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Suit No. 530 of 1951, decided on 7th March 1963.
‑Books of account of deceased party in handwriting of such party‑Relevant not only under S. 34 but also under S. 32(2)‑Constitute in law sufficient evidence by themselves‑Entries in such books do not need corroboration contemplated by S. 34.
A book of account regularly kept in the course of business is not only relevant under section 34 of the Evidence Act but becomes further relevant under section 32(2) in case party who made the entries is dead. When entries become relevant under section 32 (2) of the Evidence Act, 1872, they do not as a matter of law require corroboration as in the case of entries admissible only under section 34. In law they can constitute sufcient evidence by themselves.
Account books in possession of defendant likely to furnish corroborative proof‑Defendant suppressing his books‑Plaintiff proving amount from his own books Presumption that defendant's books, if produced, would have proved case of plaintiff=Evidence Act (1 of 1872), Ss. 34, 102 & 114‑[Mutugesam Pillai v. M. D. G. S. Sannadhi A I R 1917 P C 6 and Shanker Rao v. Kamte Prashad A I R 1947 Nag. 129 ref.]
Application to firms and joint Hindu family‑Partner of firm, or karta of family, can give a valid discharge to debt owed to them‑Section 9 does not apply to heirs of Muhammadan deceased.
A. Aziz for Plaintiff.
Jamiat Rai for Defendant No. 1.
K. Ihsanullah for Defendant No. 2.
Jan Mohammad Dawood for Defendants Nos. 3‑5.
A. K. Lakhani for Defendant No. 7.
Dates of hearing : 20th, 21st, 25th and 26th September 1962 3rd, 4th and 5th October 1962 and 14th February 1963.
Zubaida Bai, daughter of Haji Adam Shakoor, hereinafter referred to as Shakoor, has in this suit prayed for the payment of her 19; 48th share in the amount which may be found due upon accounting in respect of a partnership business in which her father Shakoor was a partner at the time of his death.
2. The material allegations of the plaint which are relevant to the issues which were not dropped at the hearing by the parties are these: The defendant No. 1 Seth Adam Haji Pir Muhammad Ishaq, hereinafter referred to as Pir Muhammad, before the Partition of India carried on business with head office at Bantwa (Junagarh State) having branches all over India and the native States under the name of Adam Haji Pir Muhammad Ishaq ; that Shakoor, the father of the plaintiff was both a capitalist and a working partner of the defendant No. 1, Pir Muhammad (who died during the pendency of the snit and is now represented by his legal representatives (defen dants 1/1 to 1/9). Shakoor died at Bantwa on 29th August 1943, but Pir Muhammad did not wind up the said business, nor the affairs of the said partnership, nor did he settle the accounts and he continued the said business retaining the capital and the share of the deceased Shakoor which he employed in his trade and from which he had been making .profits right up to the time of the institution of this suit. That the parties to the suit all migrated to Pakistan soon after Partition and are now residing here. The defendant No. 1 Pir Muhammad has his head office at Karachi and branches all over Pakistan and continues to retain and employ the capital and assets of the said deceased Shakoor in the business at Karachi and elsewhere and has continued to earn profits by the employment of the said capital. That the capital of Shakoor in the said partnership stood at Rs. 1,53,000 in the year 1940‑41 and that this was stated in the account book of Shakoor in his own handwriting and that the defendant No. 1 Pir Muhammad was bound to account to the plaintiff for the profits arising from Shakoor's shares of the capital invested in the said trade and business and she was entitled to her share in the same along with the other heirs of Shakoor. That the defendant No. 1 stood in a position of fiduciary relationship with respect to the plaintiff and was bound to account for the gains made by him by availing himself of the said position and of the capital left by Shakoor. That the account books wherein the accounts of the said partnership are recorded up to the time of the death of Shakoor and thereafter have all been brought by the defendant No. 1 from Bantwa to Karachi after Partition and he is still in possession of the same. Therefore, the plaintiff is not aware of the exact amount due by the defendant No. 1 towards the share of the deceased Shakoor and after him to her in the capital as well as the gains. That the plaintiff time and again requested the defendant No. 1 to settle the account but he finally refused to do so on 20th July 1951. The suit is tentatively valued at Rs. 5,000 and court‑fee was paid thereon and it was expressly stated that the plaintiff shall pay further court‑fee on any sum which may be found due.
3. It will now be necessary to show the relationship of the other parties to this suit because in their written statement they have also claimed their shares as heirs of the deceased Shakoor. Haji Adam Shakoor on his death left the following surviving heirs :‑
(1) Mst. Khadija, his widow who died in 1946 or 1947.
(2) Mst. Hoorbai (defendant No. 2) daughter from another wife.
(3) Mst. Zubaida bai (the plaintiff). (4) Abdullah. (5) Muhammad Siddiq.
(6) Qasim, defendants 3, 4 and 5 respectively being sons of Muhammad Shakoor, the deceased brother of Haji Adam Shakoor.
4. Mst. Khadija, the widow of Shakoor according to the plaint died in the year 1946 or 1947 and left behind the following heirs :‑
(1) Abdullah son of Adam (defendant No. 6) her father.
(2) Mst. Bibi, maternal grandmother of Mst. Khadija and the mother of defendant No. 7 Abdullah Shakoor.
(8) Mst. Zubaida bai.
5. The plaintiff under the Muhammadan Law is entitled to 1/3rd share on the death of Shakoor and is further entitled to 1/2 share in the 1/8th share inherited by her mother Khadija who died leaving her and her maternal grandmother as her heirs. The plaintiff thus claims to be entitled to 19/48th share in the property of the deceased Shakoor.
