Let it be considered as admitted case,
2. This revision petition challenges the judgment and decree, dated 18-2-1997 passed by the learned Civil Judge, Shahpur, District Sargodha and that of learned Additional District Judge, Sargodha, dated 16-9-1997 on an application by the respondent No. l for the grant of Succession Certificate. Brief facts, of the instant Civil Revision are that Mst. Umra Bevi filed an application for the grant of Succession Certificate in respect of the Pension, Gratuity, G. P.
Fund, Group Insurance and other arrears of the deceased namely Mtihammad Sharif her real brother who was retired teacher and died issueless leaving behind a real sister. Petitioner resisted the application filed written reply and he averred in the written reply that the deceased Muhammad Sharif was his maternal-uncle; he was unmarried and issueless and he nominated the petitioner/respondent No.2 to receive the dues of the deceased after his death. The following issues were formualted:-- (i)Whether the applicant is the only legal heir to the deceased as sister and is entitled to receive the dues asked for? O.P.A.
(ii)Whether the respondent Muhammad Mumtaz is a nominee to the deceased and he is entitled to receive the dues? O.P.R.
(i.e)Relief
3. Mst. Umrr Bevi appeared as A.W.1 and produced Muhammad Shafi A.W.2 while petitioner/respondent No.2 appeared as R.W.1 and produced Mubarik Ali, A.E.O. R.W.5, Mehdi Hassan R.W.3 and Abdul Haq R.W.4 as witnesses to support his stance that he is nominee of the deceased.
Learned Civil Judge decided Issues Nos.1 and 2 in favour of the petitioner/respondent No.2.
Muhammad Mumtaz filed an appeal against the judgment, dated 18-2-1997 to the extent that the learned trial Court has ignored the petitioner/appellant's right in respect of G.P.. Fund, Gratuity, Pension and Group Insurance and did not give any finding in this respect. Mst. Umra Bevi also filed an appeal against the impugned judgment, dated 18-2-1997 and she took a stance that she being the real heir of the deceased brother is entitled to the G.P. Fund and other benefits according to the Mahomedan Law. The learned Appellate Court reversed the finding on Issues Nos.1 and 2, set aside the order, dated 18-2-1997 passed by the learned trial Court and dismissed the appeal of the petitioner/appellant Muhammad Mumtaz. Against this judgment the instant Civil Revision has been filed.
4. Learned counsel for the petitioner has argued that both the learned Courts below returned the incorrect finding on the issues framed which is resulted in grave miscarriage of justice. Respondent No. l Mst. Umra Bevi is no more entitled to any part of the benefit arising out of Gratuity, Pension and G.P. Fund which. Are in no manner assets of the deceased, therefore, succession with regards to these benefits did not open at the demise. Of the employee and that the learned Appellate Court has acted illegally and with material irregularity while dismissing the claim of the petitioner solely on the ground that respondent No.1 being the sole heir is entitled to inherit her deceased brother to the exclusion of the petitioner and that finding of the Courts is not sustainable. He has relied on the Punjab Service Code subsection (2), 4.8with regard to the gratuity.
5. During the arguments I have summoned the D.E.O. (E.E.). Sargodha as Well as the District Accounts Officer, Sargodha who have apprised this Court that the deceased emoluments are as follows:--- "Proposed gratuity Rs.2,35,132.05, Government Provident Fund Rs.7,683.00, monthly pension Rs.1,267.2 and leave encashment was Rs.13,999.64 which has been taken away on 16-1-1995 vide token No.8306. "
They cannot tell' as to who has got this leave encashment and, therefore, there is no remaining salary left with the Education Department in respect of the deceased employee. According to them deceased retired on 7-9-1994 and died on 3-10-1994. It is also admitted by the parties that the deceased had the only legal heir who is surviving Mst. Umra Bevi 'who was not widow at the time of filing the succession certificate but she has become widow now.
6.I have carefully perused the judgment of learned trial Court on Issues Nos.1 and 2 the learned Civil Judge held that the respondent is neither unmarried nor widow and, therefore, is not entitled to receive any family pension, group insurance, gratuity etc. And the G.P. Fund can only be given to the person for whom the Government employee has nominated and Muhammad Mumtaz has been nominated by the deceased per documentary evidence EXh.R. I and evidence of A.E.O, as R.W.2. The Appellate Court reversed this finding holding that Mst. Umra Bevi the respondent being legal heir is entitled to get the benefits and the learned trial Court was not justified in holding that Muhammad Mumtaz as nominee is entitled to receive G.P. Fund of the deceased and, therefore, this finding is set aside and Muhammad Mumtaz is entitled to nothing in inheritance of Muhammad Sharif deceased.
