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Petitioner: Muhammad Javed VS Respondent: Roshan Jahan and others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title: Muhammad Javed vs Roshan Jahan and others Case No.: SMA No.173 of 2009 Date of Judgment:2018-05-10 Reported As: PLD 2019 Sindh 1, 2018 SHC 680 Result: Petition allowed
Judgment Muhammad Junaid Ghaf far J. This Succession Petition has been filed in respect of the estate of deceased Shaheeen Jahan, who expired in Karachi on 11.03.2009. The deceased was working in United Bank Limited ("UBL") Karachi, whereas, she died issueless leaving behind the following legal heirs:- i. Muhammad Javed Husband. ii. Mst. Roshan Jahan Sister . iii. Mst. Nasreen Jahan Sister . iv. Mst. Farah Naz Sister . 2. It appears that during pendency of this petition, one legal heir Mst. Nasreen Jahan has also expired. This petition was filed specifically in respect of the amount and movable assets left behind by the deceased, whereas, admittedly she died without leaving any immovable property . The claim of the Petitioner on the basis of Schedule annexed with the Succession Petition was in respect of one bank account and the service benefits available with the Bank. Subsequently , he moved an application in respect of a Locker , but on inspection, the same was found empty . Thereafter , the other legal heirs came before the Court and they filed their objections to the effect that the Petitioner was not entitled for any share from the estate of the deceased on the ground that deceased had nominated her adopted daughter ( Amina Khan ) as her nominee with UBL to receive all service benefits. 3. Learned Counsel for the Petitioner has contended that as to the legal heirs, there appears to be no dispute that the deceased was issueless and she left behind her husband and three sisters out of which one sister Nasreen Jahan has also expired during pendency of these proceedings, and she was also issueless, therefore, her share would devolve upon two sisters, who are before the Court. According to the learned Counsel UBL vide its letter dated 27.4.2009 had given the details of service benefits available with them under various heads after notice amount of Rs. 4,071,009.32 has been deposited with the Nazir of this Court, which pertains to Group Term Assurance, Insurance, Provident Fund etc. and such amount is to be distributed amongst the legal heirs as above
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and to that the Petitioner has no objectio n. He has further contended that insofar as nomination in the record of UBL is concerned; firstly she was a mino r at the relevant time and could not have been nominated, and secondly , she is not a legal heir of the deceased but an adopted child, which is not disputed, therefore, per learned Counsel such nomination is meaningless, whereas, it is only the legal heirs, who are entitled for distribution of the estate of deceased. Learned Counsel has specifically referred to Pages 733 and 740 of the case reported as PLD 1991 SC 731 (Federal Government of Pakistan v. Public at Large). He has also relied upon the cases reported as 2005 SCMR 512 (Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others , PLD 1974 SC 185 (Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others) and PLD 2015 Sindh 360 (Erum v. Mst. Ameena and 5 others) . 4. On the other hand, learned Counsel for the objectors has adopted the written submissions of the learned Amicus and further contended that all the benefits available with Bank do not form part of "Tarka" and as per Rules they are to be given to the Nominee and not to be distributed amongst the legal heirs. Insofar as the submissions of learned Amicus is concerned due to his busy schedule he could not personally argue the case before this Bench; but has given his written synopsis, which would be considered later in this opinion. 5. I have heard both the learned Counsel and perused the record. The facts have been discussed briefly hereinabove, which reflects that though initially this petition was filed in respect of one bank account and other benefits lying with the employer (UBL) and so also in respect of one Locker, but perusal of the record reflects that the dispute presently is only in respect of the benefits available with the Bank, as per their Letter dated 27.04.2009 and it would be appropriate to reproduce the said letter:- "Mr. Abrar Bukhari, Advocate High Court, Masood (Shaikh) Chamber , Room No.31, 3 rd Floor , Near Light House Centre, M.A. Jinnah Road, Karachi. Dear Sir, REPAYMENT OF DUES ON A/C OF LATE SHAHEEN JAHAN EX-OG-I, EMP.NO.368757 OF UBL TAIMURIA BRACNH KARACHI. Reference your letter No:AB/342/9 dated 04.04.2009 on the subject. In this respect we advise that at the death of above named employees, the following dues are payable to her Nominee/Legal heirs after recovery of Liabilities: DUES P AYABLE: Group Term Assurance Rs.1,200,000.00 (subject to settlement of Insurance company) Insurance against GPF Balance Rs.500,000.00 Refund of GPF Balance with interest Rs.1,878,426.12 Salary for 1 1 days-March 2009 Rs.19,996.94 25% Gross Pension Commutation Rs.368,524.23 Total:- Rs.3,966,947/29 LIABILITIES RECOVERABLE: General Purpose Finance Rs.155,418.22 Credit Card Rs.90,000.00 GLI Premium Rs. 456.00 Rs.245,874/22 NET PAYABLE: Rs.3,721,073/07 Her Housing Finance of Rs.324,361/- & Transport Fianc of Rs.338,298/= respectively are adjustable from its Insurance Claim separately. Apart from above Monthly Benevolent Grant @ Rs.1,620/- p.m is payable to heirs of deceased for 15 years (Maximum). It will be paid on monthly basis through the account of the beneficiaries with any branch of UBL, where from she/they desire/s.