The plaintiff alleges that she was born on 16th August 1931, at Bantwa (Junagarh) and thus became a major on 16‑8‑49. The suit having been instituted on 16‑8‑51 is claimed to be within time in view of section 6 of the Limitation Act. It is also the case of the plaintiff that a sum of Rs. 3,000 was paid to her by the defendant No. 1 on 25‑10‑48 and that this would also keep her claim alive under section 20 of the Limitation Act. The defendants 2 to 7 who all claim through Shakoor all filed their written statement admitting the allegations of the plaint and they themselves prayed for a decree in proportion to their shares in what may be found due after account was taken. The claim was contested only by Haji Adam Pir Muhammad, the defendant No. 1. His written statement was filed on 31st October 1951. Pir Muhammad died on 29‑10‑1957 and on his death his heirs defendants 1/1 to 1/9 were brought on record. Pir Muhammad in his written statement denied that Zubaida Bai was born on 16‑8‑1931. The fact of Shakoor having died on 29th August 1943, was not denied. It was admitted that Shakoor on his death left his heirs as stated in the plaint, and it was also admitted that Mst. Khadija, the widow of Shakoor, on‑ her death left her heirs as stated in the plaint. It was, however, denied that Khadija died in 1946‑47 and it was specifically stated that she died in 1947. The correctness of the share according to Muhammadan Law, as stated in the plaint, was also admitted. With regard to the claim of the plaintiff that Shakoor was the partner of the defendant No. 1 Pir Muhammad in the business run under the name of Adam Haji Pir Muhammad Ishaq it was stated that the said Shakoor had joined the defendant Pir Muhammad in that business in or about the year 1920 and worked at Cochin and then at Kalicut up to June 1935 on certain terms and conditions which were entered into between the parties from year to year and that the accounts were settled every year. The last such agreement was dated 15th December 1934, which was for a period of 11 to 15 months. There was another agreement entered into between the parties which was dated 31st January 1933 ; that the relationship between the parties created by these two agreements came to an end on 14th March 1936, on which date another agreement was executed and after that date Shakoor worked as a servant of Pir Muhammad on terms and conditions mentioned in the said agreement dated 14th March 1936 and a subsequent agreement dated 1st January 1942. It was alleged that Shakoor at the time of his death was only a servant of the defendant No. 1 under the agreement referred to above. It was then averred that the agreements dated 15th December 1934, Exh. 24, and 31st of January 1933, Exh. 23, did not in fact create any partnership between Shakoor and the defendant No: I because according to the agreement and according to the custom at Bantwa, a servant or any other person contributing capital or in cases where servants were remunerated by share of profit for their service, did not make them as partners. In the alter native it was pleaded that in case it was found that the Exhs. 23 and 24 created a relationship of partnership between Shakoor and the defendant No. 1, the said relationship came to an end on 14th March 1936, when the accounts were settled and the agreement, Exh. 22, was executed between them. It was admitted that Shakoor died at Bantwa on 29th August 1943, but it was alleged that he was merely a servant of the defendant No. 1, because from 14th March 1936, the latter was the sole proprietor of the concern known as Adam Haji Pir Muhammad Ishaq and. therefore, no question of rendering account or winding up arose. It was denied that the defendant No. 1 had retained any capital or share or any amount of the deceased with himself or that he had utilized any amount of the deceased in his business or that he had made any profits out of such use. With regard to the allegation that in 1940‑41 the share capital of Shakoor was Rs. 1,53,000 as stated in his account books in his own hand. is was stated that the defendant No. 1 was not aware about it and if such entries were made they were merely admissions bar Shakoor in his own favour. It was reiterated that Shakoor or his heirs on his death were not entitled to any account and that the agreement dated 14th March 1936, Exh. 22, was hindine upon the heirs of Shakoor. The fiduciary relationship as alleged in the plaint was denied. It was admitted that a payment of Rs. 3,000 was made to the plaintiff as alleged in the plaint but it was stated that this was given to her as Jahez (dowery) on account of her relationship with the defendant No. 1 and on account of her father's services. However, it was added that the plaintiff had agreed to repay this amount as early as possible. With regard to the books it was stated that the defendant had brought such books as he could bring from Bantwa to Karachi. Then followed certain legal objections. These are : That the claim of the plaintiff as well as of the other heirs was time -barred that the plaint was not sufficiently stamped ; that this Court had no jurisdiction to try this suit as it had been agreed between the parties that any suit in respect of any such claim will be filed at Bantwa or Rajkot and nowhere else. In the result it was prayed that the suit be dismissed with costs.
7. On the pleadings as they stood when the issues were framed as many as 24 issues were jointly submitted by the parties which were adopted by the Sub‑Judge, First Class on 20th September 1956, before whom the suit was then pending. To this two additional issues were added at the instance of the defendant No. 1 on 20th February 1961, when the suit was trransferred to this Court. However, at the trial out of the 24 issues which had been struck on 20‑9‑56, issues 3, 7, 11, 14, 16, 17, 18, 19 and 20 were dropped by the learned counsel for the parties and the allegations with regard to them were not pressed. A cross (X) mark was therefore put against all these 9 issues and the parties agreed that no finding thereon need be given. However all the issues including the two additional issues are set down below :‑
"(1) Has this Court jurisdiction to try this suit
(2) Is the plaint sufficiently stamped
(3) Is the suit as framed for administration and accounts maintainable
(4) Are the claims of the plaintiff and/or defendants 2 to 7 in time
(5) When was the plaintiff born
(6) When did Hajiani Khadija widow of Haji Adam Shakoor die
(7) Did the defendant No. 1 before and/or after the division of India carry on business in the names alleged in para. 5 of the plaint (covers para. 548 of the plaint and para. 548 of written statement of defendant No. 1)
(8) Was the deceased Haji Adam Shakoor a partner of defendant No. 1 as alleged in para. 6 of the plaint If so, since when, in .what concerns and up to what date (Cover para. 6 of the plaint and para. 6 of the written statement of defendant No. 1).
(9) Were the accounts of the alleged partnership settled on 14th March 1936 as alleged in para. 6 of the written statement of the defendant No. 1
(10) Was the deceased Haji Adam Shakoor a servant of defendant No. 1 as alleged in para. 6 of written statement If so, from what date, to what date and on what terms
(11) When did Haji Adam Shakoor die
(12) Was Haji Adam Shakoor at the time of his death a partner of defendant No. 1 or a servant of defendant No. 1 (Covers para. 7 of the plaint and para. 7 of the written state ment of defendant No. 1)
(13) Has defendant No. 1 retained any capital or share or any amount of the deceased Haji Adam Shakoor with himself and/or has he utilized any such amount of the deceased Haji Adam Shakoor in his business If so, what amount was retained and/or used by him (Cover paras. 7 and 8 of the plaint and paras. 7 and 8 of the written statement of defendant No. 1).
(14) Has the defendant No. 1 opened any accounts with a view to avoid taxation as alleged in para. 9 of the plaint If so, what are the accounts so opened by him and are the heirs of the deceased Haji Adam Shakoor entitled to any accounts in respect thereof (Covers para. 9 of the plaint and para. 9 of the written statement of defendant No. 1).
(15) Are the allegations made in para. 10 of the plaint with regard to the entries in the handwriting of the deceased Haji Adam Shakoor true If so, what is the effect (Covers para. 10 of the plaint and para. 10 of the written statement of defen dant No. 1).
(16) Had the deceased Haji Adam Shakoor any interest in the "Amanat" Fund and "Ughrani Ghasara Fund" accounts and was there any agreement that these accounts will be taken into consideration only on dissolution as alleged If so, is defendant No. 1 liable to account to the heirs of the deceased Haji Adam Shakoor for the same (Covers para. 10 of the plaint and para. 10 of written statement of defendant No. 1).
(17) Had the deceased Haji Adam Shakoor any interest in the "Charity account" If so, what was his interest in the said account and are his heirs entitled to an account of the same (Covers para. I 1 of the plaint and para. 11 of the written statement of defendant No. 1).
(18) Were there any side businesses as alleged in para. 12 of the plaint If so; what were those side businesses
(19) Did the deceased Haji Adam Shakoor have any interest in the alleged side business. If so, are his heirs entitled to any accounts of the same
(20) Did defendant No. 1 keep any confidential books of account as alleged in para. 12 of the plaint If so, what are those confidential books
(21) Has the defendant No. 1 occupied any fiduciary position so far as the plaintiff is concerned
(22) Was the sum of Rs. 3,000 referred to in para. 14 of the plaint paid to the plaintiff by defendant out of the alleged assets of the deceased Haji Adam Shakoor in his hands, was it paid for reasons alleged in para. 14 of the written statement of defendant No. I
(23) What are the shares of the plaintiff and defendants 2 to 7 in the property of the deceased Haji Adam Shakoor
(24) To what decree, if any, are the plaintiff and/or defen dants Nos. 2 to 7 entitled "
(1) Are the heirs of the deceased Adam Haji Pir Muhammad (original defendant No. 1) liable to render any account to the plaintiff
(2) Are the heirs of the deceased Adam Haji Pir Muhammad (original defendant No. 1) personally liable for any amount that may be found to be due by the deceased Adam Haji Pir Muhammad (original defendant No. 1) to the plaintiff "
8. The learned counsel for the parties at the time of the argument agreed that the main issue in the case was whether Shakoor was a partner of Adam Haji Pir Muhammad Ishaq at the time of his death on 29‑8‑43 and the further question as to what was the amount of his capital, if any, which stood invested in the said business. Voluminous documentary evidence has been produced in this case and a good deal of oral evidence has also been led. However, one need not get lost into it because upon a proper analysis of the material on record the field of controversy is considerably narrowed down.
