ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Misc. Appeal No.S-03 of 2016
|
Date |
Order with signature of Judge |
1. For katcha peshi
2. For hearing of CMA
No.587/2016
Date
of hearing 17-11-2017
M/S Hadi Bux Bhatt and Khadim Hussain Dahot, Advocates
for appellant
Mr. Abdul
Sami Maitlo, Advocate for respondents No.2 and 3
Mr. Khalid Ahmed Korai, State Counsel
O R D E R
MUHAMMAD FAISAL KAMAL ALAM, J. Through this appeal, the appellant
(Shehar Bano) has called in question the order dated 13.6.2016, handed down by
the learned Additional District Judge Gambat, whereby the Succession Petition
filed by the present appellant in respect of distribution of amount/proceeds
lying in Account No.52 maintained at National Saving Centre, Gambat, which is
after commutation comes to Rs.529,644/- (Five lacs, twenty nine thousands,
six hundred and forty four rupees) and amounts payable under Defence Saving
Certificates (DSCs) to the tune of Rs.12,870,512/- (One carore, twenty eight
lacs, seventy thousands, five hundred and twelve rupees), to be collected from
National Saving Centre at Ranipur, was refused, primarily on the ground that
the said amount can only be paid to the nominees mentioned in the said National
Saving Certificates/DSCs, who were nominated by the deceased, late Habibullah
Shaikh, regarding whose succession the above petition was filed.
2. Basic
facts are undisputed; that present appellant is the daughter of above named
deceased and nominees are three sons of the said deceased. Secondly the status
of the other persons mentioned in the succession petition being legal heirs is
also not questioned.
3. The
only factor that weighed with the learned Court below,
was that since three sons are the nominees, therefore, the entire amount
relating to said account and certificates will be distributed amongst the
nominees and not to any other legal heir including the appellant. The learned
Judge has also placed reliance on the case law reported in 2004 YLR 1244 (
4. Arguments
heard and record perused.
5. Mr.
Hadi Bux Bhatt alongwith Mr. Khadim Hussain Dahot the learned counsel for the
appellant have argued that the impugned order is against the rule laid down in
various judgments about the status of the nominees. They have placed reliance
on the cases of Majid Qadri Vs. Abdul Qadeer and others (PLD 1979 Lahore 34 (2)
), Malik Safdar Ali Khan and another Vs. Public- at-Large and others (2004 SCMR
1219) and Amtul Habib Vs. Musarat Parveen-PLD 1974 Supreme Court page 185.
6. On
the other hand, learned counsel Mr. Abdul Sami Maitlo, representing the private
respondents has opposed this appeal on the ground, that it is not the question of nomination
only, but the said appellant and other legal heirs were given their respective
shares in the inheritance by the deceased father in his life time. In support
of his arguments learned counsel also placed on record a document in Sindhi
language with the heading
Acceptance of ‘wirasat’. In this document the counsel
contends that the present appellant was given an apartment No.M-32 in a multiple
storey building-Al-Asif Square at
7. The
case law cited in the impugned order pertains to group insurance regarding
which this Court in the said reported case had already held, by following the
earlier reported decision, that since group insurance does not fall within the
definition of Tarka/the inheritance, hence the entitlement to group insurance (group
insurance policy) is that of nominees mentioned therein. The facts of the said case
are clearly distinguishable from the present one and thus the rule mentioned in
the above reported decision is not attracted in the present appeal. Now
adverting to the case law cited by the counsel for the appellant. The decision
handed down in the case of Malik Safdar Ali Khan and another Vs.
Public-at-Large and others (2004 SCMR
1219) in which, inter alia, the dispute also revolved around the payment of
amount under National Saving Certificate, whether to nominee only or to all the
legal heirs, was resolved.
The Honourable Apex Court has clearly laid down in the above judgment by
following dicta of earlier decisions that the proceeds of the National Saving
Certificate being part of Tarka (inheritance) has to be distributed amongst the
legal heirs of the deceased, regardless that one of the legal heirs is only a
nominee in the said saving certificate. The learned
8. In
view of the above settled position, I am of the considered view that the
impugned order is a result of a misconception about the legal status of a
nominee and is not an order in its true sense, rather a deviation from the law enunciated
by the Honourable Supreme Court, thus, requires interference in this appellate
jurisdiction. Accordingly the same is set aside.
9. Considering
the nature of controversy and the arguments advanced at bar today by the
learned counsel for the parties, it appears that the case has to be remanded to
the Court below with certain directions. Order accordingly.
10. Within
two weeks of the remand of the case, the present appellant will amend her Succession
Petition No.21/2016 by adding the schedule of immoveable property and amending
the present schedule of moveable property by mentioning all the moveable and
immovable properties left by the deceased; belong to him or stand in his name,
which are to be distributed as the estate of the said deceased. Similarly the
present objector can agitate their plea before the learned Trial Court and
sincere attempt will be made for an amicable settlement between the legal heirs;
however, if the same remains unresolved and it is apparent to the Court that
the matter is not a non-contentious
but a contentious one, then the same proceeding can be controverted into an
administration suit as envisaged in section 295 of the Succession Act 1925 and
is to be decided by the Court having jurisdiction in such matters.
11. In
the above terms, present appeal stands disposed of while parties are left to
bear their own costs.
JUDGE
Suleman Khan/PA