AZIZ-UR-REHMAN, J.---By means of this Miscellaneous Appe al No. 12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hina Qavi Khan widow of Abdul Qavi Khan and 4 others], the Appellants herein [who are step daughters and son of Resp ondent No.1, Mst. Hina Qavi Khan ] while, feeling 'aggrieved' by and 'dissatisfied' with the 'impugned order' dated 26.03.2019 , [Annexure 'A' to MoA] passed by learned IInd Additional District and Sessions Judge, Karachi- Central, has approached this Court 'inter alia' with a prayer for setting aside the 'impugned order' dated 26.03.2019. For ready reference the prayer sought in the Miscellaneous Appeal No.12 of 2019 [In short Misc. MoA], reads as follows:-- It is, therefore, prayed that this Honourable Court be pleased to call R.&P . of S.M.A. No.921 of 2017 from the Respondent No.3 and set aside the order dated 26.03.2019, by directing the Respondent No.3 to distribute the amount of Rs.1,00,61,149/- between all the legal heirs of the deceased, as per Muhammadan Law, in the interest of justice.
2. Through the 'impugned order' dated 26.03.2019, passed by learned IInd Additional District and Sessions Judge, Karachi-Central, the 'Nominee' viz. Mst. Hina Qavi Khan widow of Abdul Qavi Khan [Respondent No.1 herein- Petitioner in S.M.A. No.921 of 2017 ], was found entitled for receiving the amounts of two [2] Life Insurance policies i.e. [i} Life Insurance Policy No. 445145 amounting to Rs.20,00,000/- [Rupees Twenty Lacs only] and [ii] Life Insurance Policy No.488939 amounting to Rs,46,17,847/- [Rupees Fourty Six Lacs, Seventeen Thousand Eight Hundred and Fourty Seven only], while, in respect of the amount of 3rd Life Insuran ce Policy No.445146 amounting to Rs.20,00,000/- [Rupees Twenty Lacs only], the legal heirs i.e. the Appellants herein [four[4] daughters and [i] one son of deceased Abdul Qavi Khan son of Abdul Hai Khan from the first deceased wife namely Mst. Ishrat Qavi Khan who died on 05.02.2016 i.e. before the death of Abdul Qavi Khan on 03.04.2017] was found entitled to receive the amount of 3rd Life Insurance No.445146 amounting to Rs.20,00,000/-. Per 'Para-2' of 'Misc. MoA', the appellants are the step 'daughters' and 'son' of Mst. Hina Qavi Khan [Respondent No.1 herein].
3. Per 'Para-2' of the instant Misc. Appeal No.12 of 2019, Mst. Hina Qavi Khan widow of Abdul Qavi Khan [Respondent No.1 herein ], is the real mother of Respondent No.2Muhammad Talha Khan son of Abdul Qavi Khan.
The real mother of the Appellants' viz. Ishrat Qavi, it is worth to mention passed away on 05.02.2016 i.e. much before 03.04.2017 when, the deceased Abdul Qavi Khan, passed away [see 'Para-1' of Misc. MoA].
4. The 'material part' of the 'impugned order' dated 26.03.2019, passed by the learned 'Ind Additional District and Sessions Judge, Karachi-Central, reads as follows:- "On the perusal of record it appears that lift insurance policies obtained by deceas ed was for his maximum age of 65 years and in his lifetime he was not entitled to receive any amount from those policies. The deceased died before the maximum age provided in the policies. Thus all three insurance policies obtained by deceased could not be termed as Tarka but the same would fall within the definition of Hadiya. Accordingly , only nominees were entitled to receive the 100% amount of all three insurance policies obtained by deceased. As per record, in insurance policy No.445145 amounting to Rs.2,000,000/- and insurance policy No.488939 amounting to Rs.4,617,847/-, the nominee was petitioner Hina Butt whereas, in insurance policy No.445146 amounting to Rs.2,000,000/- the nominee was Ishrat Qavi who has also died. Therefore, petitioner is entitled to receive whole amount of two insurance policies amoun ting to Rs.6,617,847/- whereas, only legal heirs of deceased Mst. Ishrat Qavi are entitled to receive whole amount of one insurance policy amounting to Rs.2,000,000/-. The amount Rs.1,443,302/- would be distributed among all legal heirs of deceased as per their respective legal shares. Nazir is directed to distribute the amount according to above mentioned scheme. Since, both parties have already taken amount of Rs.3,061,147/- each, therefore, they are bound to return/deposit the amount in excess of their respective shares, if any . With these observations, the instant SMA is disposed of . [Emphasis supplied].
5. The relevant facts in brief leading to the filing of the instant Misc. Appeal No.12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hina Qavi Khan widow of Abdul Qavi Khan] , are that; the Respondent No.1, Mst. Hina Qavi Khan, who is widow of deceased Abdul Qavi Khan, upon the death of her husband on 03.04.2017 , at Karachi, filed a Petition for grant of 'Succession Certificate' under section 372 of the Succession Act 1925, bearing S.M.A. No.921 of 2017, in respect of 'moveable assets/properties' belonging to the said deceased .
6. In the aforesaid S.M.A. No.921 of 2017, filed in November , 2017 [i] Abdul Qavi Khan son of Abdul Hai Khan and
[ii] Ishrat Qavi Khan were shown as deceased on 03.04.2017 and 05.12.2016 , respectively . The prayer sought in the said Petition for grant of 'Succession Certificate' under section 372 of the Succession Act 1925, reads as follows: It is respectfully prayed on behalf of the Petitioner as well as other legal heirs of deceased that this Hon'ble Court may graciously be pleased to allow this application and grant the Succession Certificate in respect of Moveable Immoveable Property of the deceased (details mentioned Annexure as well as in the Schedule of Property , to meet the ends of justice.
