ZIA PERWAZ, J.---Plaintiff instituted Suit No.572 of 1978 seeking declaration and mandatory injunction together with all benefits accruing with respect to 92,800 shares (hereinafter referred to as the said disputed shares) of M/s INew Jubilee Insurance Co., a public limited.' company carrying on the business of insurance.
2. The plaintiff claimed that on 21-6-1973 he acquired the said shares of New Jubilee Insurance Company Limited in London. At that time, 22,000 shares were registered in the name Of Jubilee Insurance Kenya, a Kenyan company and the remaining 70,800 shares were registered in the name of East West International, a Swiss company. In 1974 the plaintiff through his bank lodged these shares for transfer, later New Jubilee Insurance Company Limited refused to transfer the disputed shares on the basis of letter dated 10-3-1974 from Amirali Fancy, defendant No.2, the then Chairman of the company objecting to the transfer. The plaintiff claims that the company had no right to refuse the transfer of said shares as such objection could have only been raised by Jubilee Insurance Kenya or East West International in whose names the disputed shares are registered. In this background the plaintiff in 1978 filed the present suit against defendant No.1 company as well as eight others who at that time were directors on the board of defendant No.1 company. The plaintiff seeks transfer of the said shares in his name and in the alternative prays for a decree in a sum of Rs.38,28,000 against defendants Nos.1 to 9 with 14% interest.
3. The defendant No.1 company and its three directors i.e. Defendants Nos.3, 5 and 9 filed a joint written statement in which it has been stated that the disputed shares were subscribed, paid for and held by foreign companies i.e. (i) East West International Trade Establishment and (ii) Jubilee Insurance Company Mombasa, Kenya and admitted that on 10-3-1974 late Amirali Fancy the then Chairman of the company gave notice to the company that the disputed shares and transfer deeds signed in blank had come into possession of persons other than the true owners. In the written statement it was also admitted that the late Amirali Fancy was, at that time, the Chairman of the Board of Directors of the company and therefore the company had no reason to doubt his notice to be without reasonable ground or substance. It is mentioned that late Amirali Fancy the defendant No.2 passed away on 13-8-1978 and defendant No.4 passed away on 20-7-1979. As defendants Nos.2 and 4 have died no written statement on their behalf was filed.
4. The remaining directors of the company i.e. Jimmy Fancy, Shaukat Fancy and Amir S. Chinoy, who are defendants Nos.6, 7 and 8 respectively adopted the written statement filed by defendants Nos.1, 3, 5 and 9. Thus written statement of defendants Nos.1, 3, 5, 6, 7, 8 and 9 is common.
5. The defendant No.10 namely Hasham son of Ally Bhai was impleaded as a party in 1984. In his written statement filed on 15-8-1985 he pleaded that Aziz Fancy who was his close hid and business associate informed him in April 1970 that Jubilee Insurance Kenya, defendant No.12, was interested in selling its shares which at that time numbered 4,400 shares of Rs.25 each. The shares were later converted into 22,000 shares of 5 each. Defendant No.10 settled the price of 3 Kenyan Pound per share with defendant No.12 and paid the entire price amounting to Rs.13,200 Kenyan Pounds in Nairobi to defendant No.11 namely, Jubilee Insurance Kenya and purchased those shares. The defendant No.10 further claimed that the second set of 70,800 disputed shares of Rs.5 each which were originally 14,160 shares of Rs.25 each were also purchased by him through Aziz Fancy. He remitted the payments in the bank accounts of Aziz Fancy in London and Switzerland towards the sale consideration and that the said shares were held by Aziz Fancy, since deceased, in trust for him. The defendant No.10 further states that this fact was known to late Amirali Fancy the defendant No.2 who was apprised of the transactions both by the defendant No.10 and Aziz Fancy. It was further asserted by defendant No.10 that on the basis of his knowledge of this transaction Amirali Fancy served notice dated 10-3-1974 on the defendant No.1 and objected to the transfer of disputed shares. It is also the case of the defendant No.10 that at all material times Amirali Fancy assured him that his interest in the disputed shares would be watched and protected and the defendant No.10 should have nothing to fear. The defendant No.10 in his written statement also 'stated that in the third week of February, 1984 on his visit to Karachi from Kenya he learnt about the present suit and therefore, applied to be joined as a party. The application was granted, thereafter the defendant No.10 filed his written statement.
6. The defendants Nos.11 and 12 are pro forma defendants. The said shares are registered in their names but both these defendants have not raised any claim of ownership of the said shares. In 1995 Ismat Fancy son of late Aziz Fancy was also impleaded as defendant No.14. In his written statement he claimed that his father until his death was owner of the disputed shares and denied the claims of the plaintiff as well as of the defendant No.10.
7. It was during the pendency of the above suit that Hasham (defendant No.10 in Suit No.572 of 1978) instituted Suit No.472 of 1993 seeking delivery of possession of the said 92800 shares (hereinafter referred to as the said shares), subject-matter of Suit No.572 of.
1978. Proceedings in this suit were stayed vide order dated 6-12-1995, however, as the subject- matter of this suit pertains to the title/ownership of the shares which is subject-matter of Suit No.572 of 1978, this judgment will also resolve the issue in Suit No.472 of 1993 as well.
8. Brief facts of Suit No.472 of 1993 are that the plaintiff and Amirali, who is younger brother of Aziz Fancy, Chairman of defendant No.1, were on good terms and on the advice of Aziz Fancy for making a good profitable investment, the plaintiff paid a sum of Kenyan Pounds 13,200 towards the purchase price of 4400 shares of defendant No.1 to Jubilee Insurance Company. Limited Kenya who owned the shares and asked them to send necessary documents for custody and registration of shares in favour of his name. Subsequently the plaintiff purchased another 14160 shares of defendant No.1 from defendant No.3 through Aziz Fancy and remitted an amount of Kenyan Pound 42,501 to Aziz Fancy. The necessary documents for registration and transfer in the name of the plaintiff were placed with Aziz Fancy. It is the case of the plaintiff that he is the owner of the aforesaid shares which shares were subsequently converted into 92,800 shares of Rs.5 each instead of Rs.25 as were earlier. Aziz Fancy died in October, 1973 and according to the plaintiff after the death of Aziz Fancy, defendant No.2 and his father are trying to get the shares transferred in their names which are now lying in the custody of defendant No.3. Hence the plaintiff instituted this suit, for delivery of possession of 92,800 shares.
9. On 30-5-1982 consent issues filed in Court were adopted which followed by additional consent issues adopted on 27-1-1985 and 21-9-1986 respectively which are renumbered as follows:-
(1) Whether the suit is barred by limitation?
(2) Whether the claim of the plaintiff is barred by limitation?
(3) Is this suit maintainable as framed?
(4) Whether the plaintiff did not acquire the shares as alleged, If no, to what effect?
(5) Has the plaintiff any right, title or interest in or to the shares claimed by the defendant No.10?
(6) Did the plaintiff acquire any right to the shares in, suit and if so, from whom?
(7) Did the plaintiff pay any consideration for the shares in suit or any part thereof and if so, what was the consideration?
(8) Whether there exists any customs or bank practice for alleged arrangement referred in para.4 of the plaint? Is the said alleged arrangement otherwise vitiated being a devious and questionable transaction and no rights thereunder arise?
(9) Have first defendants acknowledged their liability to plaintiff? If so, is such acknowledgement binding on defendant No.10?
(10) Whether the claim raised by defendant No.10 in respect of shares is within time? If not what is the effect?
(11) Whether the defendant No.10 lodged/made/raised any claim in respect of the said shares against late Mr. Aziz Fancy during his lifetime or against his legal heirs after his death? If not, what is the effect?
(12) What is the right, title and interest of the defendants No.10 to the shares in question and against whom?
(13). Whether the defendant No.10 has any claim as against the plaintiffs in respect of the shares in question? If not, what is the effect?
(14) Whether the shareholdings in the suit belong to the plaintiff, defendant No.10 or the group of defendant No.6 and late Amir Ali?
(15) Whether the company competently and justifiably refused registration of the shares in question?
(16) Whether the company's act to refuse registration is not justiciable?
(17) Whether the defendants illegally withheld the shares of which the plaintiff was constrained to secure release in the circumstances set out in para.10 of the plaint?
