Insurance policy amount. The deceased's mother claimed her share of the insurance proceeds, even though the deceased had named his wife in the policy. The subordinate courts rejected the mother's claim on the basis of nomination, but the Lahore High Court declared the policy amount to be a legacy and ordered the mother to pay her Shari'a share. Civil Revision No. 44347 of 2023.
 |
| Insurance policy amount. The deceased's mother claimed her share of the insurance proceeds, even though the deceased had named his wife in the policy. The subordinate courts rejected the mother's claim on the basis of nomination, but the Lahore High Court declared the policy amount to be a legacy and ordered the mother to pay her Shari'a share. Civil Revision No. 44347 of 2023. |
اس مقدمے کے اہم نکات درج ذیل ہیں:
1. مقدمہ کا پس منظر:
درخواست گزار، مسمات رازیہ بیگم، نے اپنے بیٹے محمد جہانگیر خان کی وفات کے بعد وراثتی سرٹیفکیٹ کے لیے درخواست دی۔
مرحوم نے اپنی زندگی میں اسٹیٹ لائف انشورنس پالیسی لی تھی جس کی مالیت 10 لاکھ روپے تھی، اور اس میں اپنی بیوی (مسمات ثنا مختار) کو نامزد کیا تھا۔
درخواست گزار نے 1/6 حصے کی وراثت کا دعویٰ کیا تھا، جبکہ نامزدگی کے مطابق مرحوم کی بیوی نے پورے انشورنس کی رقم حاصل کرنے کا دعویٰ کیا۔
2. عدالتوں کے فیصلے:
ماتحت عدالتوں نے درخواست گزار کی درخواست مسترد کرتے ہوئے قرار دیا کہ انشورنس پالیسی کی رقم "ترکہ" میں شامل نہیں ہے اور اسے صرف نامزدگی کے تحت نامزد شخص کو دیا جائے گا۔
3. اہم سوالات برائے غور:
کیا انشورنس پالیسی کی رقم کو ترکہ میں شمار کیا جا سکتا ہے؟
کیا نامزد شخص مرحوم کے تمام ورثاء کو باہر نکال سکتا ہے؟
کیا نامزد شخص کی حیثیت محض وصول کنندہ اور ورثاء کے لیے رقم تقسیم کرنے والے کی ہوتی ہے؟
4. عدالتی نظیریں:
سپریم کورٹ نے متعدد مقدمات میں واضح کیا ہے کہ نامزدگی صرف رقم وصول کرنے کا حق دیتی ہے اور یہ نہ تو تحفہ ہوتی ہے اور نہ ہی وصیت، بلکہ نامزد شخص ٹرسٹی کے طور پر تمام قانونی ورثاء کے حق میں کام کرتا ہے۔
5. فیصلہ:
عدالت نے قرار دیا کہ انشورنس پالیسی کی رقم "ترکہ" کا حصہ ہے اور اسے مرحوم کے قانونی ورثاء میں تقسیم کیا جانا چاہیے۔
عدالت نے ماتحت عدالتوں کے فیصلوں کو کالعدم قرار دیا اور درخواست گزار کو اس کے شرعی حصہ کے مطابق رقم دینے کا حکم دیا۔
6. نتیجہ:
عدالت نے ماتحت عدالت کو ہدایت دی کہ مرحوم محمد جہانگیر خان کے تمام قانونی ورثاء کے شرعی حصص کے مطابق وراثتی سرٹیفکیٹ جاری کیا جائے۔
یہ نکات اس فیصلے کا خلاصہ فراہم کرتے ہیں اور مقدمے کی قانونی حیثیت کو واضح کرتے ہیں۔
Stereo.HCJDA 38.
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
….
Civil Revision No.44347 of 2023.
Mst. Razia Begum.
Versus
Public at Large, etc.
J U D G M E N T.
Date of hearing:
01.10.2024.
Petitioner by:
Muhammad Alamgir Khan,
Advocate.
Respondents No.2-5 by: Mr. Akhtar Saeed Bhatti, Advocate.
Respondent No.6 by:
Barrister Humayun Faiz, Advocate.
