Precisely, the facts of the case are that a suit for declaration was filed by Jan Muhammad (now deceased) Respondent No 1 and Mst. Amina Bibi (now deceased) Respondent No. 3 with the assertions that they along with defendants/petitioners being heirs were entitled to get their legal share out of the property left by Nathu (deceased), predecessor of the parties; that Nathu was in possession of the lot in dispute owned by Government of the Punjab as a tenant through Cooperative Farming Society and Mutation No. 12 dated 28.8.1979, sale. deed No. 339 dated 14.5.1985 and Mutation No. 58 dated 13.11.1985 for grant of proprietary rights allegedly attested in favour of Muhammad Ali Defendant No. 1/the predecessor of present petitioners were liable to be cancelled. The said suit was resisted by the Petitioner/ Defendant No. 1 by filing written statement.
Respondents/Defendants No. 2 and 3 also contested the said suit by filing joint written statement.
The learned trial Court conducted full-fledged trial and ultimately after appreciating evidence available on file decreed the suit vide judgment and decree dated 26.3.1995. The same remained intact when the appeal filed by Petitioner/Defendant No. 1 was dismissed by the learned lower appellate Court vide judgment and decree dated 2.1.1996. Being aggrieved, the instant civil revision was filed by the petitioners in the year 1996.
2. It is argued by the learned counsel for the petitioners that the impugned judgments and decrees are hit by the mandatory provisions of Order XX of the Civil Procedure Code, 1908; that the Courts below did not properly appreciate the entire evidence available on the file; that during the meeting of the General House, membership of the Petitioner/Defendant No. 1 was approved without objections from either side and since the Petitioner/Defendant No. 1 was the contributory of membership fee as well as other revenues of the Society pertaining to the lot in dispute, hence, the mutation was sanctioned in his name in his own right as well the nominee of Nathu (deceased); that the Petitioner/Defendant No. 1 deposited the required amount for the conferment of proprietary rights, but even then nobody objected to the conferment of the proprietary rights and the sanctioning of mutation and that the Courts below did not consider the said fact while deciding the us. He has lastly prayed for acceptance of instant civil revision and setting aside of the impugned judgments and decrees.
3. Conversely, learned counsel for the respondents has submitted that Nathu was allottee of the disputed land, who was member of the society and as soon as he died, the inheritance was to open in favour of all the legal heirs of deceased Nathu within the meaning of Section 19-A of the Colonization of Govt. Land (Punjab) Act, 1912; that subsequent mutation and transfer of land by the revenue hierarchy or the Farming Society in favour of single heir/Petitioner/Defendant No. 1 attested/sanctioned being result of fraud and misrepresentation was rightly annulled by both the Courts below, He has lastly prayed for dismissal of the instant civil revision.
4. Arguments heard and record perused.
5. The perusal of pleadings of the parties reveals that relationship of respondents was never denied by the Petitioner/ Defendant No. 1 and it is also admitted fact that predecessor-in-interest of the parties, namely, Nathu was tenant under the Co-operative Farming Society, whose membership remained intact till his death. His tenancy over the suit land has also not been denied by the Petitioner/Defendant No. 1. As per law at the time of death of a tenant of the suit property owned by the Government, his inheritance was to be opened and the revenue hierarchy was bound to sanction his inheritance mutation in favour of all his legal heirs, but surprisingly this exercise was not conducted by the revenue officials. However, Mutation No. 12 was sanctioned only in favour of the Petitioner/ Defendant No. 1 while treating him a full member. Thereafter, on the strength of said mutation, its implementation in the revenue record by attesting sale-deed and other mutation was carried out by the revenue hierarchy without keeping in mind the mandate of Section 19-A of the Colonization of Govt. Land (Punjab) Act, 1912. For ready reference, the said provision is reproduced hereunder:-- [194.Succession to the tenancy.