(18) Is it fact that there is no claim whatsoever from any concerned quarter against the plaintiffs ownership of the shares and registration thereof in his name?
(19) Who is competent to effect registration of shares in the plaintiffs name?
(20) Whether the plaintiff besides registration of the shares in his name is also entitled to bonus shares on the 92,800 shares since their acquisition and also dividends as per Annexures H and I to the plaint?
(21) Whether the shares in suit belong to the plaintiff or any of the defendants and if so, to whom?
(22) To what relief or reliefs the plaintiff is entitled?
10. Plaintiff examined his father Shamsuddin Fancy as his witness as Exh.14. He produced original power of attorney as X/1 and a letter dated 6-7-1978 from a Swiss Bank as X/2, two newspapers as Exhs.P/1 and P/2, letter dated 6-7-1978 addressed to Naushad Fancy by compagnie De Gestion et de Banque .Gonet SA (the Swiss Bank) as Exh.P/3, letter dated 13-6-1974 from the Swiss Bank as Exh.P/4, receipt of shares as Exh.P/5, copy of letter dated 10-7-1974 from the Swiss Bank as Exh.P/6, notice of distringas and refusal letter from New Jubilee Insurance Company dated 5-8-1974 as Exhs.P/7 and P/8 respectively, letter dated 18-10-1974 from the Swiss Bank desiring to be discharged as Exh.P/8, (not present in file), letter dated 19-5-1975 from New Jubilee Insurance Company- to the Swiss Bank regarding safe custody of the disputed shares. Telex message from Amirali Fancy to New Jubilee for transfer of the shares as Exh.P/10, letter dated 18-5-1977 from defendant No.1 to New Jubilee Insurance as Exh.P/11, reply to letter (Exh.P/11) from Z. C. Valiani as Exh.P/12, letter dated 25-1- 1978 from, the Swiss Bank as Exh.P/13, and letter from son of Aziz Fancy to the plaintiff dated 14-9- 1979 as Exh.P/14. Mr. Masood Noorani, the Managing Director of defendant No.1 appeared as defendant No. l's witness and he was examined as Exh.15. He produced his affidavit-in-evidence as Exh.15/1, notice dated 10-3-1974 as Exh. 15/2, letter dated 1-7-1974 from the Swiss Bank to defendant No.1 as Exh.15/3, letter from New Jubilee Insurance to the Swiss Bank as Exh.15/4 regarding wrongful possession of the shares in dispute, letters dated 19-5-1975, 18-1-1977, and 14-1-1978 from New Jubilee Insurance to the Swiss Bank as Exhibits 15/5 to 15/7, letter dated 20-2-1975 from the Swiss Bank to New Jubilee Insurance regarding return of the disputed shares, as Exh.P15/8, letter dated 4- 1-1977 from the Swiss Bank to New Jubilee Insurance as Exh.15/9, letter dated 20-4-1977 from the Swiss Bank to New Jubilee Insurance requesting for return of the disputed shares, as Ehx.15/10, letter dated 5-1-1978 from the Swiss Bank to New Jubilee Insurance for forwarding the shares to E.W.I, as Exh.15/11, letter from New Jubilee to Mr. Z.C. Valiant, Advocate, forwarding him the shares for safekeeping, as Exh.15/12, letter dated 19-5-1977 from Valiani and Company, Advocates, to New Jubilee Insurance clarifying that the shares are to be sent to their client EWI, and not to keep in safe custody, as Exh.15/13, and copy of letter of consent and copy of Memorandum and Articles of Association as Ehxs.15/14 and 15/15 respectively. Mr. Hasham son of All Bhai, the defendant No.10, appeared in support of his claim and was examined as Exh.16. He produced photocopy of letter dated 29-4-1970, three telegraphic transfer vouchers, letters dated 31-5-1974 and 4-7-1984. However these documents were not exhibited due to objections raised by the opposing counsel and were marked as Articles I to 6. He produced his additional affidavit-in-evidence as Exh.16/1. He also produced photocopy of a voucher of National and Grindlays Bank, Nairobi and photocopies of two statements of accounts from the said bank. As these documents were also objected to by the counsel for the other sides, the same were kept on record as Articles 7, 8 and 9.
11. None of the other defendants adduced evidence in support of their respective claim though they did file affidavitin-evidence of their witnesses but did not appear in Court for cross-examination.
Thus evidence was led only on behalf of the plaintiff and defendants Nos.1 and 10.
12. The learned counsel for the plaintiff has placed reliance on the following cases:-
(1) Commissioner of Income Tax v. M. Ramaswamy (1985) 57 Company Cases 7.
(2) Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakkar and others (1975) 45 Company Cases 43.
(3) Howarth Trading Co. v. CIT Central Calcutta (1959) 29 Company Cases 282.
(4) Life Insurance Corporation of India v. Escorts Ltd. And others (AIR 1986 SC 1370).
(5) Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakkar and others (AIR 1974 SC 1728).
(6) R. Mathalone and others v. Bombay Life Assurance Co Ltd. (AIR 1953 SC 385).
(7) In the matter of Bengal Silk Mills Co. Ltd. (AIR 1942 Cal. 461).
(8) Grindlay's Bank Ltd. v. Murree Brewery Company Ltd. And others (PLD 1954 Lahore 745).
(9) Usuf v. M/s Valika Textile Mills Ltd. PLD 1978 Kar.95,
13. While Mr. Faisal Arab, learned counsel for defendant No.10, placed reliance on the following cases:-
(1) Fattan Bi v. Fateh Muhammad (PLD 1974 Lahore 458),
(2) Mst. Ahmedi Begum v. Syed Israr All and another (1985 CLC 2335),
(3) Syed Israr All and another v. Mst. Ahmedi Begum (1993 CLC 770),
(4) (1993 CLC 2084) (AIR 1969 AP 41)
(5) Bibhutibhushan Datta v. Anadinath Datta (ILR 61 Cal. Appellate (Calcutta Series) 1933),
(6) Promotho Nath Mullick v. Prodymno Kumar Mullick (1921 CWN 772),
(7) Lala Gobind Prasad v. Chairman of Patna Municipality (6 CLJ 535),
(8) Kishtappa Chetty v. Laksmi Ammal (1923 Mad. 578),
(9) Pachaiyappa Chetti v. Sivakami Ammal (AIR 1926 Mad. 109),
(10) Corpus Juris Secundum, Volume 26A.
14. The learned counsel for the parties advanced their arguments jointly on the issues and the same are being dealt with accordingly as follows:-- Issue Nos.1, 2 and 10
15. Since Issues Nos.1, 2 and 10 are on the question of limitation, the same are addressed together. It is first to be examined what is the starting point of the claim of each of the three claimants i.e. The plaintiff, the defendant No.10 and defendant No.14. This suit was filed on 1-7-1978 and the plaint read with better particulars later furnished by the plaintiff, the plea which emerges is that disputed shares were purchased by the plaintiffs from defendant Nos.11 and 12. This plea was not referred or proved in the evidence. In the written statement of the defendant No.10 filed on 15-8-1985 and of defendant No.14 filed on 20-4-1986 and in the evidence of plaintiffs examination-in-chief held on 2-5-1987, the common factor of claiming ownership from and through late Aziz Fancy emerged. For the purposes of starting point of limitation it was the defendant No.10 who first claimed in his written statement filed on 15-8-1985 that he acquired disputed shares from and through late Aziz Fancy. Then comes the claim of defendant No.14 in his written statement filed on 20-4-1986 that the disputed shares belonged to late Aziz Fancy. From the abovementioned dates of each of the contesting parties' claim it is evident that defendant No.10 first raised the plea that the disputed shares were acquired through or from Aziz Fancy, then by defendant No.14 and lastly by the plaintiff.
16. It is admitted that disputed shares are lying in trust with defendant No.11 till the dispute as to their ownership is resolved. It has also come on record that defendant No.11 company is owned by Prince Sadruddin Aga Khan, of Aga Khan community to which all the claimants to the disputed shares including defendant No.10 belong and admittedly at an earlier stage Prince Sadruddin Aga Khan even agreed to commence arbitration in the matter to resolve the controversy as to the entitlement of the disputed shares.