AHMAD NADEEM ARSHAD, J. Through this Civil
Revision filed u/s 115 of Code of Civil Procedure, 1908, the
petitioner has called in question the validity and legality of
judgments/orders dated 14.03.2023 and 16.06.2023 of learned Courts
below whereby her application for issuance of succession certificate
was dismissed while directing respondent No.6 to pay the entire
amount of the insurance policy to respondent No.2/nominee.
2.
Facts in brevity are that the petitioner filed an application for
issuance of succession certificate by maintaining that her son namely
Muhammad Jahangir Khan passed away on 05.04.2022, who in his
lifetime had obtained an insurance policy worth Rs.10,00,000/- from
the State Life Insurance Corporation of Pakistan, hence, she being
C.R. No.44347 of 2023.
2
mother (one of the legal heirs) of the deceased is entitled to inherit
1/6th share out of the policy amount. Learned Trial Court, after taking
its reply, dismissed the same vide order dated 14.03.2023 and
directed respondent No.6 to pay the entire amount of the insurance
policy to respondent No.2/wife of the deceased being 'nominee'.
Feeling aggrieved, the petitioner preferred an appeal which also met
the same fate and dismissed by the learned Appellate Court vide
judgment/order dated 16.06.2023. Hence, this petition.
3.
I have heard learned counsel for the parties at length and
perused the record with their able assistance.
4.
It is matter of record that Muhammad Jahangir Khan died on
05.04.2022 leaving behind mother namely Mst. Razia Begum
(petitioner), widow namely Mst. Sana Mukhtar (respondent No.2), a
daughter and two sons (respondents No.3 to 5). Admittedly, deceased
Muhammad Jahangir Khan in his lifetime purchased an insurance
policy from State Life Insurance Corporation of Pakistan wherein he
nominated his wife (respondent No.2) as his nominee. The petitioner,
by way of filing an application for issuance of succession certificate,
claimed that being mother of the deceased she is entitled to inherit
1/6th share of the insurance policy amount, whereas, respondent No.2
denied her right on the ground that being nominee she is solely
entitled to receive the whole insurance policy amount.
5.
The learned Courts below non-suited the petitioner on the
ground that the amount of the Insurance Policy does not fall within
the ambit of “Tarka” and said conclusion was drawn in the light of
C.R. No.44347 of 2023.
3
judgment of Hon‟ble Sindh High Court rendered in a case titled
“MST. RABIA QAVI AND OTHERS V. MST. HINA QAVI KHAN
AND OTHERS” (PLD 2020 Sindh 263) wherein, by considering the
decision of the Federal Shariat Court in a case titled “MIRZA
MUHAMMAD AMEEN, ETC. V. GOVERNMENT OF PAKISTAN”
(PLD 1982 FSC 143) and decision of the Shariat Appellate Bench in
a case titled
“WAFAQI HAKOOMAT-E-PAKISTAN
V.
AWAMUNNAS” (PLD 1991 Supreme Court 731), concluded that
amount of life insurance policy is not part of the „Tarka‟, therefore,
not liable to be inherited to the legal heirs and only the nominee is
entitled to receive the amount of said life insurance policy.
6.
The deeper dive into the documents and the grounds advanced
by the learned counsel for the parties reveals that following questions
need adjudication:
(i)
Whether the proceeds of Insurance Policy are to be
treated as „Tarka‟?
(ii)
Whether the nominee can exclude all the legal heirs
of the deceased insured person and the nomination
itself operates as a gift or will?
(iii) Whether the status of the nominee is only to collect
the policy proceeds and distribute the same amongst
the legal heirs.
7.
Before further discussion, it is better to understand the
meaning of "nominee" in the light of renounced dictionaries. A
"nominee" is typically defined as a person or entity designated to act
on behalf of another, particularly in legal or financial matters. The
C.R. No.44347 of 2023.
4
nominee may hold assets for the benefit of the actual owner,
indicating a fiduciary relationship.
BLACK'S LAW DICTIONARY (11th Edition) has explained the
word "nominee" as “a party who holds bare legal title for the benefit
of others or who receives and distributes funds for the benefit of
others”.
OXFORD ADVANCED LEARNER‟S DICTIONARY has
defined the word "nominee" as “a person who has been formally
suggested for a job, a prize etc.
The status of the nominee has been thrashed out by the august
Supreme Court of Pakistan in the landmark judgment titled “MST.