When after the coming into force of the Colonization of Government Lands (Punjab) (Amendment)
Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in Sections 20 to 23 of this Act shall be applicable to his case: Provided that when the tenancy rights are held by a female as a limited owner under this Act, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided further that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death],
6. The inheritance of allottee of a Co-operative Farming Society is governed by Shariat Laws and not through the bye-laws. An identical question has already been clinched by the apex revenue hierarchy in a case reported as Muhammad Tufail vs. Yaqub, etc. (NLR 1985 Revenue 97 (1), wherein, it was observed that the bye-laws of Co-operative Farming Society could not supersede the law of Shariat and all the legal heirs were entitled to get their share in the legacy of allottee of Co- operative Farming Society, The bare reading of Section 19-A of the Colonization of Government Lands (Punjab) Act, 1912 (added in 1951) provides that the succession to the tenancy of a Muslim tenant shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat). Section 2 of the Muslim Personal Law (Shariat) application Act, 1948 lays down that in all questions regarding succession rule of decision shall be the Muslim Personal Law (Shariat) in case the parties are Muslims. These provisions of the law are very clear and there is no ambiguity about it. Any order which contravenes the provisions of this law cannot be sustained. It has, inter alia, been held by the Supreme Court of Pakistan in Civil Appeal No. 139 of 1987, titled as Mst. Aisha, etc. v. Member (Colonies), Board of Revenue, Punjab and others decided on 21.11.1990 that the statue i.e. Section 19- A of the Colonization of Government Lands Act has to prevail over any bye-law of a Society. It was similarly held in PLD 1974 SC 185 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."
There is, thus, no doubt that the bye-laws of a Society or a practice or custom or usage cannot override the express provisions of the law. No such gift is either claimed or alleged to have been made in favour of Petitioner/Defendant No. 1. It has also been held in the judgment reported as Fazal Shah vs. Muhammad Din and others (1990 SCM R 868) that nomination by a member of Co- operative Society does not operate either as a gift or as a will and, thus, could not deprive the other heirs, who might be entitled thereto, under the law of succession applicable to deceased. This view has also been laid down in the judgment reported as Mst. Amtul Habib and others vs. Mst. Musarrat Parveen and others (PLD 1974 Supreme Court 185), wherein while interpreting Section 27 of the Co- operative Societies Act, 1915, it was observed as under: We are of the opinion, however that the correct view has been taken in the cases referred to earlier, namely, that 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 their 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 decease employee. It is not without significance that Section 5 of the Provident Funds Act neither vests the amount in the nominee nor declares hi to be the owner thereof. It merely gives him the exclusive right to receive the amount and nothing more. In any event the position under Section 27 of the Bombay Co-operative Societies Act is different because the wording of this 'section is materially different. There is no analogy between the two.
7. So when it was admitted by the Petitioner/Defendant No. 1 predecessor-in-interest of the parties, the same was to be devolved written statement filed by Petitioner/Defendant No. 1 in verbatim is reproduced infra: {{URDU TEXT}}
8. The stance of learned counsel for the petitioners that the disputed property had been independently allotted to Petitioner/Defendant No. 1 is misconceived. The defence raised by Petitioner/Defendant No. 1 in his written statement as referred above was that he alone being nominee of his father was entitled for the transfer of the disputed property and at this stage, a new version cannot be introduced. Both the learned Courts below have rightly decreed the suit and dismissed the appeal through the impugned judgments and decrees on the valid reasons.
9. There is found nothing wrong with the impugned judgments and decrees passed by the two Courts below, who have arrived at concurrent findings of fact and law. This Court does not normally interfere in the concurrent conclusion arrived at by the Courts below unless the same is found to be illegal, perverse or suffered from any jurisdictional defect or tainted with any misreading and non- reading of the evidence. Reliance in this respect is placed on the judgments reported as "Aurangzeb through LRs vs. Muhammad Jaffar" (2007 SCM R 236), "Shafi Muhammad vs. Khanzada Gul" (2007 SCM R 368), "Rashid Ahmad vs. Said Ahmad" (2007 SCM R 926), Ahmed Nawaz Khan vs. Muhammad Jaffar Khan and others (2010 SCM R 984) and "Bashir Ahmed vs. Ghulam Rasool" (2011 SCM R 762). The learned counsel for the petitioners has failed to bring the case within the parameter of illegality and material irregularity as prescribed under Section 115 of CPC, 1908, hence, the instant Civil Revision is dismissed.