FAZAL SHAH Versus MUHAMMAD DIN

SHAFIUR RAHMAN, J.‑‑‑ The Petitioner, who was one of the defendants in a Civil suit filed by his brother Muhammad Din, seeks leave to appeal against the judgment of the Lahore High Court dated 26‑6‑1989, whereby a Revision Petition filed by him, was dismissed.

2. Daulat Shah, the father of the Petitioner Fazal Shah, was a Member of a Cooperative Society and in that capacity had received Government land as a grant which was subsequently to be converted into his proprietary land on satisfaction of the conditions prescribed. Daulat Shah died on 4‑1‑1969 leaving behind three sons Fazal Shah, Siddique Shah and Muhammad Din, and the widow Karam Bibi and the son Jan Muhammad of a predeceased son Miskeen Shah. Of these Fazal Shah is the Petitioner and the others respondents. On the 26th of July, 1969, Fazal Shah got himself substituted as a Member of the Society and thereafter on 20th August, 1975 obtained the proprietary deed from the State. Muhammad Din, respondent by a civil suit challenged exclusive. interest of the Petitioner. The Petitioner pleaded that he had been nominated by his father as the Member and the sole successor to the grant. The Trial Court followed the law laid down by this Court in the case of Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others P L D 1974 S C 185 and upheld the claim of the plaintiff. The Additional District Judge dismissed the appeal. So did the High Court so far as the Revision Petition filed by the Petitioner is concerned.

3. The learned counsel for the Petitioner has referred us to a similar case Mst. Aisha and 23 others v. Member (Colonies), Board of Revenue and 6 others 1987 S C M R 1395 granting leave to appeal and has urged that the Petitioner did not fall in the category of Grantee of a State‑land because the Grantee was the Co‑operative Society. The Petitioner being the nominee of Daulat Shah and a Member of the Cooperative Society and having paid the price and satisfied the conditions of the Membership had obtained the proprietary rights in the land and was exclusively entitled to it. He has relied on section 27 of the Co‑operative Societies Act, 1925 to contend that such a nomination and interest could be acquired on the death of a Member (Daulat Shah).

4. So far as Section 27 of the Cooperative Societies Act is concerned it empowers the Society to transfer the interest of a deceased Member to a person or persons, nominated in accordance with the bye‑laws of a Society. The Bye‑laws have not been made available to us but a reference has been made to one such condition appearing in the case of Muhammad Yaqub etc. v. Member (Colonies) Board of Revenue, Lahore 1984 Law Notes (Lahore) 1123 at page 1126. The Bye law attracted to the case is 8(a), which reads as hereunder:‑

"The holding of a member as well as his share and other interest in the society shall only be inherited by his eldest son. When a member has no male issue, he shall nominate a person to succeed him in the event of his death and shall attest the nomination by making his signatures or thumb mark in the register of members. Such nomination shall be in favour of one person at a time."

5. It is admitted by the learned counsel that Fazal Shah is not the surviving; eldest son of Daulat Shah as there were three male issues. The eldest could get under the Bye‑Law and not anyone else. Besides, even a power of nomination was not available where the surviving sons were present.

6. As regards the status of the Member of the Society vis‑a‑vis the Government and the grant, it has to be noted that the proprietary interest had been conferred on Fazal Shah not by the Co‑operative Society but by the State under the Colonization of Government Lands Act. Therefore, notwithstanding his Membership of the Society, it was ultimately to devolve as a State grant on a Member. Membership of the Society is a matter altogether different from C succeeding to the estate of the deceased Daulat Shah. So far as the question of succession is concerned that stands resolved by the decision of this Court in Mst. Amtul Habib's case which has been followed by all the three Courts dealing with this case. In the case of Mst. Aisha, leave was granted because the High Court had not followed the law laid down by this Court in Mst. Amtul Habib's case. That leave granting order can for that reason be clearly distinguished.

7. No question of law requiring further examination by this Court arises in the case and leave to appeal is refused.

A.A./F‑167/S Leave refused.