AMTAL HABIB AND OTHERS V. MST. MUSARAT PARVEEN AND
OTHERS” (PLD 1974 SC 185) in the following manner:
"The nomination merely confers a right to collect the money or
to "receive the money". It does not operate either as a gift or as a
will and, therefore, cannot deprive the others heirs of the
nominator who may be entitled thereto under the law of
succession applicable to the deceased. The nominee thus collects
as a trustee for the benefit of all persons entitled to inherit from
the deceased employee."
This view was reiterated by the august Supreme Court of
Pakistan in a case titled “MALIK SAFDAR ALI KHAN ANOTHER V.
PUBLIC AT LARGE AND OTHERS” (2004 SCMR 1219).
In another case titled “MST. AMEERAN KHATOON V. MST.
SHAMIM AKHTAR AND OTHERS” (2005 SCMR 512), the august
Supreme Court of Pakistan while relying upon the judgment of
C.R. No.44347 of 2023.
5
“WAFAQI HAKOOMAT-E-PAKISTAN (referred supra) wherein
'Tarka' was defined, held as under:
“Applying above test on the facts of instant case we are
persuaded to hold that deceased Muhammad Ayub was not
entitled for the Benevolent Fund and, Group Insurance during his
life time and on his death, such amounts shall be deemed to be
owned by him. Thus they will devolve upon his legal heirs being
his ' Tarka'. Therefore, petitioner would not be entitled exclusively
to claim these amounts except to the extent of her entitlement as
per Shariat with other legal heirs of the deceased as it has been
held by this Court in the case of Mst. Amtul Habib and others v.
Mst. Musarrat Parveen and others PLD 1974 SC 185.”
A Division Bench of this Court, while dealing with the
question of nomination in a case titled "POSTAL LIFE INSURANCE
(PLI) AND OTHERS V. MUHAMMAD ISHAQUE BUTT" (2022
CLD 309), observed as under:
"The nomination by itself only confers right to collect the money
but does not operate either as a gift or as a will, in view of the
rule in "Mst. Amtul Habib and others v. Mst. Musarrat Parveen
and others" (PLD 1974 SC 185), therefore, it cannot deprive the
legal heirs of the nominator who are otherwise entitled to inherit
the assets of deceased, under the law of succession applicable to
the deceased. The respondent as nominee will be entitled to
collect the amount of claim as trustee for the benefit of all the
legal heirs entitled to inherit from the deceased nominator and
will be responsible for disbursement of the awarded claim with
liquidated damages, in terms of judgment of the Insurance
Tribunal which the respondent as trustee of the amount shall be
legally obliged to disburse amongst the legal heirs of deceased."
From the above said discussion, it has been safely concluded
that the nomination merely confers a right to collect the money or to
receive the money and it does not operate as a gift or as a will and,
therefore, cannot deprive the legal heirs of the nominator who may
C.R. No.44347 of 2023.
6
be entitled thereto under the law of succession applicable to the
deceased propositus. The nominee, thus collects as a trustee for the
benefit of all persons entitled to inherit from the deceased propositus.
8.
The term “Tarka” has already been explained by the Federal
Shariat Court and the Shariat Appellate Bench. The Federal Shariat
Court in “Mirza Muhammad Ameen‟s Case” referred supra held as
under:
“This summing up is the crux of the matter. What is heritable is
only that right which a person enjoys or had a right to enjoy
during his lifetime till his death and this may include corporeal
property incorporeal property whether partial or absolute, right to
easement, debt including mortgage debt with right to remain in
possession of property mortgaged, right to Diyyat and other
compensation, right to recover debt or property by action
(Chooses-in-action), right to possession of property sold till the
payment by the purchaser of the purchase money and all other
rights which are not strictly personal in the sense that they might
abate with the death of the right-holder.”
