Defence Saving Certificates Rules, 1966

P L D 2017 Lahore 360

Before Atir Mahmood and Mujahid Mustaqeem Ahmed, JJ

Mst. JAMEELA MANZOOR and another---Appellants

Versus

RAJA ZAFAR MEHMOOD and others---Respondents

R.F.As. Nos. 152 and 159 of 2010, heard on 22nd December, 2016.

(a) Defence Saving Certificates Rules, 1966---

----R. 13---Behbood Savings Certificates, Rules, 2003, R. 17---Special Savings Certificates Rules 1990, R. 16---Investment certificates---Oral gift---Proof---Deceased died issueless leaving behind his widow, one brother and four sisters---Widow claimed that her deceased husband in his life time had gifted the entire amount of his investments/saving certificates in her favour, as such she was exclusively entitled to receive these amounts---Validity---Deceased had not conveyed any written instructions to the bank staff to the effect that except for his wife, no other legal heir would have any right in respect of amounts lying in his bank accounts---During cross-examination the widow showed her lack of knowledge about the fact that till death of her husband, the assets remained in his name---Widow conceded that no deed was written in her favour by her deceased husband in respect of his assets---No other witness has come forward to support factum of gift of assets in favour of widow---No date, time or place of such oral gift or name of the witnesses in whose presence the gift was made was given---Widow had not taken the stance that investment certificates, etc. were delivered to her, at the time of gift---Necessary ingredients of a valid gift were missing in the present case---Moreover application for one of the Regular Income Certificates showed that the deceased had mentioned on it name of her widow and one his sisters as nominees to the extent of 1/2 share each and such fact alone belied the claim of widow that deceased intended that all these amounts be exclusively shared by her---Had the deceased intended to gift away all his investments to his widow, it was quite easy for him to transfer such amounts in her account or execute a gift deed or will deed in her favour---Deceased being an advocate, fully knew the difference between nomination and gift and deliberately mentioned name of his wife in investment certificates as nominee alone---Widow had failed to establish that she was entitled to receive her deceased husband's assets/investments to the exclusion of other legal heirs---High Court observed that R.17 of Behbood Savings Certificates Rules, 2003 and R.13 of Defence Saving Certificates Rules,1966 pertaining to nomination by purchaser of these certificates being a subordinate delegated legislation could not be given preference /overriding effect in the matter of inheritance of movable assets /debts of a deceased person and Islamic law would be applicable and have precedence over said Rules---Appeal was disposed of accordingly.

Malik Safdar Ali Khan and another v. Public at Large and others 2004 SCMR 1219; Imtiaz Shamim and others v. Muhammad Irfan ul Haq and others 2006 CLC 1189; Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Mst. Rukhsana v. Province of Sindh through Home Secretary and 4 others 2013 CLC 370; Mst. Hussan Jamala and another v. Government of Khyber Pakhtunkhwa through Secrtary, Home and Tribal Affairs, Peshawar PLD 2013 Pesh. 1 and Muhammad Akram Bhatti and others v. Mst. Ghulam Sughra and others PLD 2011 Lah. 355 ref

(b) Islamic law---

----'Tarka'---Scope---Pensioner's Benefit Account --- Such account was an investment by pensioners, under the National Saving Schemes, with the aim and object of reducing hardships faced by pensioners---Amount deposited in such account could be withdrawn by the pensioner at any time during his life, thus, it squarely fell within the definition of 'tarka'---All legal heirs of a pensioner would be entitled to inherit the amount in the Pensioner's Benefit Account.

Federal Government of Pakistan v. Public at Large (Shariat Appellate Bench) PLD 1991 SC 731 and Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 ref

Muhammad Asif Chaudhry for Appellant.

Saeed Akhtar for Respondents Nos. 1, 2-C, 3 to 5.

Mubashar Rauf Bhatti for Respondents Nos. 2-A and 2(b).

Date of hearing: 22nd December, 2016.

JUDGMENT

MUJAHID MUSTAQEEM AHMED, J.---Through this single judgment we proceed to decide the above titled R.F.A No.152 of 2010 and R.F.A. No.159 of 2010 as identical issue is involved in these appeals pending in between the same parties.