7. According to the 'averments'/'assertions' made in the Petition for grant of 'Letter of Succession' under section 372 of the Succession Act, 1925, the surviving legal heirs left behind by deceased Abdul Qavi Khan are as follows:- S.NO.NAME OF LEGAL HEIR RELATION 1.Hina Qavi 2Khan [Petitioner] CNIC No.13509-8790199-2Widow 2.Rabia Qavi CNIC No.42101-8851005-6Daughter 3.Asiya Ahmer CNIC No.42101-1398384-2Daughter 4.Maria Qavi Khan CNIC No.42101-8193700-4Daughter 5.Hira Qavi CNIC No.42101-2902965-8Daughter 6.Muhammad Hamza Khan CNIC No.42101- 0470696-5Son [2 to 6 are daughters and son from the deceased wife namely Mst. Ishrat Qavi Khan] 7.Muhammad Taiha Khan CNIC No.42101-4370583- 1Son of Abdul Qavi Khan from 2nd wife Mst. Hina Qavi Khan.
6. Muhammad Hamza Khan CNIC No.42 101-0470696-5 Son [2 to 6 are daughters and son from the deceased wife namely Mst. Ishrat Qavi Khan]
7. Muhammad Taiha Khan CNIC No.4210 1-4370583-1 Son of Abdul Qavi Khan from 2nd wife Mst. Hina Qavi Khan.
8. Apart from the above, in the Memo of Petition filed under section 372 of the Succession Act, 1925 [XXXIX of 1925], for grant of a 'Letter of Succession Certificate' bearing S.M.A. No.921 of 2017, the 'description'/details of moveable 'assets/properties' left behind by the deceased Abdul Qavi Khan son of Abdul Hai Khan, who died at Karachi on 30.04.2017 was given as follows:- DESCRIPTION OF THE MOVEABLE PROPER TY S.No.Description of deceased's assetsAmount 1.Account No.0392982070, NBP,K.D.A. Civic Centre Branch, Karachi.Rs. 14,02,687/- 2Insurance Policy No.445145 with Jubilee Life Insurance.Amount Rs.20,00,000/-, 3Insurance Policy No.488939 with Jubilee Life Insurance.Amount Rs.10,00,000/- 4Insurance Policy No.445146 with Jubilee Life Insurance.Amount Rs.20,00,000/-, Total Amount Rs.64,02,687/-
9. Per 'averments' made in 'Para-2' of the Petition filed under section 372 of Succession Act, 1925 [XXXIX of 1925], the said deceased namely Abdul Qavi Khan son of Abdul Hai Khan, had solemnized two [2] marriage s i.e. first with deceased Ishrat Qavi [who died on 05.02.2016] and second with the Petitioner namely , Hina Abdul Qavi Khan.
From the 1st wife, viz. Mst. Ishrat Qavi Khan, the deceased Abdul Qavi Khan son of Abdul Hai Khan, has five [5] surviving legal heirs whereas, from 2nd wife namely , Mst. Hina Qavi Khan, there is only one son viz. Muhammad Talha Khan [see 'Para-3' of Misc. MoA]. Except the aforesaid seven [7], surviving legal heirs including Hina Qavi Khan widow of Abdul Qavi Khan, there is no any other 'surviving legal heir/next of kin' of the deceased. The said deceased , as averred, in the Memo of Petition under section 372 of Succession Act, 1925, has left/made, no any though a 'diligent search' in this regard was also made.
10. The Memo of Petition [In short MoP], under section 372 of the Succession Act, 1925, for grant of a 'Succession Certificate', was not only accompanied with the 'affidavits of no objections' of the legal heirs but also with 'affidavits' of two [2] 'independent witnesses'. All of them not only appeared before the Court of learned District Judge Karachi-.
Central but also 'confirmed' the contents of their 'affidavits'. All the legal heirs of deceased it appears, had also raised their 'no objections' to grant of letter of 'Succession Certificate' in favour of the Petitioner , Mst. Hina Qavi Khan [ Respondent No.1 herein ].
11. Upon fulfilling of all the 'pre-requisites formalities' including 'publication of notice' in Newspaper 'Daily Jang' dated 18.01.2018, no one, however , come forward to oppose the Petition under section 372 of the Succession Act, 1925, for grant of a 'Letter of Succession Certificate' in favour of the Petitioner viz. Mst. Hina Qavi Khan widow of Abdul Qavi Khan [Late]. Lastly , on 31.03.2018 when, SMA No.921 of 2017 , came-up before the learned District Judge Karachi-Central then, 'inter alia' in the light of 'Report of NADRA' bearing No.330 dated 18-1-2018 and 'Family Registration Certificate' No.AB 6929161 dated 29.01.2018 [In short FRC] vis-a-vis legal heirs of the deceased, the 'Letter of Succession' was consequently granted. The 'material part' of order dated 31.03.2018 , whereby , the Petition for grant of 'Succession Certificate' under Section 372 of Succession Act, 1925, was 'disposed of ' allowed ' reads as follows:- "In the light of above circumstances, this Succession Petition is allowed in respect of property viz. [i] Amount Rs.14,02,687, Account No.0392982070, NBP, KDA Civil Line Centre Branch, Karachi [ii] Amount Rs.20,00,000/-, Insurance Policy No.445145 with Jubilee Life Insurance [iii] Amount Rs.10,00,000 /-, Insurance Policy No.488939 with Jubilee Life Insuranc.e, and [iv] Amount Rs.20,00,000/-, Insurance Polic y No.445146 with Jubilee Life Insurance subject to furnishing surety equal amount of the above properties, with Nazir of this Court. The Petitioner is entitled to collect the said amount from concerned banks distribute the amount amongst all legal heirs of the deceased in accordance with Law ". [Emphasis supplied]
12. 'Pursuant to' and in 'compliance' with order dated 31.03.2018 , a 'Letter of Succession Certificate' it appears, was issued on 11.05.2018 , in favour of Respondent No.1, Mst. Hina Qavi Khan [Petitioner in SMA No.921 of 2017 ], in respect of certain 'Debts' /'Securities' of deceased [i] Abdul Qavi Khan son of Abdul Hai Khan [ii] Ishrat Qavi widow of Abdul Qavi Khan however , after submitting/furnishing the 'requisite securit y' with Nazir of the Court, as per Succession Certificates granting order dated 31.03.2018.
