RESEARCH MONOGRAPG: Position of Nominee and Legal Heir in Statutory Laws of Bangladesh and Muslim Law of Succession

Chapter- II

Concept of Nomination

2.1 Introduction

There are several laws regarding nomination in different countries of the world but no laws define the term nominee specifically. From different text we learn about the definition of nominee. Generally, nominee is a person in whose name money is invested in a company.¹⁶ Nominee is appointed by a person who deposits his/her money in any bank or insurance or any provident fund for receiving the deposited money on the death of him/her (depositor) as a legal representative.

The term nominee is very related with bank deposit or pension money or insurance policy amount. Many scholars and authority define the term nominee.

According to the Black’s Law Dictionary¹⁷

“a party [or person] who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.”

Some remarkable opinions on nominee are as follows:

“A person or organization in whose name a security is registered though true ownership is held by another party.”¹⁸

“A person or organization named to act on behalf of someone else, especially to conceal the identity of the nominator.”¹⁹

“Nominee is a person to receive the benefits under nomination and distribute the same to the legal heirs/beneficiaries under law. Nominee can also be one of the legal heirs to take the benefit.”²⁰

Entity (the registered owner) in whose name securities or other assets are recorded and held under a custodial agreement with the actual owner (calledbeneficial owner).²¹A nominee can be appointed only when the policyholder and Life Insured is the same person. The Policyholder can also appoint a nominee at the time of taking a policy contract.²²

2.2 Nomination System under Different Statutes of Bangladesh

In Bangladesh, there are several laws regarding nomination and nominee but no specific definition of these two terms is given by those laws. In every bank to open an account for saving money and in any government provident fund of Bangladesh, the person must fill up the form of nomination. In 1873 in Indian subcontinent at first there was enacted an Act named the Government Savings Banks Act, 1873 regarding nominee. In Bangladesh, the same law was adopted through the promulgation of the ‘Laws Continuance Enforcement Order, 1971.’²³

2.2.1 Nomination System in Government Saving Banks

In Bangladesh there are a number of banks which secure money of the people who want to save money for the future. If the person depositing money dies before the fund for payment being matured the question arises as to who will receive the money which he/she (deceased) deposited. Will all the legal heirs go to the bank for receiving the deposited money or a fixed authorized person? To consider the matter and to solve this issue in 1873 the then British Government passed an Act named ‘Government Savings Banks Act, 1873,’ This Act provides that a depositor may make nomination conferring upon any person or persons the right to receive on the death of the depositor the whole or any part of the deposit standing on his credit in the prescribed form of this Act.²⁴ The nominated person or persons shall be entitled, to the exclusion of all other persons, to receive the deposit or part of which the nomination relates.²⁵ If any nominated person dies before the death of the depositor or before he/she has received any sum thereunder, the nomination shall cease to have any effect.²⁶ A depositor may at any time vary or cancel any nomination made by him/her through notice to the concerned authority²⁷ in the prescribed form.²⁸

If a depositor dies without making any nomination or after ceasing of such nomination, if made,²⁹ and the deposit money does not exceed twenty-five thousand taka,³⁰ there is no need of producing the probate of the will of the depositor, or the letters of administration of his/her estate or a succession certificate under the Succession Act of 1925 within three months of the depositor’s death to the secretary of the Government Savings Bank concerned; ³¹ for the payment of the deposit, or the part as aforesaid, may be made to the person appearing to be entitled to receive it or to administer the estate of the deceased by the secretary or by any officer employed in the management of the Government Savings Banks Act, 1873, who is empowered in this behalf by a general or special order of the Government to the extent to which he/she is so empowered and subject to any general or special order of the Secretary in this behalf.³²

Every Bank of Bangladesh in their proposal form of opening an account expressly contains the provision of nomination on the death of the depositor. Besides, from a discussion with the bankers it has been learnt that a person can appoint a nominee for his/her bank deposit through general application. Bangladesh Bank in its Sanchay Patra Kroy Form (form of savings paper buying) contains the provision of nominee.³³ The Agrani Bank Ltd. in its opening of account proposal form contains the same provision like Bangladesh Bank.³⁴ The following rules relating to nominee have been brought from the survey and interview of the bankers:

One or more but maximum four persons [as nominee] may be nominated by the account holder. Bangladesh Bank in its form refers two rooms for putting the name of the nominee and Agrani Bank refers one room for doing so. But the officials of the banks said to us that if the person depositing money wants to appoint more than one or two or three, they have to submit the name of the nominees in a paper as application. A minor also can be appointed as a nominee. If nomination is more than one, the percentage of the share of each nominee must be specified by the account holder. The nomination will be canceled if the respective nominee passes away before the depositor. Only after the expiry of the depositor, nominee/nominees will be entitled to have the balance of the account as per their share and no succession certificate will be required. The matter is to be settled at branch level to pay to the nominee/nominees the following papers are to be obtained-

– Written Application of nominee/nominees or application of the legal guardian if nominee/nominees is/are minor.

– Death certificate of the accountholder. If the accountholder dies abroad, the Death certificate will be certified by the office of the Bangladesh Ambassador of the concerned country.

– Passport size photograph of the nominee/nominees or legal guardian (in case of minor).

– Indemnity Bond from nominee/nominees or legal guardian (in case of minor.)

– Identification of nominee/nominees or legal guardian (in case of minor) from ward commissioner or local chairman along with attested photograph.

Besides fulfilling the above requirements nominee has to fill up a form provided from the bank.³⁵

Islamic Bank Bangladesh Ltd. in its account opening form contains the same but includes a new clause that after receiving the deposited money the nominee will on his/her own duty distribute the received money from the account of the deceased accountholder among the legal heirs of the deceased.³⁶

2.2.2 Nomination System in Insurance Company

In Bangladesh, the Insurance Act 2010³⁷ (Bima Ain) expressly includes a nomination clause. And in the proposal form of the policy there exist a room for nominee.³⁸ Section 57 of the Act provides that the policyholder of a life insurance may nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death when the policy is opened or latter.³⁹ A minor can be nominated, where any nominee is a minor, the policy-holder shall appoint any person as guardian to receive the money secured by the policy in the event of his death during the minority of the nominee in the prescribed manner.⁴⁰Any such nomination may at any time before the policy matures for payment be cancelled or changed by an endorsement or a further endorsement or a will, as the case may be, but unless notice in writing of any such cancellation or change has been delivered to the insurer, the insurer shall not be liable for any payment under the policy made bona fide by him to a nominee mentioned in the text of the policy or registered in records of the insurer;⁴¹ a transfer or assignment of a policy shall automatically cancel a nomination.⁴² The insurer shall furnish to the policy-holder a written acknowledgement of having registered a nomination or a cancellation or change thereof.⁴³ During the lifetime of the person whose life is insured, or where the nominee/nominees dies/die before the policy matures for payment, the amount secured by the policy shall be payable to the policy-holder or his heirs or legal representatives or the holder of a succession certificate, as the case may be.⁴⁴If a nominee or nominees survive the person whose life is insured, the amount secured by the policy shall be payable to such survivor or survivors.⁴⁵ The rules of nomination under the Insurance Act 2010 shall not apply to any policy of life insurance to which section 6 of the Married Women’s Property Act, 1874, applies or has at any time applied.⁴⁶ In Islamic Insurance (Takaful⁴⁷) of Bangladesh, sec. 57 of the Insurance Act 2010 is followed for Nomination system. The proposal form of Takaful contains the provision of nomination.⁴⁸ There is no difference in nominee system between general insurance and Takaful.

When a policyholder dies then a nominee is to perform some formalities such as he/she is to make an application for informing the Insurance Company to describe that the policyholder has died. After that the insurance company sends a letter of sympathy⁴⁹ to the nominee and for paying the policy money the company requires the followings:

1. Original deed of the policy
2. Age proving certificate
3. Death certificate by a gazetted doctor
4. Post mortem report and Surathal(condition of body) report (FIR) (if necessary)
5. Certificate of the grave place or burning ground
6. Submission of the demand form with due certification⁵⁰

After submitting the above mentioned requirements if the authority feels doubt they may investigate the death of the policyholder in different ways. During the investigation they may ask the doctor who treated the dead policyholder or to the authority of the office where the dead policyholder worked. The asking form of the doctor⁵¹ and officer⁵² is given in the appendix. After asking them the corporation provides a new form of identification for filling up by another two persons who are not related with nominee(s).⁵³ After being over sure that the person legally died and the claimant is the very nominee referred in the original deed with signing in an executive form the authority delivers the policy money.⁵⁴

2.2.3 Nomination System of Pension Money of the University Teacher and Servants

In Bangladesh the number of the Public Universities is 34. Each have a separate Act to run the University autonomously relating to all the matters academic and non-academic as the terms and conditions of the job of the University employees, their provident fund rules, pensions etc. The Universities have a pension rule and provident fund for the employees.