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The minor children are also entitled for monthly Family Pension @ Rs.3,244/= pm from date of death all attaining majority . It is observed that the deceased had nominated Baby Amina Khan daughter for receipt of all dues after her . One of the deceased' s sister Mrs. Farah Naz, being the real mother of nominee adopted daughter of deceased, Baby Amina Khan called on us and provided photocopy of Adoption Deed alongwith the Court Order and had requested for settlement of all dues of deceased on the basis of Nomination is enclosed herewith for your perusal & record. Since the nominee adopted daughter is minor and there seems to be some dispute between the legal heirs of deceased, we therefore, request to provide us letter of Administration/Succession Certificate from Competent Court of Law for release of aforesaid dues at the earliest. A copy of this letter is also being endorsed to the real mother (Mrs Farah Nazi) of nominee adopted daughter and to other sisters of deceased in response of their requests. Yours faithfully , KHAWAJ REHAN UDDIN GHULAM JILANI AVP/MANAGER HEAD-ESD" 6. Perusal of the aforesaid Letter reflects that the amount which was available with the Employer is in respect of Group Term Assurance, Insurance against refund of General Provident Fund (G.P.F), Refund of GPF balance with interest, balance salary for 11 days and Pension Commutation. There were some liabilities as well which appears to have been discharged and balance amount of Rs. 3,721,073/07 was left and pursuant to orders of this Court an amount of Rs: 4,071,009.32 has been deposited with the Nazir of this Court. This discrepancy in the amount so stated in the letter of UBL and deposited with the Nazir was not reconcilable despite best efforts of the Court, as unfortunately, no assistance was provided by both the Counsel for the parties, as none had even pointed out this. On this assistance from the office of Nazir was sought which revealed that subsequently, another letter was written by UBL on 31.5.2010, which gave further details of amounts due, which in addition to above, also included arrears of family pension from 12.3.2009 to 30.04.2010 amounting to Rs: 44,265/-, arrears of Benevolent Fund w.e.f. 13.3.2009 to 30.4.2010 Rs: 22,105/- General Provident Fund Rs: 2,071,992.31 (increased from the amount of Rs.1,878,426.12 as stated above), Group Life Insurance after adjustment as mentioned in the letter dated 27.4.2009 Rs: 1,044,582.78, whereas, the amount of pension commutation and 11 days salary remained unaltered. Thus a total of Rs: 4,071,009.32 as principal is available with the Nazir and profit, if any. Learned Amicus had though earlier assisted various other Benches of this the Court in person; but unfortunately for reasons beyond control, the order could not be finally passed. However , I have had the privilege of going through the written synopsis of the learned Amicus duly supported by case law on the subject. Before proceeding further first I would like to address the objection raised on behalf of the learned Counsel for the Petitioner in respect of Nomination of a person with the employer . It is the case of the Petitioner that deceased could not have nominated a minor namely Baby Amina Khan, firstly for the reason that in terms of Federal Employees Benevolent Fund and Group Insurance Act, 1969, it is only a family member or legal heir, which can be nominated before the employer for claiming the employees benefits, whereas, such nominee cannot be a minor; and secondly, it is not that such Nominee would be entitled for the entire benefits; rather the nominee has to collect and distribute the same amongst the legal heirs. 7. Insofar as the role of the Nominee is concerned, the contention of the learned Counsel is partly correct to the effect that in case of benefits which form part of the "Tarka" , it is the responsibility of the Nominee to collect such amount and distribute the same amongs t the legal heirs, whereas, if the amount or asset which is not part of "Tarka" must ordinarily go to the nominee as otherwise, it would defeat the purpose / intention of any such nomination. Therefore, his stance is only correct partly , with the exception as made hereinabove. 8. As to the objections regarding nomination only of a family member is concerned, learned Counsel for the petitioner has relied upon the Judgment of the Shariat Appellate Court in the case of Federal Government of Pakistan v. Public at Large (Supra) and has contended that according to the Shariat Appellate Court, the
