PLJ 2025 Quetta 144
Present: S ARDAR AHMAD HALEEMI , J.
BIBI KHADIJA --Petitioner
versus
PIR MUHAMMAD and 3 others --Respondents
C.R. No. 28 of 2023, decided on 8.5.2024.
Succession Act, 1925 (XXXIX of 1925) --
----S. 372--Balochistan Service Pension Rules, 1989, R. 4.10(2), Application for succession
certificate --Allowed --Death during service --Appeal --Dismissed --Monthly pension, group and
benevolent fund were allowed in favour of petitioner, whereas rest of services benefits were
directed to distributed amongst both parties as per islamic share --Tarka --The trial Court allowed
succession application and granted Monthly Pension, Group Insurance, Financial Assistance, and
Benevolent Fund exclusively in favor of petitioner, whereas, rest of service benefits alongwith
bank deposits were directed to be distributed amongst petitioner and Respondent Nos. 1 to 4 as
per Islamic shares --The petitioner being a spouse of deceased civil servant, was entitled to
receive pensionary benefits as per Section 4.10(2) of Balochistan Service Pension Rules, 1989-- It
is a settled principle of law that, as per rules, an employer can claim those service benefits in his
lifetime, and same do not fall in terms of “Tarka”, therefore, Respondent Nos. 1 to 4 are not
entitled to such benefits --Benevolent Fund, Gratuity, Group Insurance, Financial Assistance, and
Monthly Pension were beyond sphere of “Tarka”, thus Courts below had committed illegality
and irregularity by including gratuity in “Tarka” and not following cited pronouncement in a
letter in spirit--Civil revision partly allowed. [Pp. 147 & 148] A, B & C
PLD 1991 SC 731 & 2009 PLC (CS) 263 ref.
Ms. Zarghoona Barrech, Advocate for Petitioner.
Mr. Mir Wais Khan Tareen, Advocate for Respondent Nos. 1 to 4.
Mr. Shahid Baloch, Additional Advocate General for Respondent Nos. 5 & 6.
Date of hearing: 4.4.2024.
J
UDGMENT
The petitioner has challenged the validity of the order dated 30.05.2022 (hereinafter “the
impugned order” ) passed by learned Judicial Magistrate Karezat at Khanozai/Civil Judge
(hereinafter “the trial Court” ), whereby, an application for grant of succession certificate filed
by the petitioner was allowed, consequently, the petitioner was declared to be entitled to receive Monthly Pension, Group Insurance, Financial Assistance and Benevolent Fund, however, rest of
the service dues alongwith bank deposits were held to be distributed amongst all shareholders
including Respondent Nos. 1 to 4 as per their sharia shares, and maintained by learned
Additional District Judge, Khanozai (hereinafter “the appellate Court” ) vide order 19.10.2022
(hereinafter “the impugned order” ).
2. Succinct facts leading to the instant case are that applicant (petitioner) filed Succession
Application No. 25 of 2022 under Section 372 of Succession Act, 1925 (“the Act, 1925”) for
grant of a succession certificate incorporated Respondent Nos. 1 to 4 being nephews and niece with the averments that her husband late Ali Muhammad in his lifetime was serving in Education
Department as JVT; he died during service leaving behind following dues:
Monthly Pension Rs. 56,255.97/ -
GP Fund Rs. 889,347/ -
Group Insurance Rs. 420,000/ -
Financial Assistance Rs. 900,000
Leave Encashment Rs. 591,720
Benevolent Fund Rs. 650,000
Gratuity Rs. 1,294,159
Bank Balance lying in
HBL Khanozai branch Rs. 6,937,605/ -
3. Prior to this succession application, Respondent No. 1 had filed Succession Application
No. 20 of 2021, which was consolidated with the instant Succession application.
4. The parties contested the succession applications by filing their separate rejoinders.
5. Out of the divergent pleadings, the trial Court framed the following issues:
i) Whether the respondents being nephew of deceased Ali Muhammad are having any share
in his outstanding departmental dues and the Bank amount? ii) Whether the applicant is entitled for the relief claimed?
iii) Relief?
6. The petitioner in support of her contentions produced two witnesses i.e . Zafarullah and
Naseebullah. Lastly, she recorded her statement. In rebuttal, Respondent Nos. 1 to 4 did not
produce any evidence.
7. At the conclusion, the trial Court heard the arguments of the parties, and allowed the
succession application filed by the petitioner vide impugned order dated 30.05.2022 in the
following manner:
12. In the light of above discussion, it is determined that the applicant is exclusively
entitled to receive monthly pension, group insurance, financial assistance, and
benevolent fund, whereas, rest of the service dues alongwith bank deposit is held to be distributed among the applicant as well as the Respondent Nos. 1 to 4 as per their
Islamic shares. Provided that the amount deposited in terms of pension shall be deducted
from the amount present in bank account. Application is allowed in the above terms subject to furnishing surety bonds in the sum of 1.5 Million Rupees each.
