This is an administration suit under Order XX, rule 13 of the Code of Civil Procedure brought by widow Aiysha Koreshi and her minor son, aged 9 years, namely Ikramullah Koreshi against the father and mother of the late husband Shafqatullah Koreshi of the plaintiff Aiysha Koreshi who are named Hashma--tullah Koreshi and Mrs. Iqbal Begum Koreshi.
2. The relevant facts are these. Shafqatullah Koreshi who was a Sunni Muslim, died on 22nd February 1970. His death certificate is filed with the plaint and marked as Annexure A-1. He left behind as his heirs his wife Aiysha Koreshi and minor son Ikramullah, plaintiffs Nos. 1 and 2 respectively, as well as his father and mother, Hashmatullah Koreshi and Mrs. 1qba1 Begum Koreshi, the defendants Nos. 1 and 2 respectively. The deceased Shafaqatullah Koreshi left behind considerable properties consisting of Insurance, Provident Fund, Gratuity, part of his salary, N. I. T.
Units, Income-tax Bonds, Bank Balance, a house in Defence Housing Society and structure of house No. 535, Garden East, Karachi and some agricultural land which properties, have been detailed in the pleadings of the parties and which shall be referred to in detail at the relevant place later on.
There is dispute between the parties as to quite many of them as each party is claiming, according to him or her, his or her own share. There is one more feature in the case as regards the division of the assets between the parties after paying off the liabilities of the deceased propositor and it is that the plaintiffs claim in their plaint that defendant No. 1 Hashmatullah Koreshi, father of the deceased Shafqatullah is a Bahai by religion and Bahai religion is not a Muslim religion, therefore, he is not entitled to any share out of the inheritance of the property of his deceased son. This allegation has been repudiated by Hashmatullah defendant No. 1 and he claims that he is not a Bahai but was a Sunni Muslim at the time the inheritance opened as such he cannot be deprived of his share of property left by his deceased son.
3. It is admitted by the counsel for the parties that if all the above heirs were to receive, their shares from the properties of the deceased their shares will be as follows:
4. There is also another feature in the case which needs mention. What is that defendant No. 2, Mrs. Iqbal Begum Koreshi, in her written statement has said that from her share out of Rs. 1,21,750.09 which she is entitled to according to her, as part of her inheritance from her son she gifts 13/24th part of it out of love and affection to her grandson, plaintiff No. 2, Ikramullah Koreshi. So that in distribution of assets this point is to be kept in view.
5. On the pleading of the parties the Court has settled the following issues :-
(1) What are the assets of the deceased ?
(2) In what manner the assets are to be distributed amongst the legal representatives of the deceased ?
(3) Whether the defendant (No. 1) is a Bahai by religion, if so, what is its effect ?
(4) Relief ?
6. The plaintiffs have led evidence only of one witness Assandas and no more. On the other side defendant No. 1 Hashmatullah Koreshi has examined himself only and then both the defendants have closed their side. On the joint request by all counsel for the parties, I have examined Official Assignee of this Court Mr. Zahoor Ahmed as a Court witness because he was appointed as Receiver of the properties of the deceased by the Court on 25-9-1970 at a very early stage of the suit even before the framing of issues and he was directed to administer the properties of the deceased and manage these i.e. Both the assets and liabilities of his. He has, accordingly, administered the estate of deceased by now and I will refer to his evidence at relevant place.
7. For convenient sake I will now take up issue No. 1 first which relates to the question whether defendant No. 1 Hashmatullah Koreshi is a Bahai by religion and if so what is its effect ?
8. The defendant No. 1 in his evidence has stated that from 1909 to 1966 he was a member of Bahai community but he disassociated himself from the said community in the year 1966 i.e. Long before the death of his deceased son Shafqatullah who died in 1970 which is the admitted position on all hands. The claim of the defendant No.1 is that Bahai community is not a faith or separate and distinct religion from Islam but it is a sect of Islam. According to him the teachings of holy book of Bahais and those of Quran are not diametrically opposite. However, this may be, the solitary witness of the plaintiffs, namely, Assanand has stated that he was also a Bahai like defendant No. 1, Hashmatullah, but further adds that Hash--matullah was excommunicated from Bahai religion, as he calls it, and, therefore, he has ceased to be a Bahai. He produced the photostat copy of the excommunication declaration of the defendant No. 1 as Exh 6/2 which is clearly to that effect. This document is dated 25th March 1967. Hashmatullah defendant No. 1 also says in his evidence that he did not challenge this document of excommunication at all and has always remained a Muslim.
Hashmatullah also recited the Kalma in Court while giving evidence in Court during the proceedings of this suit. Thus, his stand is that he has never ceased to be a Muslim although he was a member of Bahai community for many years' membership of which community he renounced in the year 1966.
9. The learned counsel for the plaintiffs Mr. S. Nasiruddin has stoutly contended that the defendant No.1 Hashmatullah never became a Muslim after being a Bahai which religion is different from Islam and is not a sect of it and if it all he became a Muslim, he embraced Islam only in Court during the proceedings of this suit when he recited the Kalma which is the only prerequisite for a person to become a Muslim as all authorities are agreed on this point. Mr. Nasiruddin referred me to various authoritative books on the question that Bahaism was a separate and distinct religion from Islam and it was not a sect of it. But I feel it is unnecessary to go into this question of fine distinction as the only witness of the plaintiffs themselves says that Hashmatullah was excom-- municated from Bahai religion and he ceased to be a Bahai in 1967, according to excommunication document Exh. 6/2 which he has produced himself. If this be so, obviously, then even if it be assumed for argument sake that Bahaism is a separate and distinct religion from Islam then thereafter when the defendant No. 1 was excommunicated from it what religion did be belong to? He was a Muslim before becoming Bahai and after ceasing to be Bahai he would obviously revert to Islam even if Bahaism was a different religion from Islam for argument sake, without of course deciding the question. For becoming a Muslim all authoritative books of Islam are agreed that if a person believes in the unity of God (Allah) and Muhammad (May peace be upon him) to be his prophet and also says that he is a Muslim then he becomes a Muslim and no other formalities or rituals are to be gone through by him. Under the circumstances, therefore, it stands to reason to believe that defendant No.1 Hashmatullah in any event became a Muslim again after being excommunicated from Bahai community or religion. I, therefore, find that defendant No. 1 was a Musalman at the time the inheritance of his deceased son opened and is still a Muslim.