13. The Respondent No.1, in terms of 'Succession Certificate' stands entitled with a right to collect, the amounts [with profit, if any], from concerned Bank/ Department but thereafter , the Petitioner , in terms of 'Succession Certificate' was required to distribute the collected amount[s] amongst all the 'legal heirs' of the deceased, in accordance with law. The 'break-up'/'description' of 'Debts'/'Securities' belonging to deceased [1] Abdul Qavi Khan son of Abdul Hai Khan [2]. lshrat Qavi wife of Abdul Qavi Khan Khan, is given as under:- S.# Deceased's AssetsAmountNominee, if any, 1 Account No.0392982070, NBP, KDA Civic Centre Branch, Karachi.Amount Rs.14,02,687/-- 2.Insurance Policy No.445145 with Jubilee Life Insurance.Amount Rs.20,00,000/-Mst. Hina Qavi Khan 3 Insurance Policy No. 488939 with Jubilee Life Insurance.Amount Rs.10,00,000/-Mst. Hina Qavi Khan 4 Insurance Policy No. 445146 with Jubilee Life Insurance.Amount Rs.20,00,000/ -Mst. Ishrat Qavi .
Total Amount Rs. 64,02,687/ -
14. Per 'averments', made in 'Para-7' of Memo of Misc. Appeal [In short Misc. Moil], the amount collected by the Respondent No.1, Mst. Hina Qavi Khan widow of Abdul Qavi Khan is Rs.1,00,61,149/- but the 'break-up' of the collected amounts, as given in 'Para-7' of Memo of Misc. Appeal [in short Misc. MoA], is as under:- a)Policy No.445145 Rs.20,00,000/- b)Policy No.488939 Rs.46,47,847/- c)Policy No.445146 Rs.20,00,000/- d)From Bank Account Rs.1,00,50,534
15. Pursuant to and in compliance with order dated 31.03.2018 passed by learned District Judge Karachi-Central, where-under the 'Succession Certificate' was granted in favour of Mst. Hina Qavi Khan widow of Abdul Qavi Khan for collecting of Rs.64,02,687/-, as urged, by learned counsel for the Appellants created some sort of disputes regarding the amounts of shares of the surviving legal heirs and distribution of the 'amounts' collected by Mst. Hina Qavi Khan [Petitioner in whose favour 'Letter of Succession' was granted on 31.03.20181.
16. The Respondent No.1, Mst. Hina Qavi ,Khan under such circumstances, opted to file an Application under Section 151 C.P.C. for getting an appropriate order/direction regarding 'implementation'/ 'compliance' of order dated 31,03.2018 , [Annexure 'D' to Misc. MoA] in its letter and spirit. The prayer sought in the said Application under section 151 C.P .C., reads as follows:-
(a) To appoint the Nazir of this Honoura ble Court to set the shares of the legal heirs and to call the amount of shares from the Respondent No.1 and distribute the shares amongst legal heirs as per law .
(b) That while calculating the shares from the amount, the Nazir of this Honourable Court may also be directed to keep in view that the total amount as received by the Respondent No.1 consist of two insurance policies i.e. Policy No.445145 for the amount of Rs.20,00,000/- and Policy No.488939 for the amount of Rs.46,17,847/-, in which the Respondent No.1 is the nominee, being 100% share holder and as per law the nominee is entitled to get the share as per the policy , whereas one policy in the name of lshrat Qavi Policy No.445146, for the amount of Rs.20,00,000/- who dies before the death of the deceased husband as such the policy became the property of the deceased husband.
(c) Nazir may also be directed to calculate the amount, which is required for the charges for disbursing/ withdrawing the cheque from the account of the Respondent No.1 and either to deduct it from the amount payable to legal heirs or to collect the said amount from legal heirs and handed over it to the Respondent No. 1. [Emphasis supplied].
(d) That the Respondent No.1 may also be granted the cost of the case, which has been paid by the Respondent No.1 to the counsel for filing of the above noted matter .
(e) Any other relief, which this Honourable Court may deem fit and proper , as per the circumstances of the case.
17. On the other hand, an Application under Sections 3/4 of the Contempt of Court Act, was filed on behalf of the Appellants herein, for initiating 'contempt proceedings' against their 'step mother' viz. Mst. Hina Qavi Khan widow of Abdul Qavi Khan [who is Petitioner in SMA No.921 of 2017 and Respondent No.1 herein] who, as alleged, in the contempt Application, had deliberately 'disobeyed' Order dated 31.03.2018 . Whereby , a 'Letter of Succession' was granted and issued on 11.05.2018 , in favour of Mst. Hina Qavi Khan widow of Abdul Qavi Khan.
18. Both the aforesaid Applications i.e. [i] Application under section 151 C.P.C. filed by Respondent No.1 herein [ii] Contempt Application filed by Appellants herein, filed in SMA No.921 of 2017, were seriously opposed/contested by way of filing 'objection'/'counter af fidavits' by the opposite party[ies].
19. Later on, when only the Application under section 151 C.P.C., filed by Respondent No.1 herein viz. Mst. Hina Qavi Khan widow of Abdul Qavi Khan, came-up on 05.10.2018 , before the learned District Judge, Karac hi-Central then, the same was dismissed . The 'material part' of order dated 05.10.2018 , reads as follows:- The above S.M.A. was granted in favour of petitioner on 31.03.2018 and all the legal heirs including present applicants had filed their affidavits of no objection in favour of petitioner and petitioner was directed to collect the said amount and distribute the same amongst the legal heirs of deceased. However , she did not mention in the petition nor in supporting affidavit of petition that she is entitled for two policies being nominee of 100% and after grant of S.M.A. she took said plea. All the legal heirs of the deceased including applicants are entitled for their respective share in the bank amount and the insurance policies left by the deceased and if the petitioner is aggrieved with the order dated 31.03.20 18 passed by this court she may approach Honourable High Court of Sindh for any relief if she is so advised. [Emphasis supplied].
