' SALAHUDDIN PANHWAR, J.--- Through instant SMA, petitioners are seeking letter of administration in respect of properties left by deceased Mst. Naseem Begum daughter of late Hamid Ali Khan, who died on 22.11.2009.
2. Precisely, relevant facts, as set out in instant petition, are that Mr. Muhammad Umar Farooq contracted marriage with Mst. Naseem Begum (deceased) who was divorcee as well issueless and was residing at Flat No.A-37,Arshad Plaza, Phase 2, SB-44, Sector 11-H, 4th. Floor, North Karachi. From this marriage she had no issue, however she left Muhammad Umar Farooq (husband) and Jamhed All (real brother) aged about 80 and 70 years respectively as her legal heirs. It is further pleaded that parties approached 4th Senior Civil Judge Karachi in respect of partition. It is also pleaded that flat as referred above, is the sole property of petitioner, son of Muhammad Umar Farooq, being benami owner as deceased purchased this property for the benefit of petitioner as well deceased made nomination of Muhammad Umar Farooq father of petitioner while purchasing flat. Besides following properties are claimed as left by deceased:- i. Balance in A/c No.19614-8, National Bank of Pakistan, North Karachi Township Br, Karachi. ii. Balance in PLS A/c No.3047-4, Muslim Commercial Bank, 5-G New Karachi Br. iii. Behbood Saving Certificates No.E576245 and E576246, C496720 and C496721 National Saving Center Branch Sector 11-I, Power House Chowrangi, North Karachi. v. Flat No.A-37, Arshad Plaza, Phase II, SB-44, Sector 11-H, 4th floor, North Karachi, admeasuring 81.86 sq. Yards. vi. Residential plot No.R/H/993, 120 sq. Yards, amount deposited Rs.27,100/-, and
(vii) Residential Plot No.L-514, 100 sq. Yards, amount deposited Rs.50,000/-, both situated in Gulshan-e-Ahmed Housing, scheme at Kalo Kohar Thana Bola Khan, District Jamshoro, Superhighway/ Link Road, Noriabad. viii Residential Plot No.B-22, 400 sq. Yards, after 20% valued about Rs.440,000/- payable to Messrs Bagh-e-Noor after borrowed and invested by respondent No.2. ix. More than Rs.17,00,000/- borrowed/invested by respondent No.1 in his secret accounts, moveable and immovable properties, from said deceased PLS A/c No.196148 NPB and from her PLS A/c No.247317 of HBL jointly operated at North Karachi Branch.
3. Pursuant to the notices, officer in-charge of National Saving Center, North Karachi, has submitted report contending therein that Mst. Naseem Begum during her lifetime purchased Behbood Saving Certificates to the tune of Rs.11,00,000/-. While purchasing said certificates she nominated Mr. Asad Ali Khan in the specified place of form for purchase of such certificate as nominee. As per report, in terms of Rules of NSC after the death of aforesaid deceased, her nominee Asad Ali Khan encashed such amount.
4. Respondent No.1 filed objections wherein he has pleaded that petitioner usurped 60% of gratuity fund of deceased; properties as mentioned in the schedule are not owned by deceased; as well he has disputed other amounts left by deceased..
5. I have heard the learned counsel for respective parties and have also perused the available material.
6. Learned counsel for petitioner has inter alia contended that nominee is not entitled to receive any amount as per judgments of superior Court; nominee is only the, person who can collect the amount and is required to distribute the same among the legal heirs. Whereas counsel for nominee Asad Ali Khan contended that deceased was issueless and he was adopted son therefore nomination gives declaration that he is owner; as well Rules framed by NSC permit him to hold that money as owner.
7. On this issue, Mr.Khawaja Shamsul Islam Advocate and Mr. Adnan Iqbal Choudhri advocate were appointed as Amici Curiae to assist. This Court as well notice was issued to Additional Attorney General to examine the validity of National Saving Center's Rules with regard to nomination.