2.2.3.1 Rajshahi University

The Rajshahi University is maintained by the Rajshahi University Act of 1973.⁵⁵ In the very Act, there are clear provisions regarding pension and nomination of the provident fund on the death of subscriber.⁵⁶ Sec. 56 of the Act reads as follows:

1. The University shall, in such manner and subject to such condition as may be prescribed by the Statutes and the University Ordinances, constitute for the benefit of its employees, such pension, group insurance, benevolent fund, provident fund or gratuity as it may deem fit.
2. Where any provident fund has been constituted, the Government may declare that the provisions of the Provident Fund Act, 1925 (XIX of 1925), shall apply to such funds as if it were a Government Provident Fund.

The above section provides the rule about forming the pension, group insurance, benevolent fund, provident fund or gratuity and which law will be followed in this regard. The first schedule of the Act provides the rules regarding nomination. It is aforementioned that for the employees of the University there is a provident fund. The employees of the University shall subscribe every month to the University provident fund except when on leave without pay.⁵⁷ Each subscriber shall, as soon as possible after his joining the fund, be called upon by the treasurer to furnish a ‘Form of Declaration’ as prescribed in the appendix⁵⁸ showing how he/she wishes the amount of his accumulation to be disposed of on his/her death.⁵⁹ A subscriber may in his/her declaration specify the distribution of the accumulation.⁶⁰ Any ‘Form of Declaration’ is revocable at any time.⁶¹ If minors are nominated in ‘Form of Declaration’ the person or persons to whom sums intended for their benefit are to be paid should be stated in ‘Form of Declaration’.⁶² In the matter of subscriber having a family defined as to constitute his family there shall be upheld (a) (i) widow or widows/husband⁶³ (ii) children and (iii) widow or widows and children of deceased son. (b) all adopted child shall be considered to be a child when, under the personal law of the subscriber, adoption is recognized as conferring the status of a natural child, but not otherwise,⁶⁴ he is not permitted in his ‘Form of Declaration’ to leave the amount of his accumulations or any part of it to any one outside his family.⁶⁵ Where a Form of Declaration purports to leave money otherwise than to a member or members of a subscriber’s family, the treasurer shall call upon the subscriber to state whether he/she has a family, and if it is found that he/she has one, the Form of Declaration shall not be accepted. A subscriber among the family members may exclude any one or more of them from his/her credit, it is his/her absolute discretion.⁶⁶

If a subscriber dies before retirement, the amount shall be disposed of according to the First Schedule 18(19) of The Rajshahi University Act of 1973. If the portion of the amount is specified in the Form of Declaration, it will be divided among all or any member of his family according to the term of the Declaration. If the Declaration does not state the person or persons to whom the sum intended for the benefit of the minor to be paid to the minor’s legal guardian, on failing the legal guardian the treasurer may consider such person or persons to be proper to receive the sum on the minor’s behalf.⁶⁷ Where a subscriber leaves a family but no ‘Form of Declaration’, the amount shall be distributed among his family, except that the major son(s) and son-in-law of a pre-deceased son shall be excluded from participation. The survivors of subscriber’s family take the amount equally except that the widow or widows and the child or children of any deceased son shall take equally between them only the share which that son would have taken had he survived the subscriber.⁶⁸ If there is none among the family members aforementioned, the amount shall be paid to such person or persons in the Form of Declaration.⁶⁹

Here it is redundant to say that nomination under the Rajshahi University Act of 1973 is different from any other provident fund or banks or insurance policy or so on. Because, here, in the presence of the family members, none can be the nominee which respects the legal heirs of the subscriber.

2.2.3.2 Dhaka University

Dhaka University follows the same rules regarding pension and nomination of the provident fund. Only the name and section of the law is different. Dhaka University is governed by the Dhaka University Order, 1973.⁷⁰ Sec. 57 of the Act⁷¹reads as follows:

1. The University shall, in such manner and subject to such condition as may be prescribed by the Statutes, constitute for the benefit of its employees such pension, insurance, benevolent, gratuity or provident fund as it may deem fit.
2. Where any provident fund has been constituted, the Government may declare that the provisions of the Provident Fund Act, 1925 (Act XIX of 1925), shall apply to such funds as if it were a Government Provident Fund.

