KHAMISANI, J.----This is an appeal filed against the judgment of the learned II Additional District Judge, Karachi, dismissing the suit filed by the appellant.
2. The facts giving rise to this appeal are that one Hap Habib died on 16th March 1954, leaving three sons, Karim (appellant), Haji Saleh Muhammad and Haji Usman and two daughters, Fatma Bai and Sarah Bai and a widow Hanifabai as heirs. He was alleged to have left a house in Okhai Memon Housing Society valued at Rs. 20,000, two washing and dyeing factories valued at Rs. 11,000 and ornaments and other house--hold articles valued at Rs. 31,630. The appellant-plaintiff being the eldest son of Haji Habib filed this suit on 31st August 1955/ 1st September 1955, for partition of the said joint property. He claimed 14/64 share in the property. He also claimed mesne profits at the rate of Rs. 250 per month.
3. The respondents-defendants resisted the claim of the appellant-plaintiff and stated that he was not entitled to anything out of the said property. According to the written statement filed by them, for the ownership of the house in Okhai Memon Housing Society, Haji Habib had nominated his wife, Mst. Hajiani Hanifa, under the Bombay Co-operative Societies Act, 1925. The appellant-plaintiff, therefore, had no right, title or interest in the house. With regard to the other property the case of the respondents-defendants was that deceased Haji Habib had left nothing from which the appellant-plaintiff could claim any share.
4. The lower Court framed the following issues in the suit "(1) What is the share of the parties in the property in dispute? (paras. 1 and 5 of the plaint and paras. 1 and 2 of the written statement).th
(2) What was the property left by Haji Habib and who were in possession of the same and to what effect ? (para. 6 of the plaint and para. 6 of the written statement).
(3) Did Haji Habib in his lifetime knowingly and validly transfer any property to any one, if so, is it binding on all his heirs ?
(4) What was the value of the property of land bearing S. Nos. 44 and 45 Okhai Memon Housing Society and whether it was not valuing Rs. 20,000 or built by Haji Habib or in any way transferred to any one legally ?
(5) Was Haji Habib a man of sound position and was he indebted to any one ? If so, to what effect?
(6) What property, if any, was actually owned and possessed by Saleh Muhammad and by Haji Habib ?
(7) Did the plaintiff separate from the family in such a way as to deprive him of any share ? If so, what is its effect?
(8) To what mesne profits, if any, is the plaintiff entitled?
(9) To what relief, if any, is the plaintiff entitled ?"
5. The learned counsel for the appellant has not pressed his appeal on any of the issues regarding the washing and dyeing factories, ornaments, household furniture, etc. He has pressed his appeal only in respect of 1.4/64th share of the appellant in the house left by Haji Habib in Okhai Memon Housing Society.
6. It is admitted that the Bombay Co-operative Societies Act, 1925, applies to the property left by Haji Habib in Okhai Memon Housing Society. It is also admitted that Haji Habib had nominated Mst.
Hajiani Hanifa, his wife, in relation to it. Entry Exh 23 in the register maintained by the Housing Society, under which the nomination has been shown in favour of Mst.
Hajiani Hanifa, is also not disputed. The learned counsel for the appellant has merely argued that the provisions contained in the Bombay Co-operative Societies Act, 1925, do not override the personal law of deceased Haji Habib, and, therefore, section 27 of the Bombay Co-operative Societies Act, 1925, under which nomination of the property in the society could be made, does not come in the way of the appellant getting 14/64th share of the property left by Haji Habib. According to him, section 27 of the Bombay Co-operative Societies Act, 1925, only provides for the person nominated to be made responsible to the society for the liabilities of the original allottee. The nominee is merely an administrator or an executor and is to hold the property on behalf of the heirs who are otherwise entitled to share under the Mahomedan Law. He also argues that the nomination under section 27 of the Bombay Co-operative Societies Act, 1925, is in the nature of a bequest, which is invalid in law, if it deprive the other heirs of their share in the property unless they had consented to it. The learned counsel has not been able to show any direct authority in support of his contention. He has, however, relied upon an analogy drawn from the provisions of the Pro-- vident Funds Act, and relied upon Hayatuddin v. Mst. Rahiman and another (1) in which Rupchand, A. J. C. Held as under ---The Provident Funds Act is not intended to affect the rights of the dependants of the subscriber or depositor to share the fund inter se in accordance with the personal law of the deceased, except to the extent expressly mentioned in section 3, clause (2) of the Act, than is to say, to protect the fund from assignment by the subscriber and from attachment by creditors who have advanced money to him or to his dependants during his lifetime. Hence where the subscriber is a Mahomedan, a nominee of his, though as such has an absolute right to receive the money does not thereby become the absolute owner thereof.--- We find ourselves unable to subscribe to the view taken by Rupchand, A. J. C. In the case stated above. The view of the learned Judge is founded only upon the interpretation of section 3, clause
