' WAHEED AKHTAR ANSARI, MEMBER (JUDICIAL-III).--- Waheed Akhtar Ansari, Member (Judicial-III).--- This revision petition has been filed against order dated 20.05.2013, passed by learned Commissioner, Multan Division, Multan, whereby appeal of the present petitioners was dismissed.
2. Arguments heard and record perused.
3. Learned counsel for the petitioners argued that learned lower courts did not give any importance to the fact that learned District Collector, Vehari allotted the land in question in favour nf Manzoor Ahmad vide order dated 20.11.1979. That order was never challenged by anyone in any court, so it attained finality. Against order dated 20.11.1979, an appeal should have been filed being judicial order, but just an application was filed. An application was filed for setting aside of that order after a delay of almost 30 years and no plausible explanation was given with regard to such an inordinate delay. The order dated 20.11.1979 passed by learned District Collector was set aside by the same authority i.e. District Collector vide order dated 28.07.2010, which is against the law. But this very vital aspect of the case was totally ignored by learned lower courts while passing the impugned order. The said application was filed due to personal grudge. Learned lower courts also ignored the law point that entries of long standing revenue record should not be altered by a mutation of Sehat Indraj. Finally, it was prayed that the revision petition may be accepted.
4. Learned counsel for the respondents contended that land measuring 100-kanals was allotted to one Allah Rakha under the Cooperative Farming Scheme on 02.07.1948. The allottee died and after his death inheritance mutation was not sanctioned. The said land is in the possession of Manzoor Ahmad, who was nominee of the original allottee. Abdul Ghafoor was assassinated by Manzoor Ahmad. As due to non-attestation of inheritance mutation of the deceased allottee, the respondents have been deprived of their legal and lawful right. The petitioners submitted an application for attestation of inheritance mutation, which was rightly accepted by learned District Officer (Revenue), Vehari vide order dated 28.07.2010. This order was passed after hearing contention of the parties and consultation of record. Thereafter, appeal filed against that order was also dismissed by learned Additional Commissioner (Revenue), Multan Division through a well reasoned and justified order dated 20.05.2013. This order is valid in the eyes of law. Lastly, it was prayed that the revision petition may be dismissed.
5. I have considered the arguments of learned counsel for the parties and perused the record available in the case file including the impugned orders. Brief of matter is that State land measuring 100- kanals, situated in Chak No.160/WB, Tehsil Mailsi, District Vehari was originally allotted to Allah Rakha son of Imam Din predecessor in interest of the parties on 02.07.1948 under Cooperating Farming Scheme. He was enrolled as member of the society on 04.12.1957 and his son Manzoor Ahmad predecessor in interest of the petitioners was nominated as nominee. During general scrutiny, according to eligibility register, he was declared eligible for proprietary rights by Collector vide order dated 03.06.1969. According to the copy of death register Allah Rakha, the original allottee died on 20.08.1978. -After the death of original allottee, his son Manzoor Ahmad predecessor-in-interest of the petitioners submitted an application to learned District Collector, Vehari with the request that his nomination may be implemented in the revenue record. Learned District Collector, Vehari vide order dated 19.11.1979 allowed to implement his nomination in the revenue record accordingly. This order was implemented in the revenue record vide mutation No.787. Thereafter, the respondents submitted an application on 05.08.2009 to the then District Officer (Revenue), Vehari for attestation of inheritance mutation in favour of all legal heirs of original allottee of Allah Rakha son of Imam Din. After processing the case, the then learned District Officer (Revenue) passed the order dated 28.07.2010. The operative part is as under:-- ' I have heard the arguments advanced by learned counsel for the applicants and perused the record. I have also gone through the written arguments submitted by learned counsel for both the parties and thrashed out the case minutely. The application submitted by Muhammad Yaqoob i.e. Brother of the respondent is also on record which is pending for final decision. It clearly shows from the record that State land in question was originally allotted to one Allah Rakha under Cooperative Farming scheme in year 1948 and the respondent was his nominee. Although the District 'Collector, Vehari, vide order dated 19.11.1979 allotted state land in question in favour of the nominee / respondent which had been implemented through Mutation No.787 yet according to the latest instructions of the Board of Revenue, Punjab, Lahore, the mutation of inheritance was required to be attested in favour of all legal heirs of the deceased allottee as per instructions dated 18.11.1984 as well as Muhammadan Law. The Deputy District Officer (Revenue), Mailsi also recommended for grant of necessary permission for the attestation of mutation of inheritance in favour of all legal heirs of Allah Rakha through Seht-Indraaj. Under these circumstances, the request of the applicants is acceded to and necessary permission for the attestation of mutation of inheritance in favour of all legal heirs of the deceased / original allottee Allah Rakha son of Imam Din, through Seht-Indraj, is hereby accorded".