9. It is true that in his written statement the defendant No. 1 was diffident to admit any partnership at all at any time between himself and Shakoor, but at the trial by the time the documentary evidence was read and the plaintiff's witnesses had given evidence it was conceded on behalf of the defendant No. 1 that between 1932 and 1936 Adam Haji Pir Muhammad Ishaq was a firm, of which Shakoor, the father of the plaintiff was a partner. This has been stated in examination‑in‑chief by Abdur Rahman Qasim, the only witness examined on behalf of the defendant No. 1 and the other witness of this defendant namely Usman Ibrahim who was tendered for cross‑examination also admitted this fact. I may also refer briefly to Exh. 24 dated 15‑12‑34 produced by the defendant No. I. This constitutes an agreement of partnership and along with the main deed is attached a schedule in which the names of all the partners including Shakoor is shown and his capital is stated to be Rs. 1,08,000. His share in the partnership is fixed at one unit of share for every Rs. 12,000. He had under this agreement, therefore, 9 units of share. It was then stated by the said Abdur Rehman, D. W. 1, that in the year 1936 this partnership was dissolved and since then Adam Haji Pir Muhammad became the sole proprietor of the concern known as Haji Adam Pir Muhammad Ishaq and that thereafter Shakoor continued to work but only as a servant. The document in this connection relied upon by the defendant No. 1 is Exh. 22 and this has been described by the learned counsel for the defendant No. 1 as the Deed of Dissolution. This is really in the form of a letter addressed by Shakoor to Pir Muhammad. The body of the document is proved to have been written in the hand of Ranchoredas, the Munim of Adam Haji Pir Muhammad, but at the foot of it a note is contained which has also been proved to be in the handwriting of Shakoor. There is no doubt that this agreement was obtained by Pir Muhammad from Shakoor and the latter accepted it. The body of the document recites that Shakoor had invested a capital of Rs. 1,08,000 and he had been given a share of As. 9 in profit and loss and As. 7j as a working (partner). His total share is thus shown at As. 161 (these are really units‑the total units being about 300). It is further stated that Pir Muhammad had made up the annual account of profit and loss on 12‑I1‑35 and as a result of which Rs. 1,37,531‑4‑9 were found due to Shakoor on 22‑1‑36. To this sum, a sum of Rs. 468‑11‑3 was added by debiting Shakoor to that extent in his current account, thus making it Rs. 1,38,000 and in the body of the document it is stated that this sum had been credited to the account of Shakoor with Pir Muhammad as stated in the endorsement of ahakoor. It is further stated in the body of the document that nothing was further due to Shakoor on account of his aforementioned share. Then the writing at the foot of this document in the hand of Shakoor reiterates the fact of the account with regard to As. 161 share having been cleared and the sum of Rs. 1,38,000 is stated to be then credited to the interest bearing account of Shakoor with Pir Muhammad. This document was executed on 14‑3‑36. The case of the defendant No. 1 as stated by Mr. Jamiatrai, his learned Advocate, was that this amount of Rs. 1,38,000 as from that date became a deposit of Shakoor with Pir Muhammad, and that thereafter Shakoor was merely a servant of Pir Muhammad at a salary of Rs. 700. Mr. Aziz, the learned counsel for the plaintiff, however, contended that even if the partnership between Pir Muhammad and Shakoor was dissolved on 14‑3‑36 Shakoor again became a partner of Pir Muhammad in the year 1940 and he urged that this is conclusively proved by the account book, Exh. 13, written in the hand of Shakoor which finds support from the document of the defendant No. 1 himself. That brings me to the examination of Exh. 13.
10. This document was referred to in the plaint itself in paragraph 10. It consists of 71 written pages, in which the account of the business of Shakoor with Pir Muhammad and his own accounts are written and it has been conclusively proved that the whole of it is in the handwriting of Shakoor. This is established by the evidence of Haji Suleman, P. W. 1, who was admittedly in the service of Adam Haji Pir Muhammad Ishaq. He was in service from 1928 till 1942. He stated that the writings in this book from page 1 to page 71 are all in the hand of Adam Haji Shakoor. This fact was never questioned in cross examination and indeed Mr. Jamiatrai, the learned counsel for the defendant No. 1, accepting the position that this witness was competent to identify the handwriting of Shakoor, got as many as 8 documents of his own which bore the writing of Shakoor proved through this witness. That the writing in Exh. 13 is of Shakoor is also proved by the statement of Abdullah, P. W. 2, whose sister was married to Pir Muhammad‑and whose daughter Khadija was married to Shakoor. There can be no doubt that he was connected with the affairs of Adam Haji Pir Muhammad Ishaq and in fact one of the documents produced by the defendant No. 1, namely Exh. 24, has been ascribed by him. He stated that all the writing on pages 1 to 71 in Exh. 13 were in the hand of Shakoor. This statement of his was not questioned in cross‑examination. In fact the comparison of the writing in Exh. 13 with the writing, in the documents produced by the defendant No. 1, portions of which were proved to be in the handwriting of Shakoor, are so similar as not to leave any doubt with regard to the fact that the writer of all these was the same person. Now, the entries in Exh. 13 become relevant under subsection (2) of section 32 of the Evidence Act. At page 8 of this book, which is equal to page 62 of the translation also marked Exh. 13, the entries are recorded under the heading
"Account of investment of capital in Seth Adam Haji pir Muhammad Ishaq's Co., year Sambat 1984‑85." The account under this head goes upto page 65 (translation) when it is closed on 14‑3‑36. This would be equivalent to Sambat 1992. On 14‑3‑36 the closing entry is "balance due Rs. 1,38,000". This coincides with Exh. 22 produced by the defendant No. 1 in which it is stated that on the taking of accounts a sum of Rs. 1,38,000 was found due to Shakoor and which was on that day transferred to his interest account with Pir Muhammad. Until 14‑3‑36 Shakoor was admittedly a partner of Pir Muhammad, and it is for this reason that the entries before 14‑3‑36 in Exh. 13 uses the expression such as "balance due as capital, profit on the capital, and profits towards personal working". The entries after 14‑3‑36 show the change in relationship between Shakoor and Pir Muhammad. For instance the next entry after 14‑3‑36 opens with Rs. 1,38,000 as balance due and then it states "interest in your company in the year Sambat 1992 to 1993 for 12 months at Rs. 40, Rs. 5,520, total Rs. 1,43,520". A similar entry appears with regard to Sambat year 1993‑94 but interest in that year is calculated at the rate of Rs. 37‑8‑0 per thousand. Again a similar entry appears with regard to Sambat year 1994‑95. This is dated 11‑1‑38. Here again interest is calculated at Rs. 37‑8‑0 per thousand A similar entry appears with regard to Sambat year 1995‑96 at the same rate of interes t. This entry is dated 2‑2‑1939. Then we come to the Sambat year 1996‑97 and the entry reads as follows :‑
"Rs. 1,36,000 balance due which has been given as capital in your company's business in the year 1996‑97, share As. 0‑11‑4 at Rs. 12,000 per annum. Dated 24‑2‑40, capital As. 0‑11‑4".