The rules regarding nominee of the Dhaka University provident fund is illustrated in the first schedule of the Act which as same as Rajshahi University.⁷²

2.2.4 Nomination System in Provident Fund

“Provident Fund” means a fund in which subscriptions or deposits of any class or classes of employees are received and held in their individual accounts, and includes any contribution and any interest or increment accruing on such subscriptions, deposits or contributions under the rules of the Fund;⁷³ pension is given to the retired government employees from this fund.

Nomination in Provident Fund Act is as follows:⁷⁴

(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, been paid, the said person shall on the death as aforesaid of the subscriber of depositor, become entitled, to the exclusion of all other persons, to receive such sum or part thereof, as 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 becomes 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, conferring 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.

(2) Notwithstanding anything contained in the Succession Act, 1925, any person, who becomes entitled as aforesaid, may be granted a certificate under that Act entitling him to receive payment of such or part, and such certificate shall not be deemed to be invalidated or superseded by any grant to any other of person of probate or letters of administration to the estate of the deceased.

2.2.5 Nomination System in Cooperative Society

Section 40 of Co-operative Societies Act 2001⁷⁵ provides that every member of the Co-operative Society shall nominate such an individual person who is not a member of the society and the nominated person, after the death of the shareholder, will accrue shareholder’s share and all the rights and duties regarding it. In this case no law of succession will be applicable.⁷⁶

2.3 Nomination System in Different Countries

The nomination system is followed in various countries from a long ago. In the UK, Singapore, Malaysia, India and so on, this system is followed from the very beginning of the banking system. Section 73 of the Conveyancing and the Law of Property Act, 1909 of Singapore and Section 11 of the Married Women’s Property Act, 1882 of UK and Section 23(1) of the Civil Law Act, 1956 of Malaysia are same. These all provide that the nominee will be absolute beneficiary of the nominated property.⁷⁷

2.3.1 India

In India, The Insurance Act 1938 expressly includes a nomination clause. Section related with nomination of the Act reads as follows:

“the holder of a policy of a life insurance on his own life, may , when effecting the policy or atany time before the policy matures for payment, nominate the person or persons to whommoney secured by the policy shall be paid in the event of his death.”⁷⁸

“Where the nominee or, if there are more nominees than one, a nominee or nominees survive the person whose life is insured, the amount secured by the policy shall be payable to such survivor or survivors.”⁷⁹

Section 30 of the Maharashtra Co-operative Societies Act provides,⁸⁰

“On the death of a member of a society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules or, if no person has been so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member.”

Section 30(4) of the aforesaid Act held that,⁸¹

“Purpose of nomination is to make certain the person with whom the society has to deal and not to create interest in the nominee to the exclusion of those who in law are entitled to the estate of a deceased member.”

Section 109A of the Companies Act provides as follows:⁸²

(1) Every holder of shares in, or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of, the company shall vest in the event of his death.
(2)………..
(3) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such shares in, or debentures of, the company, where a nomination made in the prescribed manner purports to confer on any person the right to vest the shares in, or debentures of, the company, the nominee shall, on the death of the shareholder or holder of debentures of the company or, as the case may be, on the death of the joint holders  become entitled to all the rights in the shares or debentures of the company or, as the case may be, all the joint holders, in relation to such shares in, or debentures of the company to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.
(4)………

Section 4 of The Government Savings Banks Act, 1873 provides for nomination by a depositor in respect of his deposits.⁸³

2.3.1.1 Case laws in India Regarding Nomination and Legal Heir

In Sarbati Devi v. Usha Devi⁸⁴, the Apex court held that a nominee cannot receive the policy amount to the exclusion of other legal heirs primarily because:
1) Nothing in Section 39 indicates that it will operate as a third kind of succession and
2) The section provides that “the money shall be payable to the nominee” and not that it shall belong to the nominee.