17. The plaintiff in paragraphs 11 of the plaint has also acknowledged that the disputed shares are lying in trust with defendant No.11. Plaintiffs witness in his cross-examination stated that Prince Sadruddin Aga Khan and defendant NO. 11 have been writing letters to the members of Fancy family and defendant No.10 to file their power of attorney so that Prince Sadruddin Aga Khan could arbitrate in the matter. The witness further stated at page 137 that he had no idea when Prince Sadruddin Aga Khan will complete the arbitration. This goes to prove that at the time when the evidence of the plaintiffs witness was being recorded in this suit, steps for 'arbitration were underway before Prince Sadruddin Aga Khan. Defendant No.10 in paragraph 10 of his affidavit-in- evidence also stated that it was the understanding between the parties that the question of entitlement to the shares be decided by Prince Sadruddin Aga Khan. The plaintiff and defendant No.10 were considering resolution of their claim before Prince Sadruddin Aga Khan as late as 1987 while the disputed shares were entrusted to defendant No.11, which is admitted to be a concern owned by Prince Sadruddin Aga Khan. Thus it becomes amply clear that defendant No.10 did not for the first time jump into the controversy in 1984 but he too was interested in the arbitration proceedings which were initiated before Prince Sadruddin Aga Khan. However it seems that at some later stage parties did not pursue the arbitration proceedings before the Prince Sadruddin Aga Khan and confined the resolution of their dispute in the present suit.
18. Clause (a) of section 11 of Specific Relief Act and section 10 of the Limitation Act envisages that where a trust is created no period of limitation would apply. Reference can be made to judgment of this Court reported as Deputy Custodian of Enemy Property (supra). From the evidence led by the plaintiff and the defendant No.10, the only two claimants who adduced evidence, it is evident that the shares are lying in trust. The plaintiff has himself admitted that the dispute as to the shares was to be arbitrated by Prince Sadruddin Aga Khan and defendant No.10 i.e. Hashim Alibhai was also one of the parties whose rights were to be arbitrated, On the very same page 137 it was also mentioned that arbitration was still not complete, which clearly establishes that even on 17-5-1987, when the plaintiff was being cross-examined, the arbitration, as to who was the owner of the shares, was yet to be decided.
19. It was because of the pendency of the arbitration before Prince Sadruddin Aga Khan that defendant No.10 did not initiate any legal proceedings. When he became aware of the present suit during the pendency of reference to arbitration to Prince Sadruddin Aga Khan that he also joined as a party and raised his claim to the shares in his written statement. In the affidavit-in-evidence of defendant No.10, paragraphs 7 and 10 has stated that the disputed shares are lying in trust and that the matter was to be decided by Prince Sadruddin Aga Khan and no question was put in cross-examination to rebut such an assertion. Thus, it is clear that the disputed shares were entrusted to the business concern of Prince Sadruddin Aga Khan which amount to creation of trust.
Reference may again be made to judgment reported as Deputy Custodian of Enemy Property (Supra).
20. Even where there is entrustment, two provisions of Limitation Act may be attracted to the case, which are section 10 and Article 145. In this regard effect of section 10 and Article 145 of the Limitation Act need to be examined. Under section 10 of the Limitation Act, no suit against a person, in whom property has become vested in trust, shall be barred by any length of time. It is pertinent to again refer section 11 of the Specific Relief Act, which is as follows: Section 11. Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:--
(a) When the thing claimed is held by the defendant as the agent or trustee of the claimant.
Illustration: A, proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B,without A's authority, pledges the furniture to C, and C,knowing that B had no right to pledge the furniture, advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as A's trustee.
21. In the above illustration of section 11 of Specific Relief Act the position of "A" himself did not create a trust in "C" but the legal effect of "C's" possession has been treated to be that of a trustee. In the present case the defendant No.10 has also claimed to have entrusted the disputed shares to Aziz Fancy for specific purpose, Defendant No.10 in his affidavit-in-evidence stated: "These shares were lying deposited in trust with the said Aziz Fancy who had been requested by me and had undertaken to take steps to have the same transferred and registered in my name." After Aziz Fancy's death the disputed shares came in the custody of the plaintiff, from whom the shares came in custody of defendant No.1 and ti om defendant No.1 the shares found their way to defendant No.11 and are lying with it in trust till the dispute as to their title is resolved. The assertion made by defendant No.10 in paragraph 6 of his affidavit-in-evidence attracts illustration (a) of section 11 of the Specific Relief Act, which signify that disputed shares were given in trust and-the subsequent holder of the disputed shares after Aziz Fancy's death would be doing so also as a trustee. It is now to be examined whether a trust was created within the meaning of section 10 of the Limitation Act or such a trust could be termed as a "depository" as described in Article 145 of the Limitation Act. Article 145 prescribes a period of 30 years to sue a depository as under:-
145. Against a depository Thirty The date of the or pawnee to movable years. Deposit or pawn.
Property deposited or pawned.
22. For the purpose of the present suit, the significance of the word "trustee" as described in section 10 and the word "depository" as described in Article 145 requires consideration. Entrustment of disputed shares with Aziz Fancy or subsequently with defendant No.11 could be either termed as entrustment within the meaning of section 10 of Limitation Act read with section 11 of the Specific Relief Act or it could also be termed as "depository" with the meaning of Article 145 of the Limitation Act. In case of former no period of limitation applies whereas in case of latter Article 145 attracts a period of 30 years. This view also finds support from the discussion in the following judgments and would be useful.
23. In Bibhutibhushan Datta v. Anadinath Datta reported in ILR 61 Cal: Appellate Court (Calcutta Series) 1933, where three brothers D, G and R jointly possessed DP Notes of face value of Rs.33,000 as part, of joint property. Out of these, DP Note of value of Rs.20,000 were deposited with employer of G as security for his service. Thereafter the joint properties were partitioned and each brother got DP Notes of . Value of Rs.11,000. As R had died by this time his sons got their share but D could not as the same continued to be held by G's employer a security for G's service. G later retired and died. Upon the death of G, his sons withdrew the DP- Notes from the employer given in security after obtaining succession certificate. Thereafter on 27- 2-1922 the heirs of D demanded back their share from the heirs of G who refused to return the same vide letter dated 1-3-1922. The heirs of D then filed suit for return of their share of DP Notes on 15-2-1928, which was decreed in their favour. The defendants to the suit i.e. The heirs of G appealed, on the grounds that Article 49 and not Article 145 or section 10 of the Limitation Act applies to the claim of the plaintiff and therefore plaintiff suit be declared time barred. The appellate Court while holding that a trust had not been created stated as follows "To whatever form of bailment this transaction might correspond it was a transaction which in absence of definition of deposit or depositary in the Limitation Act must be judged by the ordinary dictionary meaning of these words.
We entirely agree with the observation of Schwabe, C.J. In the case of Kishtappu Chetty v. Lakshmi Ammal, (1923) 44 Mad L.J 431, as to the meaning of this Article. He said". I think they meant to use simple and plain language and they used the word depository and in using that word meant simply to say that where one man's property was handed by that man to another he became a depository of it". After discussing the case-law, the Court was of the opinion that Article 145 is attracted.
24. In Promotho Nath Mullick v. Prodymno Kumar Mullick 1921 CWN 772 suit was filed by plaintiff for recovery of a piece of jewelry deposited by the plaintiffs mother with defendants' father in 1899.
Thereafter the depositee died in 1900 and the jewelry came into the hands of defendant's mother and upon attaining majority, the jewelry came in possession of the defendant. The plaintiff formally demanded jewelry back from the defendant and thereafter filed suit in April, 1919. One of defences raised was that Article 145 did not apply to the case and that the suit was barred under Article 49 of the Limitation Act. However the Court held that the defendant's contention was unsustainable having regard to the express language of. Article 145.
25. In Lala Gobind Prasad v. Chairman of Patna Minicipality reported in 6 CLJ 535; it was held that where Government securities or a sum of money is delivered to be held for the performance of some engagement and upon the express or implied understanding that the thing deposited is to be restored to the owner as soon as the engagement is fulfilled the person with whom the deposit has been made may rightly be treated as depository within the meaning of Article 145 of the second schedule of the Limitation Act.'