Keeping in view the above facts and circumstances, the application in hand is dismissed with direction tb the Nazir to collect the said bank amount and insurance policies either from the petitioner or from the concerned department and distribute the same amongst the legal heirs of deceased including applicants according to their respective shares as per sharia . [Emphasis supplied].
20. Upon dismissal of the said Application under Section 151, C.P.C., filed by Mst. Hina Qavi Khan widow of Abdul Qavi Khan [Respondent No.1 herein] vide order dated 05.10.2018 , passed by learned District Judge, Karachi- Central [Annexure 'J' to the Misc. MoA], the Respondents Nos.1 and 2 herein, thus feeling 'aggrieved' by and 'dissatisfied' with said order of 05.10.2018 , opted to file Miscellaneous Appeal No.69 of 2018 [Mst. Hina Qavi Khan widow of Abdul Qavi Khan and another v. Mst. Rabia Qavi daughter of Abdul Qavi Khan and 5 others], before this honourable High Court of Sindh, Karachi. The said Misc. Appeal No.69 of 2018, was subsequently 'disposed of vide order dated 15.01.2019 , by directing the Appellants in Misc. Appe al No.69 of 2018 [Respondents Nos.1 and 2 he rein], to deposit the amount of Rs.70,00,000/ - within twenty four [24] hours, with the Nazir of the 'Trial Court'.
Besides, under the said order of 15.01.2019 , [Annexure 'L' to the Misc. 'MoA] the trial Court was also directed to settle all the 'controversies' between the parties within a period of three [3] months w.e.f. 15.01.2019 and before distribution of assets amongst the legal heirs of deceased.
21. The 'material part' of order dated 15.01.2019 , passed in Misc. Appeal No. 69 of 2018 [Mst. Hina Qavi Khan and another v . Mst. Rabia Qavi and 5 others], by a learned Single Bench of this Court, reads as follows:- The orders clearly indicates that the trial Court has not finally determined entitlement of distribution of assets with reference to the question of implication/effect of nomination in insurance policies. However the trial Court has directed the appellant to deposit the entire amount of insurance policies realized by her from difference insurance companies. On 16.11.2018 this Court has directed the appellant to deposit the entire amount, however , before the trial Court, instead of complying the order in letter and spirit, the appellant moved another application under Section 151 C.P.C., requesting the Court to allow her to deposit only Rs.7,000,000/- out of total amount of Rs.10,061,147/- thereby making short deposit by Rs.3,0 61,147/-. The said application has been dismissed by the trial Court.
Through the application listed today at Sr.No.1, learned counsel is seeking modification in the order dated 16.11.2018 so the appellant may deposit the said amount.
Learned counsel for the respondents contends that the respondents are also beneficiaries in the entire amount of insurance policies realized by appellant. However , she also admits that appellants ' share out of total assets of the deceased, is supposed to be around Rs.3,061,147/- or more, therefore, since appellants for whatever reason are not in a position to deposit entire amount, without prejudice to the final outcome of the claim of either side, the respondents shall be entitled to recover the equivalent amount of Rs.3,061 147/- from the funds deposited with Nazir . The remaining amount in the hands of trial Court will be disbursed according to law after hearing of both the parties. The trial Court is directed to settle all the controversies between the parties within three months before distribution of assets.
In view of above facts and circumstances, appellants are directed to deposit Rs.7,000,000/- within twenty four hours hereof [Emphasis supplied].
With the above observations, listed application as well as this Misc. Appeal stands disposed of.
22. As evident from the aforesaid order of 15.01.2019 , the Appellants herein, [Respondents in Misc. Appeal No.69 of 2018], were allowed to withdraw a sum of Rs.3,061,147/- from the funds deposited with the Nazir of the learned District Judge, Karachi-Central, however , 'without prejudice' and subject to the 'final outcome' of the claim, which amount, as stated in the sum of Rs.30,61 147/-, was less deposited by Respondents herein [Appellants in Misc.
Appeal No. 69 of 2018 ].
23. Pursuant to and in 'compliance' with order dated 15.01.2019 when, SMA No.921 of 2017 , filed by Respondent No.1 herein, came-up before the learned IInd Additional District Judge, Karachi-Ce ntral, on 26.03.2019 , then after hearing learned counsel for the parties, the 'impugned order herein, of 26.03.2019 , was passed. This time, thus, the Appellants feeling 'aggrieved' by and 'dissatisfied' with order dated 26.03.2019 , passed in SMA No.921 of 2017, by learned IInd Additional District Judge, Karachi-Central, opted to approach this court by way of filing the instant Misc. Appeal No. 12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hina Qavi Khan widow of Abdul Qavi Khan and 4 others ] 'inter alia' with a prayer for setting aside the 'impugned order' dated 26.03.2019 [Annexure 'A' to the Misc. MoA].
24. On 08 04 2019 when the instant Misc. Appeal No.12 of 2019, came-up before this Court, then while, issuing notices to the Respondents for 22.04.2019, till then, parties were directed to 'maintain status quo'. Lastly , upon service, 'objections' on behalf of Respondents Nos.1 and 2, in opposition of the instant Misc. Appeal were also filed. In the 'objection'/'counter affidavit' of Respondents Nos. 1 and 2 herein, not only the adverse 'averments"' assertions' made in Misc. Memo of Appeal herein, were specifically 'denied'/'contro verted' but therein, a prayer has also been sought for dismissal of the instant Misc. Appeal No.12 of 2019, [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hira Qavi Khan widow of Abdul Qavi Khan and 4 others] . According to Respondents Nos.1 and 2's stand/versions, taken in their 'objections', the instant Misc. MoA' has been termed as being baseless, and 'devoid' of any merits. The same according to Respondents Nos.1 and 2, as such, is liable to be dismissed with costs.
25. Lastly , on 29.08.2019, when the above Misc. Appeal No.12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hina Qavi, Khan widow of Abdul Qavi Khan and 4 others] , came-up before me then, I heard Mr. Asif Ibrahim, learned counsel for the Appellants and Mr. Kashif Hanif along with Zafar lqbal Arain, learned counsel for the Respondents Nos.1 and 2 and also gone through the available record before me with assistance of learned counsel for the parties minutely .