The Allahabad High Court in Kesari Devi v.Dharma Devi case did not accept the view that that the policy money that is paid to a nominee under Section 39(6) of the Insurance Act is held by him as a trustee for the legal representative of the assured. This view was also ascribed by the Tamil Nadu High Court in Karuppa Gounder  v. Palaniammal.⁸⁵

In Arnab Kumar Sarkar v. Smt. Reba Mukherjee and Ors.⁸⁶, the Calcutta High Court held as –

“just as section 39 of the Insurance Act, 1938, the purpose of Section 45Z of the Banking Regulation Act, 1949 is to provide for the discharge of the Bank’s obligation.”

The Honorable Bombay High Court⁸⁷ decided that position of a nominee under section 109A of the Companies Act is not merely that of a trustee for the estate of the deceased, and it further held that,

“on the death of the shareholder, the nominee would become entitled to all rights in the shares to the exclusion of all other persons.”

2.3.2 Malaysia⁸⁸

In Malaysia, the law of a nominee before 1996 was similar to that of the laws ofEngland and Australia, as well as of India. Section 23(1) of the Civil Law Act,1956 of Malaysia, based on Section 11 of the Married Women’s Property Act, 1882 of UK reads as follows:

“A policy of assurance effected by any man on his own life and expressed to be for thebenefit of his wife, shall create a trust in favour of the objects therein named….”

The above provision indicates that, a nominee in a policy is an absolute beneficiary. In Re Man bin Mihat deceased, the court decided that the nominee is an absolute beneficiary. The decision has been subsequently followed in ReBahadun bin Haji Hassan deceased. After The Insurance Act, 1996 of Malaysia was passed, the position of nominee changed.

By virtue of S. 166(1) of The Insurance Act, 1996 of Malaysia, the nominee in a policy would be regarded as an absolute beneficiary, but the nominee may be appointed among some limited persons related to the policyholder. Only the spouse or child and in the absence of these two, the parents, of the policy holder may be appointed as a nominee. The provisions under Section 166 of theInsurance Act 1996 apply only to a non-Muslim policyholder. Section 167 of the Act which is applicable to the Muslim policyholder, provides that the nominee in a policy will be treated as a mere executor and not as a sole beneficiary over the benefits of the policy.

2.4 Modern Concept of Nomination

Day by day the concept of nominee is being changed. It was the notion that the nominee is the whole beneficiary of the pension money or policy amount or bank deposit. But at present time almost all the countries take the notion that a nominee is not an absolute owner of the policy money or deposited money. Even in Bangladesh, a prospectus of a life insurance company furnishes that the nominee of a life insurance will not be an absolute beneficiary, rather he/she (nominee) will perform the duties of a trustee. His/her main function will be to take the advantages from the insurance according to the rules of the company and to distribute it among the legal heirs of the deceased policyholder according to the will and Succession law. If the nominee is one of the legal heirs of the deceased policyholder, he/she (they) will take the share as a successor.⁸⁹ In India and Malaysia there are several case laws regarding this view, the court sometimes says that nominee is the absolute beneficiary and in another case the court says that nominee is a trustee. The scholars say that nominee is a trustee and nothing else. No universal idea is available in this case. Most of the opinions consider nominee as a trustee.

2.5 Islamic Concept of Nomination

Nomination in Islam is allowed. In the Qur’an though there is no direct provision about nomination but some verses of it encourage appointing a person for managing the property of a person as a trustee through the principle of Amanat. The term Amanat begets the idea of nomination. The nominee is a trustee and the principle of nominee under Islamic law could be derived from the doctrine of al-Amanah whose meaning is reliability, trustworthiness, good faith, faithfulness, honesty, and fidelity.⁹⁰ Al-Murghinani, the author of al-Hedaya, says that a nominee [a trustee] is a person who is empowered by another to undertake the responsibility of his property as a trustee.⁹¹

There is a number of Qur’anic verses dealing with the law relating to nomination (trust) which are as follows:

“Those who faithfully observe their trusts and their covenants”.⁹²

Both in Common law and Islamic law there are situations for nominating a person to hold the minor’s property as a trustee; it is the nominee’s responsibility to hand over the property upon confirming the maturity of the minor. Allah (s.w.t.) says:

“Make trial of orphans until they reach the age of marriage; if then youfind sound judgment in them, release their property to them; butconsume it not wastefully, nor in haste against their growing up. If the Guardian (nominee) is well-up, let him claim no remuneration, but if he is poor, let him have for himself what is just and reasonable…. ”. ⁹³

