ARBAB ALI HAKRO, J. Through this Appeal under Section 384 of the Succession Act, 1925 ("the Act of 1925"), the appellant has impugned Order dated 11.5.2022, passed by Additional District Judge-III, Khairpur ("ADJ") in Succession Petition No.240 of 2021, whereby the Succession Application was dismissed,
2. The case's essential facts are that the appellant, Mst. Nighat Bano submitted an application under Section 372 of the Act of 1925, requesting the transfer of her late sister's family pension. Her sister, Mst. Ansa Farhat Bano Naqvi ("deceased"), was a retired lecturer from the Government College for Women in Khairpur. She was drawing a monthly pension under I.D. No. 10829249. Being unmarried, she passed away on May 2, 2021, leaving behind three sisters: i) Mst. Nighat Bano (the appellant), ii) Mrs. Nuzhat Bano, and iii) Mrs. Ifat Bano. The deceased's parents had predeceased her. The appellant, unmarried, unlike her two other sisters, claimed entitlement to her late sister's monthly pension.
3. After hearing the arguments, the ADJ dismissed the appellant's Succession Application vide impugned Order dated 11.5.2022, leading to the present appeal.
4. At the very outset, learned counsel for the appellant argued that the ADJ's Order contradicts the law and overlooks the unique circumstances of the case. The counsel contended that the ADJ failed to consider that the appellant is not receiving any family pension and is only drawing her personal pension. The District Accounts Officer Khairpur's report, which the ADJ relied upon, pertains to a person drawing two family pensions. Furthermore, the counsel argued that respondent No.2 submitted an outdated amendment Circular/letter No. F.D. (SR-III)-3-1165/2022 dated 07.07.2022, issued by the Finance Department, Government of Sindh. In contrast, the newly amended Circular No. F.D. (PCDC)3(225)/2022, dated December 5, 2022, issued by the same department, amended the Rules and entitled The unmarried sister to the pension of her deceased brother. The counsel cited the case law reported in 2021 SCMR 730 to support his arguments.
5. Conversely, learned Addl. Advocate General supported the impugned Order and contended that the Order is according to the law and policy laid down by the Finance Department.
6. The question at hand is whether the appellant, who is unmarried, is eligible to receive the monthly pension of her deceased unmarried sister, even though the appellant is already receiving her monthly pension. It would be beneficial to first examine the relevant provisions pertaining to "pension" and the list of individuals who fall under the definition of "family". The right to a pension for a civil servant is acknowledged under Section 20 of the Sindh Civil Servants Act, 1973 ("the Act of 1973"), which stipulates as follows: "20. Pension and gratuity.- (1) On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed.
(2) In the event of the death of a civil servant, whether before or after retirement, his family shall be entitled to receive such pension, or gratuity, or both, as may be prescribed.
(3)No pension shall be admissible to a civil servant who is dismissed or removed from service for reasons of discipline, but Government may sanction compassionate allowance to such a civil servant, not exceeding two-thirds of the pension or gratuity which would have been admissible to him, had he been invalidated from service on the date of such dismissal or removal.
(4) If the determination of the amount of pension or gratuity admissible to a civil servant is delayed beyond one month of the date of his retirement or death, he or his family, as the case may be, shall he paid provisionally such anticipatory pension or gratuity as may be determined by the prescribed authority, according to the length of service of the civil servant which qualifies for pension or gratuity, and any overpayment consequent on such provisional payment shall be adjusted against the amount of pension or gratuity finally determined as payable to such civil servant or his family".
7. A civil servant after retirement and after his or her death, the family is entitled to receive his or her pension, as prescribed in the rules. Under Section 26(1) of the Act of 1973, Government or any person authorised by it in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purposes of this Act. However, as per Section 26(2), of the Act of 1973, "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act".
8. According to Black's Law Dictionary, the term "Family" has two senses:- i. In a limited sense, it signifies the father, mother, and children; In a more extensive sense, it comprehends all the individuals who live under the authority of another and includes the servants of the family.
9. The term "Family", defined by Black's Law Dictionary, carries two distinct interpretations above. In its more confined sense, it refers to the core unit of father, mother, and children. This definition encapsulates the traditional nuclear family structure, highlighting the immediate blood relations forming many households' hearts. However, the dictionary also provides a broader perspective, where "Family" includes all individuals living under the authority of another. This wider interpretation acknowledges the diverse range of relationships that can exist within a household, encompassing not only direct relatives but also servants and others who contribute to the functioning of the family unit. Thus, the term "Family" in legal parlance, as per Black's Law Dictionary, is flexible and inclusive, recognizing the varied forms that families can take in different contexts.