2. Concisely, the facts necessary for disposal of these Regular First Appeals are that Raja Manzoor ul Haq Advocate died issueless in the year 2008 and admittedly succeeded by appellant Mst. Jameela Manzoor as widow, Raja Zafar Mehmood as brother, Mst. Zaib-un-Nisa (died during pendency of the succession petition and being represented by legal heirs) Raj Begum, Robina and Tahira Andleeb as sisters (respondents Nos.1 to 5). The deceased has left behind following assets/debts :-

Sr.No. Name of Property /Certificate Value

1 Regular Income Certificate Registered

No.132181 Rs.2,50,00,000/-

2 Regular Income Certificates Registered

No.11692 Rs.10,00,000/-

3 Regular Income Certificates Registered

No.13507 Rs.100,00,000/-

4 Behbood Saving Certificates Registered

No.BSC-1755 Rs.30,00,000/-

5 Pensioner Benefit Account

No.PBA 642 Rs.30,00,000/-

6 Saving Account No.SA-2470 Rs.57,18,406/-

7 Defence Saving Certificates purchased

from National Saving Centre, Tariq

Abad, Rawalpindi Rs.29,00,000/-

8 National Bank of Pakistan, Haider

Road, Rawalpindi, PLS A/C

No.9728-1 Rs.2974/-

9 Allied Bank Ltd., City Saddar

Road, Rawalpindi Rs.4792/-

10 Allied Bank Ltd., City Saddar Road

Rawalpindi Current A/C No.1928-4 Rs.4616/-

Total Rs.5,06,30,788/-

3. Respondent No.1 moved petition for issuance of succession certificate in favour of all the legal heirs for payment of above debt amounts to them. Present appellant as respondent contested the claim mainly on the ground that her deceased husband in his life time had gifted the entire amount of above investments (debts) in her favour, as such she was exclusively entitled to receive these amounts.
4. To settle the controversy in between the parties, learned Civil Judge, Rawalpindi casted the following issues:-
5. Whether the debts and security of the deceased is liable to be disbursed amongst the one widow, one brother and four sisters of the deceased Raja Manzoor ul Haq? OPP
6. Whether the deceased Manzoor ul Haq in his life time nominated and gifted the entire amount, Defence and Behbood certificates and saving account to Mst. Jameela Manzoor? OPR.
7. To what relief if any is the petitioner entitled.
8. Both the parties led evidence in support of their respective versions. Learned Civil Judge, Rawalpindi vide impugned judgment dated 25.09.2010 while answering the above issues in favour of the respondents, ordered for issuance of succession certificate in favour of legal heirs as per their shares given below:--
9. Widow - 6/24 share
10. Brother- 6/24 share
11. Sisters- 3/24 share each.

The claim of present appellant for her exclusive entitlement to receive these amounts was rejected, however, she was held entitled to draw pension of the deceased.