8. The petitioner feeling disgruntled from the impugned order to the extent of GP Fund,
Leave Encashment and Gratuity, preferred Civil Appeal No. 04 of 2022 before the appellate Court, but the same was dismissed vide impugned order dated 19.10.2022, hence, this Civil Revision Petition.
9. Learned counsel for the petitioner contended that the Courts below have misinterpreted
the relevant law regarding the distribution of dues of the deceased; that GP Fund, Leave
Encashment, and Gratuity, being a grant/concession/compensation do not fall within the definition of Tarka, but the Courts below have not considered this legal aspect; there exist several illegalities and irregularities in the impugned orders of the Courts below warranting an interference by this Court in its revisional jurisdiction. In support of her contentions, learned counsel for the petitioner placed reliance on the case Mst. Nargis Yasmeen vs. Mst. Ismat Khatoon and 7 others (2021 PLC (C.S.) 377 Lahore).
10. Conversely, learned counsel for Respondent Nos. 1 to 4 assisted by the learned
Additional Advocate General, controverted the contentions advanced by learned counsel for the petitioner and contended that the Courts below have rightly interpreted the relevant provisions of law regarding the distribution of dues of the deceased; that the impugned orders passed by the Courts below are immune from any illegality or irregularity warranting an interference by this Court in its revisional jurisdiction.
11. I have considered the arguments advanced by learned counsel for the parties at length,
and scanned the available record with their able assistance.
12. Perusal of record reveals that Ali Muhammad (the deceased husband of the petitioner),
was serving as a JVT in the Education Department, Government of Balochistan; he died due to
an unnatural death. Out of wedlock of the couple, no offspring took birth, thus left behind the petitioner (widow) and Respondent Nos. 1 to 4 (nephews and niece) , who claim their
entitlement in the movable assets and debt left by the deceased. The trial Court allowed the
succession application vide order dated 03.05.2022 and granted Monthly Pension, Group
Insurance, Financial Assistance, and Benevolent Fund exclusively in favor of the petitioner,
whereas, rest of the service benefits alongwith bank deposits were directed to be distributed amongst the petitioner and Respondent Nos. 1 to 4 as per their Islamic shares.
13. It is the case of the petitioner that Leave Encashment and Gratuity are not included in
Tarka. In order to determine whether the aforementioned benefits are grants or concessions to the
parties by the employer and cannot be characterized as inheritable rights to all the legal heirs of the deceased employee at the end of the service, guidance in this regard is taken from the principles enunciated by the Hon’ble Supreme Court in the case title The Government of Pakistan vs. General Public (PLD 1991 S.C 731). Furthermore, in the case title Dr. Nasar Ullah
vs. Abdul Majeed Soomro and others (2009 PLC (C.S) 263), wherein, the gratuity was also
declared as not inheritable. For convenience, the operative part is reproduced as under:
Like pension, gratuity cannot be distributed among the respondents. The above mentioned rules exclude the respondents from receiving share of gratuity due to survival of the husband of deceased. The appellant being surviving husband of the deceased
Government Servant is exclusively entitled to receive the gratuity whereas, respondent
being brothers and sisters of deceased are not entitled to receive gratuity. Nothing on
record shows any status or any other degree of relationship of the respondents with deceased which may bring them within requisite category of person eligible for receiving
gratuity as laid down in the above mentioned rules.
14. As a sequel to the above discussion, it is concluded that the petitioner being a spouse of
the deceased civil servant, is entitled to receive the pensionary benefits as per Section 4.10(2) of Balochistan Service Pension Rules, 1989, and it is the discretion of the employer to frame rules and regulations of the service. It is a settled principle of law that, as per the rules, an employer can claim those service benefits in his lifetime, and the same do not fall in terms of “Tarka”, therefore, Respondent Nos. 1 to 4 are not entitled to such benefits.
15. The dictum laid down in case supra manifested that Benevolent Fund, Gratuity, Group
Insurance, Financial Assistance, and Monthly Pension are beyond the sphere of “Tarka”, thus the
Courts below have committed illegality and irregularity by including gratuity in “Tarka” and not
following the cited pronouncement in a letter in spirit.
For the above reasons, Civil Revision No. 28 of 2023 is partly allowed, consequently, the order
dated 30.05.2022 passed by the Judicial Magistrate/Civil Judge Karezat at Khanozai and order dated 19.10.2022 passed by the Additional District Judge, Khanozai, are hereby modified to the
extent by declaring Gratuity not an inheritable right, and the petitioner is exclusively entitled to the same, however, G.P Fund, Leave Encashment and Bank deposits lying in the bank account of
the deceased, shall be distributed amongst the petitioner and Respondent Nos. 1 to 4 as per their
Islamic shares. The parties are left to bear their own cost.
(Y.A.) Civil revision partly allowedThis 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,
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