P L D 2019 Balochistan 85
Before Mrs. Syeda Tahira Safdar, C.J. and Muhammad Ejaz Swati, J
HAWA BEGUM ---Petitioner
Versus
NAIK BAKHT and others ---Respondents
Constitutional Petition No.1 of 2014 and R.F.A. No.22 of 2017, decided on 1st July, 2019.
(a) Inheritance---
----Co -sharer, rights of ---Principle ---Co-sharership is result of devolution of inheritance, co-
sharer becomes co -sharer the moment inheritance opens ---Even mutation of entries or share
in moveable property is also not necessary.
2004 SCMR 392 rel.
(b) Succession Act (XXXIX of 1925) ---
----S. 383 ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Succession
certificate, revision of ---Suit for declaration, injunction and rendition of accounts ---
Compensation ---Widow contracting s econd marriage--- Husband of widow was police
constable who died in bomb blast and Government announced compensation package and
other facilities to bereaved family ---Deceased was issueless, therefore, succession certificate
was issued in favour of widow and parents of the deceased ---Parents of deceased assailed
succession certificate in favour of widow on the plea that she had contracted second marriage and got revised succession certificate issued in their favour ---Civil suit filed by parents of
widow was decreed in their favour ---Validity ---Widow could not be deprived of her share in
view of first succession certificate issued by Trial Court as on such date she was widow of the deceased; her second marriage could not operate retrospectively but Trial Court without
considering such aspect of matter passed decree in favor of parents of deceased which could not be sustained except share of salary she received during subsistence of second marriage ---
Deceased was issueless and parents of deceased who were living with deceased and were
dependents were included in the family---Revised succession certificate was issued by Trial Court with consent of both the parties and thereafter, separate certificate was issued respectively ---High Court in exercise of appellate ju risdiction set aside judgment passed by
Trial court but maintained order regarding salary of deceased received by widow to extent of her share during subsistence of second marriage ---Appeal was allowed accordingly.
PLD 1991 SC 731; PLD 2010 Kar. 153; PLD 2019 Sindh 1 and PLD 2013 Pesh. 1 ref.
Nemo for Petitioner (in C.P. No.1 of 2014).
Farooq Anwar for Respondents Nos. 1 to 11 (in C.P. No.1 of 2014).
Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (in C.P.No.1 of
2014).
Khushal Khan Kasi f or Appellant (in RFA No.22 of 2017).
Farooq Anwar for Respondents Nos.1 and 2 (in RFA No.22 of 2017).
Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (in RFA No.22 of
2017).
Date of hearing: 7th May, 2019.
JUDGMENT
MUHAMMAD EJAZ SWATI, J.--- The husband of the petitioner Hawa Begum and
son of respondents Nos.1 and 2 Muhammad Hussain was serving as a Head Constable in
Police Department (ATF), who died in a bomb blast on 16th April 2010 at Civil Hospital, Quetta. The Government of Ba lochistan vide Notification dated 28th October, 2010 had
announced a compensation package and other facilities to the bereaved family of civil servants of Balochistan, who are martyred due to acts of terrorism, pursuant to above Notification compensation a mount as Rs.20,00,000/ - (two millions) were approved in favour
of legal heirs of the deceased husband of the petitioner. A joint application for succession
certificate was filed by the father, mother brothers and sisters of the deceased including the petitioner, and Succession Certificate No.27/2010 dated 20th December, 2010 was granted
by the Civil Judge -IV/with power of District Judge in favour of the petitioner for total
amount of Rs.24,70403/ - including compensation as under:
S.No. Name of Debtor Description Amount
1 Balochistan
Police, Quetta Financial Assistance Rs.3,50,000/ -
2 Monthly Salary Rs.197371/ -
3 As Per announcement of Chief
Minister Rs.20,00000 -
4 Another relief as As per rules
5. Habib Bank
Cantt. Account No.00216968 -01 Rs.100,666/ -
6. Total Rs.24,70403/ -
On 28th December 2010 the respondents Nos.1 to 12 had filed an application that
petitioner after demise of her husband is residing with her parents and a revise succession certificate separating the s hares of parents of the deceased. The petitioner also filed a
separate application No.6/2011, during pendency of both above applications a settlement arrived between the parties, the counsel for the petitioner Mr.Zahid Advocate withdrew the
application No.6/2011. The application of the respondents was allowed in view of Fatwa
whereby 3/4 share in the movable property of deceased given to his family while 1/4 share in movable properties were given to petitioner (Hawa Begum) and following order dated 19th April 2011 was passed:
"…..during the course of arguments both the parties found agreed that the arrears of late Muhammad Hussain be distributed among his legal heirs as per Shari Fathwa issued by Jamia Imam Sadiq (A.S.) Alamdar Road Quetta, according to which applicant Nos.1, 2 and 12 who are real father, mother, brothers and sisters of late
Muhammad Hussain are have 3/4 shares in the moveable property left by late Muhammad Hussain while respondent No.13 Hawa Begum who was wife of late Muhammad Hussain is entitled for 1/4 share in his moveable properties. Since breakup of liabilities/dues of late Muhammad Hussain are reproduced as under which are to be given to his legal heirs.