6. Immediately after decision of the succession petition, the appellant moved a miscellaneous application before the learned Civil Judge, Rawalpindi with the prayer of amendment of judgment to the effect that she has been adjudged entitled to pension benefits but all the legal heirs of the deceased were held entitled to inherit the amount of Rs.30 lac lying in the Pensioner's Benefit Account PBA 642 mentioned at serial No.5 of the succession petition and as such it being a typographic mistake may be rectified and this amount be deleted from the assets/debts of the deceased. This application was allowed on 05.10.2010 without hearing the respondents and Item No.5 was deleted from the assets of the deceased but Item No.6 Saving Account SA-2470 was included in the assets.
7. Appellant has assailed the judgment dated 25.09.2010 passed by the learned Civil Judge, Rawalpindi on the grounds that the same suffers from misreading and non-reading of evidence and being in violation of Defence Saving Certificate Rules 1966, "Behbood" Savings Certificates, Rules 2003 and Pensioners' Benefit Account Scheme and that her plea of oral gift was not taken into consideration, whereas all the relevant Defence Saving Certificates, Behbood Saving Certificates were delivered to her by the deceased in his life time and were in her possession. The appellant prayed for setting aside the impugned judgment and converting the succession petition into civil suit and its remand for adjudication by the Civil Court of competent jurisdiction.
8. This appeal has been vehemently resisted by the respondents. They also filed R.F.A.159 of 2010 assailing the order of learned Civil Judge, Rawalpindi by which he allowed the application of the appellant for correction in Judgment (referred in paragraph No.5 of this judgment), mainly on the grounds that they were condemned unheard and the impugned order has been passed on their back.
9. Arguments heard. Record perused.
10. There is no dispute about legal heirs of the deceased. The contention of the appellant is that the deceased in his life time had gifted away these movable properties/assets to her. All the valid ingredients of gift under Muhammadan Law i.e. offer, acceptance and delivery of possession stood established. Moreover, she was nominated by her deceased husband to receive these assets after his death, so in view of Rule-17 of Behbood Savings Certificates Rules 2003, Rule-13 of Defence Savings Certificate Rules 1966 and Rule-16 of Special Savings Certificates Rules 1990 she being nominee is entitled to receive the above amounts. Referring Brochure of National Savings Ministry of Defence Government of Pakistan regarding Pensioner's Benefit Account read with Office Memorandum No.F.12(1) S.I/Cert/2000 dated December 27, 2003 issued by the Government of Pakistan Central Directorate National Savings, Islamabad, it has been maintained that in case of death of a Pensioner Benefit Account Holder, the account may be maintained by the eligible member of his family, which will be the same as in the case of transfer of the family pension and widow of the deceased has been enlisted at top (a) of recipients of family pension, the counsel for the appellant has tried to canvass and convince us that the appellant is entitled to receive the amount lying in Pensioner's Benefit Account No. PBA 642.
11. Whereas this claim of appellant has been vehemently opposed by the respondents maintaining that except pension claim of widow, rest of the assets of the deceased are to be shared/inherited by all the legal heirs under the Muhammadan Law. Referring application of appellant for correction of judgment, it has been maintained that she herself has admitted that the parties have been given shares in the debts of the deceased, as per Islamic Law. Relying on celebrated judgment reported as PLD 1991 SC 731 (Shariat Appellate Bench), it has been maintained that above amounts fall within the definition of inheritance (TARKA) and as such all the legal heirs are entitled to share the same.
12. Connected appeal R.F.A. No.159 of 2010 has been pressed on the grounds noticed supra (para No.5 of judgment), whereas it has been opposed by the present appellant (respondent in that RFA).
13. Before attending to the legal proposition involved in the case, it is appropriate to examine the evidence led by the appellant in support of her claim of valid gift of assets by the deceased in her favour. She, as RW-1 deposed that her deceased husband in his life time had given the rights to the rest of legal heirs and has clarified that except his wife, none would have any claim in respect of his property. He also conveyed instructions to the Bank Staff. (No such written instruction placed on record) that except his wife, no other legal heir would have any right in respect of his amounts/debts lying in the bank accounts. During cross-examination she showed her lack of knowledge that till death of her husband, the above assets remained in his name. She conceded that no deed was written in her favour in respect of these assets by her husband, and that respondents being brothers and sisters were his legal heirs. No other witness has come forward to support factum of gift of these assets in favour of present appellant. No date, time or place of such oral gift or name of the witnesses in whose presence this gift was made is either given in written reply of succession petition or in statement of appellant. It is not her case that these investment certificates, etc. were delivered to her, at the time of gift. As such facts not pleaded cannot be proved. Moreover, in Exh.R-5 application for Regular Income Certificate Rs.10,00,000/- appellant and respondent No.1 have been mentioned as nominees to the extent of 1/2 share each and this fact alone belies the claim of appellant that deceased intended that all these amounts be exclusively shared by his widow.
14. Referring to paragraphs 138, 144, 148 of Muhammadan Law by D.F. Mulla Pakistan Edition, it has been maintained that a valid gift can be made by donor by divesting himself completely of all ownership and dominion over the subject matter of gift. While referring paragraph No.138 of Muhammadan Law it has been maintained that gift is defined as transfer of property made immediately by one person to another and accepted by the latter. If the case of the appellant is examined under the Principles of Muhammadan Law, it is crystal clear that the deceased in his life time has not gifted away theses assets to the present appellant. Had the deceased intended to gift away these assets to his widow, it was quite easy for him to transfer such amounts in her account or execute a gift deed or will deed in her favour. He being an advocate, fully knew the difference in between nomination and gift and deliberately mentioned name of his wife in those profitable schemes as nominee alone. In 2004 SCMR 1219, Malik Safdar Ali Khan and another v. Public at Large and others, while examining the distinction in between nomination and gift, it has been held that unless nomination could amount to a valid gift inter vivos, same could not pass title to nominee in respect of immovable property. Making of a nominee could not give right to nominator at his choice to change law of succession, which otherwise could be applicable in case of his death, nomination could not operate as a valid gift under Islamic Law as gift in order to confer title on donee must be accompanied by delivery of possession of property gifted. In 2004 SCMR 1219 supra while examining effect of nomination by purchaser in National Saving Certificates form under National Saving Certificates Rule 1990. it was held that such nomination could not override provisions of Islamic Law where under only legal heirs of deceased purchaser would be entitled to receive property left by the deceased. The precedent reported as 2006 CLC 1189 (Lahore) Imtiaz Shamim and others v. Muhammad Irfan ul Haq and others is aptly applicable to this case. In this case, petitioners took the plea that original saving certificates as well as bank Pass Book were in their custody and as such they were exclusively entitled to have saving certificates and encash them to the exclusion of respondent, as deceased owner had gifted away those certificates to them which was evident by the fact that the petitioners were appointed as nominees and that deceased has severed all his relations with other respondents because of their derogatory and disrespectful attitude towards him but the courts below allowed succession certificate in favour of all the legal heirs, discarding such claim of exclusive ownership and the orders were upheld by the High Court, as impugned orders were passed in advancement/ enforcement of Islamic Law of Inheritance. Whereas in the instant case the situation is different, the deceased was enjoying good relations with his legal heirs and as per findings of learned Civil Judge (paragraph No.2 at page 3 of the judgment), certificates Exh.R-4 & 5 are in the name of widow and Raja Zafar Mehmood respondent as nominees. (Actually Exh.R-5 is joint one).
15. Thus the necessary ingredients of a valid gift are missing in this case and as such concocted plea of appellant cannot be accepted to deprive the legal heirs from the inheritance of deceased.
16. In case law reported as PLD 1991 Supreme Court 731 (Federal Government of Pakistan v. Public at Large (Shariat Appellate Bench) TARKA has been defined as under:--