Accordingly, I find this issue in the negative.
10. I will now take up the Issue No. 1 regarding as to what are the assets left by the deceased 7
11. The pleadings of the parties, the pious wish of the deceased Shafaqatullah which he has left in writing and is Exh. 10 as well as the evidence of defendant No. 1 Hashmatullah show that the deceased has left the following properties. Insurances and moneys :-
(1) Widow-Aiyasha Koreshi 1/6
(2) Son-Ikramullah 13/24
(3) Father-Hishmatullah Koreshi 1/6
(4) Mother---Mrs, Iqbal Begum Koreshi1/6 Total 1 The above list is the list of known assets left by the deceased Shafaqatullah but as the pleadings show there are some more unknown assets also which have been left by the deceased.
12. The exact position of assets and liabilities of the deceased Shafqatullah Koreshi in this case is however, made sufficiently clear in the evidence of the Official Assignee of this Court who was appointed as Receiver by the Court by its order dated 25th September 1970, appearing in the order sheet which is as under : Mr. Syed Nasiruddin, Advocate for the plaintiff.
Defendant No. 1 is absent and is out of Pakistan according to the bailiff's report.
Mr. Akhtar Mahmood, Advocate for defendant No. 2, this defendant being the wife of defendant No. 1.
Mr. Akhtar Mahmood agrees that the Official Assignee may be appointed as Receiver. Therefore, by consent' of Mr. Syed Nasiruddin and Mr. Akhtar Mahmood the Official Assignee is appointed Receiver with the following powers and directions
(1) The official Assignee will collect all the amounts including amounts due on the Insurance Policies, due to the estate of the deceased.
(ii) The Official Assignee, out of the amounts so collected, shall pay off the loan of the Habib Bank Ltd. If any.
(iii) The Official Assignee shall enter into negotiations with the P. I. A. For giving to this Corporation the house is the Defence Housing Society on rent, it being stated before me at the Bar that the P. I.
A. Is prepared to take this incomplete house and complete it at its own costs.
(iv) Mr. Akhtar Mahmood agrees and undertakes to hand over all the particulars and details of the assets of the deceased which are in possession of defendant No. 2 to the Official Assignee so that the Official Assignee may, with the assistance of these details, recover those assets.th th th th
2. The above directions shall also apply to the Insurance Policies which had been taken out for the benefit of the minor plaintiff No. 2. All the amounts realized by the Official Assignee shall be kept in a separate account in Habib Bank Ltd. Court Branch.
3. Notice of the application and the suit may be sent again to defendant No. 1 after 30th September 1970, when he is likely to return to Pakistan, according to Mr. Akhtar Mahmood's statement. The above orders has the consent of parties before me.
(Sd.) Noorul Arfin, Judge.
13. The second order in respect of the Receiver of this case is also relevant which has been passed with the consent of the parties on 22-2-1971 and it appears in the order-sheet as follows :- "For hearing of
1. Misc. No. 74/71.
2. Misc. 75/71 (Notice waived).
3. Misc. No. 76/71.
Mr. S. Nasiruddin, Advocate.
Mr. G. M. Qureshl, Advocate.
Mr. Akhtar Mahmood, Advocate.
Official Assignee in person.
The following order is passed with the consent of the parties :
(i) Without prejudice to the contentions of each and every party in these proceedings, the Octal Assignee shall have the two houses valued with the assistance of a qualified engineer or architect, namely, house B-7-B, Extension 7th, 11th South Street, Defence Housing Society and house No. 353, Garden East, Pires Street, Karachi.
(ii) The Misc. Application No. 75 of 1971, is by consent granted and the Official Assignee is directed to have the house No. 7-B, 11th St. Defence Cooperative Housing Society Ltd. Completed with the moneys in the Court or with him, but he will call for quotations and consult the Advocates of the parties with regard to these quotations. This direction however, is, without prejudice to claims and rights of the parties to these moneys or any, part thereof.
(iii) The parties agree that this being an administration suit, its hearing should be expedited. By consent, the case is fixed in Court on 1st March 1971, for framing of issues, filing of documents and admission and denial of documents. On that date, a further date will be given for final hearing.
(iv) Mr. Akhtar Mahmood has filed an application on behalf of Dr. Samiullah M: Qureshi requesting that he should be made a party in this case. This will be considered on the final date of hearing.
Copies of this application may be supplied to other parties: Adjourned to 1st March 1971.
(Sd.) Noorul Arfin.
Judge:
14. The Receiver consequent upon the two orders of the Court mentioned above has already entered upon the manage--ment of the estate of the deceased since 6th October 1,70, as he says in his evidence, and has been managing the same since then. He states in his evidence before the Court that he was appointed with a direction to realize the assets of the deceased Shafaqatullah concerned in the suit and administer the same. Accordingly, he realized cash amounting to Rs.'
2,56,264.29. He has prepared such statement of recovery of the assets which he produced and has been marked as' Exh. 11/1. He also said that this amount of cash covers the realization in payment of the two insurance, policies left by the deceased aforesaid with the Eastern Federal Union Insurance Co. Ltd. He further says that he also realized (1) gratuity of the deceased from P. I. A. Amounting to Rs. 22.166.62; (2) Provident Fund in which the nominee was Begum Hasmatullah Koreshi, the mother of the deceased in this suit and the amount was Rs. 81,750.00. He also recovered the arrears of salary and Bonus of the deceased and his leave salary as well all amounting to Rs. 19,753.49. He then added that he had also realized group insurance of the deceased from P. I. A., the nominee in which is Ikramullah Koreshi, the minor son of the deceased, and the amount realized is Rs.