According to Shari Fathwa the respondent No.13 is entitled to receive Rs. 612,166/ -
(six lac twelve th ousand one hundred sixty six) her share from the arrears of late
Muhammad Hussain, while the rest of amount be distributed among the applicants Nos.1 to 12 and in this respect the salary of Late Muhammad Hussain will also be
distribute among his legal heir s and respondent No.13 will also receive her share as
1/4 from salary of late Muhammad Hussain."
2. Pursuant to above orders, following separate succession certificates were issued in
favour of the petitioner and respondents on 30th November 2011:
REVISED SUCCESSION CERTIFICATE
S# Name of
debtors Particulars Amount Share of Naik Bakht
1. Balochistan
Police
Quetta
Balochistan. Financial Assistance Rs.3,50,000/ - Rs. 262500/ -
2. Monthly Salary Rs. 19,731/ - Rs. 14802.75
3. As per anno -
uncement of Chief
Minister Rs.20,00000/ - Rs.1500000/ -
4. Habib Bank
Cantt
Branch
Quetta A/C No.00216968 -
01 Rs. 100,666/ - Rs.75,500/ -
5. Total Rs.24,70403/ - Rs.1852802.75
REVISED SUCCESSION CERTIFICATE
S# Name of
debtors Particulars Amount Share of Hawa
Begum
1. Balochistan
Police Quetta Financial Assistance Rs.3,50,000/ - Rs.87500/ -
Balochistan.
2. Monthly Salary Rs. 19,731/ - Rs. 4934.25
3. As per ann - ouncement of
Chief Minister Rs.20,00000/ - Rs.500000/ -
4. Habib Bank
Cantt Branch
Quetta A/C No.00216968 -01 Rs.100,666/ - Rs. 25, 166/ -
5. Total Rs.24,70403/ - Rs. 617600.75
3. The petitioner challenged the succession certificate dated 30th May 2011 (impugned
succession certificate) by way of filing application under section 383 of the Succession Act
1925 on the ground that impugned certificate was obtained through misrepresentat ion and
fraud and brothers and sisters of the deceased were not entitled for any shares. The learned
Civil Judge -IV vide order dated 22nd March 2013 (impugned order) dismissed the
application and observed that impugned succession certificate was issued in favour of
respondent No.1, and not in favour of respondents Nos.2 to 12 with consent of the parties. The appeal filed by the petitioner was also dismissed by the learned Additional District Judge -I, Quetta vide judgment/order dated 11th December 2013 (impugned judgment). The
above impugned order has been challenged in Constitution Petition No.01 of 2014 by the petitioner (plaintiff).
4. The respondents Nos.1 and 2 parents, of the deceased, also filed a suit for declaration,
injunction, rendition of account and recovery of Rs. 1.5 million (M) out of total 2(M) along
with recovery of past salary of the deceased on the ground that she got married with brother of the deceased namely Ramzan Ali on 17th February 2011, therefore, the amount of Rs.5 lac out of total compensation amount of Rs.20 lac and 1/4 share from the dues and salary of the
deceased received by the Hawa Begum is to be returned to the respondents Nos.1 ana 2 (plaintiffs) which includes Rs.15,00000/ - out of Rs.20 lac and monthly salary/pension and
granting benefit of the deceased.
5. The suit was contested by the Hawa Begum, out of pleadings of the parties 5 issues
were framed.
6. The learned Civil Judge -IV, Quetta (hereinafter the "trial Court") vide
judgment/decree dated 22nd April 2017 (hereinafter the impugned "judgment/decree")
decreed the suit in favour of sile respondents Nos.1 and 2 as under:
"Suit of the plaintiffs is decr eed and the defendant No.2 is directed to recover the
share of plaintiffs amounting to Rs.15 lacs out of Rs.20 lacs from the defendant No.1
being their Sharai share as per revised succession certificate granted to the plaintiff
No.1 and the defendant. The defendant No.3 is directed to recover the amount of salaries from the date of second marriage i.e. 17.2.2011 till today and plaintiffs are entitled to receive the salary of deceased Muhammad Hussain from 18.2.2011. The defendants Nos.2 and 3 are permanentl y restrained from payment of further salaries to
the defendant No.1 . Being legal heirs of deceased Muhammad Hussain, the plaintiffs are entitled to receive the monthly salary/pensionary and gratuity benefits of the deceased Muhammad Hussain. The defendant No.I is directed to return back the
amount to the plaintiffs according to their share which was taken by her."
7. The above impuged judgment/decree has been assailed by the appellant in Regular
First Appeal (RFA) No.22 of 2017.
Since both matters pertain to entitlement of the parties' shares with respect to Tarka
and compensation, therefore, are being disposed of through this common judgment.