It will be noted that this entry is exactly of the same nature as the entries before 14‑3‑36 when Shakoor was admittedly a partner in the firm of Adam Haji Pir Muhammad Ishaq. The next entry shows the profit of Rs. 17,000 on the capital on the share of As. 0‑11‑4 at the rate of Rs. 1,500 per annum, and the next entry is of Rs. 8,088‑5‑9 which is the profit for personal working. This is again similar to the entries before 14‑3‑36 wherein profit on capital and profit for personal working are separately recorded which was the arrangement as would appear from the defendant No. 1's documents Exhs. 23 and 24. The next entry is of 21‑3‑ 41 and reads as follows :‑
Rs. 1,53,000 : Capital Rs. 1,53,000 at the rate of Rs. 12,000 per annum As. 0‑12‑9 in the share of profit and loss of the business for the year Sambat 1996‑97 on 21‑3‑41.
This is at page 68 (translation). All these entries are shown on the debit side because the book is that of Shakoor and Pir Muhammad is debited in the sums stated above. The position in the subsequent two years before the death of Shakoor remained the same and this appears at page 128 (translation). There is an entry made on 24‑1‑42 in which it is stated that profit had been drawn temporarily at the rate of Rs. 37‑8‑0 per thousand by the Seth but the balance of the share account had not yet been made. Then the last entry is that of 18‑2‑43 which reads as follows :‑
"Accounts for the year 1997‑98 have also not been made on their finalization credit should be made, 18‑2-43."
This entry is on the credit side and on the debit side the capital continues to be shown at Rs. 1,53,000. This would bear out the statement made on the credit side that accounts had not been made for these two years and, therefore, no specific sum is shown on the credit side.
11. The position that Shakoor continued to be the partner of Pit Muhammad till 1943 when he died, is further borne out by his "Zakat" (charity) account maintained by him and which is contained in Exh. 13 from page 92 (translation) onwards. Shakoor appears to have been a God‑fearing man. This book, Exh. 13, commences from Sambat 1984‑85. The accounts in respect of Seth Adam Haji Pir Muhammad also commence from that year in this book from page 8 (62 of translation) onwards. Now, from Sambat 1984 onwards Shakoor has been taking out the Zakat religiously every year on his capital assets at the rate of 21%. For instance, in the year 1984 on his cash and jewellery, which is valued at Rs. 56,000 the Zakat at the rate of 21 % has been taken out amounting to Rs. 1,400. Sambat 1984 would be equivalent to 1928 A. D. Each year the Zakat has been taken out and the sum is increasing in proportion to the assets of Shakoor. This will be found on pages 92, 93, 95, 111, 112, 113 and 114 in the translation of Exh. 13. The last entry is dated 18‑2‑43. 1 would only mention some of the entries of the concluding period. Now, at page 111 which relates to 1935‑36, Zakat has been taken out on Rs. 1,37,000 at 2 % amounting to Rs. 3,425. We know it from the document, Exh. 22, produced by the defendant No. 1 that the total cash assets of Shakoor on 14‑3‑36 was found to be a little over Rs. 1,37,000. This entry is, therefore, corro borated by the defendant's own document. Then it goes on till we come to page 114 which refers to Sambat 1997‑98 (equivalent to 1942) and the entry of Zakat on that page of the sum of Rs. 3,825 bears the following note
"Zakat for the year 1997 to 98. The Seth has not made up the accounts and as such the profit has not been made. On account being finalized the same should be credited. The surplus of dated 27‑1‑42 of Rs. 1,53,000 at Rs. 2 %. Whatever is the profit thereon the same is to be credited at the Zakat rate."
This entry in relation to Zakat is consistent with the entry with regard to the partnership account which has been referred to earlier. Then the next entry which is the last and which is dated 18‑2‑43 again reads as follows :‑
"Rs. 3,825 Zakat for the Sambat year 1998 to 1999. The Seth's accounts for both the years having not been finali‑,ed the profit could not be assessed due to which the old Li_rplus is credited. When the accounts for the profit are made up hereafter, whatever is the profit, credit is to be given after deducting the expenses. Old surplus of Rs. 1,53,000 at Rs. 2 % Rs. 3,825 till 18‑2‑43."
On 29th August in the same year Shakoor died and so there could be no further entries. These two entries show ; firstly that the capital of Shakoor in the business with Pir Muhammad had amounted to Rs. 1,53,000 during the Sambat year 1997‑98. It remained the same during the following year as well because the accounts of business had not been made during the two years preceding 21‑2‑43 equivalent to Sambat year 1998‑99. The inference that the capital was invested into the business by Shakoor on partnership basis during these two years is irresistible, because if it had been on interested basis the amount of the interest would have been shown in these entries. The fact that the sum of Rs. 1,53,000 stood stationary and no interest is shown to have accrued on this amount during these two years is consistent with the case of partnership and not with that of investment on the basis of interest. There is nothing to show that the relationship changed after 18‑2‑43 and the inference is that it continued until the death of Shakoor.
12. The relations between Shakoor and Pir Muhammad continued to be cordial till the former's death. There can be no reason nor any has been suggested as to why Shakoor would make these entries falsely. The evidence is that he was in harness and engaged with the business of Adam Pir Muhammad Ishaq right up to his death. He fell ill at Bombay where the firm had a branch. He was brought to Bantwa and died within 2 or 3 days of his reaching there. There is oral evidence on record to the effect that after the death of Shakoor when account was demanded from Pir Muhammad he used to say that the accounts had not been made up. There is also evidence that the income‑tax affairs of Adam Pir Muhammad Ishaq which used to be tackled by the Calcutta office of the firm had not been settled. This evidence finds support from the entries of the closing period in the accounts contained in Exh. 13 as referred to above.
