ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Misc. Appeal No.S-02 of
2023
|
Date |
Order with signature of Judge |
1.
For orders on CMA No.172/2023
2.
For hearing of main case
3.
For orders on CMA No.173/2023
Date of
hearing: 11-09-2023
Date of Decision: 11-09-2023
Mr. Irfan
Ali Soomro, Advocate for the Appellant
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.
O
R D E R
Arbab
Ali Hakro,J:
Through this Civil Miscellaneous Appeal
under Section 384 of Succession Act, 1925, Appellant Mst.
Aisha impugned the Order dated 18.01.2023, passed in Succession Misc: Application No.131 of 2022, by Additional Sessions Judge-V, Sukkur,
whereby Succession Application filed by respondent No.1 was disposed of, and
Accountant of District Court Sukkur was authorized to
collect/draw and receive the whole amount with profit from the concerned
department/bank with direction to distribute due share among all the legal
heirs of the deceased Kashif Hussain
(appellant and respondents No.1 to 9), as per their entitlement according to
law under receipt.
2. Brief facts of Succession Application
are that respondent No.1, being the father of deceased Kashif
Hussain, filed an application for issuance of a
succession certificate in his favour to collect the
amount of Rs.2300,000/- left by deceased Kashif Hussain in Pensioners'
Benefit Account No.192500140000706, of National Savings Centre-II, Sukkur, who passed away on 23.10.2021, leaving behind the
legal heirs (appellant and respondents). Record reflects that notices of the
application were issued, and the appellant opposed the grant of application and
contended that she had been declared as a nominee by her husband; therefore,
she is entitled to the whole amount lying in the above account of the deceased.
3. At the very outset, learned
counsel representing the appellant has contended that the amount is lying in
the pensioners' benefit account; therefore, the appellant is entitled to
inherit the whole amount of the deceased being a widow. He provides Pensioner Benefits
Account Rules 2003 as far as the Performa and Proviso of Pensioner Benefits Account
of National Saving Certificate. He submits that the trial court did not
appreciate such a provision of law and erroneously did not consider the
objections of the appellant, disposed of the Succession Application, and
deprived the appellant from the share to which she is otherwise entitled under
the law being a nominee of the deceased Kashif Hussain.
4. I
have given anxious thought to the arguments mentioned above of the learned
counsel for the appellant and have gone through the record, proceedings, and
impugned Order.
5. The
main contention of the learned counsel representing the appellant is that the
appellant/widow, being the nominee to the extent of 100%, was only entitled to
receive the entire amount lying in the Pensioner's Benefit Account with
National Savings Centre-II Sukkur. Undisputedly, the
parties are legal heirs of deceased Kashif Hussain, and there is also no dispute that the amount lying
in the National Savings Centre is a ‘Tarka’ amount
and the appellant was nominated for the said account to the extent of 100% by
the deceased during his lifetime. However, it is now
a settled principle of law that the nominee is not entitled as the owner of the
whole amount in the Succession matters. He is the only representative and legaly duty bound to receive and disburse the amount
amongst the legal heirs. In the case of Mst.
Amtul Habib and others vs. Mst.Musarrat Parveen and others
(PLD 1974 S.C 185), the Hon'ble Apex Court
uttered the opinion about the nomination as under:-
"We are of the opinion, however, that the
correct view has been taken 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 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."
(emphasis added)
6. In a recent judgment in the case
of Malik Safdar Ali Khan and another v.
Public-at-Large and others (2004 SCMR 1219), which pertains to the
encashment of National Saving Certificates purchased by a Muslim deceased by
nominating his brothers as a nominee, the Hon'ble
Apex Court has held as under:-
"7.
