Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SAMIULLAH VS Respondent: MUHAMMAD AHMED AND 6 OTHERS
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Z. A. Channa Title: SAMIULLAH vs MUHAMMAD AHMED AND 6 OTHERS Case No.: Letters Patent Appeals Nos. 109 of 1969 and 34 of 1972 Date of Judgment:1976-09-28 Reported As: PLD 1977 Karachi 49 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' FAKHRUDDIN G. EBRAMM, J.-These are two Letters Patent appeals between the same parties, one arising out of a money decree and a preliminary decree for accounts, and another from the final decree after accounts were taken by the dmmissioner appointed for the purpose and accepted by the Court. 1. One Shaikh Muhammad Taqi, died at Karachi all of a sudden on 25th March 1954, leaving behind, among others, the respondents-plaintiffs as his minor children. His other heirs are his wife, Mst. Zubeda Khatoon, his two major sons Muhammad Naqi and Muhammad Shafi by a previous wife, his mother, Mst. Janat Bibi, and father, Shaikh Barkatullah. 2. In 1954, Samiullah, the original defendant and the real brother of Sheikh, Muhammad Taqi made an application, being Misc. Application No, 15 of 1954, to this Court under section 10 of the Guardians and Wards Act for his appointment as guardian of the properties belonging to the minor children, the respondent herein, which was granted by this Court on 27-7-1954. In the application the only property disclosed as belonging to the minors was 11/15th share in the sum of Rs, 1,91,007.00 invested by the deceased in Messrs N. Y. Taqi & Co. The major heirs of the deceased Shaikh Muhammad Taqi consented to the grant of this application. This application was also consented to by one Ali Muhammad, the maternal grandfather of the respondents. The appplication also recited that Samiullah was not a debtor to or the creditor of the estate of the deceased and had no interest adverse to that of the minors. The sum due and payable to the minors, including the shares of Shaikh Barkatullah, Mst. Janat Bibi and Mst. Zubeda Khatoon, the father, mother and the widow of the deceased respectively in the said sum of Rs, 1,91,007.01 in the firm of Messrs, N. Y. Taqi & Co., was deposited in Court by Samiullah, together with the, audited accounts of the said firm and, with the
---
## Page 2
permission of the Court, invested in the purchase of a property known as Mehar Terrace for Rs, 1,02,000.00 and half share in Nawab Manzil at the price of Rs, 4 5,000.00, the other half belonging to the widow, Mst. Zubeda Khatoon. The said two properties continued to be managed by Samiullah as the guardian of the minors until 24-6-1964 when his application dated 30-4-1964 for hi& discharge was granted by this Court. There is an affidavit on record' dated 23-6-1964 by Muhammad Shafi in which allegation was made that after the demise of his father Muhammad Taqi, Samiullah was entrusted with all the properties of his father including movable and cash and that Samiullah has been managing the affairs and the properties of his father for' the last ten years and the accounts submitted by him be referred to a qualified auditor for scrutiny before he is discharged under section 41(4) and that it was in the interest of the minors that Samiullah be directed to hand over the properties to the proposed guardian Mst. Zubeda Khatoon. Samiullah filed a counter-affidavit in which he denied that he had received. Any movable from the estate of his late brother Muhammad Taqi and that the accounts filed in the Court were always checked and audited by the Court's Nazir. Samiullah's application for discharge came up for hearing on 24- 6-1964 when it was by consent, including the consent of Mr. Muhammad Arif, the learned counsel for Muhammad Shafi, granted and hist. Zubeda Khatoon was appointed as guardian of the property of the the minors. On 1.3-1965, Muhammad Ahmad, one of the minor sons of late Muhammad Taqi and the respondent No, 1 herein, filed an application under section 41(4)(c) of the Guardians and Wards Act in which the allegation was that Samiullah had not properly accounted for the income of Nawab Manzil and, what is more important that he had failed to disclose that the deceased had left in the hands of Samiullah a total sum of Rs, 3,43,000 in terms of an acknowledgement dated 17-7-1955, and that the deceased was a partner in several firms along with Samiullsh, one Hajl Abdul Wahid and Ikramul Haq to which partnership the heirs of the deceased were admitted as partners subsequent to the demise of Muhammad Taqi which was also confirmed by the partners in an undated writing and Samiullah had, therefore, deliheretely and fraudalently suppressed the assets of the deceased over which he had the control and out of which he was receiving the profits falling to the shares of the deceased and continued to do so. The prayer was to