13. I may now refer to another circumstance which points unmistakeably to the authenticity of the accounts maintained by Shakoor. One of these has already been noted, namely, the fact that when the dissolution of partnership took place in 1936 as shown by Exh. 22 produced by the defendant No. 1, the amount of Rs. 1,38,000 as having been found due to Shakoor is recorded in Exh. 13 in the same manner as it is recorded in Exh. 22 and the further fact that this amount was put into the interest account is also found in Exh. 13 as well as Exh. 22. In the same way it may be noted that the entry in the service register maintained by the defendant No. 1 Exh. 39 contains the entry of payment of salary which has been faithfully recorded by Shakoor in Exh. 13 so long his association was on that basis. At page 61 (116 of translation) of Exh. 13 is the service account of Shakoor with Seth Adam Haji Pir Muhammad. The heading of the account is "the account of Haji Adam Shakoor for his employment in your company as servant commencing from Sambat 1993". The first entry is of Rs. 2,940 received by Shakoor on account of service at the rate of Rs. 700 per month. It was the case of the defendant No. 1 that after the dissolution Shakoor became a servant at Rs. 700 per month. Let us now turn the service register produced by the defendant No. 1. Exh. 39/1 is the entry from that register relating to 1992‑93 equivalent to 1936‑37 A. D. commencing from 9‑7‑1936. The name of Shakoor appears at Serial No. 178 in this register. The rate of salary is shown at Rs. 700. The date of commence ment is 7‑6‑1937 and the date of termination 12‑10‑37, and for these four months and 6 days the amount paid to Shakoor is recorded as Rs. 2,940 which is exactly the amount which is noted by Shakoor in his account as shown above. Similarly the next item recorded by Shakoor consists of the sum of Rs. 4,900 and this again coincides exactly with the entry in the service register of the defendant No. 1, Exh. 39/2, which also records the sum of Rs. 4,900 for 6 months and 23 days at Rs. 700 per month. The date of commencement is 9‑2‑38 and termination is dated 30‑8‑38. It is an admitted position that every year the employees or working partners used to return to Bantwa, their native place, where they used to stay with family and then go out again. The next entry in this account recorded by Shakoor is of a sum of Rs. 5,833‑5‑0 being salary for 8 months and 3 days. This coincides with the entry in the service register, Exh. 39/3. The same amount is shown to have been paid to Shakoor and the date of commencement is shown as 10‑2‑39 and the date of termination as 12‑10‑39. This is the last entry in the account of service maintained by Shakoor in Exh. 13. This is consistent with the case that in 1940 Shakoor again became a partner with Pir Muhammad. How ever, there are three more entries in the service register with regard to the employment of Shakoor. One is Exh. 39/4 which relates to the period from 29‑ ‑40 to 29‑11‑40. The next entry, if it can be called an entry, is Exh. 39/6. The name of Shakoor is recorded at serial No. 230 and the only column which contains any entry is the column of the date of joining and this is shown as 3‑4‑1941. The remaining columns which are 16 in number are all blank. No amount is shown to have been paid for this period. No explanation was furnished at the hearing as to why these columns remained blank if Shakoor continued to be in the service of Pir Muhammad during this period. Then the last entry in this register relates to the year 1942. This is Exh. 39/5. In this entry also merely the date of commencement is noted in ink which is shown as 6‑2‑42. All the rest of the columns were blank as in Exh. 39/6, but later on it appears entries had been made in pencil in the other columns. No explanation of this entry also was furnished at the hearing. The entries in Exh. 13 read with Exh. 39/1, 2 and 3 and also having regard to the nature of the entries in Exh. 39/5 and Exh. 39/6 the inference is that the service ended somewhere in 1940. Exh. 39/4 can be explained on the basis that the person who made this entry did not know, when this entry was made, that change of relationship had taken place between Shakoor and Pir Muhammad. Shakoor has honestly recorded in the service account whatever he received on account of salary. If he had continued in service after 1940 there is no reason why he would not record the amount of salary which he might have received as he has faithfully done until 1939. Reliance was placed by Mr. Jamiatrai, the learned counsel for the defendant No. 1 (whose heirs were brought on record on his death) on the service agreement, Exhs. 15 to 21. The first of these agreements is dated 14th March 1936 (Exh. 15). On the same date was written the dissolution document Exh. 22. The last of these agreements is Exh. 21 which is dated 1st January 1942. All these have been signed by Shakoor. The argument was that if Shakoor had ceased to be in service from 1940 why did he execute the agreements, Exhs. 19, 20 and 21. Reliance was also placed on the admission of the plaintiff Zubaidabai in cross‑examination that her father was in service at Rs. 700 until his death. Zubaida, however was only about 12 years of age when her father died and she cannot be expected to have known the true state of relationship between her father and Pir Muhammad. In fact, several documents used to be maintained by Pir Muhammad as would appear from the evidence of Abdullah, P. W. 2, whose sister was married to Pir Muhammad and whose daughter Khadija was married to Shakoor. He stated that Pir Muhammad used to take three kinds of agreement from the members of his staff. One agreement used to be of service, the other used to be with regard to the interest and the third of partnership and that Pir Muhammad used to keep all these documents with himself. He said that this practice was introduced by him in view of the enforcement of the Partnership Act in the State from 1935 and that this practice was introduced by Pir Muhammad on his lawyer's advice. The suggestion was that Pir Muhammad used to have several sets of documents for the purpose of avoiding the consequences of the operation of the Partnership Act. Be that as it may, I have placed these service documents against the entries made by Shakoor in the service account in Exh. 13 which have been reproduced earlier and also against the nature of the entries in the service register relating to the years 1941 and 1942 when the columns were left blank, and taking all the circumstances of the case I have reached the conclusion that the entries made by Shakoor in the service account must be accepted notwithstanding the signing of the service agreements, Exhs. 19, 20 and 21. He may have signed these service agreements if he was required by Pir Mubammad to do so for official or some other purpose best known to them. But I can see no reason why he should stop making entries with regard to his salary as he had faithfully done for the three years after the dissolution. Is it a mere accident that about the time when Shakoor stopped making entries regarding his salary the columns in the service register must also be left blank 7 I cannot accept it as such. It is impossible to be left unimpressed by the impact of the account book Exh. 13. This book, according to me, was honestly maintained. It does not stand alone. On vital points it clicks and fits with the documents produced by the defendant No. 1, such as Exh. 22 and Exh. 39. Another circumstance which is in favour of the acceptance of Exh. 13 is the fact that the defendant No. 1 has suppressed his account books of the most material period. The defendant No. 1 has not produced the account books of the years 1940, 1941 and 1942. The explanation given by D. W. 1 Abdur Rehman is that they may have been left at Bantwa because of the disturbances which took place on Partition. But why is it that the books of the period which is crucial for the purposes of this case have been found missing Abdur Rehman did not impress me as a witness of truth. He over‑reached himself on several points and was anxious to support the defendant No. 1, his master, on every possible point. In fact, he is not the witness who was competent to speak about the loss of books. He is not the one who was working at Bantwa at the time of the disturbances, nor had he anything to do with the bringing of the books from Bantwa to Karachi. On his own admission there were other persons in the employment of Pir Muhammad who had to deal with the books and were concerned with their custody at Bantwa and thereafter at Karachi. Why have none of them been produced on behalf of the defendant No. 1 Abdur Rehman admits that he went to Bantwa at the time of the disturbances but he did not even meet Pir Muhammad. He also admits that Pir Muhammad was thereafter the disturbances had subsided and he came later to Karachi. If the books of Pir Muhammad from 1943 onwards could have been brought to Karachi from Bantwa it is difficult to believe that those relating to the previous years which would have been directly in point for the purposes of the present case should be found missing. But, as I have said, if this was the fact the persons who were responsible for the keeping and transport of these books from Bantwa to Karachi should have been produced in evidence. Mr. Aziz, the learned counsel for the plaintiff, forcefully argued that the account books of the defendant No. 1 have not been proved as required by the Evidence Act and, therefore, they cannot be treated as relevant. The argument is not without substance. But even if these books could be treated as proved they are not of much assistance considering that there is no explanation worth the name what happened to the capital of Rs. 1,38,000 which was admittedly put in the interest account with Pir Muhammad on 14‑3‑36. When Abdur Rehman was pressed account on this point he said that Pir Muhammad had told him in 1940 or 1941 that he had returned that Rs. 1,38,000 to Shakoor. What was the occasion for this communication, he does not say. On the face of it this statement is not true. The relations between Shakoor and Pir Muhammad were of most intimate character, so much so that in 1936 when all the others parted company from Pir Muhammad Shakoor still continued and let all his money be with Pir Muhammad. Why should Pir Muhammad discuss his affairs in connection with Shakoor with this witness who was a petty employee, considering the salary that he was getting, is difficult to see. He was then pressed as to what Shakoor did with that Rs. 1,38,000 because even according to the books of the defendant No. 1 when Shakoor came to Bantwa in August 1943, he drew money from Pir Muhammad evidently for his expenses during his last days and on the day of his death further money had to be drawn from Pir Muhammad evidently for funeral expenses. Obviously Shakoor did not keep much money with himself. So when Abdur Rehman was asked whether Shakoor had done any other business he said "not to his knowledge". He, however, went on to add that Shakoor had constructed a building at Bantwa after 1936 and it must have cost him Rs. 1,25,000 to Rs. 1,50,000. Considering that Shakoor was a Menton and that his money was profitably employed in business with Pir Muhammad it does not appear reasonable in the least that he would draw all his money and spend it all on a house. Not a single question was put to the plaintiff or any of her witnesses by the defendant's counsel in cross‑examination and here again Exh. 13 provides a concrete repudiation. From page 26 onwards there is a complete account of the building commencing from Sambat 1984 till 1995 and the total in this respect is Rs. 39,059‑3‑0. The house had been constructed in Sambat year 1984 and was reconstructed in 1993 which is equivalent to 1937 A. D. The entry in the account shows that the cost of reconstruction in 1937 amounted to Rs. 26,300 and that this had been spent through Haji Adam Pir. Muhammad himself. Therefore, this story that Shakoor spent away Rs. 1,50,030 in the construction of his house is a pure fiction. But let us see what Adam Pir Muhammad had himself to say about it and this is very important. This suit was instituted in 1951. Adam Pir Muhammad died in 1957. His written statement over his signature was filed in this case on 19‑11‑51. It is actually dated 31st October 1951. In the plaint in para. 10 there was a categorical assertion that the capital of Shakoor in the partnership business with Pir Muhammad stood at Rs. 1,53,000 in 1940‑41. Reference was expressly made in this paragraph to Exh. 13, copies of which were filed with the plaint. Now to this assertion this is what is said in para. 10 of the written statement of the defendant No. 1
"This defendant is not aware of the allegation made in para. 10 of the plaint and does not admit the said allegation etc."