60,000.00 The first insurance policy with the Eastern Federal Union Insurance Co. Ltd. Is numbered as 75806, in which the nominee is the mother of the deceased, namely, Mrs. Iqbal Begum Koreshi, defendant No. 2, and the amount realized on it is Ks. 38,894.00 and the second policy is numbered as 314019 of the same company in which the nominee is Ikramullah Koreshi, the minor son of the deceased. And the amount realized thereon is Rs. 25,954.80. The Receiver further said that the deceased bad also left an incomplete bungalow in Defence Housing Society, Karachi which he had taken over for completing its construction as directed by this Court and in this connection he bad submitted a Reference to this Court dated 15-11-1971 but it has not yet come up for hearing. This reference I might state has not been put up along with the case papers by the office and no notice is issued on it as such I am unable to consider it and dispose it of and will do so subsequently. The Receiver then said that he had also made payments of the debits of the deceased which he has mentioned in his statement of account that he produced as Exh. 11/1 and these payments totally amount to Rs. 1,00,816.24. The balance, therefore, available with him now was Rs. 1,55,448.05. He added that he had also in his statement of account given the summary of cash available at the bottom left hand corner of it. Out of this balance with him he had invested rupees one lac in fixed deposit receipt in Habib Bank Ltd., Court Road Branch, Karachi and has kept with himself Rs.
2,583.76 shown as cash in his own hand in Exh. 11/1 for daily administration of the assets of the deceased and also kept with himself in current account of the aforesaid bank Rs. 52,864.27 for completing the construction of the bungalow left by the deceased in the Defence Housing Society as already mentioned by him. Receiver was cross-examined by Mr. S. Nasiruddin, Advocate for the plaintiffs and he has said in his cross-examination that one of the directions by the order of the Court dated 22-2-1971 to the Receiver was to have the two houses of the deceased valued with the assistance of a qualified engineer or architect, namely, the houses are two, one is in Defence Housing Society and the other is in the Garden East under dispute. He then stated that he will file his estimate of valuation within a week after he had given evidence before the Court. By now he has made a Reference on this point to the Court dated 19-2-1972 regarding the evaluation of the said two houses to which I would refer and decide In my findings on issue No. 2, which will be the next issue taken up for decision. Then receiver in his cross-examination by Mr. Munawar Abbas, Advocate, for defendant No. 2, has said that he has paid Rs. 30,000 as dower under the Court's order to plaintiff No. 1 i.e. The widow of the deceased in the suit. He also said that he had paid Rs.
50,000 00 to Habib Bank Ltd. Airport Branch. Karachi which was taken as a loan by the deceased 4n the suit and both these amounts he has mentioned In his statement that he has produced.
According to him the loan with, the Habib Bank Ltd. Airport Branch, Karachi, was on the security of the two life insurance policies of the deceased with Eastern Federal Union Insurance Co. Ltd. He also added that an amount of Rs. 6,000 i9 still payable as the balance of the loan left by the deceased which he will pay In due course to the Habib Bank Ltd. Just mentioned as the cash balance of the loan. He then said that he had received a demand notice from the Income-tax Authorities for the payment of the dues which is below Rs. 300 and he could not give the exact figure as he had not brought the demand notice with him when he was giving evidence. The Receiver went on to say in his cross-examination again at the suggestion of Mr. Nasiruddin, Advocate that he (Receiver) was directed by the Court to realize from the Revenue Authorities allotment order of 24 acres of agricultural land in village Shorki, taluka and District Thatta and allotment of 24 acres of agricultural land to the minor son of the deceased, namely, Ikramullah in village Shorki, taluka and District Thatta. He tried his best to receive the above allotment orders of the agricultural land but he received a reply from the concerned authority which he produced as Exh. 11/2 and it says in short that Munshi Mir Khan Jokhio. Tapedar of Mehar of this taluka had reported that the entries with regards to the allotment of agricultural land in the name of deceased Captain Koreshi and his minor son 1kramullah do not appear fn the Register of Record of Rights of Deh Shorki. However, perusal of village Form VII of Deh Shorki, shows that 2000 acres of land have been entered in the name of Cooperative Farming Society, Shorki, and the name and the areas held by the respective members of the Society are not entered in the record as such the information sought for cannot possibly be given. According to the Receiver, there was no trace of this Cooperative Farming Society. Shorki, to spite of his best efforts to locate the same. He re4uested that the parties may assist him In this matter, if they so desired. It might be mentioned here that the Receiver had received all the documents of the deceased leis In the possession of his father defendant No. 1 from the latter and according to these papers the Receiver stated that the deceased in the Suit was allotted a plot bearing No. 10 for residential purposes in Darus Salam Cooperative Housing Society, Karachi, for which the deceased had deposited Rs. 2,000 towards the first instalment with the Society. The other demands of the Society in this respect have not been since paid by the deceased and, therefore, the papers showed that the allotment is liable to cancellation. The land, according to the Receiver, was actually the property of the Society and the member is allotted the lease on the completion of structure and on fully having paid the' demand of the Society. He then suggested that it was for the parties in this suit to retain the plot and make deficit payment if they so desire or to have the deposit refunded. The Receiver then added that he had received from the father of the deceased in the suit i.e. Defendant No. 1, a trunk load of documents concerning the assets and liabilities of his deceased son. He also said that on his enquiry about any land left by the deceased with Mahalkari Kohistan, he has received a reply that Deb Kohistan is situated in Thatta District. The deceased Shafqatullah Koreshi does not hold, it shows, any agricultural land in this jurisdiction, it is, therefore, requested that the Deputy Commis--sioner. Dadu may be moved in this connection. The Receiver had then written to the Mahalkari Tando Bola Khan in District Dadu about any land left by the deceased and on his enquiries it has been revealed that there is no land in the name of the deceased and he should contact the Deputy Commissioner. Dadu. On his enquiries from Mahalkari Kohistan, by letter he informed the Receiver that Deb Kohistan is actually situated in District Thatta. Accordingly, the Receiver contacted the, Mahalkari Kohistan and he replied by letter to the Receiver saying that Deb Kohistan as situated in District Thatta. It also states that the deceased in the suit did not hold any land within his jurisdiction in Deh Kohistan. The Receiver lastly said that in the documents that he had received pertaining to the estate of the deceased he did not find any document relating to any land having been left by the deceased in Deh Kohistan. He ended by saying that there was no other document regarding the deceased having left any land anywhere else among the documents that he had been given as mentioned already.