rectify the accounts of Nawab Manzil and to account for the assets of the deceased mentioned in acknowledgement dated 17-7-1955 and to call upon Satniullah to render full and faithful accounts of the partnership business mentioned therein, namely, Sami & Co., Barkat & Co., B. M. Naqi & Co., Muhammad Yousaf & Co. On 28-4-1965, Samiullah sought a direction from the Court that the original acknowledgement dated 17-7-1955 be sent to an authorised handwriting expert of the High Court. In his objections dated 11-8-1965, Samiullah described the acknowledgement dated 17-7-1955 as a forgery and further stated that he did not still know its scribe. (Its photostat had been supplied to him). As regards the reference therein to the sum of Rs, 2,45,000 (Safe deposit walay), Samiullah admitted that there was a safe deposit vault in the joint names of Muhammad Taqi and himself but it was meant to keep important papers and no money was kept in it and that the money was always kept in Bank in separate names of the deceased and himself. As regards the undated document in which it was confirmed by Samiullah. Abdul Wahid and Ikramul Haq that they were partners according to the shares detailed in it including 0=5=4 shares of the heirs of late Muhammad Taqi, the explanation given was that no partnership had come into actual existence, no capital was actually put or even mentioned by the three persons named in the document or by the heirs of late Muhammad Taqi, no legal document of partnership came into existence, no business of partnership was done and the alleged document was not signed by the major heirs and the widow of late Muhammad Taqi. It was however, admitted that the document which was called a note, was made and signed by the three persons but he stated nothing more. In particular he did not state that this document represented an intended partnership. He denied that the alleged partnership businesses in the names of Sami & Co., Barkat
---
## Page 3
& Co., B. M. Naqi & Co., and Muhammad Yusuf & Co., were carried on at 51-A, Saleh Muhammad Street, Karachi and the applicant was put to proof. In his reply the applicant Muhammad Ahmed as regards the acknowledgement dated 17-7-1955 stated that it has been discovered in the bundles of papers lying with his mother, the original of which he produced, and further alleged that it was in the hand of Ataur Rahman who was at the relevant time working as an Accountant in Samiullah & Co. And on enquiries made from him the applicant had been informed that he had written the document at the dictation of Samiullah who had signed it in his presence. This application under section 41 (4) (c) of the G & W Act came up for hearing before Mr. Wahiduddin Ahmad, J, as he then was, on 6-9-1955, who was of the view that serious allegations relating to suppression of property and its misappropriation had heen made which could be suitably inquired in a regular proceeding only and, accordingly, dismissed the application while permitting the applicant to file a suit against Samiullah, the ex-guardian on the ground of alleged fraud. The order further recites that the acknowledgement dated 17-7-1955 which had been in the meanwhile sent to the handwriting expert be recalled and returned to the applicant for necessary action. 3. Then came the suit No, 31 of 1967 filed by the respondents herein on 1-2-1967 against Samiullah who died after his evidence had been recorded by this Court as well as before the Commissioner appointed for taking accounts, and the appellants are the heirs of deceased Samiullah. 4. In the plaint, it is alleged that out of the income of Nawab Manzi!, Samiullah had misappropriated a sum of Rs, 2,993.58 which sum was specifically claimed and a further sum of Rs, 2,53,000 being the plaintiff's share and the share of the father, mother and the widow of the deceased assigned in their favor in the sum of Rs, 3,45,000.00 said to have been left by the deceased and in the custody of Samiullah as acknowledged by him in writing date 17-7-1955 (Bah. 5/3). It is further alleged in the plaint that deceased along with Samiullah, Abdul Wahid and Ikramullah used to carry on various businesses in partnership in which the deceased had 0-5-4 shares and on his demise the surviving partners admitted the factum of the existence of the aforesaid partnership by means of a writing (Exh. (3-B) in which the heirs of the deceased are shown as beneficiaries of the partnership to the extent of 0-5-4 in place of their father Muhammad Taqi; that in so far as the plaintiffs have been able to ascertain the partnership carried on various businesses under the names of Sami & Co , Barkat & Co., B. M. Naqi & Co., and Muhammad Yousuf & Co., at 51-A, Saleh Muhammad Street, Karachi, which were ostensibly shown as proprietary concerns of one or the other partner. That of these B. M. Naqi & Co., and Muhammad