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Nominee can only be a legal heir. However, this contention appears to be misconceived inasmuch as the Shariat Appellate Court has not said so specifically. Moreover, the Shariat Appellate Court while passing the said judgment was considering the Federal Employees Benevolent Fund and Group Insurance Act, 1969, whereas, in this matter, the Employer is UBL, who has its own Service Regulations for retirement benefits. In fact this issue also came up earlier before this Court and pursuant to directions dated 22.9.201 1; such regulations have been placed on record. It would also be advantageous to refer to the said order which reads as under; 22.9.2011 "On the last date of hearing I had appointed Mr. Faisal Siddiqui, senior counsel, who was sitting in the Court in some other case as Amicus Curiae to give his opinion on the question as to whether the minor who was the daughter of sister of the deceased and had been appointed by her as her nomine e in respect of group insurance dues and dues of insurance against general provident fund will be entitled to entire dues under these accounts or will the same be passed on the legal heirs to be divided in accordance with their share as per Sharia. Mr. Faisal Siddiqui in two days has researched into the subject and has provide d his opinion to the Court. His contention has been that it is a settled law as is apparent from the judgment of the Honourable Supreme court and the recent judgment passed by this Court that the amount of group insurance does not pass on to the legal heirs as a part of inheritable asset after the death of the deceased but is the entitlement of the nominee. He, however , referred to the 1969 Federal Ordinance wherein it has been provided that the nominee for collection of any amount on behalf of the deceased has to be a legal heir and if the nominee is not the legal heir, according to the Amicus Curiae a complete procedure has been provided as to how such amount will be distributed amongst the legal heirs. He submitted that the only contrary view has been taken in two judgments by a learned single Judge of this Court in a judgment reported as 1999 YLR 759 and one by the learned Peshawar High Court reported as PLD 1994 Peshawar Page-1 . The learned Amicus Curiae then went on to refer to a judgment of this Court reported as PLD 1994 Karachi 237 whereby Justice Nasir Aslam Zahid, judge of this Court as he then was, had held that even the insurance against the provident fund is not an inheritable asset which can be passed on the to the estate of the deceased to be divided amongst the legal heirs after his death and he, therefore, was of the opinion that this amount is also the entitlement of the nominee and does not pass on to the legal heirs after the death of the deceased. When confronted with the opinion of the learned Amicus Curiae Mr. Abrar Bukhari, learned Counsel for the Petitioner relied on the definition of family ? given in the judgment of the Shariat Bench of the Honourable Supreme Court, titled FEDERAL GOVERNMENT versus PUBLIC AT LARGE, reported in PLD 1991 SC 731 wherein he pointed out that there is no concept of an adopted daughter being a part of the family . He then went on to state that this Bank, which was governed under the Government and has recently been privatized is still following the Rules of the Government and unless the Pension Rules of such Bank is seen it will be unfair for this Court to give any decision. The learned Counsel for the nominee referred to Page 749 and 750 of the above referred judgment of the Honourable Supreme Court, whereby according to them the Honourable Supreme Court had held that any amount which is not entitlement of the employee during his lifetime, such amount is a beneficial gift and cannot be called the inheritable asset of the employee. In order to pass a fair judgment, I am issuing directions to the employer , United Bank Limited Bank, to provide a copy of their Pension Rules, which specify as to the appointment of a Nominee for the purpose of group insurance and insurance against the general provident fund. Since this Bench has a very short time left, therefore, a copy of this order may be handed over to the learned Counsel for the Nominee, who will inform the Bank that this order has been issued to them and they should comply with it and provide them a copy of this order so that the Pension Rules can be provided to this Court by tomorrow morning. If such Pension Rules have been handed over to the learned Counsel for the Nominee then the same may be presented before this Court by tomorrow morning at 08.30 A.M. so that a just and fair order can be passed in this matter . For this purpose adjourned to 23.09.201 1. The Court would like to pass its gratitude and appreciation to Mr. Faisal Siddiqui, learned Amicus Curiae, who on a very short notice researched into the subject and provided a comprehensive opinion to this Court."