It may be noted that earlier in this written statement the fact that the partnership came to an end on 14th March 1936 as per Exh. 22 has been dealt with in considerable detail. Exh. 22 itself records the fact that a sum of Rs. 1,38,000 was put in the interest account of Shakoor with Pir Muhammad. Therefore, when a categorical assertion was made in the plain that the capital of Shakoor in the year 1940‑41 stood at Rs. 1,53,000, there can be no explanation why Pir Muhammad in his written statement did not say, if this was the fact, that the whole capital of Shakoor was paid back to him in 1940 or 1941 or at any time after 1936, as is now suggested by Abdur Rehman. I have no doubt that if the money had been repaid the fact would have been categorically stated in the written statement. This written statement was drafted by Mr. Jamiatrai, a most competent civil lawyer. It is in this respect that the suppression of the defendant's books between 1936 and 1942 becomes most material. Considering that the defendant's own document Exh. 22 shows that Rs. 1,38,000 of Shakoor were put in his interest account with Pir Muhammad, the burden of proving that this had been paid back to Shakoor was clearly on the defendant No. 1. There was not even .an averment on that point much less proof. Any entries in the books of the defendant No. 1 of the year 1943 (when Shakoor died or thereafter cannot be relied upon for purposes of proving re‑payment in the absence of the books of the earlier years or of any cogent evidence regarding re‑payment. Upon the material on record I have no hesitation in holding that this money was not repaid to Shakoor and it stood at the figure of Rs. 1,58,000 in 1940‑41 and 1941‑42 and in 1943, as shown in Exh. 13. This is a book of account regularly kept in the course of business and it is not only relevant under section 34 of the Evidence Act but becomes further relevant under section 32(2) because Shakoo who made these entries is dead. When entries become relevant under section 32(2) of the Evidence Act they do not as a matte of law require corroboration as in the case of entries admissible only under section 34. In law they can constitute sufficient evidence by themselves. However, in the present case the entries in this book do not stand alone. They are corroborated on vital points by the document of the defendant No. 1 himself. There is also oral evidence in support of them. But there is additional ground why the entries of this book should be accepted as correct on material points. This circumstance consists of the suppression of the books of the defendant No. I of the material period. This must lead to the adverse inference that if these books had been produced they would have not supported the defendant's case. Relying upon the authority of the decision of the Judicial Committee reported in Mutugesam Pillai v. B M. D. G. S. Sannadhi (AIR 1917 P C 6) their Lordships of the Nagpur High Court in the case of Shanker Rao v. Kamte Prashad (A I R 1947 Nag. 129) held as follows
"No party should be allowed to take advantage of an abstract doctrine as of the burden of proof and conceal from the Court the evidence in its own possession which would assist the Court in arriving at a correct decision. In this case the burden of proof lay on the defendants. We are entitled to hold that the plaintiffs having failed to produce the account books in their own possession have made the task of the defendants easy, and we are justified in holding that had those account books been produced they would have proved the case of the defendants."
14. Upon my finding that the books of the defendant No. 1 of the material time have been suppressed in this case the above observations apply with full force.
15. For all the reasons given above I have come to the conclusion that Adam Haji Shakoor was a partner with Adam Pir Muhammad when he died on 29‑8‑43. I also find that his capital in the partnership business at that time stood at Rs. 1,53,000. Issue No. 8 is answered accordingly.
16. I would like further to observe that even if I had not found the case of the partnership to have been proved at the time of Shakoor's death I would have still hold that a sum of Rs. 1,53,000 was due to Shakoor from Pir Muhammad at the time of the former's death and notwithstanding the frame of the suit the plaintiff would still be entitled to a decree for her share in that amount with interest. I shall now proceed to deal with the remaining issues.
‑This issue relates to the objection by the defendant No. 1 with regard to the jurisdiction of this Court. The contention of Mr. Jamiatrai on this point was that if it is found that Shakoor again became a partner with Pir Muhammad after the dissolution of the firm in 1936 then the terms of the partnership document, Exh. 24, must be deemed to have been agreed upon between Shakoor and Pir Muhammad. In this document it was provided that if any litigation was to be entered into in respect of the subject‑matter of that agreement then "the same shall also be done at Bantwa because all the accounts are maintained at Bantwa, and, therefore, we have not to enter into litigation or receive the money except at Bantwa". On the basis of this clause it was contended that it was only the Bantwa Court which could have jurisdiction entertain the suit and the present suit instituted at Karachi could not be entertained. Apart from other objections which obviously arise to such an argument, the whole plank upon which it is attempted to be based is missing. This partnership agreement contained in Exh. 24 is dated 31st January 1933 and upon the showing of the defendant No. 1 himself this partnership was dissolved on 14‑3‑36. Then in the absence of any fresh agreement with regard to the exclusion of the jurisdiction of other Courts I am unable to see how the clause referred to above in the agreement of 15th December 1934, Exh. 24, be imposed upon the partnership which, as I have found, came into existence between Shakoor and Pir Muhammad in 1940. Such an agreement has to be express. An objection with regard to the exclusion of juris diction of this Court cannot be based upon the assumption that this must be deemed to have been agreed upon between the parties. The defendant No. 1 had completely denied the existence of any agreement of partnership between him and Shakoor after the dissolution on 14‑3‑36. And naturally, therefore, there was not even a plea with regard to an agreement such as is now sought to be put forward upon no other basis except this that this bar of jurisdiction must be deemed to have been agreed upon. It is common ground that after Partition Adam Pir Muhammad migrated bag and baggage some time in December 1947 to Karachi. In fact the evidence is that there is not a single Memon left in Bantwa now. Furthermore Adam Pir Muhammad actually had his branch at Karachi even before Partition and when the suit was instituted he was residing and working for gain within the jurisdiction of this Court. It was at Karachi that his head office was set up after Partition and this was the position when the suit was instituted. I have, therefore, no hesitation in rejecting this objection and hold that this Court has jurisdiction. The issue is answered in the affirmative.