26. In Kishtappa Chetty v. Lkshmi Ammal (1923 Mad. 578), under an agreement the jewels, which had been pledged to a third party by the defendant were settled on the plaintiff to be enjoyed by her during her lifetime and thereafter be divided between defendant and other parties to the agreement. At the time of the agreement there was an express promise by the defendant that he would within 10 days obtain the jewels and deal with them in accordance with the document. The defendant got the jewels from the pledgee but when the plaintiff sought possession of jewels, the defendant refused and the plaintiff filed the suit. One of the defences raised was that the suit was barred by limitation. However on this issue it was held that section 10 applies to the fact of the case because when the goods came into defendant's hands he had undertaken to hold it as trustee and was thereby constituted an express trustee in whom the property was vested for specific purpose.
Word "vested" under section 10 is nothing more than having "control of the property". It was held that section 10 applied as the defendant was express trustee of the plaintiff.
27. In Deputy Custodian of Enemy Property v. Karachi Electric Supply. Corporation, PLD 1975 Karachi 21, the defendants had unauthorizedly altered its share register by changing the address of the original shareholder, a company in Bombay to that of its Karachi Office. The Bombay company filed suit, which was finally dismissed by the Supreme Court because shares were vested in Custodian of Enemy Property (CEP). During proceedings defendants continued to give dividend warrants in name of Bank of India Ltd. Karachi instead of Bombay and the same were returned unrealized by Karachi branch. When the plaintiff herein tried to recover outstanding dividend warrants in respect of these shares the defendants refused to do so on the grounds inter alia that the same were time-barred. However the Bench of this High Court held that the defendant company was holding these unpaid dividends on shares in trust for a specific purpose, namely correction in share register of proper name. Each of the dividend warrants was returned by Karachi office to the defendant for correction in the name of the correct shareholder being the Bombay Company. The defendant was thereby constituted as an express trustee of unpaid dividends for the plaintiff, which it held in trust for a specific purpose. Referring to two Indian judgments. Kishtappa Chetty v. Lakshmi Ammal (AIR 1923 Mad. 578) and (ILR 62 cal. 393) the Court quoted the meaning of word "vested" under section 10 as nothing more than having "control of the property" while the word specific purpose means an obligation from the evidence to apply the money for benefit of another person. Hence the Court was inclined to hold that the suit cannot be treated as barred by limitation as provisions of section 10 of the Limitation Act are attracted to the case.
28. The terms "deposit" and "depository" have been defined in Corpus Juris Secundum. Volume 26A, at page 198 as under:-- "The term "deposit" is borrowed from the civil law, and is a word of large and varied signification. In the technical legal sense a deposit is a naked bailment of goods, to be kept for the depositor without reward, and to be returned when he shall require it; and the term "depositum" a term used in the civil and common law, is given the same meaning. The term "deposit" is also used to denote the thing deposited. A depository is the person receiving a deposit; and the term "special depository" has been held to mean merely a bailee whose possession is the possession of his principal"
And at page 206 following is stated regarding the rights and duties of a depository: "A depository is bound to deliver the res to the depositor or his representative, or to his order except where, as stated infra, delivery to a third person is authorized. Any delivery made pursuant to the terms of the deposit relieves the depository from further liability; but a misdelivery of the res or its increase renders the depository liable therefor, unless he has a sufficient excuse for his failure to deliver properly.-"
29. In view of the above discussion it is clear that both section 10 as well as Article 145 to the Schedule of Limitation Act are applicable. Accordingly issues Nos.1 and 2 are answered in the negative and Issue No.10 in the affirmative.
Issues Nos.4, 5, 6, 7 and 17
30. These issues involve the question of acquisition of the shares by the plaintiff, the proprietary of the plaintiff, his interest and the interrelated question of consideration paid by the plaintiff against his shares. As these issues involve common question and attract the common evidence, argued together for consideration and are also being dealt with together.
31. Plaintiff claims that on 21-6-1973 he acquired the said 92,800 shares and at that time 22,000 disputed shares were registered in the name of Jubilee Insurance Kenya, a Kenyan company later made pro forma defendant No.12 and the remaining 70,800 shares were registered in the name of East West International, a Swiss Company also made pro forma defendant No.11. The plaintiff further claims that in 1974 through his bank he lodged these shares for transfer with defendant No.1 company, however the defendant No.1 refused to transfer the shares on the basis of letter dated 10-3-1974 (Exh.P/7) written to the company by defendant No.2 namely late Amirali. Fancy, the then Chairman of the Company. On such objection the plaintiff further averred in the plaint that the company had no right to object to such transfer as such an objection could only have been raised by defendants Nos.11 and 12 in whose names the disputed shares stand registered. It is also the case of the plaintiff that subsequent to defendant No.1 company's refusal to transfer the said shares, the defendant No.1 vide its letter dated 19-5-1975 informedthe plaintiff that the said shares are being kept in safe custody and that registration and transfer will be effected only after the dispute as to the ownership of the shares is resolved. The said shares since then are lying with defendant No.11 in trust till such time the dispute as to their ownership is resolved in this suit.
32. As the plaintiff had not mentioned in the entire body of the plaint the name of the person or entity from whom he acquired the disputed shares, the defendants Nos.1 to 9 moved an application being C.M.A. No.657/80 under Order VI, rules 4 and 5, C.P.C. Praying for further and better particulars from the plaintiff in order to become aware how the plaintiff acquired the said shares and what was the consideration. In response to this application, the plaintiff on 20-4-1980 furnished particulars. In the said particulars the plaintiff only averred that he purchased the said shares from defendants Nos.11 and 12. However, the consideration for which the said shares were said to be purchased was not disclosed. Reading the plaint with plaintiffs better particulars provided in response to the application filed under Order VI, rules 4 and 5 the plaintiffs case that emerges is that he claims title to the disputed shares on the basis of sale transaction alleged to have taken place with defendants Nos.11 and 12 in whose names the shares are registered.
33. Now the plaintiffs claim, that he purchased the disputed shares from defendants Nos.11 and 12 is to be examined in the light of the evidence that has been led on his behalf. The plaintiff avoided to appear in person to adduce evidence and on his behalf his father Mr. Shamsuddin Fancy deposed in evidence. Mr. Shamsuddin was examined on commission on 2-5-1987. The plaintiffs witness, for the first time, and in contrast to plaintiffs claim that said shares were purchased by the plaintiff from defendants Nos.11 and 12, took a turn and stated that the disputed shares were purchased by the plaintiff from his uncle late Aziz Fancy. This evidence is in conflict with the plaintiffs claim in the plaint read with better particulars that he purchased the disputed shares from defendants Nos.11 and 12 was altogether abandoned.
34. Apart from this sudden shift from pleadings, the plaintiffs witness also gave contradictory statements as to the manner in which the said shares were said to be acquired by the plaintiff. The plaintiffs witness has relied on sole document i.e. Exh.P/14 to establish his claim that the disputed shares were purchased by him from late Aziz Fancy. This Exh.P/14 is a letter dated 14-9-1979 written by defendant No.14 during the pendency of this suit to plaintiffs witness. In the said letter defendant No.14 has stated that the disputed shares belonged to his late father which were given by them (by them meaning that shares were given by the heirs of Aziz Fancy after Aziz Fancy's death) in discharge of Aziz Fancy's obligation towards plaintiffs witness. In Exh.P/14, as is evident from its contents there is no mention of any sale transaction between late Aziz Fancy and the plaintiff. On the contrary it suggests that disputed shares were given by the heirs of late Aziz Fancy to plaintiffs witness in discharge of some financial obligation details of which are missing and which Aziz Fancy owed to the plaintiffs witness. This was never the case of the plaintiff and contradicts the claim as set up in the plaint, such an act cannot nullify any prior transaction that may have taken place in relation to the disputed shares during the lifetime of Aziz Fancy between Aziz Fancy and defendant No.10. However this aspect has been considered under issue No.3 hereunder.
35. Corning to the plaintiffs case, it is evident that his witness, to whom Exh.P/14 was written during pendency of this suit, had not raised his own claim in this suit nor has he filed any other legal proceedings to establish his own claim if any. The object of Exh.P/14 appears to be aimed at establishing a sale transaction between late Aziz Fancy and the plaintiff which has not been proved through Exh.P/14 or otherwise.
