' Deceased Ghulam Muhammad son of late Ghulam Haider, who was the husband of petitioner Fatima Bi and father of minor daughter Mehnar Gul from another divorced wife, Mst. Gulnar Alam, had expired on 19-9-1994'at Karachi. He was an employee of P.I.A. And was governed by Shia Personal Law. The petitioner has prayed for granting Succession Certificate in her name in respect of the following:-- {{TABLE}}
(1) Provident Fund Rs,2,08.258.00
(2) Death Claims Rs,3,00,000.00
(3) Voluntary Claim Rs,1,50,000,00
(4) Group Insurance Rs,1,50,000.00
(5) Pension Dues As may be determined by the PIAC.
2. The petitioner has claimed that deceased had left above assets. According to her, the amount of item No,1 is to be distributed amongst the legal heirs, including herself, and the rest do not form part of Tarka', as such, she is entitled to the remaining items exclusively by virtue of her nomination by the deceased in that regard.
3. The case of objector minor Mehnar Gul, through her mother Mst. Gulnar Alam, is that all above items are "TARKA' and the petitioner is entitled to only to 1/4th and the minor is entitled to 1/2 and also all residuary in absence of any other legal heir.
4. It is not disputed that petitioner is the second issueless. Wife of the deceased and the minor is the daughter of the deceased. The correctness of amount shown against each item, as above, is also not disputed.
5. Only point to be determined in this case is whether the amount of above items automatically passed on to the heirs of deceased or the amount of items Nos.2 to 5, being nominee of deceased, exclusively be looked to the petitioner. For this purpose, the scope of 'Tarka' would have to be examined. In the case reported as Wafaqi Hakumat Pakistan Banam Awamunnas PLD 1991 Supreme Court 731 (Shariat Appellate Bench) at pages 741 and 742, the following observations have been made about Tarka: {{URDU TEXT}}
6. In view of above, 'Provident Fund' and 'Pension Dues' fall under the scope of TARKA and items Nos.2 to 4 viz. Death Claim, Voluntary Claim and Group Insurance are outside of it .
7. Ms. Noor Naz Aga, learned counsel for the Objector has vehemently argued that nomination of petitioner merely conferred a right to collect money and it did not operate as a gift or a will, as such, it could not deprive the other legal heirs of deceased to the permissible shares under Shia Personal Law. In support of this contention, she cited Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC page 185. In this case, the Supreme Court noted an observation of a Division Bench of this Court relying upon the case of Karim v. Hajyani Hanifa PLD 1970 Karachi 613, wherein it was held that nomination prevailed in supersession of the personal law and the title to the properties left by the deceased nominator passed to the nominee and not to his legal heirs.
8. Having taken into consideration the cases reported as (1) Aimai v. Awabai Dhanjishaw AIR 1924 Sindh 57 (2) Mt. Latifanbai v. Mt. Sakinabai AIR 1939 Sindh 107 (3) Hardial Devi Ditta v. Janki Das AIR 1928 Lah. 773 (4) Noor Mahmood v. Mst. Sardar Khatun PLD 1951 Sindh 1 and (5) Mukadar Khan v.
Burmah Shell Oil Storage and Distributing Co. Ltd Karachi PLD 1968 Kar. 523, the Supreme Court did not approve the view taken in the case of Karim v. Hajyani Hanifa and observed as follows:-- "We are of the opinion, however, that the correct view has been token in the cases referred to earlier, namely, that the nomination merely confers a right to collect the money or to 'receive the money'. It does not operate either as a gift or as a will and, therefore, cannot deprive the other heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased. The nominee, thus, collects as a trustee for the benefit of all persons entitled to inherit from the deceased employee. It is not without significance that section 5 of the Provident Funds Act neither vests the amount in the nominee nor declares him to be the owner thereof. It merely gives him the exclusive right to receive the amount and nothing more. In any event the position under section 27 of the Bombay Co-operative Societies Act is different because the wording of this section is materially different. There is no analogy between the two.
' For these reasons, we cannot approve the decision in which a contrary view has been taken as in the judgments under appeal before us."
9. Although Death Claim, Voluntary Claim and Group Insurance are not Tarka to be inherited by the legal heirs, but definitely these are grant/compensation for widow and children of deceased. The deceased has left behind a widow and a minor girl. The amount being in the nature of compensation, justice demands that it shall be distributed among the legal heirs according to their 'Sharai shares'. One cannot be excluded at the cost of others. Except authorizing the petitioner to collect above amount as a nominee, there is nothing on record to hold that said amount was given to the petitioner by way of will, gift or grant. It was in the nature of Trust. Thus, the petitioner would be entitled to 1/4th only and the rest would go to the. Minor. The petitioner would also be entitled to pension till factum of her second marriage is proved.
10. Nazir is directed to collect the entire amount and give the petitioner her 1/4th share and share of the minor be invested in any Government profit bearing scheme and it be paid to her (minor) when she attains the age of majority along with the profit accrued thereon.
11. In above terms, S.M.A. No,239 of 1997 stands disposed of.