The Courts below after analyzing and examining the material available on record
granted the Succession Certificate in favour of
respondents Nos.6 to 8 being wife, son and daughter of the deceased. The claim
of Zafar Ali Khan that he is sole person, who can
receive the payment of certificate being a nominee is not acceptable because
the deceased had left two children and a widow, who through cogent, natural and
convincing evidence proved to be Muslims and entitled to inherit the legacy of
late Bahadur Khan. The evidence so adduced was
rightly believed by the learned trial Court and the same was maintained by the
First Appellate Court and upheld by the learned High Court. The contents of the
application referred to by Raja Muhammad Ibrahim Satti,
learned counsel for the respondents and portion of cross- examination clearly
show that the petitioners are bent upon to snatch the property of late Bahadur Khan and that they do not accept the widow, son and
daughter of their deceased brother."
The
contention that Zafar Ali Khan was nominated by the
deceased in the National Savings Certificates Form cannot override the
provisions of Mahomedan Law, according to which legal
heirs are only the persons entitled to receive the inherited property left by
their father and husband. The contention of Ch. Mushtaq
Ahmad Khan, learned Advocate Supreme Court for the
petitioners, that a Succession Certificate could only be granted to the
applicant is also not tenable because, as discussed above, the deceased's two
children and widow were entitled to the grant of a Succession Certificate.
Therefore, the learned trial Court rightly granted the same in their favour."
(emphasis added)
7. The
purpose for appointing a nominee is just to collect and receive the amount of
any moveable assets of the deceased, and such
collection or receiving is incumbent upon the nominee to distribute the money amongst
all the legal heirs as per Sharia law. The appellant cannot claim such an
amount by inheritance as provided under the doctrine of Muslim Law.
8. It is well-settled principle that
a nominee has no independent right of inheritance of the estate/assets in which
he/she was nominated as nominee, and any nomination by the deceased while alive
would not prevail over the rights of the legal heirs over the property, left
behind by the deceased; the nomination would not by itself operate as a gift or
will; the nominee only acts as a trustee who cannot become the owner of the
property in the event of death of the original owner and that the mandate of
the nominee is to look after the property and distribute the same amongst the
legal heirs of the deceased. Thus, the rules enforced under National Savings
schemes, whereby the nominee has been given the right to receive the amount of
investment, the property in the event the death of the purchaser/original
owner, cannot override the law of inheritance, which is a substantive law that
gives the right to inherit “Tarka” of the deceased to
the legal heirs.
9. In Case of Mst.
Ameeran Khatoon v. Mst. Shamim Akhtar
and others (2005 SCMR 512), it was held by the Apex Court that: “Applying
above test on the facts of instant case we are persuaded to hold that deceased
Muhammad Ayub was not entitled for the Benevolent
Fund and, Group Insurance during his lifetime and on his death, such amounts
shall be deemed to be owned by him. Thus they will devolve upon his legal heirs
being his 'Tarka'. Therefore, petitioner would not be
entitled exclusively to claim these amounts except to the extent of her
entitlement as per Shariat with other legal heirs of
the deceased as it has been held by this Court in the case of Mst. Amtul Habib
and others v. Mst. Musarrat
Parveen and others PLD 1974 SC 185”.
10. The arguments of learned counsel
regarding a claim of the whole amount as per the proviso of Rule No.4 of
Pensioners’ Benefit Accounts Rules 2003 are concerning. It is in respect of the
nominee who is not among the eligible family members
to maintain the account, and it does not provide any right to the nominee that
he is the exclusive owner of the whole amount of the deceased; thus, such Rules
are not applicable and irrelevant. Subsequently, respondent No.1 filed a
Succession Application before the District Court, who, after calling reports
from the concerned department and respondent No.10, considering all aspects of
the case, appointed an Accountant District Court authorizing him to collect and
draw and receive the whole amount along with profit from the account of
deceased and disburse amongst all the major legal heirs in accordance with law.
11. In view of the above discussion and
exposition of the law, I do not find any force with the arguments of learned counsel
for the appellant, and this Civil Miscellaneous Appeal, being devoid of any
force, is dismissed in limine.
JUDGE
Suleman Khan/PA