36. In his examination in chief, the plaintiff witness (at page 81-A of evidence file) has stated that in June 1973 the plaintiff acquired 92,800 shares from his uncle Aziz Fancy for a consideration of US Dollars 125,000. He further states that the shares, scribes and deeds of transfer of shares came into possession after Mr. Aziz Fancy had passed away. As to the amount of consideration of US $ 125,000, the witness has stated that this amount was given to Aziz Fancy as a loan. As to the source of these funds, the witness stated that this money was arranged by the plaintiff as loan of US $ 125,000 from his wife Chiristine in 1973 and gave this amount as loan to Mr. Aziz Fancy on 21-6-1973.
He stated that Christine married the plaintiff on 10-5-1975. It has also come in evidence that in 1973 when Christine allegedly gave loan to the plaintiff, she was studying in school. It does not appeal to reason that the plaintiff in 1973, then a school going boy, could arrange a sum of US $ 125,000 as loan from a school going girl. They were not even married at that time. The .Amount of US $ 125,000 cannot be simultaneously treated by the plaintiff as sale consideration for disputed shares as well as a loan to Aziz Fancy.
37. The plaintiffs claim as to the rate at which the disputed, shares were acquired is also not proved. The plaintiffs witness also stated that price of the shares was decided by members of Aziz Fancy's family in November 1973, after the death of Aziz Fancy's at Rs.9.20 per share and the shares were delivered on 18-11-1973. The defendant No.14 the son of Aziz Fancy has given the date of death of Aziz Fancy as 27-10-1973. On the other hand the same witness states that price of each share was settled at Rs.8 with Mr. Aziz Fancy and further states that Mr. Aziz Fancy before going for heart operation gave the shares saying that he was not sure whether he is going to come out of the surgery. Firstly, the plaintiffs witness gave two conflicting versions as to the rate at which plaintiff purchased the disputed shares i.e. Rs.8 per share and Rs.9.20 per share. Secondly, the witness on the one hand has claimed that the delivery of shares was made by Aziz Fancy himself before going for his surgery and on the other hand has stated that the said shares were delivered by the members of Aziz Fancy's family after the death of Aziz Fancy on 18-10-1973. It does not appeal to reason that once the price having been settled at Rs.8 with Aziz Fancy there was any occasion to settle it again with the family members of Aziz Fancy after his death. It is also not understandable that why the plaintiffs witness first had to state that Mr. Aziz Fancy before going for his heart operation gave the plaintiff the disputed shares saying he was not sure whether he was going to come out of surgery and then he makes a conflicting statement on oath that after the death of Aziz Fancy the shares were delivered to the plaintiff by Michale Munsey on 18-11-1973.
Had Aziz Fancy delivered the disputed shares to the plaintiff before his surgery, then there was no .Occasion to again deliver the same shares to the plaintiff after Aziz Fancy's death. If the above evidence is read in the light of Exh.P/14 the only documentary evidence on which the plaintiff so heavily relies several irreconcilable contradictions in plaintiffs case have come to light. Though the specific plea of purchase of shares from Aziz Fancy has not been taken in the plaint yet even the evidence led on such assertion clearly show that there was no sale transaction of the disputed shares between Aziz Fancy and the plaintiff.
38. Apart from the aforesaid contradictions in the plaintiffs case, it has also been argued that the most fatal error in plaintiffs case is that two different versions as to the sellers of the disputed shares have been stated by the plaintiff. In that chain of events, when the plaint is read with the better particulars, the plaintiffs case is for purchase of the said shares from Jubilee Insurance Kenya and East West International, defendants Nos.11 to 12 respectively while the evidence led does not support the pleadings. In the evidence plaintiff claims that the disputed shares were purchased from late Aziz Fancy. Both these versions are mutually destructive cannot co-exist on any legal principle and therefore, cannot be considered. It is well settled law that one cannot be permitted to take one plea in the pleadings and then lead evidence to prove an assertion which is diametrically opposed to one's own pleading as this amounts to destroying the very cause of action on which the suit was based. In the case of Habib Khan v. Mst. Taj Bibi and others (1973 SCMR 228) the Supreme Court held that if entire foundation of the cause of action is found to be false, the suit cannot succeed even if a defendant admits plaintiffs claim. In the case of Ala-ud-Din v. Mst.
Farkhanda Akhtar (PLD 1953 Lahore 131) it was held that our law of procedure places limitation on the power of the parties to state facts, the result of which is that though alternative pleas can be taken, such pleas cannot include allegations of facts which destroy each ether. No rule of law permits a party to lead evidence in support of a plea, which has not been taken in the pleadings. In the case of Binyameen and others v. Chaudhry Hakim and another (1996 SCMR 336) it was held by the Supreme Court that no evidence could be led or looked into in support of a plea which had not been taken in the pleadings. The principle laid down in the case of Binyameen and others (supra); debars the plaintiff from even establishing in evidence that he purchased the disputed shares from Aziz Fancy as such a plea was not taken in the plaint or - even in the better particulars provided by the plaintiff on 20-4-1980 when he was called upon to disclose the name of the person or persons from whom the disputed shares were purchased. By changing pleas in evidence the plaintiff obviously gave up his plea that he purchased the disputed shares from defendants Nos.11 and 12. In the case Ghulam Mohayyuddin and others v. Sher Khan and others (1970 SCMR 2000) the Supreme Court held that one distinct cause of action cannot be substituted for another nor one can amend the subject-matter of the suit. The plaintiff in the present suit has clearly substituted his plea of purchase of disputed shares, from defendants Nos.11 and 12 with that of the pleas that he purchased the disputed shares from Aziz Fancy. Such conflicting shift in pleadings which contradicts each other and cannot co-exist cannot be permitted. In the light of the legal principles discussed above, the plaintiff cannot be permided to shift his plea of acquiring the disputed shares from defendant Nos.11 and 12 to that of acquiring the disputed 'shares from Aziz Fancy. The plaintiff having failed to lead evidence in support of his plea made in the plaint is not entitled to any relief.
39. 'It has also been contended by the Advocate for defendant No.10 that another lapse on the part of the plaintiff was that he did not examine himself in support of his case and only his father appeared as his witness. Reliance is placed by him on the, case of Sughran Bibi v. Mst. Aziz Begum and others (1996. SCMR 137) wherein the Supreme Court held that if evidence of vital importance is not produced or is withheld, the Court in terms of Article 129(g) of the Qanun-e-Shahadat would draw adverse inference that had such evidence been produced by a party it would have gone against him. Same principle has been laid down by the Supreme Court in the case of Habib Khan (supra). However as the plaintiff has non-suited himself on the principle of shifting of the pleas it would not be necessary to discuss this aspect in any further detail.
40. Now, taking up the issue whether the plaintiff is entitled to the transfer of the said shares, on the basis of prior possession, in his name irrespective of his proving his title to the disputed shares it may be stated that to seek transfer of the said shares, the plaintiff has to prove the legal source by which he acquired possession thereof which is required to be examined in context with the evidence of the prior transaction of sale of the disputed shares claimed to have taken placed in favour of defendant No.10. Any subsequent transaction even though entered into for valid consideration after a prior similar transaction for lawful consideration in favour of defendant No.10 cannot be ignored.
The mere fact that the plaintiff came into possession of the disputed shares would not confer title in his favour unless he establishes his own title to the disputed shares for lawful consideration which in the present case he has not done. Accordingly, Issue No.4 is answered in the affirmative, while Issues Nos.5, 6, 7 and 17 are answered in the negative.
Issue No.3
41. Although this is one of the issues framed as additional consent issues on 27-1-1985 neither any evidence has been brought nor arguments advanced to support the contention on any legal footing. I. Would, therefore, hold that this suit is maintainable. This issue is accordingly answered in affirmative.
Issues Nos.15, 16, 19 and 20
42. These issues follow the fact of possession and title of the plaintiff required to be proved in the present suit. In view of my findings on Issues Nos.4, 5, 6, 7 and 17, that the plaintiff is not entitled to the transfer of the said shares in his favour, no separate findings are required on these issues.
Issue No.8
43. The burden of this issue rests solely upon the party claiming the existence of such customs and bank practice. No expert evidence, material or law has been placed to substantiate this issue and this issue has not been pressed seriously by the parties and has not been proved.
Issues Nos.11, 12, 13, 14 and 21
44. Issues Nos.11, 12, 13 and 21 pertain to right, title and claim of defendant No.10 while issues Nos.14 and 21 pertain to the dispute of title of the said shares amongst the parties and are being dealt with together.