In another ayat Allah (s.w.t.) ordains not to betray the trust and to return the trust to the right beneficiary. Allah (s.w.t.) says:

“O ye that believe! Betray not the trust of Allah and the Messenger, normisappropriate knowingly things entrusted to you.” ⁹⁴

 

“ Allah (s.w.t.) doth command you to render back your trust to those to whomthey are due…………….” ⁹⁵

In other verses also Allah (s.w.t.) warns against those who breach their trust. Allah(s.w.t.) says:

“Contend not on behalf of such as betray their own souls; for Allah loveth not onegiven to perfidy and sin:”. ⁹⁶

“Verily Allah will defend (from ill) those who believe: verily, Allah loveth not any that isunfaithful, ungrateful”. ⁹⁷

“If thou fearest treachery from any group, throw back (their covenant) to them, (so as tobe) on equal terms: for Allah loveth not the treacherous. ⁹⁸

There are differences of opinion among the practitioners as well as Islamic scholars. Some say that a nominee in an insurance policy or saving accounts or pension money has absolute right to be the beneficiary over the policy or saving accounts or pension money as al–Hibah (gift).⁹⁹ Some say that if a nominee becomes the absolute owner of the very deposited money, it may contradict with the Divine principles relating to al-Mirath and al–Wasiyah. Again they argue that one can make Hiba to any person but it will not be conditional and immediate transfer of the assets is must. In case of nominee it is noticed that the deposited money is not hiba because here to receive the deposited money by the nominee is conditional when the depositor dies before the maturity of the fund only then nominee can take it but when the depositor is alive then he/she takes the money. So it may not be a gift.¹⁰⁰

In Hedayatullah vs. Mst. Rahiman¹⁰¹ the High Court of Sind decided that there was nothing wrong in nominating someone in a policy, but the position of the nominee under Islamic law (in compliance with the principles of al–mirath andal–Wasiyah), is nothing more than as a trustee who has no right over the benefits of the policy but to distribute them (benefits) according to the principles of al-Mirath and al–Wasiyah.

In Pakistan, the court, in Nur Muhammad vs. Mst. Sardar Khatun case,¹⁰²decided that the right to receive is not equivalent to the right to receive beneficially. The nominee in a provident fund is merely a trustee who receives the benefits from the fund and distributes them to the right beneficiary according to the Muslim law of inheritance.¹⁰³

The High Court of Karachi, in Karim vs. Hanifa ¹⁰⁴ decreed, relying on Section 27 of Bombay Co-operative Society Act 1927, that the nominee is not merely an administrator nor an executor who may take the benefits on behalf of the heirs of the deceased, rather he (the nominee) himself has an absolute right over the benefits without sharing with anyone. This decision was seriously criticized as it was contrary to the Muslim personal law of inheritance. Later, the High Court of Karachi’s decision was correctly overruled by the Supreme Court of Pakistan inAmtul Habi vs. Musarrat Parveen,¹⁰⁵ in which it was decided that the nomination in a policy does not constitute a gift nor a bequest, and, therefore, a nomination shall not deprive the legal heir of the nominator who may be entitled there to benefits under the law of al–Mirath applicable to the nominator.¹⁰⁶ Based on the aforementioned Qur’anic injunctions and further illustrations it may be opined that a nominee is a trustee, and he/she (n) because of nomination shall not have any right to benefit trust, but he/she should be under an obligation to hold the trust properly and render it back to the right beneficiary accordingly without demanding any interest over the trust.¹⁰⁷

2.6 Conclusion

Nomination is a very vague term in this sense that it has no universal concept. Every country practices it in its own way. When any problem arises and the issue comes before the court, the courts give their opinion on a particular issue, for this reason no universal rulings is born on the matter and the opinion of the various court is different. The concept of Muslim law and Common law though sometimes is same but the statutory law’s concept is totally different. Statutory laws never follow moral norms of the society but the natural law never denies these norms.All the statutes of the world related with nomination except Malaysia provide that the nominee will be the absolute beneficiary. The account opening form of Islamic Bank Bangladesh Ltd., though, contains the provision regarding the moral values but it is in black and white, it has no practical usages. Some insurance company in their prospectus publishes the theme that the nominee of a life insurance will not be an absolute beneficiary; rather he/she (nominee) will perform the duties of a trustee. But in practice it is totally different from this notion in Bangladesh.