15. This evidence of the Receiver clearly shows that by now he has almost completed the administration and management of the estate of the deceased Shafaqatullah Koreshi and very little remains to be done on his part. The Receiver has also fully accounted for the assets and liabilities of the deceased and I find, therefore, that the deceased Shafqatullah Koreshi has left the assets as described by the Receiver, subject to the fact that the parties in the suit may now further on their own make efforts to find out agricultural land alleged to have been left by the deceased as stated by the Receiver which the later was not able to trace out in spite of best efforts. The Receiver has also stated that for the group insurance policy of the deceased with the P. I. A. The nominee for it was his minor son, Ikramullah, plaintiff No. 2 and the same minor was also a nominee in the Life Policy of Eastern Federal Union Insurance Co. Ltd. No. 314019 on which the Receiver had realised Rs.
25,954.80 already. Regarding the other life policy of the same company No. 75806, he stated the nominee for it was the mother of the deceased i.e. The defendant No. 2 in the case, and on this policy he had realised, as already stated, Rs. 38,894.00 and not Rs. 40,000 as has been claimed by the parties in their pleadings. About the Provident Fund left by the deceased which amounted to Rs.
81,750.00 the Receiver stated that the nominee for this Provident Fund was the mother of the deceased I e. The defendant No. 2 in the suit. He also stated that he had received the amount covered by the gratuity of the deceased from the P. I. A., his employers. During the course of the arguments Mr. Akhtar Mahmood, Advocate for defendant No. 2 has stated that the deceased has left a pistol .025 bore with 37 bullets which is deposited with Dossel & Co. Arms Dealers, Karazhi and the licence is with his clientess defendant No 2. This pistol and the licence will also, therefore, be taken over by the Receiver for the purpose of administration of the estate of the deceased.
16. This brings me to issue No. 2 which is as to in what manner the assets are to be distributed among the legal representatives of the deceased? Obviously, as already held by me while deciding issue No. 3 I have come to the conclusion that the father of the deceased defendant No. 1 would also be a legal heir to the estate of the deceased and the shares of all parties to the suit have been given by me which is in accordance with the Mohammadan Law in the second paragraph of this judgment above.
17. Regarding this issue the dispute between the parties is about the group insurance policy of Rs.
50,000, two policies of Eastern Federal Union Life Insurance Co. Ltd. Nos. 314019 and 75806, also regarding the Provident Fund left by the deceased as well as lastly on the agricultural land which is said to have been purchased by the deceased in the name of his minor son Ikramullah plaintiff No.
2. The question, there--fore, is whether these assets of the deceased would form part of his estate for the purpose of distribution to the parties in this suit who are the legal heirs of the deceased or not ?
18. I will first take up the question of Provident Fund left by the deceased in his department where he was serving and the case of the parties in their pleadings admittedly is that the mother of the deceased I e. Defendant No. 2 in the suit, has been made nominee of the Provident Fund which fact is also deposed to by the Receiver to be correct. The question that has been raised regarding this Provident Fund is whether the nominee of the Provident Fund has to receive the amount of the provident fund as the sole owner of it himself or herself or would this amount covered by the provident fund form part of the estate? On this question of law, Mr. Nasiruddin, the learned Advocate for the plaintiffs, has contended that the nominnee of a Provident Fund is to receive the amount of the provident fund on account of all the legal heirs of the deceased who is the subscriber of the fund as such he (payee) cannot himself be the beneficial owner of it. In support of his contention he has cited two cases which are Noor Mohammad v. Mst. Sardar Khatoon and others (AIR 1949 Sind 38) and Mukadar Khan v. Burmah Shell Oil Storage and Distributing Co. Ltd., Karachi and another (PLD 1968 Kar. 523). In both these reported cases it has been held that in accordance with section 5 of the Provident Fund Act, 1925, the nominee has nothing more than the right to receive the amount and a nominee does not get absolute title to it. In the authority mentioned as the second case of Karachi Bench of West Pakistan High Court reliance has been placed on the decision AIR 1949 Sind 38. Both these reported cases are a Single Bench decisions.
The question under consideration, however, has to be decided upon the proper construction and interpretation of section 5(1) of the Provident Fund Act, 1925 material portion of which is as under :- "5.-(1) Notwithstanding anything contained in any law for the time being in force or in any disposition, whether testamentary or otherwise, by a subscriber to, or depositor in, a Government or Railway Provident Fund of the sum standing to his credit in the Fund, or of any part thereof, where any nomination, duly made in accordance with the rules of the Fund, purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or despositor occurring before the sum has become payable or before the sum, having become payable, has been paid, the said person shall, on the death as aforesaid of the subscriber or depositor, become entitled, to the exclusion of all other persons, to receive such sum or part thereof, as the case may be unless."
A bare perusal of this provision would show that the nominee of the Provident Fund becomes entitled to receive the amount of it to the exclusion of all other persons as such the nominee himself is the sole beneficial owner, of it and this amount would not form part of the estate of the deceased subscriber of the provident fund. In fact this subsection (1) of section 5 was amended by Provident Fund (Amendment) Act, 1946 (XI of 1946) by its section 2 and it was by this amending Act that the words to the effect that the nominee shall become entitled to receive the amount to the exclusion of all other persons were also added by the amendment brought in 1946. This amendment, it has been pointed out by the two counsel for the two defendants respectively, was not noticed in the reported cases AIR 1949 Sind 38 and PLD 1968 Kar. 523, therefore, decisions in these matters, it is argued, is not good law. Furthermore, both these counsel for the defendants have also cited contrary rulings. They are three in number. The first is the case of Karim v. Hajyani Hanifa and 4 others (PLD 1970 Kar. 613), wherein it has been held that the nominee of the provident fund was entitled to property exclusively and absolutely under section 5(1) of the Provident Fund Act, 1925. This is a Division Bench decision and obviously, therefore, should be considered to have overruled the contrary view expressed in the two cited cases relied upon by the learned counsel for the plaintiffs. The second case expressing the contrary view to what has been advanced on behalf of the plaintiff, is the case of Aftab Ahmad v. Mst. Shaheen Begum and others (PLD 1960 Kar. 238), wherein it has been held that under sections 4 and 5 of the Provident Fund Act, 1925, the nominee is entitled to receive the fund money to the exclusion of all other persons. In this case it will be noticed that AIR 1949 Sind 38, which has been relied upon by the learned counsel for the plaintiffs has been considered but has not been followed. This ruling is also of a Single Bench and the learned Judge who was then G. B. Constantine, J., has disagreed with the view expressed in the two cited cases on behalf of the plaintiffs. The third case relied upon on behalf of the defendants is the case of Umer Hayat v. Mst. Hayat Bibi and others (PLD 1958 Lah. 82), wherein it is held that the amount of the provident fund is to be paid to the nominee or dependant according to the Rules and the nominee or the dependants gets absolute title to the amount payable. This is a decision by Justice B. Z. Kaikaus, as he then was, who subsequently became a Judge of the Supreme Court of Pakistan and retired as such. All these three decisions, it will be clearly seen, do not agree with the view advocated for by the learned counsel for the plaintiffs and the three cases cited and relied upon on behalf of the defendants clearly lay down that the nominee of a provident fund is entitled to receive the amount of the provident fund to the exclusion of all other persons is the correct position in law and I, accordingly, hold likewise. Therefore, the conclusion is that the mother of the deceased Shafaqatullah Koreshi, i.e. The defendant No. 2, shall be entitled to the amount of the provident fund left by the deceased which is Rs. 81,750.00.