Yousuf & Co., were wound up in the lifetime of the deceased but Barkat & Co., was continuing till 1955 and Sami & Co., is still continuing. The second prayer is, however, confined to a direction against Samiullah to render true and correct accounts of all moneys received by him for and on behalf of the plaintiffs out of the profits of the business of Sami & Co., and after taking accounts grant final decree for recovery of whatever amount is found to be due. 5. In his written statement Samiullah referred to the fact that all the major heirs of the deceased and so also Ali Mohammad, the maternal grandfather of the plaintiffs, had fully concurred in filing the guardianship application and the details of the assets disclosed therein and it was painful that he had now been made a target when he had taken great pains and benefitted the minors by purchasing Mehar Terrace and had himself suffered financial losses in looking after the miners only to be accused of fraud. As regards the allegation of the safe deposit vault amounting to Rs, 2,45,000.00 it was described as baseless and false to the knowledge of the plaintiffs and he denied that he ever acknowledged at any time any such amount and that the alleged writing was forged. Objection was also raised as regards the admissibility of the alleged acknowledgement dated 1/-7-1955 for want of proper stamping. With reference to the allegation that Samiullah and other partners had acknowledged partnership and the admission of the heirs, Samiullah denied that the deceased did any business in partnership with him as alleged or otherwise and as regards the
---
## Page 4
document Exh. 6/8, Samiullah in the written statement admitted that a note for entering into a partnership was made but nothing was finalized and no partnership came into existence and that the writing speaks for itself and not denied that it was in the nature of an admission as alleged. As regards Sami & Co. He alleged that he was its sole proprietor and this fact was known to all the heirs of the deceased. As regards Barkat & Co. He alleged that he had nothing to do with it and had neither managed it nor had received anything from it at any time and to the best of his knowledge this firm was solely owned by one Abdul Wahid who closed his business in the year 1956. 6. On 2-10.1967 the trial Court was pleased to adopt following consent issues:- (1) Whether the defendant misappropriated the amounts shown in para. 7 of the plaint ? (2) Whether the deceased Muhammad Taqi had left assets of Rs, 3,45,000.00 in the hands of the defendant ? Did the defendant acknowledge this as alleged ? (3) Whether the deceased Muhammad Taqi carried partnership business with persons mentioned in para. 11 of the plaint ? (4) Whether deceased was partner in the firms named in para. 13 of the plaint and whether defendant received any amount from any of these firms falling to the share of the deceased and/or his heirs ? (5) Whether defendant is liable to account for sums to recover ? (6) Whether the defendant fraudulently suppressed the assets of the deceased in his hands ? What is the effect of acceptance of accounts by Court in G. W. Application No, 15 of 1958 ? (7) Whether the suit is time barred ? (8) Whether the suit is bad for misjoinder or causes of action or non-joinder of necessary partiss ? (9) Whether the suit is barred under Partnership Act ? (10) Whether the defendant is entitled to special costs ? (11) To what relief if any are the plaintiffs entitled ? 7. After framing of the consent issues on 2-10-1967, the suit came up .For hearing before Abdul Kadir Shaikh, J., as he then was, on 3-10-1968 when it would appear from the diary sheet that the plaintiffs had summoned several witnesses including a clerk from the Court of VI Civil Judge to produce certain documents and these documents were by consent placed on record subject to further proof. Further by consent documents from the record of J. Miscellaneous Application No, 15 of 1954 were exhibited. The case was then at the request of the counsel appearing for the parties adjourned for one month for evidence of both the parties to 5th November 1968 when, it was agreed that only the plaintiffs' evidence will be recorded. The suit again came up for hearing on 3- 10-1968, when a complaint was made on behalf of the plaintiffs that one Ikramul Haq, a partner in Sami & Co., had refused to accept the service of summons issued by this Court which fact was confirmed by the learned Judge from the report of the bailiff and the Court ordered notice to Ikramul Haq to show cause why he should not be punished for the contempt of Court under sections 2 and 3 of the Contempt of Courts Act. Ikramul Haq was on 12-11-1968 found guilty of contempt and sentenced to pay a fine of Rs, 500.00. 