6. Against the order appeal of the present petitioners was pending adjudication in the court of learned Additional Commissioner, which on the transfer application of the petitioners was entrusted to learned Commissioner, Multan Division by the order of learned Senior Member. Board of Revenue, Punjab vide order dated 27.08.2012. Learned Commissioner vide order dated 20.05.2013 dismissed appeal of the present petitioners. The concluding para of that order reads as under:- "Arguments heard. Record perused. Perusal of the record indicates that land-in-question was originally allotted to Allah Rakha son of Imam Din, predecessor in interest of the appellants and the respondents on 02.07.1948 under Cooperative Farming Scheme and his son Manzoor Ahmad, predecessor in interest of the appellants was nominated as his nominee. In view of the judgment of Supreme Court of Pakistan reported as PLD 1974 SC 185 and the judgment passed by his Lordship Mr. Justice Gul Muhammad Khan in writ petition No.3156/1979, it is clear that the dispute regarding succession to the right of the principle of law that nomination is not a gift under Muhammadan Law. It cannot confer any proprietary rights over and above the law. As regards the arguments of counsel for the appellants that permission for review of order dated 19.11.1979 should have been sought instead of passing the impugned order; it is clear that order dated 19.11.1979 was against the principles of Muhammadan Law and ab initio void. Further technicalities must not take precedence over substantive law. Therefore I find no reason to interfere with the impugned order, which is upheld and the appeal is dismissed accordingly. The order should be implemented in the revenue record accordingly"
7. The issue involved is whether a "nominee" appointed by an allottee in his lifetime under co- operative scheme will be the only successor of the allotee, in case of his/her death or all the legal heirs as per Sharia law would be entitled. The term "nominee" is described in rule 21 of Cooperative Societies Rules 1927, relevant, which reads as under:-- "Nomination of persons:---(1) A member may, by writing under his hand deposited with the society during his lifetime or by a statement any person to whom under Section 27 his share or interest in the society or so much thereof as may be specified in such nomination, shall be paid or transferred on his death.
(2) A nomination so made may be revoked or varied by another nomination similarly made".
8 Section of 27 of Co-operative Societies Act, 1925 (as referred to in above rule), reads as under:-- Transfer of interest on death of member.---(1) On the death of a member of society such society may within a period of one year from the death of such member transfer the share or interest of the deceased member to a person or persons nominated in accordance with the bye-laws of the society, if duly admitted a member of the society, in accordance with the rules or the bye-laws of the society, or, if there is no person so nominated, to such person as may appear to the Committee to be the heir or legal representative of the deceased member if duly elected a member of the society, or may pay to such nominee, heir or legal representative, as the case may be, a sum representation the value of such member's share or interest as ascertained in accordance with the rules or bye-laws.
9. As per above provision of law, only nominee/was/were entitled to get total share of his/her predecessor. Afterwards, the issue arose and was settled vide instructions circulated by Board of Revenue, Punjab vide letter No.6366-87/3089-CLII, dated 18.11.1984, is relevant, which reads as under:-- "The law department to whom the matter was referred, has held that in view of the judgment of Supreme Court of Pakistan reported as PLD 1974 SC 185 and the following judgment passed by his Lordship Mr. Justice Gul Muhammad Khan in Writ Petition No.3156 of 1979, it is clear that the dispute regarding succession to the right of the deceased would be decided in accordance with Muhammadan Law and Muslim Personal Law Shariat Application Act (Act V of 1962) would apply:- "The contention being raised has no merit. Undoubtedly the dispute between the partition is about succession to rights in the immoveable property. Consequently the W. Pb. Muslim Personal Law (Shariat) Application Act of 1918 would apply. No specific provision superseding the Shariat Laws has been pointed out in the Cooperative Societies Act. The bye-Laws therefore, cannot supersede or defeat the legislative intent:
10. This issue was again come up before August Supreme Court of Pakistan in year 2007 and same view was affirmed vide 2007 SCM R 1227, which reads as under:-- Allotment of State land as member of Co-operative Farming Society of the area had already been found by the authorities as eligible for grant of proprietary rights when he passed away--- Allottee's interest and rights in the said land stood devolved upon his legal heirs under Muslim Personal Law of inheritance notwithstanding anything contained in the bye-laws of the Cooperative Society---Nomination of a person by the late allottee would not, by itself, deprive his legal heirs to inherit the estate of deceased.
11. From the above, it appears that said term (nominee) cannot deprive the other legal heirs from their legal right as provided under Muslim Personal Law of inheritance. This right is permanent and could not be denied due to delay in finalization of such issue. Hence, it is established that impugned order is quite lawful and warrants no interference. The revision petition is dismissed and impugned order dated 20-5-2013, passed by learned Commissioner, Multan Division, Multan, is upheld.