26. Mr. Asif Ibrahim, learned counsel for the Appellants while, advancing his arguments vehemently contended that learned Court i.e. the Court of learned IInd Additional District Judge, Karachi-Central, has badly failed to properly appreciate the facts of the case in hand, in its' true perspective, as well as, the law involved. Per learned counsel, vide order dated 31.03.2018 , whereby , the 'Letter of Succession' was granted in favour of Respondent No.1 herein , [Petitioner in SMA No.921 of 2017] , the Respondent No.1 herein, no doubt, was 'entitled'/ 'authorized' to collect the amounts on the basis of 'Succession Certificate' issued on 11.05.2018 , from the concerned Bank/Department but, indeed, thereafter , Respondent No.1 herein, is/was under a legal obligation to distribute the collected amounts among all the surviving legal heirs. Per learned counsel for the Appellants, evidently order dated 31.03.2018 , has not been challenged by any of the legal heirs of deceased. The said order , as such, has 'attained finality' . The Respondent No.1 herein-Mst. Hina Qavi Khan, thus, in view of 'Succession Certificate' issued on 11.05.2018, in her favour is obliged to distribute the collected amounts without 'hue' and 'cry' and/or , otherwise, put forwarding any claim cm her behalf, on the basis of a 'Nomination' in respect of two[2] 'Life Insurance Policies'. Per learned counsel for the Appellants a 'Nominee' at the most can be termed, as a caretaker and not an owner of the assets of deceased.
27. Mr. Asif Ibrahim, learned counsel for the Appellants, next contended that under 'Muhammadan Law', Succession opens, as soon as, a person dies. Thereafter , as urged, by Mr. Asif Ibrahim, all the 'assets'/'properties' left behind by a deceased , under law, are liable to be distributed between/among all the surviving legal heirs of the deceased. This fact/legal position, however , as urged, by Mr. Asif Ibrahim, has been ignored/brushed aside, by the learned IInd Additional District Judge, Karachi-Central, while, passing the 'impu gned order' dated 26.03.2019 , [Annexure 'A' to the Misc. Moil]. The 'impugned order' , as such, besides, being erroneous, illegal is liable to be set- aside, otherwise, all the surviving legal heirs shall seriously be prejudiced.
28. While, concluding his arguments, Mr. Asif Ibrahim, learned counsel for Appellants forcefully , contended that the 'impugned order' dated 26.03.2019 , passed by the learned IInd Additional District Judge, Karachi-Central , [Annexure to the Misc. MoA], whereby , Respondent No.1 herein, was held entitled to receive Rs.66,17,847/- [Rupees sixty six lacs seventeen thousands eight hundred and forty seven only] , is not only erroneous but also illegal, as such, the same is liable to be set-aside. Further while, holding so, Resp ondent No.3 herein, be directed to distribute the collected amount of Rs.1,00,61,149/- [Rupees One crore sixty one lac one hundred forty nine only] , amongst all the legal heirs of deceased, as per Muhammadan Law. On the above aspect of the matter reliance has been placed on the case of AZIZ AHMED V. HAKIMZADI AND 7 OTHERS [2013 CLC 406]. 'PARA-8' therefrom, on which Mr .Asif Ibrahim, learned counsel for the Appellants has placed reliance reads as follows:-
8. The counsel pr respondents Nos.1 to 7 has relied upon some citations, as referred above, which relates to the issue of the nominee: dispute regarding disbursement of amount and that as to whether nominee is owner of the amount. On this point there is no dispute and it is now settled principle of law that nominee is not entitled as owner of the amount subject-matter in the Succession matters, is the only representative and legal, duty bound to receive the amount and disburse amongst the legal heirs. [Emphasis supplied].
29. Conversely , Mr. Kashif Hanif, learne d counsel for Respondents forcefully contended that the Misc. Appeal No.12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hina Qavi Khan widow of Abdul Qavi Khan and 4 others], is not maintainable, as the Appellants herein, instead, of approaching this Hon'ble Court with 'clean hands', have approached with 'un-clean' hands. All the Appellants or any of thew under law are/ is not entitled to claim any share in the two [2] 'Life Insurance Policies' i.e. [i] Life Insurance Policy No.445145 amounting to Rs.20,00,000/- and [ii] Life Insurance Policy No.488939 amounting to Rs.4,617,847/- wherein, the Respondent No.1, Mst. Hina Qavi Khan widow of of Abdul Qavi Khan is a 'NOMINEE '. Further the above Misc. Appeal besides, being bad in law is not maintainable, as, in the case in hand, there exists no 'cause of action' in favour of the Appellants. Per Mr. Kashif Hanif, learned counsel for the Respondents, the Trial Court is quite right in passing the 'impugned order' dated 26.03.2019 , in favour of the Respondent No.1, in respect of the aforesaid two[2] 'Life Insurance Policies'. Mr. Kashif Hanif, learned counsel for Respondents Nos.1 and 2, further contended that all sort of litigation, needs to be based on 'bona fide' and 'free from' mala fide which, however , is not the case in hand. The instant Misc. Appeal No.12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v. Mst. Hina Qavi Khan widow of Abdul Qavi Khan and 4 others] per Mr. Kashif Hanif's stand besides, being based with mala fide intention has also been filed merely , to 'circumvent' and 'abuse' the, due 'process of law' and/or to deprive the Respondent No.1 herein from the amounts of the aforesaid two[2] 'Life Insuran ce Policies' total amounting to Rs.6,617,847/- in her capacity as being a 'Nominee' therein.
30. Mr. Kashif Hanif, learned counsel for Respondents Nos.1 and 2 while, advancing his arguments contended that admittedly in the two [2] 'Life Insurance 'Policies' i.e. 445145 and 488939, the Respondent No.1 herein, is 100% 'NOMINEE'/'BENEFICIAR Y', whereas, in 3rd 'Life Insurance Policy' bearing No.445146, 100% 'Nominee'/' beneficiary', was Ishrat Qavi, who was the 1st wife of the deceased Abdul Qavi Khan and 'real mother' of the Appellants who, passed away on 05.02.2016 i.e. prior to the death of deceased Abdul Qavi Khan on 03.04.2017 .
