' GHULAM NABI SOOMRO, J.---This appeal is directed against the judgment, dated 21-8-1995, passed in S.M.A. No,41 of 1995, whereby the petition was dismissed and the service dues of the deceased Junaid, lying with PIAC were made payable to the widow as the nominee to the exclusion of all other legal heirs of the deceased. The brother of the deceased has preferred this appeal on the following facts and background.
2. That the deceased Junaid Khan Afridi died his natural death on 23rd October, 1994. He was serving in Pakistan International Airlines Corporation, as Security Officer. The deceased left appellant and respondents as his legal heirs. The only property of the deceased which is the subject-matter of this litigation is his service emoluments to the tune of Rs, 11,85,832.40 which have been claimed by the respondent No,1 to be her exclusively, by virtue of her possession as a wife/nominee appointed by the deceased in his service record. The appellant and respondents Nos.2 and 3 claim their share as brothers and mother of the deceased and such issue was contested before this Court in S.M.A. No,41 of 1995, whereby the widow was benefited as a whole to the exclusion of brothers and mother inter se. Under the impugned judgment dated 21-8-1995, the background as to appointment of nominee by deceased has been stated in the following expression which is a matter of the record.
3. The first nomination form was executed by the deceased on 22-12-1970, in favour of his mother, Mst. Aziz Jan, as the deceased on that date was admittedly unmarried. The second is the same Nomination Form dated 30-8-1977, wherein the respondent No, 1/widow had been cited as Nominee No,1 and the mother and uncle of the deceased have been shown respectively as second and third nominees. The third document is a letter dated 31-10-1981, under the attestation of the deceased and addressed to the Administrative Manager (Security) PIAC, Karachi, Airport wherein the deceased had authorized equally to all his legal heirs in his service benefits to be devolved amongst them, in consonance with Islamic Law. In subsistence of such declaration, the deceased wanted cancellation of all his previous nominations.
4. The said letter of request of the deceased could not be implemented to in view of Administrative Order 25/77 dated 21-6-1977, whereby the deceased could have cancelled a nomination by substituting the same with another. It would be just and appropriate to reproduce the language of Administrative Order No,25/77, in extenso to perceive the magnitude of controversy in issue: "With a view to avoiding complications, being experienced by both the Finance Department and the beneficiaries of a deceased employee, at the time of final settlement of dues, a comprehensive revised pro forma of 'Nomination Form' has been developed and the same is introduced immediately. Revised Nomination Form is attached as Annexure 'A' to this Order.
' All employees are advised to fill in the revised pro forma in triplicate and submit the same in duplicate to the respective Admin. Manager/Personnel Officer, for placement on their Personal Files, against acknowledgement on the third copy of the Form. Employees intending to make any change subsequently shall fill in the Nomination Form afresh and destroy the old Nomination Form.
' Manager Personnel Services shall ensure completion of the revised Nomination Form by all employees'and its placement on respective Personal Files within a month from the date hereof.
' Manager Employment shall ensure its inclusion in the set of employment papers immediately.
' For the purpose of insertion in the Admin. Manual please replace Appendix 'A' to Chapter XIX and Appendix 'A' to Chapter XXIII by the one attached hereto."
5. On the sole criterion of the administrative order, the subsequent declaration of the deceased for distribution equally, his service emoluments amongst his legal heirs, was declined inasmuch as the letter simpliciter could not override the very scope of the administrative order (ibid). The widow was consequently held as exclusive beneficiary to the total exclusion of other legal heirs.
6. The learned counsel for the appellant mainly contended with reference to case-laws referred thereto that the estate of the deceased in all. Shapes and benefits is to be distributed equally amongst his legal heirs; and status of nominee is merely to collect or receive the benefits only which right has been conferred upon her by the statute. It has vehemently been opposed that the nominee will exclude all the legal heirs by virtue of mere endorsement in the Nomination Form that he or she has been nominated to receive the service benefits. In support of the said contention the learned counsel referred the following case-laws:
(i) PLD 1995 Kar. 560, (ii) 1998 MLD 1247, (iii) PLD 1964 SC 536, (iv) 1995 SCMR 1489 and (v) 1993 CLC 2448.
7. The main thrust of these citations was that the nomination merely confers right to collect or receive money, which cannot deprive other heirs of nominator who are otherwise entitled under the law of succession applicable to the deceased. In the case-law reported as 1998 MLD 1247, it has been held that the deceased if dies issueless, widow alone not entitled as nominee. Brothers and sisters are not to be excluded from their shares as legal heirs. Heir is entitled to claim share out of proceeds of provident fund as well as claim of insurance
8. On the other hand the learned counsel for the respondent No, 1, supported the impugned judgment and contended that legally the widow happens to be the exclusive beneficiary to the exclusion of all other legal heirs within the law contained under Pension Rules. He also relied upon the case-law reported as:
(i) PLD 1994 Kar. 237; (ii) PLD 1991 Pesh. 1 and (iii) PLD 1991 SC 731.