19. Then is the question of three insurance policies and in the first one which is the Group Insurance Policy of Rs. 60,000, the nominee is the son of the deceased i.e. Minor Ikramullah, plaintiff No. 2 in the suit, and he is also nominee in another policy of Eastern Federal Union Life Insurance Co. Ltd. No. 314019 on which Rs. 25,955.80 have been recovered by the Receiver and for this policy also the nominee is the same minor son of the deceased. In the third insurance policy of the Eastern Federal Union Life Insurance Co. Ltd. No. 75806 on which Rs. 38,894 have been recovered by the Receiver, the nominee is the mother of the deceased in the suit, i.e. Defendant No. 2. A dispute has been raised by the learned Advocates appearing for the opposite sides whether nominee of a life insurance policy receives the amount of the insurance exclusively and solely as its owner or he receives it on behalf of the legal heirs of the deceased/assured person as such he is not to be held the sole owner of the amount covered by the insurance ?
20. On this question the learned counsel for the plaintiffs has relied upon the relevant section in the Insurance Act relating to this issue which is section 39 of the Insurance Act, 1938. The following material portions of this section are relevant for the purpose of deciding the issue in question :- "39. The holder of a policy of life insurance on his own life may, when effecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death.
(6) Where the nominee or, if there are more nominees than one, a nominee or nominees survive the person whose life is insured the amount secured by the policy shall be payable to such survivor or survivors.
(7) The provisions of this section shall not apply to any policy of life insurance to which section 6 of the Married Women's Property Act, 1874, applies or has at any time applied: Provided that where a nomination made whether before or after the commencement of the Insurance (Amendment) Act, 1946,.In favour of the wife of the person who has insured his life or of his wife and children or any of them is expressed, whether or not on the face of the policy, as being made under this section, the said section 6 shall be deemed not to apply or not to have applied to the policy."
It will be seen from subsection (6) mentioned above that the amount secured by the policy shall be payable to the surviving nominee as stated in this section. In addition to this provision the learned counsel for the plaintiff has relied upon section 6 of the Married Women's Property Act, 1874, material portion of which is as follows :- "6.-(1) A policy of insurance effected by any married man on his own life, and expressed on the face of it to be for the benefit of his wife or of his - wife and children, or any of them, shall enure and be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them, according to the interest so expressed, and shall not so long as any object of the trust remains, be subject to the control of the husband, or to his creditors, or form part of his estate.
When the sum secured by the policy becomes payable, it shall, unless special trustees are duly appointed to receive and hold the same, be paid to the official Trustee of the Province in which the office at which the insurance was effected is situate, and shall be received and held by him upon the trusts expressed in the policy, or such of them as are then existing.
(2) Notwithstanding anything contained in section 2, the provisions of subsection (1) shall apply in the case of any policy of insurance such as is referred to therein which is effected by any Hindu, Muhammadan, Sikh or Jain, in any Province after the first day of April 1923."
21. Relying upon the above provisions of section 6, learned counsel for the plaintiffs has argued that the two policies of insurance i.e. The Group Insurance Policy and Policy No. 314019 should go exclusively to the minor as he is the nominee and according to this section such a policy of insurance when expressed on the face of it to be for the benefit of any of the children of the assured shall enure and be deemed to be a trust for the benefit of the child of the assured, and that it shall not form part of his estate as such the nominee, according to him, shall take exclusively for his own benefit the amount covered by the insurance as read with section 39 (6) of the Insurance Act, 1938. But this argument of the learned counsel does not commend itself to me. It has been argued by both the learned counsel for the defendants that subsection (6) of section 39 of the Insurance Act merely lays down that the amount covered by the Insurance policy shall be payable to the surviving nominee but does not contain the words "to the exclusion of all other persons", as are mentioned in the case of provident fund nominee as mentioned in section 5(1) of the Provident Fund Act, 1925, therefore, the nominee of the insurance policy is only to receive the amount covered by the insurance but he is to hold it for the benefit of all the legal heirs of the assured person and is not himself entitled solely to the exclusion of all others. It is also argued that if the Legislature had desired to make the nominee of the Insurance Policy as solely entitled to the amount of the policy then the words "the nominee shall become entitled, to the exclusion of all others to receive the sum covered by the insurance policy" should have been added in section 39 of the Insurance Act.
The argument of the learned counsel for the plaintiffs relying upon section 6(1) of the Married Women's Property Act that the policy of insurance effected by the deceased in this case was for the benefit of his child and, therefore, it shall enure and be deemed to be a trust for the benefit of his such child and shall not form part of the estate would not apply in view of the proviso to subsection (7) of section 39 of the Insurance Act, 1938 which excludes the application of section 6 of the Married Women's Property Act, to a life policy where the nomination is made by the assured in favour of his child as such no benefit can be derived by the plaintiff No. 2, minor son of the deceased, from the provisions relied upon by his learned counsel. The learned counsel for the defendant No. 2 i.e. The mother of the deceased, also supported the view on this question advanced by the learned Advocate for the plaintiffs and he relied upon the commentary in the book entitled "Treatise on the Law of Insurance, 196 2 Edition at pages 191 and 192 wherein has been stated as follows :- "191 -In spite of the nomination, therefore, the policy moneys form part of the estate of the assured, and his legal representatives are the only persons entitled to receive the same. In order, therefore, that the nominee may recover he must show that a trust was created in his favour and that he is in a position to give a valid discharge."