Whereas, Shariat Appellate Bench, in
“WAFAQI
HAKOOMAT-E-PAKISTAN‟s case referred supra, observed as under:
ترکہ کی تعریف میں جص مال کا ذکر ہے۔ اش میں جائیداد منقولہ اور غیر منقولہ "
اور وہ واجب االدا رقوم شامل ہیں جو مرنے والے کے لیے کطی دوضرے کے ذمہ
س وہ دیت جو مرحوم کو وصول کرنی ہو۔ خواہ وہ قتل خطا ضے واجب الزم ہوں، نی
ہوئی ہو، یا قتل عمد ضے صلح کرکے یا اولیاء کی طرف ضے قصاص کی معافی کے
بعد اش طرح اش مال میں ضارے مالی حقوق بھی شامل ہوں۔ مثالَاگر میت کے پاش
اش رہن پر کوئی چیس رہن رکھی ہوئی تھی، اور اضے اپنے قرضے کی وصولی تک
قبضہ رکھنے کا حق تھا، تو یہ حق بھی ورثہ کی طرف منتقل ہوگا، یا اگر مرنے
والے نے کوئی چیس بیچی تھی لیکن خریدار ضے قیمت وصول کرنے کے لیے اش
چیس پر اپنا قبضہ برقرار رکھا تھا، تو قبضہ کا یہ حق بھی قابل وراثت ہے۔ اضی طرح
حق ببااشی، کطی نالی ضے پانی باانے کا کطی شے کے اضتعمال کے حقوق، مثال
حق، یا کطی راضتے پر چلنے کا حق، یہ بھی ترکے میں شامل ہے، اور یہ ضب حقوق
مرنے والے ضے اش کے ورثاء کی طرف منتقل ہوں گے۔"
C.R. No.44347 of 2023.
7
9.
Now the foremost question for determination is that whether
the amount of Life Insurance Policy falls within the ambit of “Tarka”
and liable to be distributed amongst the legal heirs of the deceased
propositus or not? The status of the amount of Life Insurance Policy
is not described in the insurance documents. However, Section 72 of
the Insurance Ordinance, 2000, provides that the policy holder, when
effecting the policy or at any time before the policy matures for
payment, nominate the person or the persons as nominee to whom
the money secured by the policy shall be paid in the event of the
death of the insured person. For ready reference, said Section is
reproduced as under:
72. Nomination by policy holder.- (1) The holder of a policy of
life insurance on his own life, may, when effecting 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:
Provided that where any nominee is a minor, it shall be lawful for
the policy holder to appoint in the prescribed manner any person
to receive the money secured by the policy in the event of his
death during the minority of the nominee.
(2) Any such nomination in order to be effectual shall, unless it is
incorporated in the text of the policy itself, be made by an
endorsement on the policy communicated to the insurer and
registered by him in the record relating to the policy and any such
nomination may, at any time before the policy matures for
payment, be cancelled or changed by an endorsement or a further
endorsement or a will, as the case may be, but unless notice in
writing of any such cancellation or change has been delivered to
the insurer the insurer shall not be liable for any payment under
the policy made bona fide by him to a nominee mentioned in the
text of the policy or registered in records of the insurer.
C.R. No.44347 of 2023.
8
(3) The insurer shall furnish to the policy holder a written
acknowledgment of having registered a nomination or a
cancellation or change thereof.
(4) A transfer or assignment of a policy made in accordance with
section 71 shall automatically cancel a nomination: Provided that
the assignment of a policy to the insurer who bears the risk on the
policy at the time of the assignment in consideration of a loan
granted by that insurer on the security of the policy within its
surrender value, or its re-assignment on repayment of the loan
shall not cancel a nomination, but shall affect the right of the
nominee only to the extent of the insurer‟s interest in the policy.
Provided further that the assignment of a policy to a party other
than the insurer who bears the risk on the policy at the time of the
assignment, in consideration of a loan granted by that person on
the security of the policy within its surrender value shall not
cancel a nomination but shall suspend it, to the extent of the
interest of that person in the policy, until such time as the policy is
re-assigned on repayment of the loan.
(5) Where the policy matures for payment during the lifetime of
the person whose life is insured or where the nominee or, if there
are more nominees than one, all the nominees die before the
policy matures for payment, the amount secured by the policy
shall be payable to the policy holder or his heirs or legal
representatives or the holder of a succession certificate, as the
case may be.
(6) Where the nominee or, if there are more nominees than one, a
nominee or nominees, survive the person whose life is insured the
amount secured by the policy shall be payable to such survivor or
survivors.
