1. SAJJAD ALI SHAH, J.-This High Court Appeal is filed against the judgment and decree passed on 12-3-1980 by learned Single Judge of this Court in Suit No. 168 of 1961 filed by Ali Ahmad Khan Warsi, who is Respondent before us, against Ali Hussain, his were Mst. Baqridan, M/s. Hanif Rashid Company and Hanif son of Shaikh Muhammad Amin. The suit was for declaration and recovery of a sure of Rs. 38,200. The suit is decreed for the sum mentioned above and for possession of plot No. L-20/B Block No. 21 , K. D. A. Scheme No. 16 Federal 'B' Area against Ali Hussain defendant No. I (hereinafter to be referred as appel--lant) and suit is dismissed against Mst. Baqridan defendant No, 2 Shortly stated the relevant facts are that the appellant and Respondent No. 1 entered into partnership and floated three companies in the veal 1952, namely :---,
(1) Warsi Textile Industries,
(2) Nishat Silk and Cotton Industries, and
(3) Ali Ahmad Ali Hussain & Company.
2. The said partnership came to an end by agreement of dissolution of partnership executed on 20th January, 1962. In pursuance of the agreement stated above assets of partnership business were valued at Rs. 1,30,000 and as per terms and conditions incorporated in the same agreement it was agreed that appellant Ali Hussain would take over the business and properties of partnership on the condition of paying half the amount i.e. Rs. 65,000 by or before 20-1-1963 to respondent Ali Ahmad, failing which the Respondent Ali Ahmad would recover the possession of the properties mentioned therein and would become sole and exclusive owner thereof. Appellant Ali Hussain failed to make the payment in the stipulated time mentioned in the agreement as stated above and paid belatedly Rs. 20,500 to respondent Ali Ahmad on 15-7-1964. On 3-8-1964 the appellant Ali Hussain and his were Mst. Baqridan executed an `Iqrarnama' in favour of Respondent Ali Ahmad.
3. This Iqrarnama provided that since Ali Hussain could not make the payment within the time stipulated in the agreement, which fact was causing anxiety to Ali Ahmad, hence it was agreed that Ali Ahmad could take over Plot No. L-20-B Block 21 Scheme No. 16 (2400 sq. Yds) allotted by K.D.A. To business partnership after making payment of Rs. 4,800 half of occupational value which was outstanding. It was further agreed that amount of Rs 4,800 to be paid by Ali Ahmad would be adjusted from the balance due from Ali Hussain which came to be reduced to Rs. 39,700 and Ali Hussain further undertook to pay up the balance within six months from the date of execution of `Iqranama' as stated above. Further in this lqrarnama Mst. Baqridan were of Ali Hussain hypothecated her house No. A-3003 of which she was exclusive owner as surety in case her husband failed to make the payment within six months. Subsequently it was found that appellant Ali Hussain had entered into agreement of sale of industrial plot bearing No. L-20-B, Block No. 21, K.D.A. Scheme No. ' 16 with M/s. Hanif Rashid Company (Defendant No. 3 in the suit), who also filed a suit in the High Court bearing No. 130/66 against appellant Ali Hussain in which respondent Ali Ahmad was also impleaded as defendant. It is only after the service of summons in the suit mentioned above that Respondent All Ahmad became alert and filed suit in this Court which has been decreed as stated above and Ali Hussain felt aggrieved against the said judgment and decree and filed this appeal. It would be pertinent to mention here that Suit No. 130/66 filed earlier was for specific performance of the agreement which was decreed against both Ali Hussain and Ali Ahmad and only Ali Hussain filed High Court Appeal but Ali Ahmad did not file appeal. High Court Appeal No. 42/75 arising from those proceedings has been disposed of by compromise arrived at between the parties accord--ing to which Ali Hussain paid decretal amount of R9. 28,592 with simple interest at 7% per annum from the date of the suit till the date of payment with costs of the suit.
4. Keeping in view the pleadings of the parties the following issues were adopted by the learned Single Judge :-
(1) Is the suit barred by the law of limitation ?
(2) Whether lqrarnama is a valid, genuine and properly stamped document and admissible in evidence. If not, its effect ?
(3) Whether the plaintiff is entitled to possession of the plot in dispute ?
5. (4)What amount the plaintiff is entitled to ?
(5) Is this suit properly valued ?
(6) Relief ?
6. The findings of the learned Single Judge are on issue No. 1, the suit is not barred by limitation, on issue No. 2 ; Iqrarnama Exh. 50 is properly stamped and is binding on Ali Hussain (Defendant No. 1).
