IRFAN SAADAT KHAN, J.--- This Miscellaneous Appeal (M.A) has been filed against the orders dated 22-2-2013 and 16-3-2013 passed by the 1st Additional District Judge, Karachi Central, in SMA No.51/2013 and on the application under section 151, C.P.C., filed on behalf of respondent No.1 in the said matter, respectively.
2. Briefly stated the facts of the case are that the petitioner is the widow of late Saeed Mansoori, who was a Police Constable and embraced Shahadat on 31-10-2012. He left behind the following legal heirs: Sr. No. Name Age Relationship 1 Mrs. Samina Naz 32 Years Widow 2 Master Muhammad Arsalan Mansoori3 Years Son 3 Master Muhammad Bilal Mansoori2 Years Son 4 Baby Dua Saeed alias Hiba7 Years Daughter (from 1 wife)
5 Mrs. Mumtaz Bano Mansoori63 Years Mother
3. Respondent No.1, who is a minor through her natural guardian, filed a Succession Miscellaneous Application (SMA) bearing No.51 of 2013 before the Court of 1st Additional District Judge, Karachist Central, in respect of the assets, left behind by the deceased, details of which, as given in para-6 of the SMA, are as follows:- -
(1) PLS Account No.0222-8405-1, National Bank of Pakistan, Nadir House, I.I. Chundrigar Road Branch, Karachi.
(ii) PLS Account No.03600000455, Meezan Bank, North Karachi Branch, Karachi.
(iii) Account No.1057-0071-003356-01-I at Bank Al-Habib Limited University Road Branch, near Shamama Shopping Centre, Karachi.
(iv) Compensation Amount as per Notification of Finance Department through its Secretary Government of Sindh, vide No.FD (SR-III) 10(06)12006 dated 20-5-2009 for grant of compensation of Rs.20,00,000 together with one plot.
(v) Group Insurance, death benefits, pays, pension, benevolent fund and others.
4. The aforesaid matter proceeded before the learned Judge, who, vide her order dated 22-2-2013, allowed the SMA by observing as under:--- "11. Since the petitioner has sought Succession and Letter of Administration regarding the properties mentioned in the schedule. The specific query was asked by the Court from the learned counsel for respective parties regarding amount mentioned in clauses IV and V of schedule of properties. The learned counsel for the respective parties have admitted that till yet the said amount has not been received or delivered by the department of the deceased. It is only an announcement by the concerned Department. So in my view till the said amount be delivered or the order for delivery of the same be passed by the concerned Authority then the petitioner and other legal heirs of the deceased could have sought. Succession on the said amount. So instantly the said amount is out of consideration and the prayer of the petitioner to that extent is declined.
So far the amount clauses I to III are concerned the respondent No.1 presented her statement and has avowed in that she has no objection if the share of petitioner and respondent No.2 Mst.
Mumtaz Bano be allowed to get the same as per their share.
12. Consequently, I am of the view that all the legal heirs of the deceased are agreed for distribution of the shares of each legal heir according to their share and sect so the instant petition is allowed to the extent of property mentioned in the schedule from clause I to clause III.
The Nazir is directed to call the said amount from the concerned departments and distribute the same amongst all legal heirs of the deceased as per their share and sect. Since presently the petitioner and respondents are seeking their share in the PLS Account and in the amount of bank left by the deceased so keeping in view the request of respondent No.1 the respondent No.1 is allowed to receive the share of the minor (a) and (b) for incurring the same in the benefits of the minors. Simultaneously Mst. Razia Sultana the mother of petitioner is allowed to receive the share of petitioner with specific directives, the same be incurred on the benefits of the minors. With these observations I depart from this order and the petition in hand is disposed of accordingly."
Thereafter on 6-3-2013 respondent No.1 filed an application under section 151, C.P.C. With the prayer that since the Court has not elaborated the issue of salary and three previous salaries have already been received by the appellant, the order dated 22-2-2013 may be elaborated. The said application was proceeded before the learned Judge, who, vide her order dated 16-3-2013, allowed the same by observing that all legal heirs of the deceased are entitled to get their share from the assets left by the deceased hence Nazir was directed to call salary of the deceased from his department and distribute the same among all legal heirs of the deceased as per their respective share. It is against the above orders that the present M.A. Has been filed.
6. Mr. Samsam Ali Raza, Advocate has appeared on behalf of the appellant and stated that the application under section 151, C.P.C., filed by respondent No.1, was an afterthought on her part, as no objection was raised by her when SMA was filed before the Court below, hence, in his view, the learned Judge was not justified in passing the order on the said application. He further stated that the previous order was a consent order passed in presence of the counsel for the respondents hence the learned Court was not justified in modifying the same. He further stated that the petitioner, who is widow of the deceased alone is entitled to get the monthly salary of the Shaheed.