10. The family is also defined in the West Pakistan Civil Services Pension Rules, 1963 ("Rules, 1963"), as under:- 4.7. (1) The term 'family" for the purpose of payment of gratuity under this Section shall include the following relatives of the Government servants:-
(a) Wife or wives, in the case of a male Government Servant;
(b) Husband in the case of a Female Government Servant;
(c) Children of the Government servant;
(d) Widow or widows and children of a deceased son of the Government servant;
(e) Divorced daughter and sister."
11. The bare reading of the above Rule provides that the term "family" encompasses a range of relatives of the government servant. For a male government servant, this includes his wife or wives.
In the case of a female government servant, it includes her husband. The children of the government servant are also included in this definition. Furthermore, the family includes the widow or widows and children of a deceased son of the government servant. Lastly, a divorced daughter and sister of the government servant are also considered part of the "family". This definition reflects the diverse family relationships that can exist and acknowledges their relevance in the context of pension benefits.
12. Clause (d) of Rule 4.8 of the Rules, 1963, is a significant provision that addresses the distribution of gratuity when a government servant passes away without leaving a family. According to this Rule, if the entire or a portion of the gratuity is not covered, it becomes payable to the surviving relatives of the government servant, if any, in equal shares. These surviving relatives include brothers below the age of 21 years, unmarried and widowed sisters, the father; and the mother. This Rule ensures that the benefits earned by the government servant are not lost but are instead distributed among the closest surviving relatives, providing them with financial support. It underscores the government's commitment to safeguarding the interests of its employees and their families interests, even in unfortunate circumstances.
13. Additionally, Clause (2)(B) of Rule 4.10 of the Rules, 1963, outlines a hierarchy for the allocation of a family pension in the event that it is not payable under Clause (2) (A). Initially, the pension may be grantee to the father. If the father is not eligible or is no longer alive, the pension may then be granted to the mother. In the absence of both parents, the eldest surviving brother, who is under the age of 21 years, becomes the beneficiary. If the first three conditions fail, the pension may be granted to the eldest surviving unmarried sister. However, if the eldest sister marries or passes away, the next eldest sister becomes eligible. If all the above conditions fail, the pension may be granted to the eldest surviving widowed sister. Finally, if none of the above conditions are met, the pension may be granted to a divorced sister. In a significant development, the Government of Sindh, specifically the Finance Department, issued Notification No. FD(SR-M)3-1165/2022, dated 07.7.2022, which led to the omission of Clause (2)(B)(iii) to (v). The particular clause (2)(B)(iv), previously provided certain entitlements to the surviving unmarried sister. However, with the issuance of this notification, the aforementioned entitlements have been rescinded. This change in policy has effectively disentitled the surviving unmarried sister from the benefits that were previously accessible under the now-omitted clauses.
14. Clause (3) of Rule 4.10 of the Rules, 1963, stipulates certain conditions under which a family pension is not payable. Specifically, an unmarried female member of a government servant's family loses pension eligibility upon marriage. Similarly, a widowed female member of a government servant's family is no longer eligible for a pension if she remarries. The pension also ceases to be payable to the brother of a government servant once he reaches the age of 21 years.
Lastly, the Rule explicitly states that the pension is not payable to anyone who is not a family member of a government servant. These provisions ensure that the pension is allocated appropriately and fairly within the constraints of the family structure and individual circumstances.
15. Notwithstanding, the term "dependent" carries a significant meaning, denoting an individual who is reliant on another for support. This reliance could be emotional, financial, or physical, underscoring a fundamental inability to exist or sustain oneself independently. The dependent person requires another individual's power, aid, or assistance to navigate life's challenges. This dependency could be a result of various factors such as age, health conditions, financial circumstances, or emotional needs. For instance, a child depends on their parents, requiring their support for survival and growth. Similarly, an elderly or ill person might be dependent on a caregiver for their daily needs. In a broader sense, the concept of being "dependent" 'highlights the interconnectedness of human society, where individuals often rely on each other for survival and prosperity.