7. The finding on issue No. 3 is that Ali Hussain (Defendant No. 1) had agreed to give plot No. L-20-B, Block No. 21 to Ali Ahmad Khan (Plaintiff) who died during the proceedings after which legal heirs of Ali Ahmad Khan are entitled to the possession thereof. On issue No. 4 it is held by the learned Single Judge that legal heirs of deceased Plaintiff are entitled to recovery of Rs. 38,200. Finding on issue No. 5 is in the affirmative. Consequently the suit is decreed for a sum of Rs. 38,200 and for, possession of plot No. L-20-B, Block No. 21 K.D.A. Scheme measuring 2,400 sq. Yds. Against defendant No. 1 Ali Hussain with 7% simple interest thereupon from the date of the suit till the payment. Suit against Defendant No. 2 Mst. Baqridan has been dismissed with no order as to costs and her attached property has been discharged.
8. Mr. Fani learned counsel for the appellant contended before us that the suit so far relief of recovery of possession was concerned, was time barred. According to learned counsel partnership was dissolved vide deed executed on 22-1-1962 and the suit was filed on 7-8-1967: It is further submitted that so far prayer for recovery of money was concerned, the suit was within time as contemplated under Article 113 of the Limitation Act. At the time when suit was filed no such prayer was made in the plaint for recovery of possession, which was made belatedly by legal representatives of respondent Ali Ahmad, who died during the course of the suit. After legal representatives joined the proceedings, they made an application for amendment of plaint to include prayer for recovery of possession of the plot in dispute which was granted on 17-2-1979. It is further submitted that in such circumstances when the suit was for specific performance Part I of Article 113 of the Limitation Act would apply. In such circumstances prayer for recovery of possession is clearly made after three years from the date fixed for the performance in the Deed of Dissolution of Partnership. Article 113 of the Limitation Act allows three years time for filing suit for specific performance of a contract from the date fixed for performance or it no such date is fixed then from the date when the plaintiff has notice that performance is refused. In the instant case partnership was dissolved by the Deed (Exh. 6/2) executed on 22-1-1962 in which one year's time was allowed to make the payment and when the payment could not be made within the stipulated time then appellant and his were Mst. Baqridan executed Iqrarnama (Exh. 50) by which time for repayment was extended by another six months with additional assurances of security. This Iqrarnama was executed on 3-8-1964 in favour of Respondent. Now so far the suit for recovery of money is concerned, it is obviously not time barred as conceded by Mr. Fani even if first part of 113 of Limitation is applied. It is submitted by Mr., Fani that for recovery of possession also the same time limit as provided under Part I of Article 113 of Limitation Act would apply as the date for performance is specifically mentioned. Reliance is placed on the case of Lakha Singh v. Ghulum Muhammad and another (A I .R 1930 Lah. 1020) to which it is held that second portion of Article 113 of the Limitation Act would apply only when the first portion does not apply. The facts of that case are different inasmuch as no fixed date was given in the agreement for sale of the land which was purchased in auction by Ghulam Muhammad, who deposited the earnest money into Government treasury and had to pay balance of consideration in instalments,. He could not pay the instal-- ments hence entered into an agreement with Diwan Singh, who also could not pay the instalments and entered into an agreement with Lakha Singh, who paid the instalments. After all the instalments were paid Ghulam Muhammad acquired full proprietary rights in the land of Government hence Lakha Singh filed a suit for specific performance of contract against Diwan Singh and Ghulam Muhammad on the basis of agreements executed between them. The relevant clauses in both the agreements were that document with regard to the sale of the land would be registered and mutation effected when the proprietary rights were acquired. No date was mentioned but it was provided that ownership would be transferred when the last instalment was paid to the Government. In the instant case the facts are different. The suit for specific performance was competently filed and was within limitation so far recovery of money is concerned. If in the plaint originally filed prayer had been added for recovery of poss--ession by the plaintiff in the suit then no problem would have arisen and the whole suit would have stood covered by the first portion of Article 113 of the Limitation Act. Contention of Mr. Fani that even after filing the suit respondent, while he was alive and contesting the suit, did not apply for amendment in the plaint till he died on 5-5-1977. Legal representatives were brought on the record on 7-8-197'7 and they also for quite sometime did not apply for amendment till 14-11-78 and the amendment was allowed by the trial Court on 17-2-1979. It is submitted by Mr. Fani that apart from the fact that amendment sought by the legal representatives was belated, legal representatives could not change the pattern and character of the suit after the death of deceased plaintiff. The question arises whether in such circumstances it can be said that by allowing the amend--ment, as it has been done, the character,' and pattern of the suit has been changed or altered by the legal representatives.
