This Civil Revision is directed against the judgment dated 8.4.1996 passed by learned Additional District Judge, Layyah whereby the learned Additional District Judge while reversing findings of the learned trial Court dated 4.10.1991 on Issues No, 1, 8 and 9 dismissed the application filed by Muhammad Ibrahim processor-in-interest of the petitioners for obtaining Succession Certificate of his son Muhammad Sharif alias Malang in respect of the assets left by him.
2. The facts in brief are that on the death of Muhammad Sharif alias Malang on 17.7.1990 Muhammad Ibrahim his father claiming to be his sale legal heir filed an application before the learned Senior Civil Judge for obtaining Succession Certificate in respect of the amount lying deposited in the name of said Muhammad Sharif in P.L.S. A/c No, 4225 Grain Market Branch, Layyah and A/c No, SSA-13 in National Saving Centre, Layyah. The said application was contested by Muhammad Shafiq/Respondent No, 3 claiming himself to be the nominee of Muhammad Sharif deceased and thus entitled to the said amount. The learned ;trial Court framed the following issues and recorded the evidence of the parties.
ISSUES:
1. Whether this Court has no jurisdiction to entertain this petition? OPR.
2. Whether the petitioner has no locus standi and cause of action? OPR:
3. Whether the petition is not maintainable in its present form? OPR.
4. Whether no notice under Section 80 CPC was served? If so, its effect? OPR.
5. Whether the petition is bad for non-joinder of a necessary party? OPR.
6. Whether the petitioner is estopped by his words and conduct to bring this petition? OPR.
7. Whether the petition is mala fide? OPR.
8. What is the effect of nomination in favour of Respondent No, 3? OP-Parties.
9. Whether the petitioner, the father of the deceased Muhammad Sharif is entitled to inherit and receive the disputed amount as an exclusive heir of his deceased son? OPA.
10. Relief On the conclusion of the trial, the learned Senior Civil Judge vide order dated 9.10.1991 ignored the claim of Respondent No, 3 as nominee and by accepting the, application directed the grant of Succession Certification in favour of Muhammad Ibrahim, the present petitioner, being father of the deceased. Against said judgment/order of the learned trial Court, Muhammad Shafiq Respondent No, 3 filed an appeal which was accepted by learned Additional District Judge vide impugned order dated 8.1.1996 holding Muhammad Shafiq as entitled for receipt of the amount deposited in the Account of Muhammad Sharif deceased, being his nominee. Hence. this civil revision.
3. It is argued by learned counsel for the petitioner that firstly the respondent failed to establish his alleged nomination and secondly in view of the law declared by Hon'ble Supreme Court of Pakistan in the case 'Mst. Amtul Habib and others vs. Mst Musarrat Parveen and others" (PLD 1974 Supreme Court 185) and 'Malik Safdar Ali Khan and another vs. Public-at-Large and others" (2004 S.C.M.R.
1219) a nomination can neither operate as gift under Muslim Law nor nominee becomes owner of the property/assets for which he is allegedly nominated and the only right conferred on the nominee is to collect the amount and disburse the same to the legal heirs and since Muhammad Ibrahim being father of Muhammad Sharif was the only legal heir lived at the time of death of said Muhammad Sharif, hence the learned trial Court had rightly granted Msued Succession Certificate in his favour.
4. On the other hand, Mr. Tahir Mehmood, Advocate learned counsel for Respondent No, 3 has supported the findings of the learned Additional District Judge by arguing that from the evidence available on record it is established that Muhammad Sharif deceased appointed Respondent No, 3 as his nominee and that his nomination conferred an exclusive right on Muhammad Shafiq to collect the amount and retain the same as its owner, hence the findings of the learned trial Court were correct reversed by the learned Additional District Judge.
5. Arguments considered. Record perused.
6. There is no disputed about the fact that Muhammad Ibrahim predecessor-in-interest of the petitioner, the original claimant, was the real father and only living legal heir of Muhammad Sharif deceased under the Muslim Law at the time of his death. Without commenting or analysing the evidence on the question whether Muhammad Shafiq Respondent No, 3 was nominated as a nominee or not, suffice it to say that in view of the following observations of the Hon'ble Supreme Court. of Pakistan in the case 'Mst. Amtul Habib and others us. Mst. Musarrat Parveen and others", (PLD 1974 Suprema, Court 185) at page 191 (followed in the case "Malik Safddr Ali Khan and another vs. Public-atLarge and others" (2004 S.C.M.R. 1219): "Apart from this, it appears to us that, unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammadan Law because, such a gift, in order to confer title on the donee; must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yakub, there could be no delivery of possession at the time of nomination was made, for, at that time, no plot had been allotted to him."
The only effect of a nomination is that a nominee for the purposes of convenience is authorized to collect the amount from the Bank and then disburse the same to the actual legal heirs of the deceased under Muslin Law. Since it is admitted between the parties that except Muhammad Ibrahim father of the deceased, no other living heir was present at the time of death of Muhammad Sharif deceased, hence the only person entitled to claim ownership with regard. to the amount deposited was Muhammad Ibrahim and despite the alleged nomination in favour of Muhammad Shafiq Respondent No, 3 he could not lay any claim with regard to ownership of the amount in dispute. I am therefore, satisfied that the learned trial Court on true application of law and facts correctly passed the order dated 9.10.1991 granting Succession Certificate to the petitioner and same was illegally and without jurisdiction interfered with by the learned Additional District Judge.
This Civil Revision therefore, is allowed, the judgment of the .learned Additional District Judge dated 8.4.1996 is set aside and that of the learned trial Court dated 9.10.1991 is restored, with no order as to coats.