9. Appellants learned counsel exercising the right of rebuttal stoutly urged that the law propounded in PLD 1994 Kar. 237 has been dissented to in the case-law reported in 1998 MLD 1247. For PLD 1991 Pesh 1, followed by PLD 1991 SC 731. The appellants' counsel stated that the Peshawar judgment concerns payment of death compensation for which there was neither a policy nor a nominee. It was further stated that the Peshawar judgment itself states at page.4 that death compensation cannot be equated with life insurance policy and on the contrary the appellants' case concerns payment of service dues to the heirs.
10. Before us the simple points for determination, would be as under:--
(1) Did the purport of an Administrative Order No,25/77 exclude the scope of law of inheritance?
(2) Was the scope of nomination merely to collect/receive the money and position of the widow thereby was as one of the legal heirs of the deceased?
(3) What will be the import of letter dated 31-10-1981, in the legal perspective whereby the deceased had revoked his previous nominations?
11. The department had issued the administrative order whereby certain terms and restrictions were imposed for getting the purport of nomination in the requisite formalities. The bare reading of the administrative order, referred above, does not connote that the scope of said order is out of purview of the law of inheritance and Muslim Personal Law. The department has only to disburse the service emoluments amongst the legal heirs of deceased as per guidelines of any ruling or applicable rules framed thereunder. The policy and purport formulated in the said administrative order cannot be reckoned to have superseded any law. Thus the administrative order is binding upon those employees who are serving and want to bring some changes in their nominations.
12. Coming to another aspect to determine the status of nominee to receive whole benefits or partly in lieu of her position simpliciter as a legal heir vis-a-vis nominee, the following view has been formulated with reference to substantiation of the case-law. The only property which is the subject-matter is service emoluments of the deceased. The amount on all the counts comes to Rs,11,85,832.40. The widow as a nominee claims whole of these emoluments/service benefits and the mother and brothers have come for their share under the law of inheritance and Muslim Personal Law. Admittedly, the widow is issueless. It is legal position that nomination merely confers right to collect or receive money but would not operate either as a gift or as a will, and thereby would not deprive other heirs of nominator who were entitled thereto under the law of succession.
Nomination in no way can be held to pass title to nominee nor such nomination would give right to change law of succession. Even otherwise, if the nominee is believed and taken to the degree of inheritance by exclusion of all other heirs on the prospect of holding and conclusion that in the guise of nominee, she was gifted or willed for the estate of deceased, yet the nominee does not qualify for whole of the estate. For the gift the ingredients as are propounded in Muhammadan Law do not establish to the hilt as the last ingredient of delivery of possession could not complete in the lifetime of nominator. So far will is concerned, that is to be done proportionately, to the extent of 1/3 share only. The deceased was Muslim and distribution of his estate of whatsoever nature shall be devolved amongst his heirs within their share under Muslim Personal Law, which law has an overriding effect in case of inconsistency of any other law or pension or service rules. The brothers and mother of the deceased cannot be taken away from the purview of inheritance to the only inclusion of widow. The case-law referred hereto by the appellants' learned counsel on the factum of inheritance by the legal heirs of deceased including nominee to the extent of their respective share, does appear to be applicable in the circumstances of this case.
13. So far legality of a letter dated 31-10-1981, addressed by the deceased to his superiors for revocation of previous nomination is concerned, it can be safely observed that the procedure adopted by the department in fulfilment of their requisite process through administrative orders, was not being complied with by the deceased and that revocation cannot be taken to be calculated in the legal perspective. Obviously, the whole emphasis of the impugned judgment dated 20-8-1995 has been laid upon the letter dated 31-10-1981, which has been ventured to be refuted on the strength of administrative order. Another legal prospective as to Law of Inheritance or Muslim Personal Law were not appraised in the impugned judgment.
' The respondent's main reliance upon the case-law has not been found consistent in the disputed line as that of law of inheritance. In the reported case PLD 1994 Karachi 237, it was held that the amount payable as death claim insurance against provident fund is payable to the nominee who can claim the same from department and for collection of said amount production of Succession Certificate by the nominee was not required.
14. The abovesaid law was dissented to in a case-law reported as 1998 MLD 1247 Karachi, wherein it was held at page 1251 as under:-- "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."
' Another ruling referred to as PLD 1991 Pesh. 1 and PLD 1991 SC 731, have been found on different line.
The Peshawar Court judgment relates to payment of death compensation which cannot be held in consonance, with the prevailing merits of the case.
15. Summingly, we conclude that all the legal heirs of deceased are equally entitled to the extent of their respective share as per Muslim Personal Law in the service benefits of deceased Junaid Khan Afridi. Consequently, the appeal is allowed and impugned judgment dated 20-8-1995 is hereby set aside. The parties shall bear their own costs.