Though the learned counsel conceded that respondent No.1 is also entitled to have share in the said salary but he has vehemently opposed the share of respondent No.2 in the said salary. He further stated that since the order passed on the application under section 151, C.P.C. Is a non- speaking order, the same is liable to be set aside.
7. Mr. Saad Bin Ather, Advocate has appeared on behalf of respondent No.1 and stated that since the counsel for the appellant himself admits that respondent No.1, being legal heir and family member of the deceased, is entitled to have her share in the properties left by the deceased including the salaries, he has not much to add, however, stated that the orders passed by the learned Court dated 22-2-2013 and 16-3-2013 do not suffer from any legal infirmity and hence the instant M.A may be dismissed. In support of his contentions the learned counsel has relied upon the case of Wafaqi Hakoomat-e-Pakistan v. Awamunnas (PLD 1991 Supreme Court 731).
8. Mr. Shoaib Ali Khan, Advocate has appeared on behalf of respondent No.2 and vehemently opposed the instant M.A. And stated that respondent No.2 being mother and legal heir of the deceased is entitled to be given share in the properties left by the deceased including the salary.
He stated that the instant M.A. Has been filed by the appellant with mala fide intention to usurp the properties left by the deceased. He further stated that respondent No.2 is the mother of the deceased and is an elderly woman and was wholly dependent upon her deceased son and hence she is also entitled for share in the properties left by the deceasedincluding the salary. In support of his contentions the learned counsel has relied upon the following decisions:---
(1) Mst. Rukia and another v. Ghulam Shah and another (PLD 1994 Peshawar 1),
(2) Mst. Sabra Begum and another v. Mst. Iffat Shafique and 2 others (2006 YLR 2678),
(3) Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others (2005 SCMR 512)
9. A representative of respondent No.3 has also appeared and stated that the department would abide by whatever decision is given in the instant case by this Court.
10. I have heard all the learned counsel for the parties and representative of the respondent No.3 and have perused the record of the case and the decisions relied upon.
11. It is noted that as far as the monies of the deceased lying in the bank accounts are concerned, the appellant has categorically stated before the Court below that though she has withdrawn these amounts from the banks but would give respective share to the other legal heirs.
12. The only question now involved in this case is regarding salary of the deceased. A perusal of the record would reveal that the appellant vide statement dated 22-2-2013, filed before the Court below, had categorically stated that she has no objection to give share to respondent No.1 .
However, it is contended by counsel for the appellant that the respondent No.2 has no share in the salary of the deceased, as the same does not form part of the Tarka left by the deceased. Perusal of the order passed by the. Shariat Appellate Bench, quoted supra, clearly reveals that as per section 2(5) of the Federal Employees Benevolent Funds and Group Insurance Act referred to in the said decision parents fall under the definition of term "family", hence, in my view, where the term "legal heir" or "parents" is used the same fall within the definition of term of "family" and they are entitled to receive Tarka left by the deceased.
13. I was also able to lay my hands on a decision given by the Division Bench of the Peshawar High Court in the case of Mst. Hussan Jamala and another v. Government of Khyber Pukhtunkhwa, reported as PLD 2013 Peshawar 1, wherein under identical circumstances the said learned Bench has observed as under:---
8. It is settled principle of law that the principle qua inheritance of Muhammadan Law would and should be applicable instead of any rule or, notification. The Holy Quran is a complete code oflife and the verdicts in Holy Quran and the saying of Holy Prophet Muhammad (P.B.U.H.) are the supreme law for Muslim Ummah. No preference could be given to the rules/orders/ notification against the supreme law laid down by Allah in Holy Quran and Holy Prophet Muhammad (P.B.
U.H.). As it is discussed earlier that the terms "legal heirs" has not been defined in Pension Rule, therefore it is directed that this para. No.6 of notification be deleted. It is also on record that succession certificate in respect of the legacy of deceased Muhammad Ayaz in respect of outstanding salary, G.P. Fund, Benevolent fund, Gratuity, group insurance, pension and otherfunds left by deceased Muhammad Ayaz has been issued by the competent Court of law (Senior Civil Judge/Guardian Judge Mardan) in favour of all the legal heirs of deceased including the present petitioners.
14. In view of what has been stated above, I am of the view that respondent No.2 being a legal heir and a family member of the deceased, who was wholly dependent upon him, is entitled to not only Tarka of the deceased but is also entitled to have share in the salary of the deceased as per sharia according to her sect. The orders passed by the Court below do not suffer from any legal infirmity; therefore, the instant M.A. Being devoid of any merit is hereby dismissed.