' QAZI EHSANULLAH QURESHI, J.---Mst. Saira, the plaintiff, filed a suit before the Civil Court at Mardan in the year 1992 and sought a declaration to the effect that she being the daughter of deceased Mian Abidul Haq, the predecessor-in-interest of the parties, was entitled to 7/104th share in accordance with Sharjah in the cash amount deposited by the deceased in different Banks and the National Savings Centre, Mardan Branch. Secondly that if any of the legal heirs/defendants had received the payment for the above deposits in excess of his Shari share it be also recovered from the defendant who had received it. She further claimed that the cheques drawn during the lifetime of the deceased were collusive and fraudulent because the deceased was on death bed and not in senses at that time. She also prayed for the grant of 15% profit from the date of such receipt from the bank till complete refund of entire amount. She, however, undertook that in case the amount of her share of plaintiff exceed Rs,20,000 she would make up the deficiency in the court-fees. '
2. Defendants Nos.2, 4 and 5 resisted the, suit by filing their written statement and the learned trial Judge after framing as many as eight issues arising out of their pleadings, recorded evidence pro and contra and vide his judgment and decree dated 24-6-1992 granted the plaintiff a decree in the sum of Rs,1,07,625 alongwith 15% profit and dismissed the remaining claim, as prayed for in the plaint. The plaintiff Mst. Saira not contented with trial Court decree filed an Appeal No,91/92 in this Court and the respondents also filed cross-objection No,21/93. It was during the pendency of the aforementioned appeal and the cross-objection that Mst. Saira initiated execution proceedings before the Executing Court for the recovery of the entire decretal amount plus 15% profit only against Mian Shamshul Hag defendant No,2. The said respondent filed an objection petition before the Executing Court on the ground that the recovery was to be made from all the respondents/judgment-debtors severally and jointly as the decree had been passed against all the respondents. The Executing Court being not convinced dismissed the objection petition on 2-3- 1993. Mian Shamshul Haq aggrieved from the said order preferred an Appeal No,14/93 in this Court.
Both the Appeals Nos.91/92 and 14/93 as well as cross-objection No,2/93 came up for hearing before a Division Bench of this Court and the learned Division Bench vide order dated 21-11-1993 disposed of both the appeals and cross-objection with the observations that keeping in view the statement of learned counsel for the respective parties at the Bar that since the suit lodged on behalf of the plaintiff was for the recovery of her share in the stage of her deceased father from the other share-holders as she is entitled to recover the same from all the shareholders jointly and severally. Accordingly the appeals and cross-objections by Shamshul Haq and Mst. Saira were dismissed leaving the parties to bear their own costs.
3. Both Mst. Saira and Shamshul Haq filed three separate appeals before the Supreme Court of Pakistan which were allowed vide judgment dated 8-8-1995, the judgment dated 21-11-1993 of this Court was set aside and the case was sent back to this Court for fresh disposal.
4. We propose to dispose of the appeals filed by Mst. Saira (R.F.A. No,91/92) and Mian Shamshul Haq (F.A.O. No,14/93) as well as cross-objection No,2 of 1993, through this single judgment. The learned counsel for Mst. Saira appellant submitted that admittedly deceased Mian Abidul Haq predecessor-in-interest of the parties had expired on 7-2-1986 leaving behind two widows, namely, Mst. Wajda Begum and Mst. Sabra Begum, two sons and nine daughters who all are entitled to their respective share in accordance with Shariah and the appellant Mst. Saira being the daughter was entitled to 7/104th share in the estate of her deceased father Mian Abidul Haq After the death of her father whosoever had drawn any excess amount over and above his/her share from National Savings Centre, Mardan it was recoverable and payable to the appellant Mst. Saira. Counsel for appellant Mst. Saira elaborating the details of account added that initially the deceased father of the appellant deposited rupees thirteen lacs in National Saving Centre, Mardan on 7-5-1984 and the total credit reached to Rs,24,59,000 inclusive of profit. During the lifetime of deceased while he was on death-bed a sum of Rs,8,60,000 was drawn illegally and fraudulently by respondent No,2 in the name of Mian Abidul Haq thus the balance at National Saving Centre, Mardan at the time of death of Mian Abidul Haq deceased squeezed to Rs,15,99,000. The learned trial Judge ignoring the claim of Mst. Sairia as per her share i,e,, 7/104th in the drawn amount of Rs,8,60,000 granted the decree of Rs,107,625 with 15% profit in favour of appellant-plaintiff against defendants out of the balance amount of Rs,15,99,000 left by the deceased after his death. In the circumstances the judgment and decree passed by the learned Civil Judge, Mardan needs modification and prayed for additional decree for the amount of Rs,70,000 as the amount of Rs,8,60,000 had been drawn on fictitious cheques, the fraud had been detected during evidence and the respondent No,2, admitted the receipt of above payment. The father of the appellant was also having considerable landed property to meet his life expenses. The cheques were encashed by respondent Shamshul Haq and the same had not been paid to Mian Abidul Haq.