45. The main controversy is as to who out of the three parties i.e. The plaintiff, defendants Nos.10 and 14 is the real owner of the disputed shares and therefore mere lodging of the shares by the plaintiff would not stop the Court to go into the question of title of disputed shares. Title to the shares in the presence of cogent documentary evidence cannot pass to a person who merely holds its possession in respect of which there is a dispute. Any view to the contrary would render the law of ownership a nullity as any person who comes in custody of shares with blank transfer deeds, and lodges them with the company for transfer would become owner of the shares irrespective of the fact whether he came in custody of the shares lawfully or not. Therefore, in case of a controversy as to the lawful ownership of the disputed shares, unless'a claimant proves his right to the shares he by merely having possession of the disputed shares would not be declared transferee of such shares. It is an admitted position that plaintiff and defendants Nos.10 and 14 have claimed title to the disputed shares and, therefore, unless the rival claims are properly adjudicated in this case no right to the disputed shares could be claimed by anyone. In the present case it is also an admitted position that the disputed shares were specifically sent to defendant No.11 to be kept in trust until the dispute of ownership was resolved. Therefore, the plaintiff cannot claim any' right in the disputed shares only because at some earlier stage he came in custody of the disputed shares.
46. As regards the second issue, whether the disputed shares belong to defendant No.10, is concerned, the defendant No.10 in his written statement under the heading "additional pleas" has raised claim to the disputed shares. On the basis, of such pleas specific issue was framed on 27-1- 1985, with the consent of the plaintiff, with regard to the defendant No.10's title.
'47. The case of defendant No.10 is that Aziz Fancy was his close friend and business associate who in. April, 1970 informed him that defendant No.12 was interested in selling 22,000 disputed shares (4,400 shares of Rs.25 each). The defendant No.10 further claims that consideration of three Kenyan pound per share was settled with defendant No.12 and he paid the entire price of 13,200 Kenyan Pounds in Nairobi to defendant No.12. The defendant No.10 in his written statement also stated that the second set of 70,800 disputed shares of Rs.5 each which were originally (14,160 shares of Rs.25 each) were purchased by him through Aziz Fancy and on 6-12-1972 he remitted 4,396 Pounds in the bank account of Mr. Aziz Fancy with Chartered Bank in London. On the same day, i.e. On 6-121972 22,650 Pounds were also remitted to Aziz Fancy's bank account with compagnie de Gestion de bangue of Geneva. Lastly on 19-4-1973 15,455 Pounds were remitted by defendant No.10 to Aziz Fancy's bank account with Chartered Bank in London. In this manner 42,501 Pounds were remitted to Aziz Fancy bank accounts and the disputed shares which the defendant No.10 purchased were held by Aziz Fancy in trust for him. The defendant No.10 further states that the fact that he purchaed the disputed shares was known to Amirali Fancy who was apprised of the transactions both by the defendant No.10 and Aziz Fancy. It was further asserted by defendant No.10, that on the basis of knowledge of such transactions, Amirali Fancy, being fully aware of the true position, served the notice on the defendant No.1 and objected to the transfer of disputed shares. It is also the case of the defendant No.10 that at all material times Amirali Fancy assured the defendant No.10 that his interest in the disputed shares would be watched and protected by him and the defendant No.10 should have nothing to fear. The defendant No.10 in his written statement has also stated that in the third week of February, 1984 on his visit to Karachi from Kenya he learnt about the present suit and, therefore, applied to be joined as a party, which application was granted, thereafter the defendant No.10 filed his written statement.
48. The defendant No.10 filed his affidavit-in-evidence and later also filed additional affidavit-in- evidence. Both these affidavits are at pages 289 and 313 of the evidence file. The defendant No.10 was then cross-examined at length by the plaintiff and other defendants. In his affidavit-in- evidence the defendant No.10 has stated that he is a Kenyan national, owns several companies in Nairobi. In paragraph 2 of his affidavit-inevidence and paragraph 2 of his additional affidavit-in- evidence he has mentioned the names of Associated Industrial Management Limited, Household Centre Limited any Fancy Investment Trust Limited as companies belonging to him. In paragraph 4 of his affidavit-in-evidence the defendant No.10 reiterated his claim made in the written statement and stated that in 1970 he purchased 22,000 disputed shares (originally 4,400 shares) from defendant No.12 at the rate of 3 Kenyan Pounds and paid 13,200 Kenyan Pounds. Defendant No.10 further states that -on his instructions these shares were sent to Aziz Fancy in. London for custody and registration in defendant No.10's name. Defendant No.1 at that time was managed and controlled by Amirali Fancy the brother of Mr. Aziz Fancy, who was also concerned that the shares be held by a family friendly person. The defendant No.10 also states that through Aziz Fancy he also purchased 70,800 disputed shares (originally 14160 shares) and on 6-12-1972 remitted from Nairobi 4,369 Pounds to the account of Aziz Fancy with Chartered Bank in London and remitted 22,650 Pounds to his account Compagnie de Gestion de Banque of Geneva. Again on 19-4-1973 defendant No.10 remitted from Nairobi 15,455 Pounds to the account of Aziz Fancy with Chartered Bank in London. In support of his plea that defendant No.10 paid money, he filed documents Exh.16/2 to Exh.16/6 with his affidavit-in-evidence dated 29-10-1995 and filed documents Exh.16/7 to Exh.16/9 with his additional affidavit-in-evidence filed on 19-3-1996. The production of these documents was initially objected by the plaintiff and other defendants however at the time of arguments except for one document which is Article 6 at page 309 of the evidence file the objections to the remaining documents was withdrawn and the same were taken on record of the evidence and exhibit numbers given vide order dated 3-3-1999. Therefore, all exhibited documents are admitted documents, except for Article 6 which is a letter dated 4-7-1984 written from Prince Sadruddin Aga Khan's Secretariat to defendant No.10 in relation to arbitration proceedings concerning the disputed shares.
49. The defendant No.10 in paragraph 7 of his affidavit in evidence also deposed that Aziz Fancy passed away in London in October, 1973, and thereafter the plaintiff illegally and wrongfully took possession of the share certificates and blank transfer deeds of the disputed shares and tried to get them transferred in his name, however, Mr. Amirali Fancy, the brother of Mr. Aziz Fancy and Chairman of defendant No.1 being aware of the fact that defendant No.10 was lawful owner of the shares, objected to such transfer and did not allow it to take place. The defendant No.10 further deposed that there was understanding between the parties that Prince Sadruddin Agha Khan would decide the dispute as to the entitlement of the shares. It is pertinent to mention here that all the contesting parties including defendant No.10 belong to the same community and are Agha Khanis.
50. The crucial question that arises is whether the defendant No.10 has established that he made the payment for both the lots of the disputed shares and the money, which he paid belonged to him. In this regard the first document pertaining to the first lot of 22,000 disputed shares (4400 shares originally) is Exh.16/2 which is a letter dated 29-4-1970 written by defendant No.12 company, the original owner of these shares.
51. In paragraph 11 of the affidavit-in-evidence at page 491 of the application part, which was filed on behalf of defendant No.14, the son of Aziz Fancy, it is also acknowledged that payment for 22,000 disputed shares was made by defendant No.10 however it is claimed by defendant No.14 that such payment was from the funds belonging to late Aziz Fancy. In paragraph 15 of the same affidavit-in- evidence it was further admitted by defendant No.14 that defendant No.10 credited payments to the account of Aziz Fancy in London for the remaining 70,800 shares. It was further alleged that such money was sale proceeds of Aziz Fancy's property in the hands of defendant No.10. The defendant No.14, never entered the witness-box to establish his claim to the shares or to prove that the money which the defendant No.10 paid for the shares actually belonged to Aziz Fancy. Thus by not submitting himself for cross-examination, the affidavit-in-evidence filed by defendant No.14 lost its evidentiary value. In the case reported as Muhammad Noor Alam v. Zair Hussain and others (1988. MLD 1122) a Division Bench of this Honourable Court held that if a. Party does not produce any evidence in support of the contents of its written statement then the averments contained in the written statement cannot be treated as evidence.