Per Mr.Kashif Hanif, learned counsel for the Respondents Nos.1 and 2, the factum of 'Nomination' is also evident from the documents of 'Life Insurance Policies' with 'Jubilee Life Insurance'. The Respondent No.1 besides, being a 'Nominee'/Beneficiary of 100% shares of the two [2] Life Insurance Policies, is also a sole owner of the amounts payable under the relevant two [2] 'Life Insurance Policies' i.e. [i] Policy No.445145 and [ii] Policy No.488939 for amounts of Rs.20,00,000/- and Rs.4,617,847/- respectively .
31. Mr. Kashif Hanif next contended that the amount[s] of aforesaid two[2] 'Life Insurance Policies' in any event, could not be included in the 'heritable assets' of the deceased of Abdul Qavi Khan son of Abdul Hai Khan, as over such amounts the 'Nominees' Mst. Hina Qavi Khan widow of Abdul Qavi Khan/Respondent No.1, has the 'exclusive right' and entitlement to receive, the amounts of two [2] 'Life Insurance Policies'. The amounts of the said two[2] 'Life Insurance Policies' neither be claimed and/or otherwise, the same amounts liable to be distributed amongst the legal heirs, as the amounts of 'Life Insurance Policies' do not fall within the ambit of 'Tarka', as manifestly , the deceased Abdul Qavi Khan son of Abdul Hai Khan till his death on 03.04.2017 had no right either , to enjoy and/or , otherwise, to receive the amounts of the said two [2] 'Life Insurance Policies'. Mr. Kashif Hanif, learned counsel for the Respondents Nos.1 and 2, in support of his contentions, placed reliance on the following case laws: i. IN THE MATIER OF SUCCESSION OF THE ASSETS, SECURITIES, PROPER TIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNA VI [PLD 2010 Karachi 153 ]. ii. ABDUL GHAFF AR V. GOVERNMENT OF SINDH THROUGH SECRET ARY FOOD AND 4 OTHERS [2017 PLC
[CS] 625 ] iii. LIAQUA T ALI V . MST . HUMA FAIZ AND ANOTHER [PLD 2018 SINDH 251 ] iv. MUHAMMAD JA VED AND ANOTHER V . MST . ROSHAN JAHAN AND 2 OTHERS [PLD 2019 SINDH 1] v. IN RE. MST . SHAMIM AKHTER AND OTHERS [PLD 1994 Karachi 237 ]
32. While, concluding his arguments, Mr. Kashif Hanif learned counsel for Respondents Nos. 1 and 2, prayed for dismissal of the above Misc. Appeal No.12 of 2019 [Mst. Rabia Qavi daughter of Abdul Qavi Khan and 4 others v.
Mst. Hina Qavi Khan widow of Abdul Qavi Khan and 4 others], as the same, according to him besides, being not maintainable in law is devoid of any merits, and as such is liable to be dismissed with costs.
33. Heard and perused the record.
34. Evidently under the 'impugned order' dated 26.03.2019 , Respondent No.1, Mst. Hina Qavi Khan widow of Abdul Qavi Khan, has been held entitled to receive Rs.66,17,847/- on the basis of her 'Nomination' i.e. in respect of two[2] 'Life Insurance Policies' i.e. [i] 'Life Insurance Policy' No.445145 for Rs.2,00,000 /- and [ii] 'Life Insurance Policy No.488939' for Rs.46,17,847/ - total amou nting to Rs.66,17,847/- [Rupees sixty six lacs seventeen thousand s eight hundred and forty seven only], and Appellants' herein i.e. [i] Mst. Rabia Qavi daughter of Abdul Qavi Khan, [ii] Mst.
Asiya Ahmer daughter of Abdul Qavi Khan, [iii] Mst. Maria Qavi Khan daughter of Abdul Qavi Khan, [iv] Mst. Hira Qavi daughter of Abdul Qavi Khan and [v] Muhammad Hamza Khan son of Abdul Qavi Khan, were found entitled to receive Rs.20,00,000/- under 'Life Insurance Policy No.445146', on account of a 'Nomination' of their deceased mother-'Ishrat Qavi Khan' widow of Abdul Qavi Khan [who as per 'Para-2' of the 'Misc. MoA' is the 'real mother' of the Appellants herein, and passed away , on 05.02.2016 , at Karachi].
35. The Respondent No.1, it is needless to say, as per 'Para-2' of 'Misc. MoA', is real mother of Respondent No.2 herein. According to Mr. Asif Ibrahim, learned counsel for the Appellants, the 'impugned order' dated 26.03.2019 , [Annexure 'A' to the 'Misc. MoA'] is not only contrary to law but also the same is against the spirit of order dated 31.03 2018 where-under , Respondent No.1 herein , [Petitioner in SMA No.921 of 2017], was only authorized to collect the amounts from the concerned Bank/ Insurance company and, thereafter distribute the same between/ among the surviving legal heirs of deceased Abdul Qavi Khan son of Abdul Hai Khan, according to their shares as per law. According to Mr. Asif Ibrahim, learned counsel for Appellants' stand though the Appellants' herein, have been allowed to withdraw Rs.20,00,000/- on the basis of 'Nomination' of their deceased mother viz. Ishrat Qavi Khan widow of Abdul Qavi Khan, under the 'Life Insurance Policy' No.445146, who besides being real mother of the Appellants' is a 'Nominee' in 'Life Insurance Policy' No.445146 amounting to Rs.20,00,000/-; but despite of this fact the learned trial Court, has badly failed to appreciate that a 'Nominee' under law, can only be termed, caretaker to collect the amount and distribute the same amongst all legal heirs for the obviou s reason that a 'Nominee' is not an owner of the assets of deceased. [See 'Para-4' of the Misc. MoA]. It is significant to note that, the 'Nominee' Mst.