This issue relates to the question whether the plaint is sufficiently stamped. Mr. Jamiatrai conceded that for the purposes of partnership account the plaint was sufficiently stamped. That is the relief which has been claimed in this plaint. My finding, therefore, on this issue is in the affirmative. Issue No. 3 was dropped.
These relate to the question of limitation and I shall deal with them together. The plaintiff's case in para. 1 of the plaint was that she was born on 16th August 1931, at Bantwa (Junagarh). Apart from the oral evidence upon this point on the side of the plaintiff the best evidence consists of an entry by Shakoor, the father of the plaintiff, in an old diary Exh. 14. The entry reads as follows :‑
"Zubaidabai is born in Bantwa on 16th August 1931, Sunday."
That this entry is in the handwriting of Shakoor is proved by the same evidence by which the writing in Exh. 13 (Shakoor's account books) has been proved. The fact that this entry was in the handwriting of Shakoor was not questioned in cross examination, nor was any attempt made to challenge it by any other means. Apart from the other witnesses this writing was also proved by Suleman P. W. 1 whose ability to ,identify the handwriting of Shakoor was impliedly accepted on behalf of the defendant No. 1 because in a number of the documents produced by him the writing of Shakoor on them was got proved through this witness. I, therefore, hold that Zubaida Bai was born on 16th August 1931. She thus attained majority on 16‑8‑49. The suit was instituted on 16th August 1951. The partnership was dissolved by the death of Shakoor on 29‑8‑43. Zubaida was a minor on that date and in view of the provisions of section 6 of the Limitation Act this suit is within time having been brought within 3 years of her attainment of majority which was the period within which she could have sued if she had been a major at the time of the death of her father, from which date the period of limitation in this case must be reckoned. The plaintiff's claim is, therefore, within time. Issue No. 5 and a part of Issue No. 4 are answered accordingly. The remaining part of Issue No. 4 relates to the claim of defendants 2 to 7 which they had made in their written statements. Issue No. 6 relates to the date of the death of Khadija, the widow of Shakoor.
20. Defendant No. 3 Abdullah, defendant No. 4 Muhammad Siddiq and defendant No. 5 Qasim are all sons of Muhammad Shakoor, deceased brother of Haji Adam Shakoor, the father of the plaintiff. Defendant No. 6 is Abdullah son of Adam, father of Mst. Khadija, the widow of Haji Adam Shakoor. Defendant No. 7 originally was Mst. Bibi, maternal grandmother of Mst. Khadija. Mst. Bibi died during the pendency of this suit and is now represented by another Abdullah who is shown as defendant No. 7 in the amended plaint. The defendants 6 and 7 are claiming through Mst. Khadija, the widow of Shakoor and the plaintiff makes a further claim of 1/2 in the 1/8th share of her mother Mst. Khadija. The defendants 4, 5 and 6 are claiming as collaterals being the brother's son of Haji Adam Shakoor.
21. Now with regard to the date of the death of Mst. Khadija the averment in the plaint is that she died in 1946/47. On the contrary there is a positive assertion in the written statement that she died in 1946. It was con tended on behalf of the defendant No. 1 that as far as Mst. Hoor Bai (another daughter of Shakoor) admittedly a major at the time of her father's death and Mst. Khadija (the widow of Shakoor) are concerned, time began to run against them on the death of Sbakoor, on which date according to the plaintiff the firm got dissolved and a suit for accounts under Article 106 of the Limitation Act had to be brought within 3 Sears thereof. Neither of them filed any suit and the present suit was filed in 1951 and, therefore, it was urged, that the claim of Mst. Hoor Bai or any claim through Mst. Khadija must also be held to be barred by time. With regard to the claim of Zubaida Bai in the /8th share of Khadija Bai, the widow, it was pointed out that under section 9 of the Limitation Act, once when time began to run no subsequent disability or inability to sue stops it and, therefore, the fact that Mst. Zubaida was a minor would not save her claim through Mst. Khadija against whom time had already begun to run. The contention of Mr. Jamiatrai, there fore, was that at best the plaintiff was only entitled to her 1/3rd share in the assets of her father Haji Adam Shakoor. The claim of the three nephews, defendants 4 to 6, was also said to be barred by time because no suit on their behalf was brought within three years of the death of Shakoor and even if any one of them was a minor on that date then within 3 years of their attaining majority.
22. Mr. Jan Muhammad Dawood and Mr. Khalid Ehsanullah, the learned Advocates for defendants 2 to 7, argued that the right to claim accounts in this case was a joint and indivisible right, and inasmuch as one of the claimants was a minor and a complete discharge could not be given to the defendant No. 1 without her concurrence, the fact of her minority saved the limitation not only for her but also for all the other claimants. Reliance was placed upon an old judgment of the Madras High Court reported in Ahinsa Bibi and others v. Abdul Kader Sahib and others (I L R 25 Mad. 26). It was held in that case with reference to section 8 of the old Act, which is now replaced by section 7 qf the present Act, that the effect of that section was to save the bar in the case of all the plaintiffs as they were joint claimants with the third plaintiff and none of them could give or could at any time have given the remaining partners a discharge from liability to the representatives of the deceased partner without the concurrence of the minor. I have not found it possible to accept this argument of the learned counsel. Section 7 of the present Limitation Act reads as follows
"7. Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all ; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the con currence of the others or until the disability has ceased."
This section can only apply when several persons are jointly entitled to institute a suit and the second condition is that a complete discharge can be given without the concurrence of a person under disability who is one amongst others who were all jointly entitled to sue. When these two conditions are present two results follow :firstly, that where such a discharge can be given time will run against all of them including the person under disability and secondly that where no such discharge can be given time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. The two illustrations to this section makes the position absolutely clear. These are
"(a) A incurs a debt to a firm of which B, C and D are partners. 13 is insane, and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.
(b) A incurs a debt to a firm of which E, F and G are partners. E and F are insane, and G, is a mirror. Time will not run against any of them until either E, or F becomes sane, or G attains majority."
