1988 PLP 267 (SCMR)

SHAFIUR RAHMAN, J.--Leave to appeal was granted to the appellants, the first five being the sons of Rehmatullah, a pre-deceased son of Nabi Bakhsh and the other ,being transferees of land from them, to examine the correctness of the judgment of the Lahore High, Court, dated 26-9-1975 whereby they were held not entitled to inherit; the land allotted to Nabi Bakhsh on the strength of paras 46, 46 and 67 of the Rehabilitation Scheme (hereinafter referred to as the Scheme).

2. Nabi Bakhsh migrated in 1947 leaving property in the agreed area of India. He submitted five claim forms which were verified in 1952. Before he could be allotted any land, he died in the year 1955. The mutation of inheritance was entered and attested on 23rd December, 1957 whereby the appellants Nos.1 to 5 and their sister Mst. Janat Bibi were allotted the share (one-half) of their pre-deceased father Rehmatullah. The remaining half was allotted to Abdul Aziz, respondent No.1, the surviving son of Nabi Bakhsh. This aggrieved Abdul Aziz who preferred a revision in 1965 which was dismissed by the Settlement Commissioner observing that the mutation of inheritance had been attested correctly in accordance with paras 46 and 46-A of the Scheme. Abdul Aziz thereupon instituted a constitutional petition which was allowed by the High Court on the basis of an instruction, dated 14-4-1954 which made Shariat Law and not paras 46 and 46-A of the Scheme applicable to the inheritance of Nabi Bakhsh.

3. Mr. Talib H. Rizvi, Advocate, the learned counsel for the appellants, has heavily relied on a decision of this Court in the case of Akbar v. Sadiq and 15 others 1972 S C M R 23 wherein according to the learned counsel for the appellants, the situation was identical and paras 46 and 46-A of the Scheme were made the rule of succession.

4. Mr. Bashir A. Mujahid, the learned counsel for contesting respondents, has, on the other hand, pointedly relied on those instruc tions of the Rehabilitation Commissioner dated 14-4-1954 which formed the basis of the decision of the High Court and whose validity and efficacy has been upheld by this Court in Abdur Rashid v. Pakistan P L D 1962 Supreme Court 42 and Fazil Muhammad Khan and another v. Mst. Muhammad Jan and 2 others 1971 S C M R

138. According to the learned counsel for the respondents, even on the assumption that till the land is confirmed and the rehabilitation fee is paid, it remains subject to the instructions of the Rehabilitation Commissioner like those contained in paras 46 and 46-A of the Scheme, the instruc tions of the Rehabilitation Commissioner explaining those paragraphs and limiting their application by a subsequent instruction issued on 14-4-1954 reproduced in extenso in the judgment of the High Court will equally apply to the case of Nabi Bakhsh. Admittedly, no land had been allotted to him, no confirmation had taken place, nevertheless he had filed his claim form which had been received after verification before his death. In order to understand the ratio of these instructions and their controlling effect, the learned counsel for the respondents has referred us to a decision of the Lahore High Court in Mirza Anwar Beg and others v. Mirza Ulfat Beg and others P L D 1960 (W.P.) Lah. 265.

5. In the case of Abdur Rashid, this Court reproduced in extenso the memorandum which has been made by the High Court in the impugned judgment the basis of decision and approved of it as consistent with paras 46 and 46-A of the Scheme and having legal force and efficacy in the following words:

