MUHAMMAD SADIQ Versus FAKHARI PASHA

Fakhri Pasha applied for a succession certificate with regard to a sum of Rs. 25,000 pertaining to the Group Insurance of his father Ghulam Mustafa who while in the service of WAPDA had died on 14-2-1983. His mother and two sisters who were respondents 2 to 4 supported his claim but his three uncles Muhammad Sadiq, Muhammad Rafiq and Ghulam Raza contested it. It was inter alia averred by them that Muhammad Sadiq being the nominee of the late Ghulam Mustafa was entitled to receive the entire amount exclusively and that they had spent a considerable amount on the treatment obsequies and other ancillary expenses of the deceased. The application of Fakhri Pasha was allowed by the learned Senior Civil Judge, Peshawar per his order, dated 3-11-1984 and aggrieved from it Muhammad Sadiq and others have come on appeal to this Court.

2. The learned counsel for the appellants contended that under the Insurance Law it was the nominee who was entitled to the sum secured by the policy. He referred me to section 39 Insurance Act, 1938 which contemplates that the holder of a policy of life insurance on his own life may, when affecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. This provision is restricted to a policy for life insurance affected under the Insurance Act. The late Ghulam Mustafa had not taken out a policy for life under the said Act and, as such, shall not be governed by the A aforesaid provision. He was an employee of the WAPDA and had been insured under the Group Insurance Scheme. The Federal Employees Benevolent Funds and Group Insurance Act, 1969 (hereinafter called the Act) would, therefore, govern the case.

3. It is an undisputed fact that the late Ghulam Mustafa had nominated his brother Muhammad Sadiq and the name of the latter was entered as nominee in the Nomination Form Exh. R.W. 1/1 as well as his service record. The question that arises is whether as a nomineelB Muhammad Sadiq was entitled to the entire disputed amount and the answer, I am afraid, lies in the negative.

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4. ???????? The term "family has been defined in section 2(5) of the Act to' mean:-

(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 employee wholly dependent C upon her.

Muhammad Sadiq being a major brother of the late Ghulam Mustafa was not a member of his family as defined above. It is envisaged by section 15 of the Act that subject to the provisions of the Act and the rules, in the event of the death of an employee, occurring by whatsoever cause, during the continuance of his employment, the Board shall pay to the family of the deceased employee a sum specified in the Second Schedule. It would be profitable in this context to refer to section 19 which reads as under:-

19. Payment of the sum assured.- (1) On the death of an employee, the sum assured shall be paid to such member or members of his family as he might have nominated in accordance with the rules in full or in the shares specified by him at the time of making the nomination.

(2) Where no valid nomination made by the employee subsists at the time of his death, the sum assured shall be paid to such member or members of his family subject to such conditions imposed with a view to ensuring that the sum is justly and equitably, utilized for the maintenance and benefit of all the members of the family as may be prescribed or may consistently with the rules, be determined by the Board or any officer authorised by the Board in that behalf.

The term "family" underlined by me in both the sections is significant and denotes that it is a member or members of the family who is or are to be nominated and it is such nominee or nominees to whom the specified sum shall be payable. It follows that Muhammad Sadiq being not a member of the family as defined in the Act could not validly be nominated by the late Ghulam Mustafa and, as such, he was not entitled to the disputed amount or any part thereof. Secondly, since no valid nomination made by the late Ghulam Mustafa subsisted at the time of his death the D sum assured was to be paid to such member or members of his family as laid down in section 19(2) of the Act reproduced above. It is manifest that Fakhri Pasha, respondent 1, being a member of the family was entitled to apply for a succession certificate and the objections of the appellants to his entitlement were without any substance.

5. The learned counsel for the appellants suggested that the question with regard to the expenses incurred by the appellants on the treatment, obsequies and other ancillary matters may be left open for decision by a civil Court of competent jurisdiction. The object of a succession' certificate is to facilitate the collection of debts by a person who has prima facie a clear title to the succession and has beneficial interest in the debts. The persons who have a counter-claim can establish the same by a civil suit inasmuch as the Court is required by section 373 of Succession Act to decide in a summary manner the right to the certificate. The liabilities of the late Ghulam Mustafa cannot, therefore, be adjudicated upon in these proceedings. Moreover, no decision upon any question of right between the parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties as laid down by section 387, Succession Act. Furthermore, Fakhri Pasha, respondent 1, in compliance with the direction of the learned lower Court made under section 375, Succession Act has furnished a bond for indemnity of the persons who may be entitled to the whole or any part of the disputed amount. The object of such a bond is to render an account of the debts and security received on the foot of the succession certificate and to indemnify the aforesaid persons.

In the result, I find that the impugned order is unexceptionable and merits no interference. The appeal fails and is dismissed with costs.

A.A. ???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.