8. Pursuant to that Mr. Adnan Iqbal Choudhri advocate, learned Amicus Curiae, has submitted written submissions while relying upon case of Ameeran Khatoon v. Shamim Akhtar (2005 SCM R 512), case of Malik Safdar Ali Khan v. Public at large (2004 SCM R 1219) and Amtul Habib v. Musarrat Parveen (PLD 1974 SC 185) and has opined that in view of above judgments the amount held in the name of deceased under any saving scheme/certificate forms part of estate of a deceased and would be governed by the law of inheritance. The form of any saving scheme or Rules framed for such saving scheme cannot override the law of inheritance. He has also referred Muslim Personal Law (Shariat) Application Act, 1937. He has further contended that nomination made by a person during his lifetime for any amount held by him in a saving scheme would not operate as a will or a gift, such nomination cannot be construed to deprive the legal heirs of their lawful share in the estate of a deceased.
9. Whereas Mr. Khawaja Shamsul Islam advocate, learned Amicus Curiae has also submitted written submissions contending therein that issue is already decided by our own High Court by Mr. Justice Wahid Bux Brohi in case of Bushra Farooq v. Shabana Rafiq (2002 CLC 1502) whereby it is concluded that "As regards the legal effect of nomination it is relevant to observe here that the provision of nomination in the Rules wherever it defeats the right of heirs is to be interpreted strictly as this provision of the Rule derogates from the general law that in case of inheritance the Muslim Personal Law is applicable to the parties. Rule 13 of the Defence Saving Certificates Rules makes a provision for nomination and the claim of defendant No.1 is based on this, provision, but since it is flagrantly in direct conflict with the substantive law of inheritance it can legitimately be observed that the substantive law should prevail and the rules being subordinate legislation shall give way to it." He has also referred case of Malik Safdar Ali Khan v. Public at large (2004 SCM R 1219), case of Ameeran Khatoon v. Shamim Akhtar (2005 SCM R 512), case of Imtiaz Shamim v.
Muhammad Irian-ul-Haq (2006 CLC 1189) and has concluded that in view of aforesaid cases nominee would never act as an owner.
10. Mr. Salman Talibuddin, learned Additional Attorney General while endorsing the stance taken by learned Amicus Curiae, has further contended that Behbood Certificate form available in record, issued by National Saving Center, is not properly shaped in view of personal law as well that form is not applicable to minorities hence National Saving Center should reshape that form. He has further contended that amount invested in saving scheme by deceased shall be released through cross cheque in the name of all legal heirs however nominee may be allowed by NSC or the bank, as the case may be, to collect the same on behalf of legal heirs. In case any portion of such amount is not received by a legal heir, nominee shall be directed to invest that amount in the same saving center/bank. He has also contended that at the time of investment by any person, in case of nomination, nominee shall be called by the saving center/bank for his acceptance and his acceptance statement shall be recorded that he would receive that amount and distribute it among the legal heirs.
11. Before proceeding further, it would be relevant and material to have a direct referral to operative.
Part of the order of this court dated 10.02.2016 which is: ' Since, the NSC has its own rules and regulations which have application upon its customer (s) on his/her signing the requisite terms/forms etc. But on customer's death there arise legal ambiguity in interpreting its (NSC's) term(s), defined by rules and regulations. Under these circumstances, judicial propriety demands hearing of this matter on this legal issue(s):
(i) Whether nominee would act as owner or he/she can be termed as assignee or that amount would yet be treated as tarka?
(ii) Whether an active act of owner in choosing one to be his/her nominee among or out of list of his successors will loose its value after his/her death?
' Worth to add here that above propositions surfaced because of referral of guidelines (Rules 13 and 16 of Defence Savings Certificates Rules, 1966) provided by the Central Directorate of National Savings with regard to Defence Saving Certificate(s) and Rule 29 of Mahana Amdani Account Rules, 1983, which are: ' Rules 13 and 16 of Defence Savings Certificates Rules, 1966: "13. (1) In the case of purchase of certificate by individual or individuals, whether adult or minor, holding the certificate singly or jointly, nomination may be made by the purchaser(s) of certificate in the application form at the time of the: purchase, specifying the amount, whether whole or in part receivable by the nominee on the death of the purchaser(s).