192.-Effect of the statutory rule, nominee when entitled to recover :- Even according to the rule in this section no absolute trust is created in favour of the nominee. The nominee merely takes a contingent interest, defeasible in one of the four following ways :-
(1) By a transfer or assignment of the policy made by the assured.
(2) By cancellation of the nomination by the assured.
(3) By the policy maturing for payment during the life assured, and
(4) By the nominee dying before maturing of policy.
On the happening of any one of these events the policy moneys find their destination in the first case, to the assignee and his representatives and, in the other three cases, to the assured or his legal representatives. If the policy matures, during the fife of assured, or if nominee dies before the policy matures it remains at the absolute disposal of the assured. The only contingency left in which the nominee can recover is his surviving the assured, if the benefit under the policy has not been already disposed of by the assured, by sale, gift, settlement or will or by a fresh nomination. If none of these contingencies happen section 39 gives a right to the nominee to clam the policy moneys from the insurer."
22. It will be seen from the above two passages that no where in it is said that the nominee of an insurance policy is the sole beneficiary under it and can receive the moneys of the insurance policy exclusively for himself. No law is also quoted in these passages to support the contrary view. On the other hand, the learned counsel for the defendant No.1 i.e. The father of the deceased, has cited several authorities which, support the proposition that the nominee of an insurance policy is only to receive the amount covered by the insurance policy for the benefit of all the legal heirs of the assured person and that amount shall form part of the estate of the deceased. He has first relied upon the very wordings of section 39 of the Insurance Act in subsection (6) of it wherein it is laid down only that the surviving nominee shall be paid the assured sum but it does not say "to the exclusion to all others" as is found in the terms of section 5 of the Provident Fund Act, 1925. He has also cited several authorities in support of his view to which I shall presently refer. The first one of them is the case of Mahadara Brahmamma v. Kandula Venkataramana Rao and another (AIR 1957 Andh. Pra. 757), wherein it has been held as under : "A reading of the relevant provisions of section 39 can only lead to a conclusion that the holder of the policy continues to have interest in the policy notwithstanding the nomination effected in regard to the policy. It does not divest him of the rights in the policy arid he retains disposing power over it. The title does not pass to the nominee by the reason of the nomination. Consequently, the nominee gets the property in the policy subject to all the liabilities of the policy holder.
Section 6 of the Married Women's Property Act does not apply to a nomination, hence a nomination in favour of the wife of an insurer dated 3-12-1944, through prior to the amendment, is not governed by section 6 and the right which the wife gets as a nominee under the policy is subject to the discharge of any liability of her husband. The creditors of the insurer can, therefore, reach his assets in the hands of his widow in execution of the decree obtained against him."
23. The second case cited is reported `as D. Mohandavelu Mudaliar and another v. Indian Insurance & Banking Corporation Ltd., Salem and another (AIR 1957 Mad. 115), wherein headnote (d) reads as under :- "So far as nomination is concerned there is no appreciable difference between the English and American law on the one hand, and what obtains in India. According to the English law the payee or the nominee is nothing more than an agent to receive the money, which money remains as the property of the assured and at his disposal during his lifetime and on his death forms part of the estate. The result is that the payee or the nominee takes no beneficial interest in it."
24. The third case referred to is Sm. Shanti Devi v. Shri Ram Lal (AIR 1958 All. 569), wherein it has been observed as follows :- "Section 6(1) clearly shows that the policy has to be effected for the benefit of the wife. The language is not that a policy effected for the benefit of another person may be considered to have been effected for the benefit of the wife by a subsequent nomination. The making of a subsequent nomination in favour of the wife is merely authorising her to receive the money and is not the `effecting' of a policy for her benefit. A policy cannot be effected twice.
Where therefore the wife is not made beneficiary ab initio the policy is not effected by the husband for the benefit of his wife within section 6(1) and the mere fact that he madea subsequent.
Nomination such as he was empowered to make under section 39 of the Insurance Act does not make the policy a policy to which section 6 (1) applies because of such nomination.
Section 39 of the Insurance Act and section 6(1) of the Married Women's Property Act are not complementary and the right of nomination which is bestowed on a policy--holder under section 39 of the Insurance Act cannot be read into section 6(1) of the Married Women's Property Act so as to vary the clear Intention of the latter Act.
If a trust is to be created later in favour of any person after the policy has been effected, then it cannot be created under section 6(1) of the Married Women's Property Act but must be created as any other trust is created."
25. The fourth case referred to is Ramballav Dhandhania v. Gangadhar Nathmall (AIR 1956 Cal.
275), wherein it has been laid down as under :- "Where the nomination in the endowment insurance policy of the deceased judgment-debtor stated 'I nominate my wife and my son-in-law, the survivor or survivors, as the persons to receive the moneys under the above policy in the event of my prior death' the nominee under these terms does not become the owner of the money payable to him under the policy. Such nomination only indicates the person who should receive the money should the owner die.
All that subsection (6) of section 39, Insurance Act does is to confer on the nominee the right to receive the Insurance money as between such nominee and the Insurance Company, but it does not provide for the title or ownership of that money in general."
26. All these four cited cases, therefore, clearly lay down the proposition of law that a nominee of the life insurance policy is to be entitled to the payment of the amount covered by the policy on behalf of all the legal heirs of the deceased assured and he cannot claim that amount exclusively for himself or herself. The very words of section 39, subsection (6) also suggest the same meaning.