52. In addition to the fact that defendant No.14 failed to adduce evidence to prove that money paid by defendant No.10 for the disputed shares were sale proceeds of properties belonging to Aziz Fancy, significantly no one even suggested to the defendant No.10 in his cross-examination that money paid by. Defendant No.10 for both the disputed shares was actually sale proceeds of one particular property which was sold by Aziz Fancy. The defendant No.10 on the other hand through documentary evidence Exh.16/2 to Exh.16/5 and Exh.16/7 to Exh.16/9 has established that he made payments for the disputed shares. Exh.16/2 is a document issued by defendant No.12 itself which acknowledges receipt of price from defendant No.10. In support of the payments made for 70,800 shares, the defendant No.10 produced documents such as Exh.16/3, Exh.16/4, Exh.16/5, Exh.16/7, Exh.16/8 and Exh.16/9 which are bank documents such as bank vouchers, paying-in-slip and bank statements. These documents show that remittance have been made from Kenya to the bank account of Aziz Fancy in London and Geneva and the source of such remittances has been shown as withdrawals from bank accounts maintained by the companies claimed by defendant No.10.
53. To a question put to defendant No.10 in his cross-examination as to from where the payment of the shares was made, the defendant No.10 stated that the payment for purchase of 22,000 disputed shares was made from the account of Household Centre Ltd., whereas payment in respect of 70,800 disputed shares was made from the account of Associated Industrial Management Limited. The defendant No.10 further explained that payments made by him means payments made by his companies as the same were owned by him. Absolutely no evidence was led or any documentary evidence confronted to defendant No.10 to prove that the companies which the defendant No.10 was claiming to be his actually belonged to Aziz Fancy.
54. The payments made by defendant No.10 to defendant No.12 for 22,000 shares and remittance made in the bank accounts of Aziz Fancy for purchase of 70,800 shares is neither disputed by any of the contesting parties nor any of the contesting defendants succeeded in establishing that the companies from which funds were withdrawn by defendant No.10 for purchase of disputed shares belonged to Aziz Fancy. On the contrary some of the questions put by to defendant No.10 in his cross-examination also suggest that defendant No.10 partly owned these companies. However the suggestions of partly owning the three companies were specifically denied by the defendant No.10.
There is 'absolutely nothing on record to show that any of the three companies which the defendant No.10 claim to be his, were wholly or partly owned by Aziz Fancy. On the contrary, Plaintiffs witness in his cross examination at page 109 has himself stated that he does not know that Household Centre Limited exclusively belonged to defendant No.10. The fact that payments for both the sets of shares were made by defendant No.10 is even admitted by defendant No.14, the son of Aziz Fancy, in paragraphs 11 and 15 of the affidavit-in-evidence filed by him. The statement on oath made in paragraph 9 of the defendant No.10's affidavit-inevidence has also gone unchallenged in which defendant No.10 stated that upon passing away of Aziz Fancy his estate did not include the disputed shares and in fact Aziz Fancy was insolvent. The Chief Executive of defendant No.1 in his deposition has also stated that there is nothing on record to indicate that Mr. Aziz Fancy ever made a claim on the disputed shares. Nothing was brought on record to indicate that after the purchase of the disputed shares by defendant No.10 in the manner discussed above, Aziz Fancy or after his death any of his heirs made any claim to the disputed shares. Even as' per Exh.16/6 (at page 307 of the evidence file) the estate of Aziz Fancy upon his death was shown as insolvent. It was only in 1985 that one of the sons of Aziz Fancy i.e. The defendant No.14 joined as party to this suit to claim the disputed shares. However no evidence was adduced in support of defendant No.14's claim which left his claim unproven.
55. Apart from the fact that defendant No.14 failed to establish that payment made by defendant No.10 for the disputed shares belonged to Aziz Fancy, there are contradictions even in defendant No.14's claim, who is son of Aziz Fancy. In his affidavit in evidence it is claimed that money for shares was paid by defendant No.10 from the sale proceeds of property belonging to Aziz Fancy whereas questions in cross-examination to defendant No.10 were put to show that money for disputed shares were paid from the funds of companies which existed under the ownership of Aziz Fancy.
These diverse claims as to the source of funds allegedly belonging to Aziz Fancy cannot co-exist as either the property which is source of funds is sold by Aziz Fancy or its ownership is retained by him and its funds were utilized for purchase of shares. No one can at the same time sell as well as retain ownership of the property, which is source of finance for purchase of the shares. Therefore, both the assertions contradict each other. None of the two assertions were established by any evidence, as defendant No.14 without giving any plausible reason even failed to step into the witness-box for cross-examination.
56. Another aspect of defendant No.10 evidence is that the defendant No.10 in paragraph 7 of his affidavit-in-evidence at page 293 of the evidence file categorically stated that as defendant No.10 was the owner of the disputed shares and therefore Amirali Fancy served notice on defendant No.1 calling upon it not to transfer shares and upon such notice defendant No.1 declined to transfer the disputed shares in the name of the plaintiff. Significantly, no question was put to defendant No.10 on any of his assertions made in paragraph 7 of his affidavit-inevidence which also went unchallenged in its entirety.
57. There is thus sufficient oral and documentary evidence on record to show that defendant No.10 purchased the 22,000 disputed shares on 29-4-1970 and purchased the remaining '70,800 shares in 1972 and made two payments on 6-12-1972 and Iasi payment on 19-4-1973 into the bank account of Aziz Fancy, and he is entitled to the disputed shares.
58. Another important aspect of this case is that it was only after defendant No.10 had claimed that he purchased the disputed shares through Aziz Fancy and that after such purchase Aziz Fancy was holding these shares for defendant No.10 in trust that the plaintiffs witness on 2-5-1987 for the first time in his examination-in-chief claimed that disputed shares were purchased by the plaintiff from Aziz Fancy. Prior to defendant No.10's aforementioned claim, the plaintiff was claiming to have purchased the disputed shares from the defendants Nos.11 and 12 and none of the other parties to the suit even remotely mentioned that the disputed shares belonged to Aziz Fancy. Furthermore, neither the plaintiff himself nor defendant .No.14 cared to enter the witness-box in support of their respective claims. Only one witness Mr. Shamsuddin Fancy appeared on behalf of the plaintiff whose evidence as discussed in earlier issues is riddled with contradictions.
59. The payment is claimed to have been made from Kenya to a bank in London. The transfer of the amount is evidenced by Articles 2, 3 and 4, which are counter foils from the bank. The rules for such international transactions are governed by International Banking Practices. Alternatively, in the absence of such rules or any law the Court has to follow the rules of K justice, equity and good conscience as provided in section 26 of the. Sindh Regulation IV of 1827, which has remained on the Statute Book, since 1869. It reads as follows:- "26. The law to be observed in the trial of suits shall be Act of Parliament and Pakistan Laws applicable to the case, in the absence of such Act and Regulations, the usage of the country in which the suit arose, if none such appears, the law of the defendant and in the absence of specific law and usage, justice, equity and good conscience alone."
60. The law pertaining to electronic transfers has also been enacted under the Electronic Transactions Ordinance, 2002. Section 11 of the said. Ordinance provides exemption to electronic document from being attested and notarized for a period of two years from the date of commencement of this Ordinance or till such time the appropriate authority develop and implement measures for attestation and notarization of electronic documents, whichever is later.
Under section 12 of the Ordinance, permission for production of certified copies of electronic documents is provided. Section 13 of the Ordinance provides a system, for confirming the origin of a document. Section 14 of the Ordinance deals with the mode of acknowledge of receipt of an electronic communication while section 15 deals with time and place of dispatch and receipt of electronic communication. Section 16 of the Ordinance empowers government functionaries, authorities and departments to accept the electronic filing, creating and retention of documents, to issue notices; letters, permits, licences or approval or renewals electronically and to provide methods of electronic payments.
61. In the cases reported as Inayat Ali and others v. Siraj Din (1997 SCMR 552) and Qamarul Hassan and another y. United Bank Limited and another (1990 MLD 276), the legal principles of preponderance of evidence and inconsistent pleadings are discussed. The essence of first referred principle is that rival claims of the party is accepted and weighted and the claim of that parties are examined whose claim seems more probable than the other. In the present case the evidence of the defendant No.10 is more convincing and supported by admitted documents. On the other hand the plaintiffs evidence is not only full of contradictions but is based on inconsistent pleadings which are not permissible in law as has been held in the aforementioned cases. The defendant. No.10 has thus established that he is lawful purchaser of disputed shares and is entitled to their transfer in his name.