(2) subject to the provisions of rules 10 and 11, nomination made under sub-rule (1) of this rule shall be valid notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise.
(3) Nomination made under sub-rule (1), of this rule shall cease to have effect in case the nominee dies before the death of the holder or before he has received any sum thereunder."
"16. It shall be open to nominee under rule 13 to receive the amount due to him on the death of the holder either immediately or on maturity of the certificate."
' Rule 29 of Mahana Amdani Accounts Rules, 1983: "Nominee or successor as depositor- (1) On the death of depositor his nominee or the persons holding a succession certificate under the Succession Act, 1925 (XXXI of 1925), shall be treated as depositor for operating the account of the deceased under these rules. If the nominee or person holding the succession certificate is a minor, his legal guardian may, operate the account till he attains majority."
' The above guidelines, per their plain reading, make it clear that on 'death of holder of Saving Certificate' or 'Mahana Amdani Account' the 'nominee' enjoys an absolute and exclusive right to 'receive the amount' either immediately or on maturity thereof. In short, per the Rules of NSC, the death of holder of certificates results into placing the 'nominee' as owner of certificates which is a prima facie exception to general and legally established principle that: holder of saving certificates otherwise continues the status of owner thereof hence legally on death of holder of saving certificates, it (saving certificate) should attain status of 'TARKA' which (tarka) should otherwise legally devolve upon legal heirs/successors. To be more specific in respect of 'status' of Saving Certificates, as falling within meaning and definition of 'Tarka' , At this juncture it would be conducive to refer the meaning of 'Tarka' first.
12. It is pertinent to mention that before insisting 'inheritance' in respect of certain property or claim, it must be clear that either the deceased, at the time of his death, was owner thereof or was legally entitled to claim such thing as his own property during his life time. In short, the 'succession' shall be opened for those which one (deceased) was 'owner' and meaning of the 'owner' shall be decisive in such like matters. The term 'owner' per Black's Law is meant:- 'One who has the right to possess, use, and convey something; a person in whom one or more interests are vested. An owner may have complete property in the thing or may have parted with some interests in it (as by granting an easement or making a lease). '
From the above, it is clear that it is not necessary that to qualify the term 'owner' one must be in possession and control of a thing but it would be sufficient if he was otherwise legally entitled to collect/receive the same within his right of ownership and legally competent to enter into a transaction of sale, exchange, transfer, gift etc. Thus, I can safely conclude that the term 'tarka' shall not be allowed to be 'interpreted' in any other ways except the one defined by honourable Apex Court which was concluded by me in the case of Erum v. Ameena (PLD 2015 Karachi 360), as: "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 that 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."
' Thus, on above touchstone 'status' of such saving certificates, if are in name of holder of 'Certificate(s)', would squarely fall within meaning of 'TARKA' as there is no denial to fact that 'holder of saving certificate' within his/ her life time can competently claim encashment thereof. However, the reading of the Rule 13(2) of NSC speaks: '.... Nomination made under sub-rule (1) of this rule shall be valid notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise'.
' This prima facie is in conflict to right of legal heirs hence compelled me to formulate following proposition: 'Whether guidelines or rules of an Organization or institution can over-rule a command of established law (of inheritance) or principle of law enunciated by Supreme Court of Pakistan even if consented by the subject?'
' The Substantial law, per Black's Law, means: 'The part of the law that creates, defines, and regulates, the rights, duties and powers of parties.'
The law of 'inheritance', in all faiths, does create, defines and even regulates the rights, duties and power of its subject therefore; it (law of inheritance) shall fall within meaning of _`substantial law'.
