ABDUL HAMEED BALOCH, J. Through this judgment I intend to dispose of above titled revision petition filed by the petitioner against the order dated 26th August, 2020 passed by learned District Judge, Quetta, whereby order dated 11th May, 2019 passed by learned Civil Judge-VIII, Quetta was modified to the extent that the petitioner and respondent No. 1 shall be entitled to their respective shares in the GP Fund, leave encashment and balance in the bank account of the deceased falling in Tarka, whereas the respondent No. l(Shabana) shall be entitled to receive all other benefits being grants given by the government/ department from time to time.
2. Concise facts of the case are that the petitioner filed application under Section 372 of the Succession Act, 1925 (Act, 1925) for grant of succession certificate before the court of Civil Judge- VIII, Quetta (trial court), stating therein that the son of petitioner and husband of respondent No. 1 namely Noorullah died natural death on 3rd October, 2017, who was employee of Director General of Directorate of Water Resources Planning Department and Monitoring Balochistan as Tracer. The petitioner and respondent No.1 are sole legal heirs of deceased; as such the outstanding dues and amount lying in the bank account of the deceased were required to be collected from the department. Initially the respondent No. 1 was proceeded against ex-parte and the trial court after obtaining ex-parte evidence vide order dated 12th November, 2018 disposed of the succession application with the observations that commutation, group insurance, financial assistance, farewell grant, funeral expenses, benevolent fund and leave encashment are grants that become mature subject to the death of the deceased during service, thus should go to the family members falling within the definition of 'family' and rules of dependency applicable to the petitioner. The respondent No.1 filed application for setting aside of the ex-parte order which was allowed by the trial court vide order dated 9th March, 2019. The respondent No. 1 filed rejoinder to the succession application.
3. The learned trial court framed following issues: i. Whether applicant is entitled for share in grants under respective terms and rules applicable against the dues of late Noorullah? ii. Whether this court has jurisdiction to try contentious matters? iii. Whether the applicant is entitled for the relief claimed for? iv. Relief?
4. After framing of issues the learned trial court in terms of Section 373(3) of the Act, 1925 vide order dated 11th May, 2019 allowed the application filed by the petitioner in the terms: "13. Entitlement of the parties emerges as under: i. G.P Fund and bank balance are inheritance that should be distributed as 3/4 (75%) to father i.e. applicant No. 1 and 1/4 (25%) to widow i.e. respondent No. 1. ii. Commutation, group insurance, financial assistance, farewell grant, funeral expenses, benevolent fund and leave encashment are grants that became mature subject to the death of the deceased during service, goes to applicant and respondent No. 1 in equal shares. iii. Only respondent No. 1 is entitled for monthly pension being widow."
5. Being aggrieved of the order the respondent No. 1 preferred appeal before this court vide succession Appeal No. 5 of 2019, but vide order dated 2nd December, 2019 the same was transferred to the files of District Judge, Quetta (appellate court). The appellate court after hearing the parties vide order dated 26th August, 2020 partly allowed the appeal in the terms: "10. In view of above discussion, I am of inclined to partly allow this appeal and resultantly by modifying the impugned order dated 11.05.2019 passed by Civil Judge VIII, Quetta that the appellant and respondent No. 1 shall be entitled to their respective shares in the GP Fund, leave encashment and balance in the bank account of the deceased falling in Tarka, whereas the appellant shall be entitled to receive all other benefits being grants given by the government/ department from time to time.
Being aggrieved the petitioner has filed instant revision petition.