Ishrat Qavi Khan has passed away on, 05.02.2016, which date is much before the death of Nominator Abdul Qavi Khan son of Abdul Hai Khan, on 03.04.2017 .
36. Manifestly , in the case in hand, there is no dispute about the status of legal heirs, as none of the legal heirs filed any Appeal under Section 384 of the Succession Act, 1925, against order dated 31.03.2018 , whereby , a 'Succession Certificate' in favour of Respondent No.1, was granted. Any of the legal heir of deceased otherwise was free in seeking a determination vis-a-vis status of legal heirs by way of filing a suit. The only dispute in this case, is regarding the 'quantum of amount', which a legal heir, under law is entitled to receive. This kind of dispute 'prima facie' is not beyond scope of subsection [3] of Section 373 of Succession Act, 1925, as such, the 'Letter of Administration', in the case in hand, has been granted properly . To suitably appreciate, the 'concept and 'purpose' of subsection [3] of section 373 of Succession Act, 1925, I would like to reproduce the same herein, as below:-
3. If the Judge cannot decide the right to the certificate without determining questi ons of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.
37. Per Mr. Asif Ibrahim, learned counsel for the Appellants, the Respondent No.1 herein, in her capacity as a 'Nominee' in two[2] 'Life Insurance Policies', is not 'exclusively' entitled to receive the amounts of two [2] 'Life Insurance Policies' i.e. [i] 'Life Insurance Policy' No.445145 amounting to Rs.20, 00,000/- and [ii] 'Life Insurance Policy' No.488939 amounting to Rs.4,617,847/-. As far as, the 3rd 'Life Insurance Policy' No.445146 amounting to Rs.20,00,000/-, is concerned, the 'Nominee' therein, is the deceased Ishrat Qavi, who was 1st, wife of Abdul Qavi Khan [mother of the Appellants' herein] died on 05.02.2016 , i.e. much before 03.04.2017 when, Abdul Qavi Khan died. Needless to say as per 'impugned order' of 26.03.2019, the Appellants herein, were also found entitled to receive Rs.20,00,000/- under 'Life Insurance Policy No.445146'. According to Mr. Asif Ibrahim, the amount of 'Life Insurance Policies' is a 'TARKA' as such the amounts of three [3] Life Insuran ce Policies are required to be distributed amongst all the 'surviving legal heirs' of deceased because a 'Nominee' as urged, by Mr.. Asif Ibrahim, learned counsel for the Appellants' under law , is only to collect and distribute the amounts amongst the legal heirs.
38. Mr. Asif Ibrahim, with regard to the above aspect of the matter , placed reliance on the case of AZIZ AHMED v.
HAKIM ZADI AND 7 OTHERS [2013 CLC 406 ], wherein, in Para-8 it was observed as follows: "8. The counsel for respondents Nos.] to 7 has relied upon some citations, as referred above which relates to the issue of the nominee; dispute regarding disbursement of amount and that as to whether nominee is owner of the amount. On this point there is no dispute and it is now settled principle of law that nominee is not entitled as owner of the amount subject-matter in the Succession Matters, is the only representative and legal heir, duty bound to receive the amount and disburse amongst the legal heirs" . [Emphasis supplied].
39. Indeed, a 'Nominee' under law, is under obligation to collect such benefits/amounts which form part of the 'Tarka' and distribute the same amongst the legal heirs. As far as, other 'benefits '/' amounts] 'assets' which do not make part of 'Tarka' under law, must to go the 'Nominee' as otherwise, it would defeat the 'intention' /'purpose' of such nomination. 'Tarka', is a 'financial benefit' over and regarding which a deceased during his life time is not only authorized but also entitled to withdraw or get such financial benefits from the empl oyer. All other 'financial benefits' which yet to mature or the deceased cannot get it during his life time do not form part of a 'Tarka' . In this regard reliance can be placed on the case MUHAMMAD JAVED AND ANOTHER v. MST. ROSHAN JAHAN AND 2 OTHERS [PLD 2019 Sindh 01], wherein, in 'Para-21' thereof, it was observed as under: "21 that whatever benefits an employee can claim from its employer during his life time are to be treated as part of "Tarka" and being inheritable are to be distributed amongst the legal heirs only according to shariah. And at the same time the benefits which an employe e is not entitled so claim from the employer during his lifetime and are to be matured on his/her death, are not part of the "Tarka" and can be handed over to a nominee, if there is any.
There were in all seven different heads under which the dues of the present deceased were payable and have been deposited with the Nazir of this Court as stated by UBL in its letter as reproduced at Para 5 read with letter dated 31.5.2010 available with the Nazir of this Court. These are Group Term Life Insurance. Insurance against General Provident Fund (G.P.F), General Provident Fund, salary for 11 days, arrears of family pension, arrears of Benevolent Grant, and Pension Commutation. Out of these as per the dicta already laid down and as discussed hereinabove, I am of the view that Group Term/Life Insurance, Insurance against General Provident Fund (G. P.
F). arrears of family pension, and arrears of Benevolent Grant, are not part of the "Tarka" as they could not hove been claimed by the deceased in her lifetime whereas , she could have claimed the amount of General Provident Fund, salary of 11 days, and pension commutation, at least when she was to retire, therefore, these categories of benefits available are part of the "T arka", hence, to be distributed amongst the legal heirs". [Emphasis supplied].