8. It is a matter of record that pursuant to succession certificate No.27/2010, dated 20th
December, 2010, a succession certificate was granted by the learned trial court empowering
petitioner to collect total amount of Rs.2470403/ - and subsequently with consent of the
parties the trial court passed order dated 19th April 2011, consequent whereof a separate succession certificate dated 30th November, 2011 total amounting to Rs.612166/ - including
her share of compensation Rs.500,000/ - was granted in favour of the petitioner and another
succession certificate total amounting to Rs.1852802.75 including compensation of Rs.1,500,000/ - was issued in favour of the respondent No.1 (mother of deceased). It is
necessary to mention here that above shares were determined on the basis of Sharai Fatwa whereby 3/4 shares in the movable property was given to the respondents and 1/4 in favour of the petitioner.
9. The petitioner has challenaed the revised succession certificate on the ground that
compensation of Rs.20 lac was not Tarka of deceased, therefore, grant of 3/4 share to respondent is illegal, which was declared by the trial co urt while in a suit filed by the
respondents Nos.1 and 2 against the petitioner that she contracted second marriage with Ramzan Ali (brother of deceased) on 17th February 2011 lasted till 28th November, 2011. The trial court vide impugned judgment/decee he ld that in view of her second marriage she
was not entitled for any benefit of movable property of the deceased, therefore, the amount received by the petitioner i.e. Rs.1500000/ - and monthly salary be liable to be recovered
from her. The findings of the t rial court in this regard are contrary to record and
misinterpretation of law and facts.
10. According to revised/separate succession certificate petitioner received total amount
of Rs.612166/ - while Rs.1852802/ - was granted in favour of respondent No.1 (m other of
deceased) but the trial court passed judgment vice versa. Secondly, the trial court deprived the petitioner from her share in movable property of the deceased on tne ground that she contracted second marriage on 17th February 2011. It is on record that husband of the
petitioner died in bomb blast on 16th April 2010, and it is settled principle of law of inheritance that co -sharership is the result of devolution of inheritance, co- sharer becomes
co-sharer, the moment inheritance open, even mutation of entries or share in the movable
property also not necessary. Reliance is placed on case reported in 2004 SCMR 392. In the instant case petitioner's right to her share in the movable property of the deceased was open on 16th April 2010. Besides first suc cession certificate was issued in favour of the petitiner
on 20th December 2010 which was though revised on 30th November, 2011, however, she contracted second marriage with Ramzan Ali on 17th February, 2011 lasted till 28th November, 2011, therefore, she cannot be deprived of her share in view of first succession certificate issued by the trial court on 20th December, 2010,as on such date she was widow
of the deceased. Her second marriage with Ramzan Ali on 17th February, 2011 cannot
operate retrospectivel y, but the trial court without considering the above aspect of the matter
passed the impugned order which cannot be sustained except share of salary she received during subsistence of second marriage.
11. The petitioner has challenged the revised succession certificate granted in favour of
the respondents on the ground that compensation of Rs.20 lac, was not Tarka of the deceased, therefore, grant of 3/4 share to the respondent is illegal. According to the dictum laid down by the Hon'ble Supreme Court in PL D 1991 SC 731, and in PLD 2010 Karachi
153, PLD 2019 Sindh 1, 2013 Peshawar 1, it has been - held that compensation awarded by
the Government to deceased was basically death benefit of the deceased, which he could not claim in his life time and cannot form part of his Tarka and same was not devisable among
all legal heirs of the deceased nor it was inheritable by all his legal heirs and was to be paid to the family of the deceased according to terms set forth by the employer. The Notification dated 18th Jul y 2018 issued by Government of Balochistan, Finance Department the terms
legal heirs shall have the same meaning as defined in the Pension Rules of the Government of Balochistan under Balochistan Civil Services Pension Rules the terms Family including:
(a) Wife/wives in case of male Government Servant.
(b) Husband in case of female Government Servant.
(c) Children of Government Servant.
10(sic). In the instant case, the deceased was issueless, therefore, the parent i.e.
respondents Nos.1 and 2, who were living with deceased and were dependent, therefore, as held in PLD 2013 Peshawar 1 included in the family. In the instant case in this respect order dated 19th April 2011 was passed by the trial court pursuant to succession certificates with consent of both t he parties and thereafter separate certificate dated 30th November, 2011
were issued respectively. The petitioner has only assailed order dated 30th November 2011 but order dated 19th April, 2011 has not been assailed, which had taken finality, hence impug ned order arising out of C.P. No.01 of 2014 warrants no interference.
In view of the above. Constitutional Petition No.01 of 2014 is dismissed. Whereas,
R.F.A. No. 22 of 2017 is allowed and the impugned judgment/decree dated 22nd April 2017 passed by the learned Civil Judge -IV, Quetta is set aside, however, the findings of the trial
court with regard to salary of the deceased received by the petitioner to the extent of her share during subsistence of the second marriage is intact. Parties are left to bear their own
cost.
MH/51/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.