WAHEED AHMAD SIDDIQI Versus TAZEEN ZAIDI

ORDER

1. By this order all the three applications will be disposed of. This is a suit for Administration filed by the legal heirs of the deceased Sayeed Ahmad Siddiqui who died on 19‑4‑1986. The defendant No.l is the adopted daughter of the deceased. The defendant No.2 was the employer of the deceased and defendant No.3 is the Insurance Company with which the deceased had obtained life Insurance Policy. The first application is under Order 38, Rule 1, C.P.C. for arrest of the defendant No.1, the second application is under Order 39, Rules 1 and 2, C.P.C. for restraining the defendant No.l from appropriating, transferring, spending or parting with any amount or claim as mentioned in the application and the third application is for appointment of receiver of the following properties:

(a) Death claim in respect of the Insurance Policy No.400618587‑1 in respect of the life of the said deceased.

(b) Monthly pension payable by the defendant No.2 in respect of the employment of the said deceased with the Pakistan International Air Lines Corporation.

(c) Defence Savings Certificates of the said deceased held by the Defendant No.l.

(d) The amount of Rs.76,000 being deposit held by Taj Company Ltd. in the name of the said deceased or alternatively in the name of the defendant No.1 as Benamidar of the said deceased together with the quarterly profit accruing thereon as from the date of the death of the said deceased i.e. to say 19‑4‑1986.

(e) the sum of Rs.14,953.82 lying with the National Bank of Pakistan, Airport Branch, Karachi to the credit of the said deceased in Account No. 10956.

(f) to ascertain and realise the amount lying to the credit of the said deceased with the United Bank Ltd. Airport Branch, Karachi, if any.

(g) to obtain the allotment order in original or duplicate thereof from the P.I.A.C. Employees' Cooperative Housing Society Ltd. relating to the Plot No.B‑298, measuring 400 sq. yards held by the said deceased in the said Society.

(h) and generally to realise the movable and immovable assets of the said deceased whatever they be.

2. In the plaint also these properties have been enumerated. The admitted position is that the defendant No.1 who is the adopted daughter of the deceased was nominee of the provident fund and the life policy. She has realised the provident fund amounting to Rs.6,58,847. She has also realised Rs.30,940 from the defendant No.3 under the life policy of which she was the beneficiary/ nominee. She has recovered Rs.28,000 on 12‑5‑1986 by encashing the Defence Savings Certificates as the nominee of the deceased. Under item No. (d) the plaintiff has also mentioned that an amount of Rs.76,000 was deposited with Taj Company Limited. The learned counsel for the defendant No.1 has pointed out that this amount was gifted to defendant No.1 by the deceased under gift deed dated 25‑3‑1983 and before the death of the deceased the defendant No.1 had realised this amount from Taj Company and this amount is no longer with that company.

3. The plaintiffs have produced a copy of the Will said to have been executed by the deceased in which certain amounts have been bequeathed to the plaintiffs besides the properties given to the defendant No.l. According to the defendant No.1 the gift deed, will and nomination entitle her to realise the debts, securities and properties. Mr. Mohammad All Jan, the learned counsel for the plaintiffs has contended that by nomination the defendant No.1 cannot debar the legal heirs from their right of inheritance. In this regard reliance has been placed on P L D 1974 SC 185. It is well settled now that the nominee is entitled to recover the properties of the deceased for distribution amongst the legal heirs who are entitled to inherit the same. So far the Will is concerned the learned counsel for the plaintiff has contended that this Will is not a legal Will according to the Muslim Law as the deceased could have bequeath only 1/3rd of his estate. In these circumstances the learned counsel contends that the legal heirs are entitled to the entire properties left by the deceased.

4. Mr. S. Izhar Haider Rizvi, the learned counsel for defendant No.l has contended that Rs.76,000 was not in existence at the time of death of the deceased. He further contended that the deceased was the nominee and out of the provident fund and other amounts realised by the defendant No.1 she has paid about Rs.7,50,000 to the debtors of the deceased.

5. The defendant No.1 has already realised the provident fund, insured amount, pension and deposit from Taj Company. She claims to have appropriated Rs.76,000 in the life time of the deceased received from Taj Company in her own right as the donee. She further claims that she has paid Rs.7,50,000 towards the debts of the deceased. She has not produced any receipt or written proof of the debt and its payment. If she has paid the debts she is duty bound to account for it. So far appropriation of Rs. 76,000 is concerned she has relied on the gift deed of 23rd September, 1983 and claims to have realised it from Taj Company during the life time of the deceased. In this regard she has relied on the gift deed. No other document has been produced by her to substantiate this fact. A perusal of the Will and gift deed make it clear that although the Will was executed at a later date it is mentioned in it that Rs.76,000 in Taj Company Ltd. giving profit of Rs.3,420 per quarter will all belong to Tazeen (the defendant No.l). Prima ,facie if this amount had been gifted away to the defendant No.1 there was no necessity to mention it in the aforestated manner. The plaintiffs deny the gift. This amount seems to be disputed. The personal effects and jewellery of the deceased are alleged by the defendant No.1 to have been appropriated by the plaintiffs.

6. This is an Administration Suit in which all the properties of the deceased are to be realised, accounted for and managed by the Court till such time it is distributed amongst the claimants or the legal heirs. Therefore, in the circumstances it would be proper to appoint an Administrator of the properties of the deceased. The Nazir is appointed Administrator of the properties mentioned at serial Nos. b, d, e, f and g of Miscellaneous Application No. 2222 of 1987. The Nazir may also inquire and investigate about other assets of the deceased and the parties may furnish information in that regard in locating and investigating the same. So far provident fund, insurance amount, pension and deposit with Taj Company Limited are concerned the defendant No.1 should file with the Nazir the entire accounts relating to these amounts and if any amount is left in her hands it should be deposited with the Nazir. If pension is payable monthly the Nazir should recover it from P.I.A.

7. The plaintiffs apprehend that the defendant No.1 shall leave the jurisdiction of this Court as she has realised most of the most of the deceased. No overt act has been even alleged against defendant No. 1. On mere surmises and conjectures no order for arrest of defendant can be passed. The application for arrest of the defendant No.l is dismissed.

8. The defendant No.l is restrained from transferring, removing, parting with or making any payment to any one except the Nazir of this Court, from the amounts realised by her including the deposit recovered from Taj Company Limited.

9. A . A. /W‑23/ K Order accordingly.