I am also further fortified in this view from the very provisions of section 6(1) of the Married Women's Property Act, wherein it has been laid down that the assured person, if he expresses on the face of the policy to be for the benefit of his wife or his child then the policy shall enure and be deemed to be a trust for the benefit of such a nominee and shall not form part of his estate. But in this case there is no evidence led by the plaintiffs to show that the insurance policies in question were so expressed to be for the benefit of the minor son in order to create a trust in his favour as such it cannot be held that the minor son of the deceased is entitled as a nominee of the insurance policies in question to the benefit of the amount covered by them exclusively. The same position of law would also hold good In regard to the life insurance policy No. 65806 of the Eastern Federal Union Life Insurance Co. Ltd. For which the nominee is the mother of the deceased. As such the mother of the deceased shall not receive the moneys covered by this life insurance exclusively for herself and this amount shall be available as forming part of the estate of the deceased. I, therefore, hold that all the three insurances and the amount covered thereby and received by the Receiver shall be considered as forming part of the estate as such they will be distributed among the heirs of the deceased who are the parties In this suit, according to their shares as expressed in the second paragraph of this judgment above. However, in this respect I like to mention that the mother of the deceased i.e. Defendant No. 2, has said in her written statement that she was gifting to her grandson, the minor son of the deceased plaintiff No. 2 in the suit, 13/24th share of her moneys that came to her by way of insurance policy regarding which she was the nominee and also the provident fund for which also she was the nominee. It will be seen from the above finding that so far the Insurance policy for which she is the nominee is concerned, the amount covered by the policy is to form part of the estate and is distributable according to the shares of all the parties in the suit as already mentioned above. But the amount of the provident fund for which the mother of the deceased is the nominee and it has been held as already mentioned above that the mother of the deceased, defendant No. 2, is solely entitled to this amount, therefore, out of this amount which is Rs. 81,750 a portion of it which would be 13/24th has been gifted by the mother to her grandson i.e. The minor son of the deceased plaintiff No. 2 and he will got that much share out of the provident fund.
27. That leaves remaining the question of some of the agricultural land alleged to have been left by the deceased as having been purchased in the name of his minor son and whether this land should go to the minor son of the deceased plaintiff No. 2 or not? In this regard it will be noticed that there is no evidence on the record to show that any agricultural land was left by the deceased as having been purchased by him in the name of his minor son as stated by the Receiver but if any is subsequently so found then obviously the situation would be governed by two reported cases which have been cited by the learned counsel for the defendant No. 1 i.e. The father of the deceased in the suit. He has contended that when a property is purchased by a person in the name of another as benamidar then the person who pays the price of it is the real owner and not the benamidar and that the doctrine of advancement of English law does not apply in this sub- continent. In support of his contention he has cited the case of Aftab Nasir v. Mst. Fazal Bibi and others (PLD 1965 Lah. 550), wherein it has been observed in head-note 'B' that English Law doctrine of advancement is not applicable in Pakistan and that property purchased and con--structed by father in the name of his minor child does not become the property of the minor child and he is merely a benamidar and that the father is the real beneficiary of the property. Another case is that of Ismail Dada Adam Soomar v. Shorat Banoo (PLD 1960 Kar. 852), wherein it has been observed as under :- "The English principle of advancement does not apply to India (also Pakistan) no distinction has been made between the cases of Hindus and Muslims on this question. The doctrine of intended advancement In favour of the wife not being applicable in this country, there would be a resulting trust in favour of the husband who provided the purchase money in the absence of proof of contrary intention. The question whether a transfer in the name of the wife for which the consideration was paid by the husband is a benami transaction or amounts to a gift is always one of intention. And the Intention to be determined is of the time when the transaction took place. The question which must be squarely answered is: Did the husband intend to make an absolute gift of the property to the wife ? In determining the true intention regard must naturally be had to the surrounding circumstances, and the subsequent conduct In so far as It is relevant to the understanding of the initial intention."
In view of the above two quoted authorities it is quite clear that the land, If any, purchased by the deceased in the name of his minor son, the plaintiff No. 2, would form part of the estate and would not belong exclusively to the son. This disposes of the Issue No. 2.
28. This brings us then to issue No. 4 which is as to what should be the relief granted to the parties in this case? In view of the discussion of all the facts, circumstances and law made above I pass a preliminary decree according to Form 17, of Appendix 'D' to the First Schedule of the Code of Civil Procedure. In accordance with the conclusions arrived at by me already and It shall also be subject to the following directions which shall be contained therein :-
(i) That the shares of the four parties in this suit to the assets left by the deceased Shafaqatullah Koreshi which have already been mentioned above while discussing the issue No. 2 shall be In accordance with what is said about these shares In paragraph 2 of the judgment above.
(ii) The Receiver already appointed in the suit i.e. The Official Assignee shall continue to remain as the Receiver until further order and manage as well as administer the estate so as to discharge all the liabilities of the deceased Shafaqat--ullah Koreshi which have also been mentioned by me In his evidence referred to already.
(iii) The Court has already directed by, its order dated 22-2-1971 appearing in the order sheet that the Receiver In the suit shall have the two houses valued with the assistance of a qualified engineer or architect, namely, House No. B-7, Extension 7th, 11th South Street, Defence Housing Society and House No. 353, Garden East, Pires Street, Karachi. In this order the further direction also is that the House No. 7-B, 11th Street, Defence Cooperative Housing Society Ltd. Shall be completed with the moneys In the Court or with the Receiver and this job has already been finished by the Receiver as stated by him in his evidence, in connection with which the Receiver had made a reference to this Court dated 5-11-1971, as he says in his evidence, but this reference is not present among the papers on record and will be decided later on when it is put up by the office. He has however, made another reference dated 19-2-1972 regarding both the above-mentioned houses left by the deceased in which he has said that the house in Defence Housing Society has been evaluated through Messrs D. N. Kotwal & Co., Architect Engineers and Surveyors, Karachi and their report in detail is appended to the reference and marked 'B'. According to this report the house which is incomplete is valued at Rs. 1,39,544.86, which also includes the price of the plot. As regards house No. 535 in Garden East, the Receiver says he contacted Mr. Hashmatnllah Koreshi, defendant No. 1 on phone due to short time but Mr. Akhtar Mahmood, Advocate appearing on behalf of Mrs. Iqbal Bano Koreshi, defendant No. 2, made a verbal statement to the effect that in paragraph 9 of Schedule 'A' filed with the plaint the cost of structure of this house has been given at Rs. 55,000 and that in paragraph 5(J) of written statement of defendant No. 2, Mrs. Iqbal Bano Koreshi, at page 3 this position has been admitted by her in the following words : "Loan of Rs. 55,000 by late Shafqatullah Koreshi to his mother (the answering defendant) at the time of the construc--tion of her bungalow bearing No. 535, Garden East, Karachi."