40. At this juncture, I would like to refer to the case of FEDERAL GOVERNMENT OF PAKIST AN v. THE PUBLIC [PLD 1991 SC 731] wherein, the Hon'ble Supreme Court of Pakistan [Shariat Appellate Bench] while, dilating upon, the question relating to 'Tarka''benevolent fund' and 'group insurance' was pleased to held as follows:- {{URDU TEXT}} About the Benevolent Fund and the Group Insurance the learned Court held.- {{URDU TEXT}}
41. Likewise, in the case of MIRZA MUHAMMAD AMIN v. GOVERNMENT OF PAKIST AN [PLD 1982 FSC 143], a proposition as to whether 'gratuity' and 'group insurance' etc. are heritable or the position remains otherwise, came- up before the Hon'ble Federal Shariat Court for 'determination' wherein, it was held as follows:- "17..... What is heritable is only that right which a person enjoys or had a right to enjoy during his lifetime till his death . This may include corporeal property , incorporeal property whether partial or absolute, right to easement, debt including mortgage debt with right to remain in possession of property mortgaged right to Diyat and other compensation, right to recover debt or - property by action (choses-in-action), right to possession of property sold till the payment by the purchaser of the purchase money and all other rights which are not strictly personal in the sense that they might abate with the death of the right-holder: "[Emphasis supplied].
42. As far as, the case in hand, is concerned, a 'Succession Certificate', indeed, was issued in favour of Respondent No.1 herein, Mst. Hina Qavi Khan widow of Abdul Qavi Khan inter alia' in respect of three [3] 'Life Insurance Policies'. All the 'Life Insurance Policies', did not get matured during the lifetime of deceased Abdul Qavi Khan son of Abdul Hai Khan. The amounts of the said three [3] 'Life Insuran ce Policies' thus could not be said/claimed, as heritable. Needless to say, money due under a 'Life Insurance Policy' and payable to a 'Nominee' of a policy is a debt for the purpose of obtaining a 'Succession Certificate'. In the case in hand, it is worth to note, Respondent No.1, Mst. Hina Qavi Khan widow of Abdul Qavi Khan, is a 'Nominee' of two [2] Life Insurance Policies
[i] Life Insurance Policy No.445145 amounting to Rs.20,00,000/- and [ii] Life Insurance Policy No.488939 amounting to Rs.4617847/- whereas, the first wife of deceased Abdul Qavi Khan son of Abdul Hai Khan namely , Mst. Ishrat Qavi, who died on 05.02.2016 , [i.e. before 03.04.2017 when Abdul Qavi Khan son of Abdul. Hai Khan died], is the 'Nominee' of 3rd 'Life Insurance Policy' No.445146, amounting to Rs.20,00,000/-.
43. Since, evidently , the first wife of Abdul Qavi Khan son of Abdul Hai Khan, namely Mst. lshrat Qavi [mother of the Appellants ], has passed away on 05.02.2016 , at Karachi, i.e. much before the death of Abdul Qavi Khan on 03.04.2017 . The 'Nomination' of Mst. Ishrat Qavi Khan, in 'Life Insurance Policy' No.445146, has thus come to an end on the death of Mst. lshrat Qavi on 05.02.2016 [which date is prior to death of deceased Abdul Qavi Khan on 03.04.2017 ]. The Appellants' herein, as such, are not entitled to claim the amount of 'Life Insurance Policy'
No.4445146, exclusively . The amount of the said 'Life Insurance Policy' besides, being heritable to be distributed amongst all the legal heirs of deceased Abdul Qavi Khan. A 'Nomination' is a mandate, which comes to end/expires upon the death of a 'Nominee'. In the case in hand, since D Mst. Ishrat Qavi Khan who was 'Nominee' of 'Life Insurance Policy' No.445146 amounting to Rs.20,00,000/- has passed away on 05.02.2016 , i.e. much before 03.04.2017 when, the 'Nominator' Abdul Qavi Khan passed away at Karachi, as such, the amount of 'Life Insurance Policy' No.445146 amounting to Rs.20,00,000/- has become the asset of deceased Abdul Qavi Khan son of Abdul Hai Khan.
44. As far as, the case law cited by Mr. Asif Ibrahim, learned counsel for the Appellants herein is concerned, the same, in view of the 'facts' and 'circumstances' of the case in hand, besides being distinguishable does not support the case of the Appellants. On the other hand, the case laws cited by Mr. Kashif Hanif, learned counsel for Respondents Nos.1 and 2, are not only relevant but also fully support the case of Respondents Nos.1 and 2.
45. For and in view of the above, the 'impugned order' dated 26.03.2019 [Annexure 'A' to the Misc. MoA] is partly 'amended'/'set aside' and consequently , the instant Misc. Appeal No.12 of 2019, stands 'disposed of in the following manner .
1. Respondent No.1, Mst. Hina Qavi Khan widow of Abdul Qavi Khan is exclusively entitled to receive the amounts of two 'Life Insurance Policies' i.e. [i] Life Insurance Policy No.445145 amounting to Rs.20,00,000/- and [ii] 'Life Insurance Policy' No. 488939 amounting to Rs.4,617,847/- total amounting to Rs.66,17,847/- plus profit thereon if any in her capacity as being 'Nominee' in these two [2] 'Life Insurance Policies'.
2. As far as, the remaining amounts collected from the Banks' Account of the dece ased i.e. Rs.14,02,687/- and the amount of 3rd 'Life Insurance Policy' No.445146 amounting to Rs.20,00,000/- be distributed amongst all the seven
7. surviving legal heirs of deceased Abdul Qavi Khan son of Abdul Hai Khan i.e. Appellants and Respondents Nos.1 and 2 herein as per their respective entitlement/legal shares in accordance with law as the Appellants' herein are not entitled to receive such amount of Rs.20,00,000/- exclusively as their 'real mother'/'Nominee' of 'Life Insurance Policy' No.445146 had passed away on 05.02.2016 i.e. during the life time of deceased 'Nominator' viz. Abdul Qavi Khan son of Abdul Hai Khan who died on 03.04.2017.
3. The release/ distribution of amounts in the aforesaid manlier however , would be subject to the 'adjustment' if, any amount has already been released to and received by any of the legal heirs in excess, as well as, expenses etc. if any incurred vis-a-vis. collecting of money by the Respondent No.1 herein.
4. The concerned Nazir of District Court [Central], is directed not only to do the needful but also distribute the collected amounts plus profits thereon, if any in the manner as above promptly .
46. The instant Misc. Appeal No. 12 of 2019, stand 'disposed of in the above terms along with pending application[s], if any .