6. The learned counsel for the petitioner stated that the order of the appellate court is contrary to law and failed to look into the peculiar circumstances of the case. The father of the deceased falls under the definition of 'whole dependency' by virtue of joint family system being wholly dependent upon the deceased. The learned counsel placed reliance on: Dr. Nisar Ullah v. Abdul Majeed Soomro, 2009 PLC (C.S.) 263, Mst. Samina Naz v. Baby Dua Saeed alias Hiba through her mother and natural guardian 2015 CLC 260 Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731
7. Conversely the learned counsel for the respondent No. 1 supported the order of the learned District Judge, Quetta dated 26th August, 2020 and stated that the order is according to sharia and well reasoned. He placed reliance on: Sher Ali v. Director General Pakistan Rangers PLD 2019 Lahore 474 Mst. Riffat Yasmeen v. Hassan Din 2014 CLC 126 Zaheer Abbas v. Pir Asif 2011 CLC 1528
8. Heard and perused the record with the assistance of learned counsel for the parties. The record reveals that the son of petitioner was employee in Directorate of Water Resources Planning Development and Monitoring Balochistan as Tracer, who died natural death on 3rd October, 2017.
The petitioner filed application for succession certificate which was contested by respondent No. I.
The trial court passed order dated 11th May, 2019. The respondent No. 1 being aggrieved of the same filed appeal.
9. Before dilating upon the petition it would be appropriate to look into the meaning of family in Esta Code Volume II Chapter-14: "2. Definitions. - In this Act, unless there is anything repugnant in the subject or context, -- (1)
(2)
(3)
(4)
(5) "family" means, --
(a) in the case of a male employee, the wife or wives, and in the case of a female employee, the husband of the employee; [ **.] [(b) the natural sons upto the age of twenty-one years, provided they are not handicapped or mentally retarded; and
(c) Parents, minor brothers, unmarried, divorced or widowed daughters and sisters of the employee wholly dependent upon him.]
10. The family is also defined in the Balochistan Civil Services Pension Rules, 1989 (Rules 1989), as under: "4.7 The term 'family' for the purpose of payment of death-cum-retirement gratuity will include the following relatives of the Government servant: -
(a) Wife or wives, in the case of male Government servant.
(b) Husband in the case of female Government servant.
(c) Children of the Government servant.
(d) Widow or widows and children of a deceased son of the Government servant. "
11. In Section 2(d) of the Balochistan Government Employees Benevolent Fund Act, 2018 (Act No. XV of 2018) the definition of family is as under: "2(d) "family" means,-
(i) in the case of a male employee, the wife or wives, and in the case of female employee the husband of the employee;
(ii) parents, sister and minor brothers, if residing with and wholly dependent upon him or her;
(iii) legitimate children and step children less than twelve years old;
(iv) Legitimate children and step children not less than twelve years, old, if residing with and wholly dependent upon him or her. "
12. The learned counsel for the petitioner contended that the petitioner is being wholly dependent; therefore, he is entitled for the benefits of Tarka of deceased. In Osborn's Concise Law Dictionary Seventh Edition by Roger Bird in family provision the dependent defined as under: "family provision. The Inheritance (Provision for Family and Dependents) Act, 1975 (replacing the Inheritance (Family Provision) Act, 1938, as amended) gives the court power, as respects the death of a person on or after April 1, 1976, to make provision out of his estate for the maintenance of his family and dependents.
Application for such provision must generally be made within 6 months of representation being taken out. County courts have jurisdiction in dealing with estates of a net value not exceeding CE 30, 000. Those classed as dependents and who may apply for financial provision are the deceased's wife, husband or child; a former wife or husband who has not remarried; any person (not being a child of the deceased) who was treated by the deceased as a child of the family in relation to any marriage to which the deceased was a party; and any other person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased (1975 Act, section 1). "
13. From the above referred meaning of dependent it becomes crystal clear that those class dependents who apply for financial provision are the deceased wife, husband and children or a child of family in relation to any marriage or any other person who immediately before the death of deceased was mentioned. The record reveals that the petitioner was employee and after retirement is getting pension, meaning thereby that the petitioner was not dependent on deceased, rather he himself was getting salary being government employee. The dependant is the person who has no earning, is wholly dependent on the income of his son. Mere living in same house does not mean that the petitioner is dependent on his late son.