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In the given circumstances, therefore, it is only the Regulations of UBL which would govern this issue of Nomination. The relevant part of the Retirement and End Servicing Benefits (Chapter-8) pertains to the issue of nomination for beneficiary and reads as under:- "Nomination for Beneficiary On commencement of employment an employee will be required to nominate a beneficiary (one of his/her dependents ) to receive the provident fund, gratuity and other terminal benefits in the event of his/her death. Nomination of a minor is to be avoided . Nomination of the beneficiary will be obtained by HR on the prescribed form. The employee may change such nomination at any time after giving notice to the Bank." 9. This provision provides that on commencement of employment an employee may nominate a beneficiary which could be one of his or her dependent to receive the Provident Fund and Gratuity and other terminal benefits in the event of his/her death. It further provides that nomination of a minor is to be avoided. Whereas, the Nomination has to be placed on record and the employee is at liberty to even change such nomination. Perusal of these regulations reflect that it is in fact, in pith and substance distinguishable from the provisions of Federal Employees Benevolent Fund and Group Insurance Act, 1969, which provides the definition of family as under:- "(a) In the case of a male employee, the wife or wives and in the case of a female employee, the husband of the employee; and (b) The legitimate children, parents, minor brothers, unmarried, divorced or widowed sisters of the employees residing with and wholly dependent upon him." 10. The Regulations of UBL provides that a Nominee may be a dependent and not necessarily a family member or legal heir. It has come on record that the nominee in this case namely Baby Amina Khan was an adop ted child pursuant to grant of declaration to that effect by the Guardian & Ward Court vide Order dated 26.03.2007. In fact she is daughter of one of the legal heirs namely; Farah Naz who after separation with her husband had given her custody to the deceased who was also issueless. Such custody was an outcome of an order passed by the Guardian & Wards Court (IInd Civil / Family Judge), Karachi Central in Application No.1089/2006. Therefore, to that effect there appears to be no dispute, that though the nominee was not a legal heir, but was a dependent. Insofar as the Nomination of a minor is concerned , there appears to be no restriction or prohibition of such Nomination and it is only that it should be avoided. In the instant matter , a minor was nominated and such Nomination was accepted, therefore, it cannot be said that the Rules did not permit Nomination of a minor and mere avoidance cannot be equated with restriction or prohibition. This is also the view of the learned Amicus. The same is not barred and or prohibited; therefore, this objection is also not sustainable. 11. Insofar as, the question that the whether the amount available with the Bank was part of the "Tarka" or not is concerned learned Amicus has relied upon the cases reported as PLD 1991 SC 731 (Federal Government v. Public at Large), 2001 MLD 1 (Messrs Pakistan International Airlines Corporation v. Mst. Alia Siddiqa and 3 others), 2006 CLC 1589 (Naseem Akhtar alias Lali v. Khuda Bux Pechoho and others), 2010 CLC 219 (Mst. Fauzia Noureen v. Muhammad Asghar), PLD 1994 Karachi 237 (In re: Mst. Shamim Akhtar and others), 1999 PLC (C.S) 793 (Muhammad Mumtaz v. Umra Bevi). Learned Amicus has also referred to some Judgments which are contrary in view and are reported as 2005 SCMR 512 (Mst. Ameeran Khatoon v. Mst. Shamim Akhtar), 1999 YLR 759 (Fatima Bi v. Mehnar Gul), 2006 YLR 3236 (Zahoor Mehdi Faisal v. Additional District Judge) & PLD 1994 Peshawar 1 (Rukia v . Ghulam Shah). 12. The learned Counsel for the petitioner has not assisted the Court on the question that as to whether all financial benefits in this matter would fall within the definition of "Tarka" or not, and has mainly contended and made his submissions in respect of ineligibility of a minor from being nominated; hence, the entire amount is to be distributed amongst the legal heirs. However , the matter is not that simple, rather its two fold. One, that what benefits will form part of "Tarka" and the other , about nomination of a minor and it being permissible or not. In the case reported as Federal Government of Pakistan v. Public at Large the Shariat Appellate Court while discussing the entitlement of Benevolent Fund has held that if the employee reaches his age of superannua tion and thereafter dies, nothing could have become payable from the benevolent fund and therefore such a benefit, which does not translate into a debt of the deceased employee against the employer , cannot form part of the estate of the deceased and so as to