Even otherwise, the Constitution does recognize 'any Custom or Usage' as `LAW' if it is having the force of law which shall, undeniably, would be in the case of `inheritance' for all the faith(s). Further, the 'Annex, detailed and defined by the Article 2-A of the Constitution, does provide 'effect' to such law while saying: "WHEREIN shall be guaranteed FUNDAMENTAL RIGHTS including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association,..."
Hence relevant to mention that a person, including an organization, can competently frame Rules and Regulations to run its affairs/business but E the `dictates' of Article-5 (2) does put a restriction by saying: "Obedience to the Constitution and law is the inviolable obligation of every citizen, wherever he may be and of every person for the time being within Pakistan."
Accordingly, competence to frame Rules and Regulations to run affairs/ business is not absolute but it (Rules or Regulations) should, in no way, come in conflict with `Chapter-II of Constitution else such F `conflict or inconsistency' shall be 'VOID' which otherwise is the, spirit of Article 8 of the Constitution of Islamic Republic of Pakistan; 1973 which reads as: `Article 8. Laws inconsistent with or in derogation of Fundamental rights to be void.---(1) Any LAW, or any CUSTOM or USAGE having the force of law, in so far as it is inconsistent with the rights conferred by the Chapter, shall, to the extent of such inconsistency, be 'VOID'
13. The above discussion brings me to conclude the answer to above framed proposition as 'NEGATIVE'.
14. Now, I would examine the validity and legality of Rule 18 of Behbood Saving Certificates Rules, 2003, Rule 29 of Mahana Amdani Account Rules, 1983 and Rules 13 & 16 of Defence Saving Certificates Rules, 1966 whereby the 'nominee(s)' can receive the amount from the National Saving Centre(s) in case of the death of the 'holder of the certificates' .
' It may short fall if I do not refer guidelines [Handbook Volume-II (Accounting Procedure)] provided by the Central Directorate of National Savings, with regard to payment to nominee, as under:- "1.12. Payment to nominee(s)/ Legal heir(s).
(1) Payment to nominees(s)/legal heir(s)
(i) In terms of the rule 13(1) of Defence Saving Certificate Rules, in case of purchase of a certificate by individual or individuals, whether adult or minor, holding the certificate singly or jointly, nomination may be made by the purchaser(s) on SC-1 at the time of the purchase, specifying the amount, whether whole or in part receivable by the nominee on the death of the purchaser(s). h is, however, open to the nominee to receive the amount due, on the death of the holder either immediately or on maturity of the certificate(s). The certificate(s) purchased by the deceased purchaser are, however required to be transferred to his or her nominee or heir and in such cases the original certificate(s) must be discharged and new certificate(s) issued in the name of transferee as provided for under Rule 52(4) R. Rule 53 of the DSC Rules.
(ii) The nominee/heir shall intimate in writing to the Centre, regarding death of the holder of certificate(s) duly supported with a copy of death certificate.
(iii) On receipt of the intimation regarding death of the holder of certificate(s), the Centre Incharge shall immediately record a note to this effect in the application for purchase of certificate(s).
(iv) For the purpose of transfer of certificate(s) of the deceased holder to the nominee(s)/heir(s), an application for transfer of certificate(s) from one person to another (SC-4) duly accompanied with the relevant documents i.e. Original certificate(s), attested copies of death certificate and National Identity Card of both the deceased and nominee(s)/heir(s) and an application on plain paper containing particulars and three specimen signatures of each nominee(s)/heir(s) duly verified/attested to the satisfaction of Centre Incharge shall be obtained separately: Where the transfer is requested under the orders of a court, the application shall also be supported with a certified copy of such order. The fact of death of the original holder shall be recorded in place required for signature of transferor and the original certificate(s) discharged by cancellation. In case the share of the nominee(s)/heir(s) is not divisible by the lowest denomination of the type of certificates, the surplus amount shall be paid in cash after obtaining receipt on the original application form.