' The learned counsel for the respondents refuted the contentions of the counsel for the appellant and advanced that the plaintiff-appellant had no cause of action altogether. Only those legal heirs are entitled to receive the payment from the deposited amount, who are included in the Nominees'
List furnished by the deceased and the proportionate share/amount shown against their names in the Nominees' List. The interest at the rate of 15% is also un-Islamic and is not recoverable, the nomination list can be treated as will or gift and the amount drawn as per Nomination List is rightly made and received.
5. We have heard the learned counsel on both sides and perused the record carefully. It is in the statement of P.W.1. That the deceased had left a sum of Rs,15,99,000 which is lying in deposit in National Savings Centre, Mardan. In the first List of Nominees the name of the plaintiff Mst. Saira appears at Serial No, 10 of Exh.PW 1/3. A nomination under the Provident Fund Act is neither a will nor a gift nor trust and such nomination is merely a mandate, the validity of which expires with the death of the nominator, therefore, fund formed part of his own undisposed of estate on his death (PLD 1974 SC 185). In the same authority it has been laid down that "nomination merely meant to collect the money or to receive the money". It does not operate either as a gift or a will and thus cannot deprive the other heirs of their legal share. The Nominees List was sent for comparison to the Handwriting Expert whose report reveals that the questioned documents were not in conformity with the routine signature of Mian Abidul Haq deceased. Even otherwise if the report was not there the List of Nominees did not affect the share of legal heirs of deceased under the Law of Inheritance. The name of the plaintiff Mst. Saira was not mentioned in the second List of Nominees even then she being the daughter of the deceased is entitled to her share.
6. All payments made or funds exhausted during the lifetime of Mian Abdul Haq by whatever way the plaintiff cannot claim her share in that amount because her suit is for her share in the heritage, i,e,, movable property left by the deceased and plaintiff is only entitled to her 7/104th share in the left estate/assets after death. There is no evidence worth the name on behalf of the plaintiff that the deceased was not in a position to understand what he was doing or that he was pressurised by the respondents to sign the cheques. In such circumstances the trial Court has rightly refused to grant decree to the plaintiff Mst. Saira for the amount already drawn by her father before his death.
7. So far the objection with regard to 15% profit allowed by the Trial Court to the plaintiff Mst. Saira is concerned, since defendant No,2. Unathorisedly and illegally drawn excess amount he has been rightly held liable for payment of 15% profit. In this view of the matter both the cross-objection No,2/93 as well as R.F.A. No, 91/92 are hereby dismissed and judgment of the learned Trial Court in this respect is maintained.
7-A. As regards F.A.O. No, 14/93 filed by Mian Shamshul Haq appellant who impugned the order of the Executing Court dated 2-3-1993 through which his objection petition was dismissed also merits no consideration. Much stress was laid on the point that the decree was granted in favour of Mst.
Saira against all the defendants in the suit and the demand of whole decretal amount from him is illegal and that the decree was executable against appellant Shamshul Haq only to the extent of his own share. A plain reading of the plaint shows that there are eleven defendants in the suit and the decree was against all of them meaning thereby that it was joint decree. No doubt the decree has been passed against all the defendants in the suit but it can be executed against any one of the judgment-debtors. For facilitating the reference section 2 (10), C.P.C. Is reproduced below:-- "2 (10). 'Judgment-debtor' means any person against whom a decree has been passed or an order capable of execution has been made.
(b) A decree passed against several judgment-debtors jointly may be executed against any one judgment-debtor who will thereafter have a right of contribution against the other joint judgment- debtors,"
Besides above it is on record that defendant No,2. Namely Mian Shamshul Haq only had received the amount more than his due share in the estate left by his deceased father. The learned Executing Court in the circumstances of the case rightly rejected the objection petition of appellant Mian Shamshul Haq. F.A.O. No 14/93 also stands dismissed. No order as to costs.