2014 CLC 126 - Peshawar High Court

2014 C L C 126
[Peshawar]
Before Waqar Ahmad Seth, J
Mst. RIFFAT YASMEEN----Petitioner
Versus
HASSAN DIN and another----Respondents
Civil Revision No.225 of 2012, decided on 3rd September, 2013.
Succession Act (XXXIX of 1925)---
----S. 372---Succession certificate---General Provident Fund, leave salary, leave encashment and
gratuity being in nature of tarka should go to the legal heirs of the deceased while group
insurance, financial assistance and benevolent fund which did not fall within the ambit of tarka
were just grant and grantee was empowered to distribute the same as per rules and regulations of
service or any provision of law---Order of Trial Court was in accordance with law---Appellate
Court remanded the case without any reason which would prolong the agony of the parties--Impugned order of Appellate Court was set aside and that of Trial Court was restored--Revision was accepted in circumstances.
Government of Pakistan v. Public-at-large PLD 1991 SC 731; Dr. Nasir Ullah v.
Abdul Majeed Soomro and others 2009 PLC (C.S.) 263; Naseem Akhtar alias Lali v. Khuda Bux
Pechoho and others 2006 CLC 1589; Zaheer Abbas v. Pir Asif and 6 others 2011 CLC
1528 rel.
Abdur Rehman Qadri for Petitioner.
Faisal Saeed for Respondent No.1.
Ghulam Younis Tanoli for Respondent No.2.
Date of hearing: 3rd September, 2013.
JUDGMENT
WAQAR AHMAD SETH, J.--- This revision petition under section 115, C.P.C. is
directed against the judgment and order dated 3-2-2012, whereby Additional District Judge-III,
Haripur, on acceptance of appeal of respondents, set aside the judgment and order of learned trial
Court dated 10-3-2011.
2.
Brief and relevant facts leading to this petition are that petitioner is widow of one
Arshad Mehmood, who was a government servant died on 29-6-2010 leaving behind the
petitioner and respondents Nos.1 and 2 as his legal heirs. Respondents Nos.1 and 2 applied for
grant of succession certificate and learned Senior Civil Judge after recording pro and contra
evidence issued the succession certificate on 20-10-2010. The petitioner moved an application
for review of said order, which was decided on 10-3-2011 whereas respondent No.1 moved an
application for disbursement of service dues of deceased, which was disposed of vide order dated
22-9-2010. Feeling aggrieved, respondents Nos.1 and 2 filed appeal, which after contest was
disposed of vide impugned order dated 3-2-2012 and remanded back the case to the trial Court.
Feeling aggrieved, the petitioner has filed the instant revision petition.
3.
Arguments heard and record perused.
4.
The record reveals that the trial Court while amending/reviving the order has held that
G.P. Fund, leave salary, leave encashment and gratuity being in nature of tarka, shall go to the
legal heirs of the deceased while group insurance, financial assistance and benevolent fund do
not fall within the ambit of tarka, being just grant and the grantee is empowered to distribute the
same as per the Rules and Regulations of Service or any provision of law. The order dated
22-9-2011 is in accordance with law in field and dictum of the apex Court. In the famous case of
Government of Pakistan v. Public-at-large reported as PLD 1991 SC 731, the word `tarka' has
been defined explicitly along with the benevolent fund, group insurance etc.
5.
In the case of Dr. Nasir Ullah v. Abdul Majeed Soomro and others reported as 2009 PLC
(C.S.) 263, it was held as under:---
"Pension and gratuity could not be distributed among brothers and sisters of deceased as
they were excluded under the provisions of Rr.4.9 & 4.10 of West Pakistan Civil Servants
Pension Rules, 1963, from receiving share of pension and gratuity due to survival of husband of
deceased civil servant---Appellant being surviving husband of deceased government servant was
exclusively entitled to pension and gratuity, whereas brothers and sisters of the deceased were
not entitled to receive the same---Amount of financial assistance by its nature did not fall within
the definition of Tarka as it was not the asset of deceased in her life time but the same was grant
of government, granted on the death of civil servant---High Court declared husband of deceased
civil servant as entitled to receive gratuity, pension and group insurance exclusively---Brothers
and sisters as well husband of deceased civil servant were entitled to have their share according
to Sharia in salary of earned leave and financial assistance---High Court in exercise of appellate
jurisdiction, modified the order passed by trial Court---Appeal was allowed accordingly."
6.
In the case of Naseem Akhtar alias Lali v. Khuda Bux Pechoho and others reported as
2006 CLC 1589, it was held as under:---
"Grant from Benevolent Fund and Group Insurance Fund would be paid to the husband--General Provident Fund which would come within preview of `tarka' of deceased would be
inherited by all legal heirs of deceased---Pension and commutation was to be paid to family of
deceased, under provisions of R.4.6 of West Pakistan Civil Servants Pension Rules, 1963--Husband, one son and one unmarried daughter were entitled to said claim---Salary of 180 days of
deceased would be paid to legal heirs of deceased according to Islamic Law."
7.
In the case of Zaheer Abbas v. Pir Asif and 6 others reported as 2011 CLC 1528
(Karachi) it was held as under:---
"Inheritance---Death of an employee during service---Service benefits of deceased
included payment of gratuity, family pension, leave encashment, group insurance and general
provident fund---Deceased during life time having nominated his mother to receive group
insurance, family pension and
gratuity---Legal heirs of deceased employee except such
nominee claiming shares in all such service benefits---Validity---Service benefits payable to a
deceased employee become part of his estate and heritable by all his legal heirs according to their
respective shares---Service benefit which had not fallen due to a deceased employee in his
lifetime and was in the nature of a grant or concession on part of employer, then whatever
amount became payable after death of employee would be distributed amongst those members of
prevalent law---Benefits such as gratuity, group insurance and family pension being grants and
concession on part of employer, if payable to an employee after his death, could not be treated as
heritable by all heirs of employee, but would be received by beneficiary thereof under service
rules and regulations of employer."
8.
In view of the above judgments it is clear that since interpretation of Shariat Appellate
Bench in the year 1991, the law is very consistent as per decision dated 22-9-2011 of learned
trial Court, thus, the remand of case by the appellate court through impugned order dated
3-2-2012 and that too without any reason, will not serve any purpose but to prolong the
agony of the parties, therefore, impugned order dated 3-2-2012 of Additional District Judge-III,
Haripur is set aside and order dated 22-9-2011 of Senior Civil Judge, Haripur restored.
9.
Consequently, this revision petition is allowed. Impugned order of appellate Court is
hereby set aside and order of trial Court stands restored. No order as to costs.
AG/508/P
Revision accepted.

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