heirs, which patently reflects from the relevant portion of above judgment:-- "4. Applying above test on the facts of instant case we are persuaded to hold that the compensation package comes within the definition of Tarka, and after the death of Shaheed his legacy has to be devolved amongst the Quranic legal heirs.
5. In the opening para of notification dated 22.2.2011 it is declared that this uniform compensation package is for the "legal heirs" of:--
(a) Provincial Police Personnel And
(b) All the civil servants of the Provincial Government.
6. In Para No, 6 of the above notification it is stated "for the purpose of this notification the terms "legal heirs" shall have the same meaning as in the Pension Rules of Government of Khyber Pakhtunkhwa. The term legal heirs has not been defined any where to the Pension Rules, Only the term "family" has been defined in Rule 4.7. This term "family" is definitely and absolutely different from the terms of the legal heirs of the deceased, who are entitled to get their shares as laid down in Sura Nisa of Holy Quran."
(underlining is supplied for emphasis).
17. Whereas Notification No, FD (SRIII) 10 (06)/2006 issued by Government of Sindh reflects that compensation to the Shaheed officers/officials of Sindh Police is payable to the family, further it is specified in S.O.P regarding SHAHEED DECLARATION AND PAYMENT OF COMPENSATION in following manner:--
(i) First right of financial compensation is for widow of Shaheed Police Personnel if he is married.
(ii) In case of more than one widows amount will be equally distributed irrespective of number of Children or period of marriage.
(iii) In case of death or divorce of wife of Shaheed before Shahadat, the compensation will be paid to the parents or legal guardians of the kids, whosoever is available.
(iv) If Shaheed is not married, compensation will be paid to father or mother whosoever is alive and to father if both are alive."
Thus, there is no dispute that the rights and claims of the deceased which he had during his life time, but does not includes that it (TARKA) shall include any other amount which is given/paid by the employer. Here one thing is also needs to be clarified that 'compensation', if being paid for Qatl-e-Amd or Qatl-e-Khata of the deceased by the guilty (accused) it would be heritable by all legal heirs, but if an amount, under whatever name it may be, is being given by employer (e.t.c.) it shall not be equated to that of 'Diyat/compensation'. We cannot confine the wishes of a person (employer) to help the deceased's family in the manner he wishes nor we can put a restriction on the right of the choice 'giver' because it is the discretion of 'giver' to choose best person out of the legal heirs of the deceased as 'fit person'.
18. In view of above discussion, I am of the clear view that order of the learned lower Court is not based on proper appraisal of the settled law hence needs to be interfered. The benevolent fund, amount of financial compensation regarding Shahadat of deceased (Shaheed) Constable Rashid Rajput and Group Insurance shall be dealt with strictly in accordance with service rules as discussed above without being influenced with question of inheritance as these shall not form part of the ' TARKA' of the deceased. The Appellant/Opponent No, 2 is not liable to distribute the amount of Group Insurance which she has already received from the department. Further, appellant is also entitled to receive the compensation payable under the scheme provided to Shaheed officials.
However, order of the learned lower Court to extent of other service benefits due, being in line with law, needs no interference. Accordingly, Accountant District Court, Hyderabad shall continue, with authority to withdraw such amount and to ensure proper distribution of same among all legal heirs. He would invest the amount of share of minors legal heirs in some government profitable schemes. The entitlement of the appellant/opponent towards Pay and allowances and avail of other benefits as specified by the Government from time to time till the age of superannuation of deceased constable Rashid Rajput is also maintained, however, with clarification that this shall continue till she does not marry meaning thereby continues as ' widow' of deceased.
19. The appeal is accordingly disposed of in above terms. Facsimile copy of instant order shall be sent to the relevant quarters for compliance.