7.Learned counsel for the respondent while arguing has placed reliance on Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185, Majid Qadri etc. v. Abdul Qadeer and others PLD 1979 Lah. 34(2); Zafarul Hassan Qureshi v. Messrs Pakistan Tobacco Co. Ltd. Etc. 1991 CLC 1580 and Federal Government of Pakistan v. The Public-at-Large PLD 1991 SC 731 (Shariat Appellate Bench).
8. I have heard the learned counsel for the parties and perused the evidence as well as finding of the learned Courts below. The judgment, which is very material in this respect is Federal Government of Pakistan v. The Public-at- Large PLD 1991 SC 731. In this judgment the word is defined as follows:-- Family means:-- (a)in the case of a male Government servant were or wives and in the case of female Government servant husband of the employee; (b)the legitimate children, parents residing with or wholly dependent upon him.
1991 CLC 1580, it is held that:-- "Muhammadan Law---Inheritance---Entitlement to provident fund of deceased---Deceased had nominated a beneficiary to receive provident fund from the company where he served---Nominee was only a trustee of such benefits which were to be distributed amongst the persons entitled to the same in accordance with law."
PLD 1970 Kar. 613, it is held that section 3, clause (2), Provident Funds Act, 1925 does not deal with the cases of those persons who are nominated under the Act. The relevant section of the Provident Funds Act, which deals with the right of the nominees, is section 5(1). It is clear from a bare reading of the section that according to this statutory provision "notwithstanding anything contained in any law for the time being in force ... Any nomination duly made in accordance with the rules of the fund, which 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 depositor, shall be deemed to confer such right absolutely. It is also clear that this right to receive absolutely by the nominee was not intended to refer merely to a right to realise.
PLD 1974 SC 185 is again very important judgment where it is held that unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death.
Obviously, the nomination cannot operate as a valid gift under the Mohammadan Law, because, such a gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted.
A nomination even under the Provident Funds Act is neither a will nor a gift nor a trust, and such a nomination is merely a mandate, the validity of which expires with the death of the mandator, and, therefore, the fund forms part of his own undisposed of estate on his death.
9.In view of the aforesaid judgments the G.P. Fund of Rs.7,683 and theproposed gratuity of Rs.2,35,132-05 being in the nature of "Tarka" shall go to the legal heir of the deceased and in the instant case the only legal heir being the C real sister respondent No.1 Mst. Umra Bevi. So far as the pension of the deceased employee is concerned the Family Pension Rules regarding the deceased employee are reproduced as follows 4.10(2)(b) --- If the family pension is not payable under clause (a), it may be granted-- (i)to the father; (ii)failing the father, to the mother; (i.e)failing the father and mother to the eldest surviving brother below the age of 21 years; (iv)failing (i) to (i.e) to the eldest surviving unamrried sister if the eldest sister married or dies then the next eldest; .(v)failing (i) to (iv) to the eldest surviving widowed sister; (3)No family pension shall be payable under this section-- (a)to an unmarried female member of a Government servant's family in the event of her marriage; (b)to a widowed female member of a Government servant's family in the event of her re-marriage; (c)to the brother of a Government servant on his attaining the age of 21 years; (d)to a person who is not member of a Government servant's family.
Although at the time of filing the succession certificate respondent No. l sister Mst. Umra Bevi who was not a widow sister as her husband also appeared as witness, now she has become widow and since the whole amount is still to be payable she can claim the pension of Rs.1,267-02.
10. So far as the group insurance of Rs.35,000 is concerned according to the aforesaid judgments it does not fall in the "Tarka" it is just a grant and the gratnee has a right to nominate any one of his relative, therefore, group insurance of Rs.35,000 shall go to the petitioner as nominee of the deceased. Instant civil revision is dismissed and is partly accepted to the extent of group insurance of Rs.35,000 payable to the petitioner and the judgments of the learned Courts below stand modified to this extent.