1. By this order I propose to dispose of Civil Miscellaneous Application No,1887 of 1996 filed in Suit No,277 of 1996 under Order 39, Rules 1 and 2, C.P.C. for restraining defendants 1 and 2 from transferring/selling/alienating or creating any charge on Immovable Property bearing No,3/6, Green Belt, P.E.C.H.S., Karachi and for further restraining the defendants Nos.1 and 3 from receiving/disbursing all benefits/provident fund/death compensation/insurance/gratuity and other amount due to the deceased till the disposal of the suit.
2. The facts, relevant and material for the purposes of disposal of this application, are that late Shafiul Hasan Khan (hereinafter referred to as the "deceased") died at Karachi leaving behind the following legal heirs:-- Name:Relationship: (i)Mansoor Ahmed Khan brother (ii)Khan Ahmed Khan brother (iii)Mst. Sikandar Jehansister (iv)Mst. Sajida Begum widow The deceased had no issues out of the wed-lock and till the time of his death he was working with defendant No,3 as Deputy Director. According to the plaintiffs all the aforementioned legal heirs are entitled to their respective shares in the estate left by the deceased. It is the case of the plaintiffs that after the death of the deceased the plaintiffs, who are real brothers and sister of the deceased, on several occasion, orally demanded from defendant No,1 their due and legal share in the immovable/movable property of the deceased in accordance with the Muslim (Sunni) Personal Law but defendant No,1 refused to do so on the assumption that the defendant No,1 is the only legal heir of the deceased and, therefore, is entitled to the entire property/assets left by the deceased to the complete exclusion of other legal heirs i,e, plaintiffs in the suit.
3. On the other hand, the case of the defendant No,1 as set up in her written statement, is that the plaintiffs being not dependent upon the deceased are not entitled to inherit any amount or share from the pension and other funds and dues which are payable by defendant No,3 and that defendant No,1, being the issueless widow and nominee, is the only person entitled to receive the dues from defendant No,3. In so far as the immovable property is concerned, the case of defendant No,1 is that the same is her exclusive property having been gifted by the deceased, in her favour, during his life time out of love and affection.
4. I have heard Mr. Tasawar Ali Hashmi, learned counsel appearing for the plaintiffs and Mr. Nadeem Azher, Advocate for defendant No, 1.
5. Mr. Tasawar Ali Hashmi, at the very outset, stated that in so far as the immovable property i,e, house situated in P.E.C.H.S., Karachi, is concerned, he, under instructions of the plaintiffs, does not press his application, for the present, in respect of grant of same against defendants Nos.1 and 2.
6. As regards the dispute in respect of benefits due and payable by defendant No,3 to the L.Rs, of deceased, it is urged by the learned counsel that since the deceased died issueless, the plaintiffs being real brothers and sister of the deceased are entitled to their shares in the same according to Muslim Personal Law and defendant No,1 as nominee can, under the law, only receive the said dues for the purposes of distribution of the same among the legal heirs of the deceased according to their respective shares. Reliance in this connection has been placed by Mr. Tasawar Ali Hashmi on the case of Muaddar Khan v. Burmah Shell Oil Storage and Distributing Company, Karachi and another (PLD 1968 Karachi 523).
7. In the cited case one Ali Hyder who was a permanent employee of Burmah Shell Oil Storage and Distributing Company, before his death, had nominated his real brother to receive his provident fund. After the death of Ali Hyder his widow applied for succession certificate from a competent Court of civil jurisdiction which was issued in her favour and on the basis of such certificate entire amount of provident fund and gratuity was paid to the widow. On such payment, the brother of the deceased approached the Court of competent civil jurisdiction on the ground that the widow of the deceased was not entitled to claim the amount in dispute both under the Muhammadan Law and under the ordinary law of land. The matter ultimately came up before the High Court and it was under this background that Mr. Justice Waheeduddin Ahmed (as his Lordship then was) held that under the Muhammadan Law provident fund of an employee forms part of undisposed estate of the subscriber on his death and nomination of a person to receive provident fund is not equivalent to a will, gift or trust in favour of the nominee.
8. ' On the other hand, Mr. Nadeem Azher has drawn my attention to section 2(c) of the Provident Funds Act, 1925, which reads as under:-- "2..........
9. (a)
10. (b)
11. (c)' dependent' means any of the following relatives of a deceased subscriber to, or a depositor in, a Provident Fund, namely, a wife, husband, parent, child, minor brother, unmarried sister and a deceased son's widow and child, and, where no parent of the subscriber or depositor is alive, a paternal grnad-parent."
12. ' Mr. Nadeem Azher relying on the aforesaid provision of the Provident Funds Act, 1925, has contended that the plaintiffs in view of provision of section 2(c) of the Provident Funds Act, 1925, are not one of the dependents of the deceased and as such they are not entitled to inherit any amount from the dues of the deceased lying with defendant No,3. In support of his contention to the effect that the plaintiffs are not entitled to inherit anything from the estate left by the deceased, the learned counsel has relied upon the following two cases:-- (i)Amtul Habib v. Musarrat Parveen (PLD 1974 SC 185); and (ii)In Re: Mst. Shamim Akhtar and others (PLD 1994 Karachi 237).