Emphasis Supplied

17. In celebrated precedent 2005 SCMR 512 in case (Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others) it was laid down that under Islamic Law of Inheritance amount of benevolent fund and group insurance would devolve upon the heirs of the deceased as Tarka and mother of the deceased, who was nominee would not be entitled exclusively to claim such amounts. In illuminated judgment 2013 CLC 370 (Sindh) D.B. Judgment (Mst. Rukhsana v. Province of Sindh through Home Secretary and 4 others) while examining the case under Succession Act XXXIX of 1925, it was laid down that under Islamic Law of Inheritance if some one dies the succession to his property either movable or immovable gets automatically and immediately vested in the heirs and such vesting is not dependent upon any intervention or any act on the part of some authorities or any other state agency. Such right in inheritance does not extinguish on death of owner of the property/estate of inheritance, the legal heirs immediately and automatically become co-sharers in the property and would become subject of succession on acquiring ownership/proprietorship rights. In PLD 2013 Peshawar-1 (Division Bench Judgment) (Mst. Hussan Jamala and another v. Government of Khyber Pukhtunkhwa through Secretary, Home and Tribal Affairs, Peshawar), regarding uniform compensation package on death, it was laid down that after "shahadat" of a police official his legacy had to be devolved amongst the Quranic legal heirs. Principle regarding inheritance of Islamic Law would and should be applicable instead of any rule or notification. The Holy Quran is complete code of life and verdict in the Holy Quran and sayings of Holy Prophet Muhammad (Peace Be Upon Him) are the supreme law for Muslim "Ummah". No preference could be given to the rules/orders/notifications against the supreme law laid down by Allah in the Holy Quran and Holy Prophet Muhammad (Peace Be Upon Him). It was further held that such nomination could not override provisions of Islamic Law where-under only legal heirs of deceased purchaser would be entitled to receive property left by deceased. In this precedent it was further held that in view of Case Law, 2004 SCMR 1219, Malik Safdar Ali Khan and another v. Public at Large and others), it is now declared law of land that concept of nomination is alien to Muslim Law according to which the legal heirs are the only persons entitled to receive the property left by their father or husband and no Muslim heir can exclude to other heir on the ground that she was widow holding saving certificate as nominee.