16. In Osborn's Concise Law Dictionary Seventh Edition by Roger Bird, a dependent, in the context of family provision, is defined as someone who is financially reliant on another person and is, therefore, entitled to claim provision from the estate of that person upon their death. This category typically includes spouses, children, and other close relatives, such as parents or siblings, who were financially supported by the deceased. The definition of a dependent may also extend to individuals who were not legally related to the deceased but who were financially dependent on them, such as a long-term partner or a person with a disability who was cared for by the deceased.
17. 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 a family in relation to any marriage or any other person who immediately before the death of the deceased was mentioned. In the case at hand, it is acknowledged that the appellant was a Government employee and is receiving a pension following retirement. This implies that she was not reliant on the deceased; as she was earning her income as a government employee. The term "dependent" is defined here as an individual with no personal earnings and entirely reliant on his sister's income. It is important to note that simply being an unmarried sister does not automatically qualify the appellant as a dependent on her deceased sister. In this context, dependency is not determined by marital status but by financial reliance. Therefore, despite the familial relationship, the appellant's financial independence negates her status as a dependent in this particular scenario.
18. The appellant's counsel's reliance on the case of The Province of Punjab through the Secretary, Finance Department, Government of the Punjab, Lahore and others v. Kanwal Rashid and others (2021 SCMR 730) is noteworthy. In this case, the Supreme Court of Pakistan clarified the entitlement of Family Pension, which could be derived from one or both parents. The Supreme Court did not recognize any distinction between pension from one parent or both under the Act or the Rules. It was collectively referred to as Family Pension under the Rules. The Supreme Court of Pakistan in that case further held that the son or the daughter of the deceased civil servants have a right to draw Family Pension unless they are disentitled due to the disqualification mentioned in the Rules.
The disentitlement is based on the independent acts of the children or their age. This ruling established that the entitlement to Family Pension is not absolute but is subject to certain conditions. In the conclusion of the above case, it was also clarified that the respondent/claimant will be disentitled from drawing a pension when he is married or acquires a regular source of income on his own, regardless of the family pension received by him. This implies that the entitlement to Family Pension is not only subject to the conditions mentioned in the Rules but also to the personal circumstances of the claimant. In the present case, the appellant is drawing her pension, which means she has a regular source of income on her own. According to the precedent set by the Supreme Court of Pakistan in the above-cited Judgment, this would disentitle her from drawing a Family Pension. Therefore, the case law relied upon by the counsel for the appellant does not support the appellant's claim. On the contrary, it goes against her, as it clearly states that a claimant with a regular source of income is disentitled from drawing a Family Pension.
19. The appellant's counsel has referred to Circular No. F.D. (PCDC)3(225)/2022, dated December 5, 2022, issued by the Finance Department, Government of Sindh. The counsel argued that the department amended the Rules to entitle an unmarried sister to the pension of her deceased sister. However, upon examination, it appears that the Rules were not amended per se, but rather clarified in terms of interpreting Rule 4.10(2)(A)(iii), Rule 4.10(2)(B)(v), (vi), and Rule 4.10 5(a) and (b). The clarifications are as follows: (i) A daughter of a deceased pensioner who is a widow at the time of the pensioner's death is entitled to a transfer of family pension. However, if she becomes a widow after the pensioner's death, the family pension will not be granted/re-granted. (ii) If the death of the pensioner and the husband of the pensioner's daughter occur on the same day, the family pension will be transferred to the widowed daughter. But, if she becomes a widow even a day later, the family pension will not be granted/re-granted. (iii) Similarly, if the daughter of a deceased pensioner is divorced at the time of the pensioner's death, she is entitled to a transfer of family pension. But, if she is divorced after the pensioner's death, the family pension will not be granted/re-granted. (iv) If the death of the pensioner and the divorce of the pensioner's daughter occur on the same day, she is entitled to a transfer of family pension. However, if the divorce occurs even a day later, the family pension will not be-granted/re-granted. (v) The above clarifications also apply to widowed and divorced sisters and in cases of remarriage of a widow and unmarried/widowed/divorced daughters/sisters. However, these clarifications do not address the appellant's entitlement to a transfer of family pension when she has her own source of income despite being unmarried.
20. For the foregoing reasons, the impugned Order passed by the ADJ is correct and in accordance with the law; therefore, the same is maintained and upheld. Consequently, the instant appeal is devoid or merits, which is accordingly dismissed.