13. In so far as the judgment reported in PLD 1974 SC 185 is concerned I am afraid to observe that the same does not support the contention of Mr. Nadeem Azher. In the said case it has been held by the Honourable Supreme Court of Pakistan that unless a nomination can amount to a valid gift inter vivos it cannot pass title to the nominee and nor can give the right to the nominator, at his choice, to change the law of succession which could otherwise be applicable in the case of his death. Since the nomination cannot operate as a valid gift under the Muhammadan Law, such a gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. Although, in the case cited, the dispute relates to an immovable property yet, in my opinion, the principle laid down by the Honourable Supreme Court of Pakistan will be equally applicable to movable property also. In this very case the provisions of the Provident Funds Act, 1925, were considered by the Honourbale Supreme Court of Pakistan and relying on a case reported in AIR 1924 Sindh 57, the Honourbale Supreme Court was pleased to hold that a nomination even under the Provident Funds Act was neither a will nor a gift nor a trust and that such nomination was merely a mandate, validity of which expired with the death of the mandator and, therefore, the Provident Fund forms part of undisposed estate or death of the mandator. I am not only bound by the dicta laid down by the Honourable Supreme Court of Pakistan but speaking for myself also I am of the view that in so far as the nomination in respect of provident fund etc. is concerned, the nominee, i,e, defendant No,1 in the instant case, is not entitled to the same alone to the exclusion of other L.Rs, of the deceased.
14. ' In so far as the second case relied upon by Mr. Nadeem Azher reported in PLD 1994 Karachi 237 is concerned, the question in the said case was as to whether death claim insurance against provident fund forms part of the estate of the deceased or not. The judgment in this case was delivered by a distinguished Judge of this Court Mr. Justice Nasir Aslam Zahid as Chief Justice, and after perusal of the rules and schemes of PIA where the deceased of that case was employed, the Honourbale Chief Justice (as he then was) came to the conclusion that the amount payable as death claim insuranc against provident fund is payable to the nominee who can claim the same from VIA and for collection of such amount production of succession certificate by the nominee is not required.
15. I have read the judgment in the cited case again and again and with all my respect to his Lordship I have not been able to persuade myself to agree to the conclusion arrived at in the said judgment.
16. The Honourable Supreme Court in the judgment reported in PLD 1974 SC 185, as stated above, has held that a person nominated as a nominee by the deceased is not entitled to claim the entire amount to the exclusion of other legal heirs. In the case under discussion (PLD 1994 Karachi 237) his lordship has held that provident fund of a deceased employee forms part of estate of a deceased. However, in my humble view death Insurance Claim against provident fund also forms part of the estate left by the deceased. I am in complete agreement with his Lordship to the extent that nominee does not require a succession certificate to collect the amount but in my view this does not mean that the nominee is entitled to appropriate the entire amount to the exclusion of other legal heirs. The reasons for my failure to subscribe to the view taken in the case of Mst.
17. Shamim Akhtar (supra) are more than one. For example, there may arise a case where a total stranger who does not fall in the category of descendant/legal heir of a mandator is appointed as a nominee, can such a person be held to be a person entitled to claim the entire amount for himself to the exclusion of legal heirs of the manadator. My answer to it would be a definite "no" as in view of Judgment of the Supreme Court reported in PLD 1974 SC 185 nomination cannot be, in the absence of proof to this effect, be treated as a gift, will or trust and even if there is a proof to the effect that such nomination can be treated a will, then in such an eventuality I would like to say that under the Muhammadan Law no Muslim can make a will of more than 1/3rd of his estate and Islam, apart from imposing the limit of 1/3rd has required a Muslim to observe certain other conditions before and/or at the time of making of a will by a Muslim. The matter can also be looked into from another angle. To say that a nominee in the case of death claim insurance against provident fund is entitled to such claim to the exclusion of legal heirs, in my opinion is against Muslim Law of inheritance according to which legal heirs of a Muslim are entitled to their share according to their personal law. In any event, in my opinion to say that a heir is entitled to claim share out of the proceeds of Provident Fund but that such legal heir would not be entitled to claim of Insurance against the very Provident Fund does not sound logical.
18. In any case, in the case in hand the rules and scheme of the defendant No,3 in respect of dues of the deceased payable by defendant No,3 are not before me as the same have not been placed on record by either party. As per para. 8 of the written statement filed by defendant No,1 the following benefits/dues are payable by defendant No,3 to the L.Rs, of the deceased:-- (1)Group Insurance; (2)General Provident Fund; (3)Benevolent Fund Grant Suni Assured; and (4)Family Pension.
19. In respect of entitlement to the aforesaid benefits/dues, Mr. Nadeem Azher has urged that, in any event, defendant No,1 being the .issueless widow is the only person entitled to receive death benefits of her husband from defendant No,3 and the plaintiffs, under the law, have no interest/title in the same as brothers and sister of the deceased. Mr. Tasawar Ali Hashmi, learned counsel for the plaintiffs, has, without citing any case-law on this point, vehemently opposed the contention of Mr. Nadeem Azher and has urged that under , the Muhammadan Law brothers and sisters of a person who died issue-less are entitled to claim their share from the estate left by such deceased. Be that as it may, at this stage without going into this controversy at this interlocutory stage, I am of the opinion that it would be just and proper in case Nazir of the Court is directed to collect the entire death claim of the deceased Shafiul Hasan Khan from defendant No,3 and invest the same in some profitable Government security till disposal of the suit. Order accordingly.