(7) The provisions of this section shall not apply to any policy of
life insurance to which section 6 of the Married Women‟s
Property Act, 1874 (III of 1874), applies or has at any time
applied:
Provided that where a nomination made before the
commencement of this Ordinance, in favour of the wife of the
person who has insured his life or of his wife and children or any
of them, is expressed, whether or not on the face of the policy, as
C.R. No.44347 of 2023.
9
being made under this section, the said section 6 shall be deemed
not to apply or not have applied to the policy.
10.
Admittedly, when a person secures Insurance Policy he makes
certain payments from time to time as per the schedule from his
pocket and on the maturity of Policy in his lifetime, he is entitled to
receive the same. Moreover, as per sub-Section 02 of Section 72 of
Ordinance ibid the Policy holder can change the nominee or cancel
the nomination at any time before maturity of the policy. It is further
provided in the sub-section 05 of Section 72 of the Ordinance ibid
that in the event of death of the nominee or the nominees before the
policy matures the amounts secured by the policy shall be payable to
the legal heirs of the deceased policy holder or legal representatives,
or the holder of a succession certificate, as the case may be. It is
nowhere mentioned that after the death of nominee the amount
would be disbursed amongst the legal heirs or legal representatives
of the nominee. Hence, it clarifies that the nomination shall not
operate as a gift or will because had the nomination been a gift or
will, then after the death of the nominee the amount would devolve
on the heirs of nominee rather than the heirs of policy holder.
11.
The Section 72 of the Ordinance ibid, authorizes and
empowers the policy holder to nominate a person or persons to
whom the money secured by the policy shall be paid in the event of
his death, but this provision of law does not exclude the legal heirs to
inherit the assets, including the policy proceed of the deceased
according to the principle of Muhammadan Law, because the reasons
C.R. No.44347 of 2023.
10
is that there is a constitutional guarantee enunciated in the
Constitution of the Islamic Republic of Pakistan, 1973, that no law
can be made which is contrary to the injunctions of Quran and
Sunnah. It is a Quranic injunction that the legal heirs of a Muslim
deceased, will inherit their assets according to the principle of
Muhammadan Law, therefore, for this reason the Superior Courts of
the country finally held, that the nominee is only supposed to collect
the policy proceeds and to disburse among the legal heirs and further
the nominee in any case shall not exclude or deprive the legal heirs
by the fruits of the policy. Reliance is placed upon the Insurance
Tribunal case law cited as "MUHAMMAD UMAR V. IGI AND
OTHERS" (2023 CLD 420).
12.
From the analysis of the above discussed legal provisions, it
can be securely held that the Insurance Policy proceeds fall within
the definition of 'Tarka' of the policy holder after his death.
13.
The concept of nominee is alien to Muslim Law, according to
which the legal heirs are the only persons entitled to receive the
property left by their predecessor and no Muslim heir can exclude
the other heir on the ground that he is a nominee. It is an established
principle of law that a nominee, if appointed, does not become the
sole owner of the assets left by the deceased but he/she is only
authorized to collect the amount or to hold the property of the
deceased as an administrator and then to distribute the same amongst
all the legal heirs. The nomination does not make the nominee as
donee nor the nomination amounts to a gift, in the absence of
C.R. No.44347 of 2023.
11
delivery of possession of the property gifted. The nominee cannot
claim as exclusive owner of the amount of the insurance policy. In
the light of Muslim Law of Inheritance, all the legal heirs of the
deceased are entitled to receive the property („Tarka‟) left by the
deceased, according to their shares.
14.
In view of the above discussed circumstances, learned Courts
below have erred in law while dismissing the succession petition of
the petitioner. Learned Courts below have failed to properly
appreciate the question involved in the lis. The judgments referred by
the Courts below as well as learned counsel for the respondent are
not applicable in the present case as this case relates to life insurance
policy and the nominee was appointed by the nominator just to fulfill
the legal requirement of Section 72 of the Insurance Ordinance, 2000.
15.
As an inevitable corollary of the above discussion, this
petition is allowed. Consequently, impugned judgments of the Courts
below are set-aside and the petitioner is held entitled to receive her
due share out of the policy proceeds. Learned Trial Court is directed
to issue the succession certificate forthwith as per Shari shares of all
the legal heirs of deceased Muhammad Jahangir Khan.
(AHMAD NADEEM ARSHAD)
JUDGE.
APPROVED FOR REPORTING.
JUD
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