(v) The payment shall be made through crossed government cheque at the Centres located at places where NST/SBP exists in one and the same city, however, payment may be allowed through crossed cheque drawn at the account. Moreover, in hardship cases relaxation may be obtained from the Regional Director, which shall be accorded in writing.
(vi) The remaining procedure shall be the same as prescribed under para 1.11.
(vii) The following questions may arise in dealing with the payments to nominee(s).
(a) Whether or not it is correct to resume that in case of more than one nominees they hold equal shares if same is not specified to the application for purchase of certificates.
(b) Whether in case of more than one nominees, payment can be made to one of the nominees when the others have not lodged their claims.
(c) Whether all certificates should be discharged for the transfer of the share of one nominee, who has preferred his/her claim or the certificates equivalent to his/her are to be discharged and remaining by the respective share holder(s)."
' The collective reading of above Rules and guidelines again reaffirms the fact that a 'nominee' can receive the amount even without bringing the legal heirs of the deceased holder of certificates into light. Though, this appears to be within said rules and consent of holder of certificate yet it legally cannot be taken to over-rule what the substantial law vests/dictates.
15. I would say that I found no law which permits or authorizes a 'Muslim' to make such a 'writing'
(nomination) through which he could deprive his legal heirs from inheriting his 'tarka' which, otherwise, is a substantial right therefore, how the NSC Rules can give an absolute right and authority to 'nominee' to receive the 'tarka' without any mechanism to ensure satisfaction of purpose and object of such 'nomination' which in such like matter shall strictly confine to: 'a duty upon the nominee only to collect the amount and then to ensure distribution thereof among the legal heirs, as per their legal entitlement.'
' Reference can be made to the case of Mst. Amtul Habib v. Mst. Musarrat Parveen (PLD 1974 SC 185) wherein it is held that: "Apart from this, 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."
' Further, the Rules prima facie not only give an impression that 'nominee' becomes the owner of such certificate(s) but places the 'nominee' as 'depositor'; such impression and giving status of 'depositor' to nominee is in utter disregard to the substantial rights of the legal heirs which they earn the moment the holder of certificate dies. I would not be reluctant in adding here that in certain faiths one may choose disposal of his property by executing a "WILL" or "PROBATE" but the manner, language and even formation thereof 'nomination' cannot be equated to that of "WILL" or "PROBATE' thus, these Rules of NSC even do not fit in substantial laws, dealing and controlling law of inheritance, in other "faiths".
16. I am conscious that one may be interested in securing somebody in the event of his death for which he may within his right of ownership of his assets even by investment, purchasing properties in name of such person but he should not be deceived in taking such decision nor he should be put under any mistake in exercising such decision particularly where heading him to such 'action' legally shall not sustain. On the other hand, he must be informed that his active act of 'nominating one' shall not make such 'nominee' as owner but nominee shall only earn a status of 'trustee'
(AMEEN) which too for distributing all collected/received tarka among the legal heirs without taking a single penny for such services even. I would also add that NSC may develop mechanism for development of its business but not by 'giving a meaning' to 'nominee' which otherwise shall not stand legally. Such practice or procedure may attract the meaning of 'deception' which an institution (NSC) is not supposed to adopt even in name of earning business. Besides, that 'family' normally consists of 'widow', children and even old aged parents who, on opening of succession, become sharers in the certificate's amount despite that representative of NSC has failed in pointing out any provision (rule etc.) of NSC which ensures that amount, delivered to nominee, stands distributed among the legal heirs as per their entitlement. It would be worth to add that an amount of minor legal heir cannot be enjoyed/used by a blood-relation even except under proper guardianship certificate yet the NSC claims to have discharged its obligations only by taking a receipt from 'nominee' without an inquiry about survived legal heirs of holder of certificate as was done in the instant case that nominee received the entire amount without any knowledge, notice or consent of legal heirs of the deceased who (legal heirs) still have not received their share(s).