(2) of the Provident Funds Act, 1925, without having considered the effect of section 5 of the same Act on it. Section 3(1) of the Provident Funds Act, 1925, makes the deposit incapable of being assigned or charged and protects them from liability to attachment. Subsection (2) of this section extends the protection, subject to certain limitations, to the fund even in the hands of any dependant of the subscriber or depositor when it is payable to a dependant under the rules of the fund. It is clear that this section does not deal with the cases of those persons who are nominated under the Act. The relevant section of the Provident Funds Act, which deals ` with the rights of the nominees, is section 5 (1) and it reads as under: - "5(1). Notwithstanding anything contained in any law for the time being in force or in any disposition, whether testamentary or otherwise, by a subscriber to, or depositor in, a Government or Railway Provident Fund of the sum standing to his credit in the Fund, or of any part thereof, where any nomination, duly made in accordance with the rules of the Fund, purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor occurring before the sum has become payable or before the sum, having become payable, has been paid, the said person shall, on (1) AIR 1935 Sind 73 the death as aforesaid of the subscriber or depositor, become entitled, to the exclusion of all other persons, to receive such sum or part thereof, as the case may be, unless-
(a) such nomination is at any time varied by another nomination made in like manner or expressly cancelled by notice given in the manner and to the authority prescribed by those rules, or
(b) such nomination at any time become invalid by reason of the happening of some contingency specified therein, and if the said person predeceases the subscriber or depositor, the nomination shall, so far as it relates to the right conferred upon the said person, become void and of no effect: Provided that where provision has been duly made in the nomination in accordance with the rules of the Fund, con--ferring upon some other person such right in the stead of the person deceased, such right shall, upon the decease as aforesaid of the said person, pass to such other person."
It is abundantly clear from a bare reading of the section that according to this statutory provision "notwithstanding anything contained in any law for the time being in force------------any nomination duly made in accordance with the rules of the Fund, which purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor, shall be deemed to confer such right absolutely". It I also clear that this right to receive absolutely by the nominee was not intended to refer merely to a right to realize. The words "not-- withstanding anything contained in any law for the time being in force" appearing in section 5 of this Act would otherwise absolutely redundant.
7. A similar view has also been taken in Ahmad Abdul Razzak and others v. Jamala Bint Mehdi (1 L R 59 Dom. 475) in which it has been held that the nominee is absolutely entitled to the amount standing in the fund to the credit of the deceased subscriber and that the said amount does not form part of the estate of the deceased. Same view has been expressed by the learned Judges in the Full Bench case reported as Muhammad Naim and another v. Mst. Munim-un-Nissa (I L R 11 Luck. 611) in which it has been held that: ---on a proper interpretation of the provisions of section 5 of the Provident Funds Act XIX of 1925 and of the Rohilkhand and Kumaun Railway Provident Fund Rules, it must be held that the effect of the declarations contained in Exhs. A-1 and A-2 is to confer on defendants 1 and 5 an absolute right to appropriate to themselves the share of the Provident Fund money allotted to them and that the validity of such declarations is not affected by the provisions of the personal law of the testator.---
8. Section 27 of the Bombay Co-operative Societies Act, 1925, which provides for the right to nominate, reads as under: "27. Transfer of interest on death of member.-(1) On the death of a member of a 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 by- laws of the society, if duly admitted a member of the society, in accordance with the rules or the by-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 representing the value of such member's share or interest as ascertained in accordance with the rules or by-laws Provided that such nominee, heir or legal representative, as the case may be, may require that payment shall be made by the society within one year from the death of the member of the value of the share or interest of such member ascertained as aforesaid.
(2) A society shall subject to the provisions of section 25 and unless prevented by an order of a competent Court pay to such nominee, heir or legal representative, as the case may be, all other moneys due to the deceased member from the society.
(3) All transfers and payments made by a society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person."
This section clearly postulates that on the death of a member of a 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 by-laws of the society, if duly admitted a member of the society, in accordance with the rules and the by-laws of the society. The nomination under section 27 in favour of Mst. Hanifa Bai is, as has been said above, not being disputed Section 27 of the Bombay Co-operative Societies Act, 1925, being in supersession of the personal law and the nomination having been duly and properly made in this case, we find no reason prevent us from holding that the right to hold the property exclusively and absolutely has been conferred upon Mst. Hajiani Hanifa. The words "such society may within a period of on year from the death of such member transfer the share or interest of the deceased to a person or persons nominated" make it very clear that transfer under this section becomes absolute.
9. We are, therefore, of the view that Mst. Hajiani Hanifa was a nominee of Haji Habib under section 27 of the Bombay Co-operative Societies Act, 1925, and the nomination made by Haji Habib was valid and proper and that the nomination made by Haji Habib conferred the title in the house on Mst. Hajiani Hanifa. Mst. Hajiani Hanifa being the absolute owner of the house, the appellant will have no interest in it. We, therefore, see no substance in the appeal and dismiss it accord--ingly with costs.