In PLD 2011 Lahore 355 (Muhammad Akram Bhatti and others v. Mst. Ghulam Sughra and others), it was laid down that nomination made by the deceased predecessor in interest in favour of specific nominees was only for the purpose of receiving the amount under defence saving certificates Scheme but distribution of the amount had to be made in accordance with the respective legal shares amongst all the legal representatives of the deceased.

18. Under Article 2 of the Constitution of Islamic Republic of Pakistan, 1973, (Constitution) Islam shall be state religion of Pakistan. Under Article 227 of the Constitution, "No law shall be enacted which is repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah. In view of these Constitutional provisions and case-law referred to above, Rule-17 of "Behbood" Savings Certificates Rules, 2003 and Rule-13 of Defence Savings Certificates Rules 1966 pertaining to nomination by purchaser of these certificates being a subordinate/delegated legislation cannot be given preference/overriding effect in the matter of inheritance of movable assets/debts of a deceased person and Muhammadan Law will be applicable and have precedence over these Rules.
19. The plea of learned counsel for the appellant Mr. Muhammad Asif Chaudhry, Advocate that Pensioner's Benefit Account relates to Pension Benefits and as such widow is entitled to receive the amount lying in this account is misconceived one. He has tried to intermingle the "Pension Benefits" and Pensioner's Benefit Account. Pension is grant for a retired person whereas the latter account is an investment by Pensioners, under the National Saving Schemes, with the aim and objects of reducing hardships faced by Pensioners and minimum and maximum limit for their investment is Rs.10,000/- and Rs.30,00,000/- respectively and such deposited amount can be withdrawn at any time after date of deposit. (Reference Para-5 of scheme "what about withdrawal") As such this deposit can be withdrawn in the life time of a pensioner, so it squarely falls within definition of "TARKA" in view of case law 2005 SCMR 512 and PLD 1991 Supreme Court (Shariat Appellate Bench) 731, referred to supra.
20. So far as R.F.A. No.159 of 2010 is concerned, in the impugned judgment dated 25.09.2010, asset mentioned at serial No.5 Pensioner's Benefit Account No.PBA 642 of Rs.30,00,000/- has rightly been included and all the legal heirs have been held entitled to inherit this amount but Appellant Mst. Jameela Manzoor (widow/ respondent in this RFA) in clandestine manner moved an application for correction of judgment and thus made an attempt to deprive the remaining legal heirs from inheriting this amount. Learned Civil Judge, Rawalpindi vide impugned orders dated 5.10.2010 allowed this application without issuing any notice to the contesting respondents and as such his order to this extent is not sustainable in the eye of law. The rights of the parties stood rightly, fairly and correctly settled in earlier judgment and contesting respondents could not be deprived of their valuable inheritance rights on the basis of such miscellaneous petition.
21. The plea of counsel for appellant that this Pensioner's Benefit Account, in view of the scheme was to be exclusively inherited by the widow is misconceived one and against the settled law as noticed supra. As such while partly allowing R.F.A. No. 159-2010 the impugned order dated 5.10.2010 to the extent of exclusion of this amount (item No.5 in succession petition) is set aside. However, in original Judgment dated 25.09.2010 passed by learned Civil Judge, Rawalpindi Item No. 6 was not included and learned civil court to this extent has rightly amended the judgment and included it in the assets of the deceased, thus permitting all the legal heirs to inherit this amount. So to this extent the impugned order is correct and legal.

As a sequel of above discussion, to our view the appellant has failed to establish her case on facts or under Muhammadan Law that she is entitled to receive the above assets, to the exclusion of remaining legal heirs/respondents. The impugned judgment has been passed after due appreciation of evidence on record and in accordance with law of land and as such calls for no interference by this Court. Consequently, R.F.A. No.152 of 2010 is dismissed whereas R.F.A. No. 159 of 2010 is partly allowed and the impugned order to the extent of exclusion of item No.5 Pensioner's Benefit Account from the assets of the deceased and its deletion from the original judgment is set aside and the Miscellaneous Application moved by appellant before Civil Court stands dismissed.

MWA/J-1/L Order accordingly.