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Civil Revision No. 130 of 1965, decided on 29th March 1967.

O. XLIV, r. 1, proviso-Pauper appeal, application for permission to file‑No question of law involved‑Finding by trial Court that applicant had relinquished his right in the subject‑matter of dispute, found by appellate Court to be unassailable‑Prayer to appeal as pauper, held, rightly rejected.

Inheritance‑Will‑Provident fund of employee‑Forms part of un-disposed of estate of subscriber on his death‑Nomination of person to receive Provident Fund‑Not equivalent to a will, gift or trust in favour of nominee‑Muslim deceased survived .by widow, sons and daughter‑Brother of deceased as his nominee cannot claim fund as having been bequeathed to him by "will" a fortiori when such fund non‑existent at time of nomination‑Provident Funds Act (XIX of 1925), Ss. 4 & 5.

Hardial Devi Ditta v. Janki Das and another A I R 1928 Lah. 773 and Nur Muhammad v. Mst. Sardar Khatun A I R 1949 Sind 38 ref.

Anis Ahmed for Appellant.

Naimuddin for Respondent No. 1.

Respondent No. 2 in person.

Date of hearing : 27th March 1967.

This Revision Petition is directed against the order of Additional District Judge, Karachi, in Miscellaneous Appeal No. 521/64, dated 21‑7‑1965. By this order the learned Court dismissed the pauper appeal filed by the appellant on the short ground that the application for pauper was not maintainable and rejected it.

2. In order to appreciate the dispute between the parties it is necessary to state certain facts as under:

3. Ali Haider who was permanent employee of Burmah Shell Oil Storage and Distributing Company Ltd., Karachi, the real brother of the appellant died at Karachi on 23rd October 1962. He nominated the appellant at the time of his employment to receive his provident fund. After his death his provident fund and gratuity became payable to his heirs. The appellant received a letter from respondent No. 1 on 8‑1‑1963, informing him that a sum of Rs. 9,650 was due to the deceased in lieu of provident fund and gratuity and called upon him to produce the succession certificate before the payment was made to him. On 12th October 1963, respondent No. 2 the widow of the deceased obtained a succession certificate from a competent Court of Civil Jurisdiction. On the basis of this certificate respondent No.1 paid the entire amount to the widow of the deceased.

4. The appellant, however, in order to establish his claim in respect of the amount in dispute filed Suit No. 384/62 .in the Court of II Civil Judge, Karachi, against respondent No. 2 Mst. Gul Mairoon Bibi widow of Late Ali Haider, applied for becoming the party in the said suit which was granted. Both the respondents resisted the suit on the ground that the appellant was not entitled to claim the amount in dispute both under the Muhammadan Law and under the Ordinary Law of the Land. The learned Civil Judge by judgment dated 21‑7‑1965 upheld the contention of the respondents. He came to the conclusion that the appellant besides being not entitled to the amount in dispute under Muhammadan Law has also relinquished his rights in it. The appellant challenged his order in Miscellaneous Appeal No. 521/64 which was dismissed as stated above on the short ground that his pauper appeal was not maintainable under the law.

5. Before proceeding to consider the dispute between the parties on merits it may be mentioned that this revision was admitted only for purposes of considering whether the order passed by the Appellate Court dated 21‑7‑1965, was valid in law. It is not disputed by the parties that the application for filing the appeal as a pauper by the appellant came up for hearing on 25‑1‑1965 and a notice was issued to the respondent of this application for 26‑2‑1965. Thus it is quite clear that at no time the pauper appeal filed by the petitioner was admitted for hearing. The grievance of the petitioner that the appeal had been admitted and thereafter it was not open for the learned Additional District Judge to consider whether the pauper application was maintainable is without any foundation and has no basis whatsoever.