62. Defendant No.14 is son of late Aziz Fancy. He became party to this suit in 1985 and filed his written statement on 204-1986. In his written statement he claimed that his father Aziz Fancy on the date of his demise was owner of the said shares and disputed the sale of the said shares to any other party. He further averred that said shares were purchased by his father from defendants Nos.11 and 12. At the evidence stage the defendant No.14 did not appear personally in evidence, however affidavit-in-evidence was filed by his attorney Asif Fancy. In paragraph 11 of the affidavit- in-evidence it was averred that 22,000 disputed shares were purchased by Aziz Fancy and payment for these shares was tendered through defendant No.10. Again in paragraph 15 it is stated that the payments which the defendant No.10 made into the bank account of Aziz Fancy were sale proceeds of Aziz Fancy's property. Neither defendant No.14 nor his witness appeared in the witness- box for cross-examination to prove the assertions made in the affidavit-in-evidence that payments made by the defendant No.10 for the disputed shares came from the sale of any property belonging to Aziz Fancy and have thus failed to discharge his burden to prove the facts alleged by them. Where a party does not lead evidence in support of his case then the written statement looses its evidentiary value. In Muhammad Noor Alam (supra) a Division Bench of this High Court has held that "A written statement contains averments of a party which are to be proved through cogent evidence. If a party does not produce any evidence in support of the contents of its written statement, in the absence of any admission on the part of a plaintiff the averments contained in the written statement cannot be treated as evidence".
63. Paragraphs 11 and 15 of the affidavit-in-evidence of defendant No.14's witness that payment for the first set of 22,000 shares was made by defendant No.10 to defendant No.I2 and payment of.
70,800 shares was made by defendant No.10 directly into the bank accounts of late Aziz Fancy. No evidence was led to establish that these payments made by defendant No.10 were the sale proceeds of any property of late Aziz Fancy. It is also significant to note that except for defendant No.14 non of the other heirs of late Aziz Fancy joined the present proceedings or filed their independent claim.
64. On 7-2-1995 an application: under Order XXIII, rule 3, C.P.C. Was jointly filed by the plaintiff and defendants Nos.6, 7 and 14 in which it was stated that in the larger interest of the family, the Fancy family has agreed to settle their outstanding dispute in relation to the disputed shares. The settlement agreement dated 22-12-1993 was also annexed with the compromise application. Soon after reaching the compromise dated 22-12-1993 the defendants Nos.6, 7, 8 and 14 moved separate similar applications under. Order I, rule 10, C.P.C. Wherein they sought themselves to be transposed as plaintiff. The effect of moving such an application is that defendant No.14 shifted his defence from the one which was initially setup in this suit.
65. The compromise dated 22-12-1993 is based on an assertion that disputed shares always belonged to Fancy family. Such an assertion was not in existence when the defendants Nos.1, 3, 6, 7, 8, 9 and 14 filed their written statements. The joint written statement of defendants Nos.1, 3, 5 and 9 which had been also adopted by defendants Nos.6 and 7 the defence set up is that title to the disputed shares vested with East West International and Jubilee Insurance Kenya. This is evident from the contents of paragraph 23 of the joint written statement filed by defendants Nos.1, 3, 5 and 9 and adopted by defendants Nos.6, 7 and 8. In paragraph 23 the reason for denying the plaintiff's claim was that the plaintiff has not shown that he acquired the disputed shares from East West International and Jubilee Insurance Kenya, who at that time were defendants Nos.10 and 11 respectively. This clearly show that all these defendants were taking the plea that title in the disputed shares vested with East West International and Jubilee Insurance Kenya. There is not even an iota of evidence that the disputed shares belonged to the entire Fancy Family. Thus the assertion that shares belonged to Fancy family was never pleaded by any of the defendants in their pleadings and for this reason there was no issue framed on such assertion and is an afterthought and introduced for the first time at the time of filing compromise application on 23-12-1993 in a joint attempt on the part of the plaintiff and defendants Nos.6, 7 and 14 to defeat the claim of defendant No.10.
66. The plaintiff and defendants Nos.7 and 14 joined hands and argued the case on the premise that the disputed shares from the very inception belonged to Fancy Family. In doing so they gave up, rather once again and now in a different manner, contradicted their respective claims raised in the pleadings. The plaintiff even gave up his multiple claims of purchasing the disputed shares from defendants Nos.11 and 12 as well as the claim that he purchased the disputed shares from late Aziz Fancy. Defendant No.14 also gave up his claim that late Aziz Fancy was owner of the disputed shares. The principle of debarring a party from deviating from its pleadings has not to be flouted the object of which is, that firstly all claims should be disclosed in the pleadings to enable the opposing party to rebut such claim through evidence. Secondly, if a person makes one claim in his pleadings i.e. Plaint or written statement and then attempts to establish a claim contrary to his own pleadings, then it may be inferred that in case of shifting stand the plea is not based on truth.
These are some of the reasons reflect the wisdom leading the Legislature to enact the provisions of Order II, rule 2, C.P.C. And Order VI, C.P.C., which prevents a party from adding to or deviating from the pleadings.
67. Another aspect of the case is that the plaintiff pleaded purchase of the disputed shares from Aziz Fancy in his plaint on 21-6-1973 whereas the defendant No.10 has shown his date of acquisition as 1970 and 1972. Looking from this angle also the claim of defendant No.10 is prior in time and if that claim is proved then it cannot be defeated by any subsequent event which too the plaintiff so miserably failed to prove. Accordingly, Issues Nos.11 and 13 are answered in the positive, issue No.14 in negative and Issues Nos.12 and 21 in favour of the defendant No.10 by holding that he is entitled to the ownership of the shares. Issue No.9
68. Issue No.9 relates to the effect of acknowledgement by other defendants on defendant No.10. The plaintiffs attorney in his evidence produced letter of the legal representatives of deceased Aziz Fancy. However, there is no evidence to show that the said shares were part of any transaction pertaining to such liability or that the said shares were handed over to the plaintiff in consideration of any settlement. The plaintiff has not claimed any amount incurred towards such liability. The evidence of Shamsuddin Fancy is also not conclusive to show that the plaintiff made payments against the said shares because the statement is in direct conflict with other part of his statement that the plaintiff borrowed the amount from his wife to make payments against the shares. The question of borrowing of such huge amount at that time when the plaintiff was not even married to the person from whom he allegedly borrowed the money, who was a school going girl, is itself doubtful and there is no evidence to substantiate this fact. Acknowledgement of liability is to be made by the person who has incurred such liability. In .
Case of other satisfactory evidence, the same is required to be proved. The plaintiff has failed to discharge the burden. This issue is, therefore, answered in the negative. Issue No.18
69. The claim towards ownership of the shares has throughout been the subject-matter of this dispute. The state of affairs prior to the institution of this suit is also reflected from the letter of late Amirali Fancy, the then Chairman of New Jubilee Insurance Company, (Exh.15/4) who in his said letter has specifically stated that the persons holding the shares are not the rightful owners thereof.
It has also been admitted in his cross-examination by Shamsuddin Fancy that he was the head of the family to the extent of business affairs and was therefore in full knowledge of the forged transaction. His directions, therefore, cannot be ignored and the claim of ownership of the shares by others cannot be brushed aside. In issue No.10, I have clearly explained the reason for the inability of defendant No.10 to lodge claim in his affidavit-in-evidence. He had no notice of the possession of the shares by the plaintiff and subsequent attempts to get these shares transferred in his name, I would, therefore, hold that there did exist claim for the shares as is reflected by Exh.15/4. This issue is therefore answered in the negative. Issue No.19
70. In view of my findings of Issues Nos.11, 12 and 13, the question of' transfer of the shares in the name of the plaintiff does not (sic). This issue is answered accordingly. Issue No.22
71. In view of my findings of the above Issues, I hold that defendant No.10 is entitled to the transfer of the said disputed shares in his favour together without accrued benefits, dividends, etc., disbursed by defendant No.1 for the entire period. Accordingly, Suit No.572/78 is dismissed and Suit No.472 of 1993 is decreed in favour of the plaintiff with cost.