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become distributable amongst all his heirs. In the instant matter , UBL has not deposited any amount under the head of Benevolent Fund; hence, to this extent no further adjudication is required from the Court. 13. Insofar as the reliance by the learn ed Counsel for the Petitioner on the case reported as Mst. Ameeran Khatoon (supra) is concerned, it may be observed that the learned two Member Bench of the Hon'ble Supreme Court while recognizing the principle laid down by the Five Member Bench of the Shairat Appellate Court in the case of Federal Government of Pakistan v. Public at Large (supra), had perhaps drawn a wrong inference of the said Judgment and mistakenly interpreted it conversely , which appears to be some typographical error as service benefits granted towards the Benevolent Fund or Group Insurance were not treated as heritable benefits in the case reported as Federal Government of Pakistan v. Public at Large (supra). This point was also noted by a learned Single Judge of this Court in the case of Late Javed Iqbal Ghaznavi reported as PLD 2010 Karachi 153, therefore, the principle settled is that if an employee during his life time is entitled to withdraw or get the financial benefits from an employer , then all such benefits could be termed as "Tarka" , whereas, financial benefits offered by the employee, which only mature or are to be given after his death, then those financial benefits will not form part of "Tarka" . The learned Single of this Court in the case of Late Javed Iqbal Ghaznavi (supra) has been pleased to hold as under:- "12. Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remain unpaid during his lifetime then the same becomes heritable and is to be distributed amongst all his heirs. However , a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer , then whatever amount that become payable after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service. It is the discretion of the employer to make rules and regulations in relation to any grant or concession that is intended to give to an employee or after his death to any member of his family . 13. Thus benefits such as special retirement benefits, special, compensation group insurance under term insurance policy and group insurance under provide nt fund policy benefits definable as grant and concession on the part of employee and payabale after the death of the employee cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulation of service provided by the employer . Let the service benefits be distributed in terms of this order ." 14. This Judgment as above was impugned before a learned Division Bench of this Court through High Court Appeal No.28/2010 and was upheld with certain modifications in respect of the special retirement benefits of the deceased, which according to the learne d Division Bench formed part of the "Tarka" of the deceased as they pertain to his retirement benefits. There was special mention of General Provident Fund Balance and Special Retirement Benefits and according to the learned Division Bench at Para 8 & 9 of the judgment, these were benefits which could have been claimed if deceased had retired or separated from service during his lifetime. The learned Bench has been pleased to hold as under; 8. From the above definition of Tarka given in the above judgment [Federal Government of Pakistan v. Public at Large] it is clear that only those benefits are heritable which the deceased could have claimed in his life time and those benefits which the deceased could not claim in his life time are not heritable and have to be passed on to the person who has been named as beneficiary/ nominee for the purpose of these benefits. 9. When we review the payments made in the light of the definition given in those judgments and in the light of the revised compensation package available on page 43 of this file we see that General Provident Fund Balance and Special Retirement benefits were part of the package of the deceased and could have been claimed even if he had retired or separate from the service during his lifetime as they are included in the revised package. Therefore, in accordance with the above judgment of the Honourable Supreme Court we are of the considered view that Special Retirement Benefits amounting to Rs.26,34,464/- fail within the definition of heritable assets and in our opinion the learned Single Judge was not correct by ordering that this Special Retirement Benefits will not be heritable by the heirs of deceased employee but are to…
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