Section 7, therefore, would aptly apply to cases such as of firms or of a joint Hindu family, where a partner in the case of the former and karta in the case of the latter, can give a complete discharge notwithstanding the disability of one of the partners or one of the members of the joint Hindu family; therefore, to attract the provisions of section 7 the claimants must be persons whose substantive right is joint, that is, where more than one individual possesses the same identical substantive right. But, where the rights of the persons are distinct, this section will not apply notwithstanding the fact that all of them may be permitted to enforce their claim in one suit. Now, in the present case, none of the heirs of Shakoor could give a discharge to Pir Muhammad without the concurrence of others. All of them had their distinct share according to Muhammadan Law and were entitled to enforce their claims separately or jointly. For instance, in this case on the death of Shakoor Mst. Hoor Bai, the other. daughter of Shakoor, or Mst. Khadija Bai the widow, could not give a discharge to Pir Muhammad so as to include the claim of Mst. Zubaida as well, nor was it necessary for them to wait for instituting their claim until Zubaida became a major. Anyone of those two could have instituted a suit for accounts or for her share in the money due to Shakoor and Zubaida could have been impleaded in that suit as a defendant through a guardian or as a plaintiff with a next friend. The same would apply to the three nephews of Shakoor, but the mere fact that one suit could have been brought to enforce the claim of the several heirs which respective claims were distinct and fixed according to Muhammadan Law. the provisions of section 7 of the Limitation Act would not be attracted so as to save the limitation for every one. That being so, the rule contained in section 9 of the Act must come into play and under that rule time having begun to run against the other heirs of Shakoor it could not be stopped by the disability of the plaintiff. My finding, therefore, to the second part of Issue No. 4 is that the claim of the defendants 2 to 7 is barred by time. In the absence of any cogent proof and in view of the nature of the averment made in the plaint I hold on Issue No. 6 that Mst. Khadija Bai died in 1946 and that the plaintiff Zubaida Bai cannot add to her original share of 1/3rd by a claim through her mother Khadija Bai.
This issue has been dropped. Issue No. 8 has already been answered and on Issue No. 9 my finding is that the partnership accounts were settled on 14th March 1936. This finding is subject to my finding on Issue No. 8.
In view of my conclusion while dealing with Issue No. 8, my finding on this issue is that Haji Adam Shakoor was a servant of the defendant No. 1 from 14th March 1936 till the time when he again became his partner in 1940.
It was admitted that Haji Adam Shakoor died on 29‑8‑43. I find accordingly. On Issue No. 12 I find that Haji Adam Shakoor at the time of his death was a partner of the defendant No. 1.
The finding on Issues Nos. 13 and 14 has already been given while dealing with Issue No. 8. No separate findings, therefore, are necessary on these issues. With regard to the first part of Issue No. 13 it may be repeated that the defendant No. 1 had retained the capital of Haji Adam Shakoor amounting to Rs. 1,53,000 and he did utilize it in his business even after the death of Shakoor.
Mr. Jamiatrai for the defendant No. 1 conceded that the plaintiff would be entitled to her share, if it was so found, even if Adam Pir Muhammad did not send in a fiduciary position towards her after the death of Shakoor.
This issue relates to the payment of Rs. 3,000 which was made by Pir Muhammad to the plaintiff in the year 1948 for her Jahez' (dowery). It had been pleaded in para. 14 of the plaint that the defendant No. 1 paid this sum of Rs. 3,000 on 25‑10‑48 out of the sum due from him to Haji Adam Shakoor and after him to his heirs. In para. 14 of the written statement of the defendant No. 1 the reply to that allegation is typical of his case and the stand that was taken by him in this suit. It was denied that this amount was paid to the plaintiff from any assets of Shakoor. It was then said that this was paid for her marriage expenses "on account of relationship of the plaintiff with this defendant and on account of her father's services". This would have normally suggested that Adam Pir Muhammad for once became generous and made a gift of Rs. 3,000 to this orphan girl for the reasons stated. But he soon recovered and went on to add in the concluding part of this paragraph that "the plaintiff had agreed to repay this amount as early as possible". From what I have said on Issue No. 8 and having regard to the whole attitude of Adam Haji Pir Muhammad after the death of Shakoor with regard to paying the dues to the heirs I have no hesitation in holding that this sum of Rs. 3,000 was paid out to the plaintiff not as a gift and not as a loan but on account of what was due to her. I find accordingly.
This issue relates to the question as to what are the shares of the plaintiff and defendants 2 to 7 in the property of Shakoor. It was not disputed that the plaintiff is entitled to 1 /3rd share under the Muhammadan Law. As regards the question of the share of defendants 2 to 7 and the claim of the share by the plaintiff out of what came to her mother Khadija Bai I find it unnecessary to define them in view of my finding that to that extent the claims are barred by time.
This issue relates to the question as to what decree should be passed. With this also can be dealt the two additional issues, one relating to the question of liability of the heirs to render accounts and the second to the nature of the liability. Mr. Aziz on behalf of the plaintiff exercised the option in favour of claiming interest at the rate of 6% per annum on the amount due to Shakoor. Since Pir Muhammad had carried on the business of the firm with the property of the firm without settling the account of Shakoor it was open to the plaintiff to claim either the share in the profit since the death of Shakoor when he ceased to be a partner or 6% interest on the amount of the share of Shakoor. She has opted for the latter. When this statement was made by Mr. Aziz, Mr. Jamiatrai conceded that the additional Issue No. 1 became unnecessary. In view of the conclusion that I have reached it is not necessary to pass a preliminary decree for accounts in this case. In view of my findings at least Rs. 1,53,000 were due to Shakoor at the time of his death. This was his capital. No profit had been added for the last two years, because according to the entries in Exh. 13 the "Seth" had not made the accounts. How ever, there is evidence of D. W. 1 Abdur Rahman himself that the business during that time was thriving and flourishing. But ig view of the statement made by Mr. Aziz I would treat only the capital of Rs. 1,53,000 as being due to Shakoor at the time of his death for the purposes of this case. The 1/3rd share of Zubaida Bai in the sum comes to Rs. 51,000. On this she is entitled to interest at 6% per annum under section 37 of the Partnership Act from 29‑8‑43 up to the date of the decree. This amounts to Rs. 59,500 this is from 29‑8‑43 till 7‑3‑63. From this must be deducted a sum of Rs. 3,000 which was paid by Pir Muhammad to the plaintiff for her Jahez'. Mr. Jamiatrai pleaded that from this must also be deducted another sum in all about Rs. 20,000 which was paid from time to time to Mst. Khadija widow of Shakoor. I see no reason why this amount should be deducted from the share of the plaintiff. Undoubtedly, Khadija Bai had herself a share and that was certainly more than Rs. 20,000 and then there was Hoor Bai who also had a claim. Both of them were major and Zubaida was a minor. Why should, therefore, any payment be attributed towards any partial discharge of the claim of Zubaida I regret to observe that Pir Muhammad's attitude with regard to the payment of the dues of Shakoor after his death to his heirs was thoroughly callous. He was one of the four most powerful and rich Memon businessmen of Bantwa. Shakoor had, according to the evidence of P. W. 1 Suleman and even according to the evidence of D. W. 1 Abdur Rehman stood by Pir Muhammad loyally and served him devotedly during his long association with him. According to Suleman lie used to fi8ht for every pie of the firm ;n the course of his management and that is why he was until his death treated by everyone as a partner. Mst. Khadija, Hoor Bai or Zubaida were not in a position to fight with Pir Muhammad. There is no evidence to show that this payment of about Rs. 20,000 was made wholly or partly towards the share of Zubaida Bai. In the circumstances of the case I consider it to be just that no part of this Rs. 20,000 or so should be deducted from the plaintiff's claim.
31. I accordingly grant a decree to the plaintiff fur the sum of Rs. 1,07,500 with costs and interest on the decretal amount at 6Y. per annum from the date of decree till payment. Pir Muhammad would have been personally liable in this sum. This decree, however, will be enforced against the heirs of Pir Muhammad, defendants 1/1 to 1/9, to the extent of their share in the assets of Pir Muhammad. This decree shall also be enforceable against any assets of Adam Haji Pir Muhammad wherever and in whatever shape it may be found.
A. H.
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