Thus, faulty rather illegal rules prima facie have resulted in giving an 'undue advantage' to nominee whereby he (nominee) can deprive the legal heirs of their lawful right in 'tarka'.
17. The above discussion leaves nothing ambiguous that said Rules are in direct conflict with substantial laws/rights hence cannot be allowed to continue. Thus, NSC or any other financial institutions cannot frame its Rules or form(s) in a manner or fashion which otherwise results in depriving the rightful persons even by taking consent of purchaser in shape of 'nomination' hence such rules are illegal, void and against the substantial rights even cannot be allowed to continue holding the field and should be struck-off or least be amended in a manner so as to bring the same in conformity with settled definition of 'nominee' keeping in view of the law of inheritance hence should include:-
(i) a mechanism through which the holder of certificate completely understands that 'nomination' shall not earn any other right in him except that of distribution of amount among the legal heirs:
(ii) a mechanism through which the 'nominee' consents to discharge his obligations as nominee, as per decided principle by honourable Apex Court.
(iii) a mechanism through which the details of 'legal heirs' comes to knowledge of National Saving Center (NSC) and other financial institutions, which however shall not prejudice the right of any other person who subsequent to purchase of certificates, earns status of legal heirs;
(iv) a mechanism whereby NSC and Other financial institutions ensure satisfaction of distribution of amount among legal heirs even through 'nominee';
(v) a mechanism whereby NSC and other financial institutions ensure that amount of minor legal heirs is either invested in his name or allowed to be received under proper guardianship certificate;
(vi) NSC and other financial institutions shall ensure that list of legal heirs is submitted by the person investing any amount in profitable scheme;
(vii) NSC and other financial institutions shall ensure that prescribed form(s) do contain relevant column(s)/information(s) with regard to faith or sect of purchaser/holder of certificate so as to deal with applicable affair(s) within light of personal faith or sect;
(viii) With regard to already invested amount and nomination made, the NSC and other financial institutions shall ensure that holder of certificates be informed about meaning and purpose of 'nominee' and a written consent for continuity thereof be obtained from them and nominee (s);
(ix) At the time of investments in any scheme, NSC shall offer to depositor to transfer interest on maturity automatically to his account;
(x) All payments shall be made through cross-cheque;
(xi) All centers shall be computerized and shall be connected with each other and all facilities of modern technology including ATM shall be provided;
(xii) On maturity profit with principal shall be transferred automatically without any delay in the account of depositor.
18. Since, in the instant matter the 'nominee' has received the amount of certificates but has not discharged his legal obligations i.e. Distribution thereof among the legal heirs' hence the 'nominee'
(respondent No.2) is hereby directed to surrender such received amount along with profit thereon, if any, with Nazir of this Court within two months which shall be distributed among the legal heirs of the deceased according to their legal entitlement.
19. With regard to immovable properties, parties shall submit ownership documents of deceased Mst. Naseem Begum, thereafter Nazir shall verify the status of those properties. In case such properties were owned by the deceased at time of her death such letter of administration shall be issued to the legal heirs of deceased as per Muhammadan Law. Needles to mention here that Nazir shall determine the legal heirs of deceased, he would be competent to record statement of any person while completing this assignment.
20. With regard to plea of respondents that some immovable properties have been usurped by petitioner, parties would be at liberty to approach civil Court for redressal of their grievance.
21. Let the copy of this order be sent to the President, State Bank of Pakistan for issuance of necessary direction to NSC and all financial institution(s) of such like nature to bring their rules and regulations in conformity with law, as detailed above. A copy shall also be sent to the Director General, National Saving Organization', Islamabad; as well to Federal Secretary, Law Department, through Additional Attorney General.
' While parting, I appreciate the 'valuable assistance given by learned Amici Curiae Mr. Khawaja Shams-ul-Islam Advocate and Mr. Adnan Iqbal Choudhri Advocate as well Mr. Salman Talibuddin, learned Additional Attorney General.