"Thus, in the Memorandum No.4953-54/3917=R(L), issued on the 14th of April 1954, by the Deputy Rehabilitation Commissioner (Lands) under the instructions of the Rehabilita tion Commissioner it is clearly stated:- 'The Rehabilitation Commissioner (Lands) however wishes it to be made clear that the said instructions should be applied only to the cases of inheritance of such refugee right-holders as had died either in India or Pakistan before they could file their claims for allotment of land under the Rehabilitation Settle ment Scheme. When once a claimant had filed his claim and died thereafter before securing any actual allotment, the normal rule of succession laid down by the Shariat Law should be applied in its entirety without any deviation. The same should be done in subsequent mutations of inheritance of allottees as already laid down in clause 67 of Chapter I, Part II of the Re-settlement Scheme. It should, therefore, be understood that the term 'deceased right-holder' in clause 67 referred to above means a right-holder who had died before putting in his claim.' This Memorandum, which is an instruction which the Rehabilita tion Commissioner could have validly issued under clause 23 of Chapter IV, Part I of the Scheme, abundantly clarified the position. The High Court, however, took the view that it merely added to the confusion and, in any event, since this Memorandum was issued long after the death of the deceased allottee in this case, it could not possibly govern his succession. This was not, in our view, a new instruction, but was a mere clarification of the position prevailing under the Scheme itself. We are, therefore, unable to agree with the High Court that the Scheme prescribed any special rule of succession to confirmed allottees." In the case of Fazal Muhammad Khan, also these instructions were reproduced in extenso. In that case both the refugee owners had died during the disturbances of 1947 before filing their claims. The head note reads as follows:- "Rehabilitation Settlement Scheme, Part II, para. 46 read with Memo. No. 4953-54/3917 R(L), dated 14-4-1954 - Claimant dying after filing of claim--Normal rule of succession laid down by Shariat Law applicable."

6. The decision of this Court in Akbar's case heavily relied upon by the learned counsel for the appellants does not at all take note of these instructions of the Rehabilitation Commissioner which had been taken note of in the earlier two decisions of this Court and blessed with sanctity and efficacy. In other respects the learned counsel for the appellants is justified in invoking this decision in aid of his contention as the case is very similar on facts to the one before us.

7. In the case of Mirza Anwar Beg, the Lahore High Court examined the rationale behind the instructions of the Rehabilitation Commissioner dated 14-4-1954 in the following words:

"It is not difficult to assess the reason for the rule. An order of allotment simpliciter confers no right on the allottee except that of a licensee which is a personal right. But once a claim has been preferred then radically different considera tions come into play. He has taken a step to treat a licence as foundation for a claim to title to the land on the basis of his entitlement as determined according to law. In such cases the rule laid down is that the Muslim Law is to be the rule of decision. This fact gains further support from paragraph 14 of Chapter I of the Rehabilitation Settlement Scheme which lays down in the case of allottees on quasi-permanent basis that they may transfer by sale, exchange, gift, will, mortgage or any private contract their rights or interests to the land allotted to them under the Rehabilitation Scheme except in the specified categories. The present case does not fall in any one of those categories. This provision also would lead to the conclusion that the allotment to the refugee is now on a quasi permanent basis and not on a licence which is purely personal in character as if this were a case of simple allotment."

8. Once it is established that the instructions dated 14-4-1954 have statutory force, and there is no reason to hold to the contrary, there can be no doubt about their applicability to the case in hard. It clarifies that the instructions contained in paras 46, 46-A and 67 of the Scheme should be applied only to the cases of inheritance of such refugee right-holders as had died either in India or Pakistan before they could file their claim forms for allotment of land under the Scheme. The case of Nabi Bakhsh was one of death after his claim was filed and duly verified. The instructions further provided that when once a claimant had filed his claim and died thereafter before securing any actual allotment, the normal rule of succession laid down by the Shariat Law should be applied in its entirety without any deviation. As Nabi Bakhsh had died after filing and verification of his claim, Shariat Law without any deviation was to be applied to him. The deviations provided for in paras 46 and 46-A of the Scheme namely, the inheritance of the sons of pre-deceased son or daughter would not, therefore, apply. Till the confirmation of land and the payment of Rehabilitation fee, the Rehabilitation Authorities would be competent to sanction mutations of inheritance but in applying the law, they will follow Shariat Law without deviation where death took place after filing the claim form, and in other cases of death taking place before filing the claim, Shariat Law with the deviations indicated in paras 46 and 46-A shall be applied.

9. In this view of the matter, the decision of the High Court is well-founded and follows the law laid down by this Court. There is no merit in the appeal which is dismissed with costs. S.Q./M-253/S Appeal dismissed.