8. The suit thereafter came up for hearing before Noorul Aran. J., as he then was, on 9-1-1969. On this day the learned Judge examined the defendant under Order X, C. P. C., brought on record and exhibited certain documents admittedly bearing the signatures of the defendant. Confronted the witness with the acknowldgement dated 17-7-1955 but he denied his signature thereon. The document was marked Exh. 5/3 and the signature Exh. 5/3/A. The order-sheed for 9-1-1969 recites that the main dispute in the case was whether Exh. 5/3 bears the signature of the defendant ; that the learned Judge compared this signature with the admitted signatures of the defendant on Exh. 5/1 and 5/2 and it appeared that prima _lack the signature of Samiullah in English on Exh. 5/3 was in the hand of the defendant. The objection that the document was under stamped and, therefore,
---
## Page 5
inadmissible was overruled "in view of the proviso (a) to section 35 of the Stamp Act, 1898". The order concluded with the observation:- "that in view of what has been stated above the initial burden in the case now shifts to the defendant, who is required to proceed with his evidence." ' The order also records that the defendant will prepare a statement of account of the rent realised from Nawab Manzil from the receipt books which were summoned from the Court of VI Civil Judge and the difference between this account and the accounts filed by the defendants in the Guardianship proceedings will be paid by him. This suggestion was accepted by the learned conunsel appearing for the plaintiffs. 9. The oral evidence led on behalf of he defendant consists of Samiullah himself and five other witnesses who have produced certain documents relating to bank accounts and the locker in the safe depcx it vault. More particularly these witnesses are D. W. 2 Zubair Jafrani, an officer from Preedy Street Branch of Habib Bank Ltd., to prove that Ikramul Haq had an account with Habib Bank Ltd., and the defendant's case was that it was in fact opened by P. W. Ataur Rehman who had forged the signature of Ikram which is of course denied by the former. D. W. 3 Abdul Wahid from another branch of Habib Bank Ltd., to produce the genuine account of Ikramul Haq ; D. W. 4 Khokhar who produced the Bank account of Sami & Co. Since 18-11950 operated by Samiullah as its sole proprietor. D. W. 5, Muhammad Hayat, who had been summoned to produce Bank account opening form of Barkat & Co., could not do so because of insufficient notice. D. W. 7 Syed Abdul Wadood, who came in his place did not produce this form but stated from the record that account in the name of Barkat & Co , was opened on 9-10.1952 by Abdul Wahid as its sole proprietor. Lastly. D. W. 6, M. A. Farooqi, from the Security Safe Deposit Vault to prove the locker No, 2680 in the joint name of deceased and Samiullah opened on 21-8-1951 and closed on 27-8-1954, and the same locker taken afresh in the name of Samiullah and his wife. The witness also produced documents showing the operation of the locker by Samiullah from time to time including after the demise of Muhammad Taqi. 10. The oral evidence of plaintiffs consists of P. W. 1 Ikramul Haq and P. W. 3 Abdul Wahid, said to be partners, P. W. 4 Ataur Rehman, the accountant of Sami & Co., and P. W. 2 Ali Raza, who produced certified copy of the account of Barkat & Co. From September, 1951 to August, 1951 opened and operated by Samiullah as its sole proprietor. 11. The documentary evidence among other things consists of 'Exh. 5/3, the alleged acknowledgement in the hand of Samiullah that he held in custody the sum of Rs, 3,45,000.00 belonging to the heirs of the deceased, Exh. 6/8 said to acknowledge the admission of the heirs of the deceased in the partnership and Exhs. 13/12 to 13/14 copy books allegedly showing the shares of the heirs of deceased Taqi in the unofficial income of Sami & Co. From the year 1954 to 1958. 12. The learned Single Judge Arfin, J., by his impunged judgment dated 21-5-1969, was pleased to grant a decree for the sum of Rs, 2,59,963.96 being the total of plaintiff's share in the sum of Rs, 3,45,000.00 and a sum of Rs, 6,504.49 towards the rental income, latter by consent, together with interest at 6% per annum from the date of the suit until payment and rendition of true and correct accounts by Samiullah of all moneys received by him for and and on behalf of the plaintiffs out of the profits of the business, namely, Sami & Co. Following this decree Mr. S. A. Moulvi, a a Senior Advocate of this Court, was by consent appointed as Commissioner for taking accounts who by his report dated 5-8-1970 found that a total sum of Rs, 2,85,919.40 was due to the plaintiffs. This figure was arrived .At as follows:- ' Rs, 14,824.01 As per regular account books. ' Rs, 99,971.50 As per Exhs. 13/12 to 13/14. ' Rs, 1,72, 123.89 Profits outside the goods from 1959 to 1969 on the basis of average profit from Exhs. 13/12 to 13/14.