4. Under Rule 4.7 of the Balochistan Civil Services Pension Rules, 1989, the wife or wives, husband, children, widow or widows and children of a deceased government servant are being family. In case of death is/are entitled for death-cum-gratuity. Under Rule 4.8 sub-rule (2) of the Rules, 1989, if the government servant leave no family then the gratuity shall be payable to other relatives. The rules read as under: Rule 4.8 Sub-Rule (2). When the Government Servant leaves no family the amount of gratuity shall be payable to the following surviving relatives, if any, of the Government servant in equal shares: -
(a) Mother;
(b) Father;
(c) Unmarried sisters below the age of 21 years and widowed sisters; and
(d) Brothers below the age of 21 years.
Note:-Judicially separated or divorced mother who has re-married does not fall in this category
15. On approval of Competent Authority the Government of Balochistan vide Notification No. FD. SO (Reg-II)/ VII-I/Pension/2018/ 822-1023 dated 22nd May, 2018 has extended the benefit of family pension to the widowed/divorced daughter by making amendment in Family Pension Rule 4.10 sub-rule (2) clause (iv) of the Rules, 1989.
16. The learned counsel for the petitioner also referred case titled Wafaqi Hakoomat-e- Pakistan v.
Awamunnas, PLD 1991 SC (Shariat Appellate Bench) 731. In the referred judgment the Tarka defined as under:
17. As per above referred judgment the amount payable by way of group insurance and benevolent fund did not come within the definition of estate/Tarka, on which a deceased could claim during his life time in as much as the deceased employee could not receive any amount from the benevolent fund during his life time until he had retired or removed from service on account of mental disability. The Honorable Supreme Court further held that death claim/gratuity is nature of grant or gift and would not from the estate or Tarka of deceased on ground that during his life time he had no entitlement to claim the sum on such amount payable under the head of benevolent fund, group insurance and death claim/gratuity would not form the estate or Tarka of deceased Muslim so as to inheritable to his heirs.
18. The benefits which have already become receivable by the deceased during his life time payable to the employee when he was alive or service benefit which the employer gives as a grant to an employee and name of employee of his family member to receive it after his death. Such service being grant does not become inheritable by all legal heirs of employee. Reliance is placed on case Zaheer Abbas v. Pir Asif, 2011 CLC 1528 [Karachi], in which it was held: "Thus benefits such as gratuity, group insurance and family pension being grants and concessions on the part of the employer if payable to the employee after his death cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulations of employment or under any law for the time being in force. In the present case therefore group insurance, family pension and gratuity payable after the death of an employee being a 'grant' or 'concession' on the part of the employee cannot be treated as part of inheritance and are to be received by the person entitled to it under the service rules and regulations of the employer.
Reliance is also placed on Mst. Riffat Yasmen v. Hassan Din, 2014 CLC 126, [Peshawar] wherein it was held: "7. In the case of Zaheer Abbas v. Pir Asif and 6 others reported as 2011 CLC 1528 (Karachi) it was held as under:- "Inheritance ---Death of an employee during service ---Service benefits of deceased included payment of gratuity, family pension, leave encashment, group insurance and general provident fund---Deceased during life time having nominated his mother to receive group insurance, family pension and gratuity--Legal heirs of deceased employee except such nominee claiming shares in all such service benefits--Validity--Service benefits payable to a deceased employee become part of his estate and heritable by all his legal heirs according to their respective shares --- Service benefit which had not fallen due to a deceased employee in his lifetime and was in the nature of a grant or concession on part of employer, then whatever amount became payable after death of employee would be distributed amongst those members of prevalent law --- Benefits such as gratuity, group insurance and family pension being grants and concession on part of employer, if payable to an employee after his death, could not be treated as heritable by all heirs of employee, but would be received by beneficiary thereof under service rules and regulations of employer.
In view of above discussion the instant revision petition being devoid of merit is hereby dismissed with no orders as to costs.