1992 PLP 1648 (CLC)

Brief facts of the case are that one Muhammad Ismail an allottee under Cooperative Farming Scheme expired. His allotment was transferred in the name of respondent Sher Muhamamd as his nominee in terms of the bye laws of Cooperative Farming Scheme. Mutation No.175 was accordingly sanctioned on 14‑4‑1982. Muhammad Sharif, etc. petitioners unsuccessfully challenged the validity of said mutation being hit by Shariat before the Collector and Additional Commissioner. However, their revision petition was accepted by the Member (Revenue) on 8‑5‑1985 and it was ordered that the petitioners should be given equal share alongwith Sher Muhammad respondent in the inheritance of Muhammad Ismail deceased. That order was challenged by Sher Muhammad in Lahore High Court, Multan Bench, wherefrom the case was sent back for fresh decision.

2. It is relevant to reproduce below the operative part of the judgment of the Lahore High Court, Multan Bench:‑ "The result is that the revision petition on which the said order was passed shall be deemed to be pending before the learned Member, Board of Revenue who shall decide the same afresh in accordance with law and a specific finding shall be recorded by him after hearing the parties and examining the relevant record as to whether in fact, any order was passed by Collector on 24‑7‑1969 declaring the petitioner Sher Muhammad to be eligible for conferment of proprietary rights and if so, shall also determine its validity and dispose of the revision petition in accordance with law.

3. The learned counsel for the petitioner contended that the inheritance of Muhammad Ismail should have been decided according to Shariat Law and not under section 27 of the Cooperative Farming Society Act. The Bye‑laws and the Rules cannot supersede the basic law of inheritance which is the Shariat Application Act, 1948. Placing reliance on PLD 1974 SC 185, 1989 CLC 110, order of the Lahore High Court in Writ Petition No.3156/79, Board of Revenue's letter dated 18‑11‑1984 regarding succession in accordance with Shariat and section 19‑A of the Colonization of Government Lands Punjab Act, the learned counsel prayed that the revision petition may be accepted and the order of the Revenue Authorities below may be set aside.

4. The learned counsel for the respondent referred to para. 2 of the remand order and said that the case had been decided in favour of the respondent, vide the Collector's order dated 24‑7‑1969. This order was never challenged in any forum and has thus attained finality. The Board of Revenue's letter dated 18‑11‑1984 cannot be applied with retrospective effect. The learned counsel further maintained that the respondent had made‑ full payment of the land involved from his own pocket and had also been conferred the proprietary rights. It was prayed that the revision petition may be dismissed.

5. I have considered the arguments and perused the case record as well as the record of the Collector on which the Collector's order dated 24‑7‑1969 was made and the file leading to grant of proprietary rights to the respondent. The order of the Collector dated 24‑7‑1969 has been made on the register of entitlement serial No.II. It is written therein that Muhammad Ismail died on 18‑11‑1965. His nominee Sher Muhammad, son, is absent. The Collector's signatures have been affixed on a rubber stamped order which does not show that other heirs of Ismail were: heard or even a notice was issued to them. That order, which does not in any way appear to be a speaking order, has practically‑ transferred the inheritance to Sher Muhammad in a mechanical manner by holding him eligible to the transfer of proprietary rights to the exclusion of other heirs. The case for proprietary rights was processed by the office subsequently and it was proposed vide note dated 14‑6‑1983 that the nominee and other heirs may be heard before deciding the case. The Collector vide his order dated 30‑10‑1083 heard the parties on the application of Muhammad Ishaq, etc., for review of Mutation No.175 and found that Sher Muhammad has already been declared eligible by the Collector, Multan vide his order dated 24,7‑1969. Order under section 10(3) of the Colonization of Government Lands Punjab Act, 1912 should issue in his favour. The basis of that order was that since the order of the Collector, dated 24‑7‑1969 had not been challenged therefore the contentions of the petitioners were not of any consequence. The proprietary rights were thus conferred on the respondent. l 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 A (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 therefore cannot be sustained. It has inter alia been held by the Supreme Court of Pakistan in Civil Appeal No.139 of 1987, Mst. Aisha, etc. v. Member (Colonies), Board of Revenue, Punjab and others decided on 21‑11‑1990 that the statute 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 cutom or usage cannot override the express provisions of the law. No such gift 8 is either claimed or alleged to have been made in favour of the respondent.

6. The learned Collector while passing the order dated 24‑7‑1969 has not paid any attention to the law in so far as he did not determine the heirs of Ismail deceased and made the order in favour of the respondent. This order being in clear contravention of the law and being against the principles of natural justice is accordingly set aside as is the Collector's order dated 30‑10 1983 based thereon under which the proprietary rights were transferred to the respondent. The impugned orders of Additional Commissioner (Revenue), Multan Division dismissing the revision petition of the petitioners on point of limitation and upholding the similar order of the AC/Collector Burewala holding that the provisions of section 5 of the Limitation Act were not applicable to the orders passed under the West Pakistan Land Revenue Act, 1967 are also unsustainable because there is no limitation against a void order The plea of the respondent that he had paid the price of land from his own pocket, would not confer any superior right on him over other heirs against the law. In any case the price of the land paid, by him can be adjusted according to the respective shares of other heirs at the time of attestation of the mutation. It may be added here that the respondent must have obtained sufficient benefit from this land which can also be taken into consideration vis a‑vis the price of the land paid by him.

7. For the foregoing reasons the revision petition‑ is accepted. The impugned orders are set aside and it is directed that the inheritance of Ismail deceased shall be decided in accordance with the Muslim Personal Law (Shariat). AA./484/R Revision accepted.