---
## Page 6
' Samiullah filed objections to the report which objections were heard by my learned brother Dorab Patel, J., who was pleased to accept the Commissioner's report after correction of certain arithmetical mistake (the sum of Rs, 14,824.01 was reduced to Rs, 12,601.83) and addition of profits for the year 1969-70 which brought the amount due to the plaintiffs to Rs, 3,00,909.22. The final decree is for this sum together with interest thereon from the date of the suit until realization. 13. Before coming to the merits of the appeal I may first deal with two preliminary matters referred to by Mr. Kbalid M. Ishaque, and Mr. Abdul Hafiz Lakho the learned counsel on behalf of the appellants. Mr. Khalid Ishaque contended that the learned trial Judge had so conducted the suit as to cause serious prejudice to the appellants amounting to mistrial and a proper order to be made in this appeal is to order a fresh trial. I must hasten to add that the learned counsel was at pains to reiterate again and again that it is not the case of the appellants that the learned trial Judge was improperly motivated but that in his anxiety to ascertain the truth, he unreasonably assumed that the plaintiffs being minors, required support from the Court, arrayed as they were against a more experienced and mature uncle. The learned counsel contended that the trial Judge had tilted the balance in favour of the plaintiffs and did not '.Conduct himself with that degree of impartiality and even-handedness as expected of a Judge. It was urged that the learned Judge was biased in id favour of the plaintiffs. Our attention was invited to the definition of 'bias' `appearing in several dictionaries and reported decisions, as includln .Partiality, propensity towards an object, a real likelihood of an operative prejudice, whether conscious or unconscious [(1955) 3 All E R 3001, "denoting a departure from the standard of even-handed justice which the, law requires from those who occupy judicial office [(1947) 2 All E R 2891. This bias the learned counsel went on to argue was sufficiently established by- (i) the shifting of the burden of proof by order dated 9-1-1969 ; (ii) examination of Samiullah under Order X, C. P. C. I (iii) the manner in which Exh. 5/3 was admitted in evidence and the objection to its admissibility overruled ; (iv) examination of several witnesses as Court witnesses ; (v) failure to examine witnesses material to the trial including the plaintiffs. (vi) calling for the records, statements and account books without any application by any of the parties ; giving time to the plaintiffs for examination of the account books produced during the course of the examination of Samiullah ; and (vil) numerous interventions by the trial Judge in favour of the plaintiffs in the course of examination of the witnesses. 14. It will presently show that there is no merits in any of the aforesaid objections except the last which I am constrained to say with utmost respect to the learned Judge for whose erudition and intelligence I have great admiration, to be not without substance. 15. The learned counsel invited our attention to the diary sheet dated 3-10-1968, when the suit came up for regular hearing and it was by consent of the parties adjourned by Abdul Kadir Shaikh, J. (as he then was) to 5-11-1968 "when it was agreed that only the plaintiffs' evidence will be recorded". The suit, thereafter, on 9-1-1969 came up for hearing before Arfin, J. (as he then was) who has passed the impugned Judgment. On this date the learned Judge observed that the main dispute in the case is whether Exh. 5/3 bears the signature of Samiullah and, therefore, the learned Judge examined Samiullah under Order X, C. P. C. So that his admitted signatures are obtained and compared with the disputed one on Exh. 5/3. That the learned Judge had the power to examine the defendant under Order X, C. P. C. Was not seriously questioned by Mr. Khalid lshaque. The learned Judge was right in taking the view that the main dispute between the parties related to Exh. 5/3. The learned Judge was equally right in comparing the disputed signature on Exh. 5/3 with his admitted signatures under section 73 of the Evidence Act and having come to the conclusion that
---
## Page 7
the disputed signature tallied with the admitted signature, he again rightly shifted the initial burden of the case on the defendant, who was directed to lead his evidence. The related grievance of Mr. Khalid Ishaque that the learned Judge had shifted the burden of the whole of the case of the plaintiffs on the defendant is not justified for the burden was shifted to the extent only of the plaintiffs' case for a fixed sum of money as represented by Exh. 5/3, and not their case relating to partnerships and accounts. The words of the learned Judge that:- "the initial burden now shifts to the defendant who is required to proceed with the evidence," ' have to be read in its proper context, namely, the defendant's examination under Order X, C. P. C. And the admission in evidence of Exh. 5/3. Even otherwise the defendant could have relied on the provisions of Order XVIII, C. P. C. And reserved his evidence in rebuttal on issues other than the issue relating to Exh. 5/3, but he did not choose to do. Again, at the conclusion of the plaintiffs' evidence the learned Judge expressly gave liberty to the defendant to lead evidence in rebuttal, if any, and there would be no occasion to give such a liberty if the burden had been shifted in respect of all issues on the defendant.…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.