6. The simple question, therefore, for consideration is whether the learned Additional District Judge was right and justified in dismissing the pauper application for filing the appeal as a pauper. After hearing the learned counsel for the parties there is little doubt in my mind that the impugned order was property passed. There is a finding of fact by the learned trial Court that the petitioner had relinquished his right in the amount in dispute. This finding is based on two documents. The application made by respondent No. 2 dated 28‑1‑1963, Exh. which is signed by the petitioner and an affidavit dated 29‑1‑1963 Exh. 10, by which he authorised respondent No. 2 to realise the entire amount from respondent No. 1. In my opinion the os6 legitimate inference that can be raised on the contents of them two documents is that the petitioner had permitted respondent No. 2, the widow of the deceased to recover the amount from respondent No. 1 as she was the legitimate heir of the deceased. The learned trial Court was therefore, perfectly right to holding that whatever claim the petitioner could make on the basis of his nomination was relinquished by these two documents Mr. Anis Ahmad, the learned counsel for the petitioner has contended that the learned Additional District Judge, before holding that the finding of the trial Court was not erronoaur should have considered the other documents produced by the petitioner on the record. 1n this connection he has referred me to a letter written by the petitioner on 28‑2‑63, which is Exh. 11 and letter dated 6‑3‑1963 Exh. 12 by which he claimed the amount in dispute from respondent No. 1. After going through these letters I am satisfied that these two letters were written behind the back of respondent No. 2 and could am invalidate the documents Exhs. 9 and 10: In Exh. 10, which is as affidavit, sworn in by the petitioner whereby he had authority respondent No. 2 to recover the entire amount from respondent No. 1. It was, therefore; open to the trial Court to come to the conclusion on the basis of these two documents that the petitioner had relinquished whatever right he had in favour of respondent No. 2. Under these circumstances the learned 1st Appellate Court was justified in holding that there was no substantial question of law involved in this matter and it was not a fit case in which the petitioner should have been allowed to file the appeal as a pauper. I am, therefore, satisfied that the learned 1st Appellate Court rightly dismissed the pauper appeal filed by the petitioner.

7. Even on merits the petitioner has no claim in the property in dispute. The deceased is survived by widow, three sons and a daughter. Petitioner is only his brother and under the Muhammadan Law he is not the legal heir of the deceased. He was, therefore, not entitled to recover the amount in dispute I from respondent No. 1. It was contended by Mr. Anis Ahmed, the learned counsel for the petitioner that the fact that the deceased nominated the petitioner at the time of his employment clearly shows that he had made a 'will' in respect of the provident fund in his favour. This contention has no force. As held in Hardial Devi Ditta v. Janki Das and another (A I R 1928 Lah. 773), that "A nomination of a person to receive Provident Fund money from a Corporation is not a will, a gift or a trust in favour of the nominee and on the subscriber's death the Fund forms part of his undisposed of estate". This view was also taken in the case of Nur Muhammad v. Mst. Sardar Khatun (A I R 1949 Sind 38). It was held in this case that "Right to receive" is not equivalent to "right to receive beneficially". It was further held that:

"The effect of the, provident fund vesting in the nominee, when the nominee is a dependant, is therefore quite clear. It confers on the nominee the immediate right to possession and dominion over the amount, without in any manner effecting the beneficial rights of the actual owners, whoever they be, either as heirs or legatees. The language of the Act does not permit one to say that the Act confers on the dependant nominee anything more than the right to possession and dominion, such as an executor has, in whom the property of a deceased testator vests. Of course, if the dependant nominee happens to be the only heir of legatee, and is therefore also entitled to the beneficial rights in the sum, the entire rights of ownership would vest in him. When this is the case, the dependant's are conferred on him, not only by the Provident Funds Act, but by the entire law applicable to the case."

8. In the light of the above discussion it is quite clear that the petitioner on the basis of his nomination cannot claim that the amount in dispute was bequeathed on him or he is the legatee under any will. In fact at the time when the nomination was made the amount in dispute did not exist and therefore there could not be any will in his favour in respect of the property which did not exist under the Muhammadan Law. I, therefore, hold that the petitioner is not entitled to the amount in dispute on the basis of his alleged claim that the nomination made in his favour was in the nature of a will.

9. Under these circumstances I find no force in this petition, which is dismissed with costs to respondent No. 2. Respondent No. 1 will bear his own cost.

K. B. A. Petition dismissed.

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