The Reference also shows that Mr. Akhtar Mahmood further stated that in view of the order dated 6-5-1971 where the plaintiffs' evidence was closed and no evidence was led on this point because of the admission of the defendant No. 2 regarding the evaluation of the structure up to Rs. 55,000 as stated by the plaintiff in Schedule 'A' and the position has thus changed and, therefore, he also argued before me that this question need not be reopened. But I am afraid, I cannot accept this contention of the learned counsel because of the order of the Court dated 22-2-1971, wherein the Court passed this order by consent of the parties directing that the two houses shall be evaluated and this order obviously was passed after the pleadings of the parties were filed, therefore, the objection of Mr. Akhtar Mahmood about the admission of the plaintiff referred to above is of no consequence. I would, therefore, direct that the Receive should get evaluated by the same evaluators Messrs D. N. Kotwal & Co. The house No. 535 in Garden East also showing the cost of structure and the plot separately. This answers his reference dated 19-2.1972. When the Louse in Garden East is got evaluated by the Receiver the parties in the suit shall have their shares in the structure thereof only which are mentioned in the second paragraph of this judgment above for the two houses or if they so all desire unanimously that both these houses should be sold then in that case it shall be the duty of the Receiver to sell these two houses by public auction which he shall get published in a newspaper first and then hold the auction in presence of the parties who shall be present thereat, and the sale proceeds so recovered for the structure shall be distributed among the parties in the suit according to their shares already mentioned above but the price of plot shall go to the mother of the deceased defendant No. 2.
(iv) The Receiver shall also take into possession the pistol referred to already left by the deceased and which lies deposited along with 37 bullets with Dossal & Co. Arms Dealer, Karachi and he shall sell the same and 'keep with himself the sale proceeds of it so as to be distributed among the parties of this case according to their share already mentioned above.
(v) The Receiver shall pay up the two liabilities on the estate of the deceased which are a sum of Rs. 6,000 still payable from the loan of Rs. 50,000 taken by the deceased from the Habib Bank Ltd., Airport Branch, Karachi and the Receiver shall also pay the amount due on the demand notice of the Income-tax Authorities which has been served on him and which according to him is for less than Rs. 300. After all these liabilities are discharged the rest of the amount in the hand of the Receiver and Rs. 1,00,000 which he has deposited as a fixed deposit receipt in the Habib Bank Ltd.
Court Road Branch, Karachi shall be distributed among the parties to the suit according to the share already referred to above in paragraph 2 of the judgment subject to the amount recovered as provident fund shall go exclusively to the mother of the deceased, defendant No. 2. The amount left over with the Receiver in his hand as cash money shall also be distributed among the parties to the suit according to their said shares.
(vi) The Receiver has also said that for a plot bearing No. 10 for residential purposes in Darus Salam Cooperative Housing Society, Karachi, the deceased had deposited Rs. 2,000 towards first instalment with the Society and that his papers show that the allotment is liable to cancellation as after the first instalment no further instalments have been paid on behalf of the deceased. In this matter if all the parties to the snit so desire they might pay the subsequent instalments due for the allotment of the plot in question and they shall then become the owners of this plot according to their share as already mentioned above or in the alternative the Receiver on their behalf shall get refunded Rs. 2,000 initially deposited by the deceased for the said plot and hold the same for distribution of the amount between the parties in the suit according to their legal shares.
(vii) The Receiver's evidence shows that he has been unable to find any agricultural land standing in the name either of the deceased or of his minor son, the plaintiff No. 2, as such, according to him there is no such land available but he has said that the parties in the suit may make their efforts to trace out such land and if the parties actually so trace on the agricultural land ft shall stand fn their names as their property in the shares to which they are entitled to according to Muhammadan Law as already mentioned above in para--graph 2 of this judgment.
(viii) The Receiver in his Reference dated 19-2-1972 has said in the last paragraph that Messrs D. N.
Kotwal & Co. Have claimed Rs. 697.72 as their fees in accordance with the Schedule of Architects Fees which appears to be reasonable and may be sanctioned. This amount is accordingly, sanc-- tioned and the Receiver shall make it over to Messrs D. N. Kotwal & Co. He shall also pay to them the reasonable fee for evaluating the other house in Garden East in dispute between the parties as directed above.
(ix) Regarding the fees of the Receiver this question shall be decided later on when the matter is taken up and referred to by the Receiver himself.
29. The suit is, accordingly, disposed of by a preliminary decree as stated above. The parties are left to bear their own costs.
K. B. A.
Rs.
(1) Group Insurance Policy of 60,000
(2) Policy No. 314019 of Eastern Federal Union Insurance Co. Ltd, of the value of 24,000
(3) Provident Fund 81,750.00
(4) Gratuity 22,166.62
(5) Salary for leave and last morith (sic)
(6) Insurance Policy No. 75806 of Eastern Federal Union Insurance Co. Ltd. 40,000.00
(7) N. I. T. Units (1148) 15,500.00
(8) Income-tax Bonds 500.00
(9) Bank Balance 960.00
(10) Incomplete House on Plot No. 7-B, 11 Street, Defence Housing Society. Karachi 55,000.00
(11) Cost of structure of House No. 635, Garden East, Karachi Plot of which is in the name of mother of the deceased55,000.00
(12) Amount deposited with Dalmia Cement Factory as advance for purchase of cement9,000.00
(13) 24 acres of agricultural land in the name of the deceased
(14) 24 acres of agricultural land in the name of son of the deceased i.e. Ikramullah plaintiff No. 2
(15) Balance of Saving Bank Account No. 1777 with Habib Bank Ltd., Airport Branch, Karachi570.57
(16) Balance of current No. 228 of deceased with the National Bank of Pakistan, Air- port Branch, Karachi391.18
(17) Some amount in Savings Bank Account No. 4084 in the National Bank of Pakistan,Airport Branch, Karachi-not known
(18) Plot No. 313-F-811 allotted to the deceased by the C. D. A. At Islamabad, payment if made-not known
(19) Deceased paid Rs. 2,060 in 1955, to Darus Salam Co-operative Housing Society for a plot but it is not known whether plot was allotted or not (20)100 acres of agricultural land in deh Kohistan near village Bholari in District Dadu was allotted in the name of deceased. No further details are known (21)100 acres of agricultural land in deh Kohistan near village Bholari in District Dadu allotted in the name of Ikramullah plaintiff No. 1, details of which are not known
(22) Pistol .025 bore and 37 bullets now deposited with Dossal & Co., Arms Dealer and licence is with defendant No. 2 as his Advocate says th