9. The suit admittedly is for specific performance of the contract. Prayer made in the plaint is for declaration that the Plaintiff alone is solely and exclusively entitled to the allotment and possession of the plot of land in question. Prayer is also made for judgment and decree against defendant named therein jointly or severally and for cost of the suit and for any other relief as the nature of case may require and/or may be deemed fit by the Court. If at that time plaintiff in the suit bad added prayer for recovery of possession he could have been allowed to do so on payment of requisite court-fees. There was no other legal impediment in his way except that he had perhaps inadvertently omitted to do so. Had the plaintiff in the suit chosen to include prayer for recovery of possession, still the character and pattern of the suit would have remained the same as for specific performance of the contract. Mr. Fani argued against the proposition and cited before us the case of Muhammad Iqbal and Q others v. (Ghulam Alil Shah (1). It is held in the reported case that in accordance with principle of Order XXII rule I, C. P. C. Right to sue means a right to bring the suit asserting the right to the same relief which the deceased plaintiff asserted at the time of his death and further that where a party to a suit dies a legal representative is appointed merely in order that the suit might proceed and a decision be arrived at. It is the original party or parties rights and disabilities that have to be considered and not those of the legal representatives. The point in dispute in that case related to the provisions of Punjab Preemption Act and the question for consideration was whether after -the death of pre-emptor pending the suit, right of pre-emption was heritable and survived the death of pre-emptor and whether when and what kind of heir can be impleaded as legal representative of deceased plaintiff in such suit. In the instant case such question is not involved and what the plaintiff in the suit could do could be done by the legal repre- -sentatives of deceased Plaintiff. Moreover as the record of this case indicates that application for amendment in the plaint for recovery of possession was allowed vide order dated 1-2-1979 on the payment of cost of Rs. 1,000 which was accepted by the appellant and now he is estopped from turning round and challenging the validity of that order. The learned Single Judge in allowing application for amendment has relied upon the decision in the case of Karamat Ali and another v.
10. Muhammad Younus Haji and others (PLD 1963 SC 191) in which in a suit under section 42 of Specific Relief Act, relief for recovery of possession was not asked in the plaint and the plaintiff was allowed to amend the plaint at the stage of appeal in the Supreme Court although the objection was that suit for re-possession has become time barred. It was observed by the Supreme Court while allowing the prayed that by doing so the nature of suit was not altered by addition of prayer for possession. In these circumstances we hold that amendment to the plaint was rightly granted which, does not change the pattern or character of the suit and that the suit was not time barred on any score, as claimed by Mr. Fani.
11. Mr. Fani learned counsel for the appellant emphatically contended before us that the second document which is alleged to be an lqrarnama is & fake document, execution of which has been specifically denied. It is further stated that even handwriting expert Mukhtar Ahmad in his deposition (Exh. 6) has stated in unequivocal terms that signature of Ali Hussain on 1qrarnama was fake and was not made by him. Evidence of handwriting expert further shows that signature of Mst.
12. Baqridan, were of Ali Hussain on the Iqrarnama has been found to be made by her, In addition to the evidence of handwriting expert and his findings the learned Single Judge made visual comparison of the signature of the executants with admitted signatures on other documents and came to the conclusion that signature of Ali Hussain on Iqrarnama was not same made by him but that of Mst. Baqridan was very much same and similar to her admitted signatures. The next question arose as to how to deal with this document and treat it as what. Mr. Fani contended that the document in question may be treated as a bond or mortgage but since it was not properly stamped as such, it is not to be relied upon and should be excluded from consideration. He has also challenged the validity of the document on the question of execution. It appears from the record that the document in question was impounded by the Court on 2-10-1968 and was referred to the Collector Karachi under section 38 (2) of the Stamp Act. The Collector assessed the above document for the purpose of stamp duty at Rs. 2 and imposed penalty of Rs.
20. Subsection (2) of section 40 of the Stamp Act provides that any certificate under clause (a) of subsection (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated above. The learned Single Judge in his impugned judgment has treated this document as agreement after giving valid and cogent reasons with which we feel inclined to agree. It is stated in the impugned judgment that although signature of Ali Hussain on the said document is not correct but there is still signature of Mst. Baqridan for which There is finding of the handwriting expert and also of the Court that it was made by her. There are several other factors which tend to prove the manner in which this document was executed. Deceased plaintiff examined himself, Bash--arat Hussain and Mukhtar Ahmad handwriting expert. In his own evidence deceased plaintiff testified that the agreement was executed between himself, defendant Ali Hussain and his were Mst. Baqridan. It was admitted by the deceased plaintiff that the document was prepared in his room but it was not signed by Ali Hussain and Mst. Baqridan in his presence but the two witnesses namely Basharat and Muhammad Hussain had signed the document as witnesses in his presence. It is also explained that Ali Hussain informed all other persons there that he would obtain the 31gnatute of his were inside the house and then would bring back the document. He was allowed to do so and the document came back with the signature of Mst. Baqridan as well as Ali Hussain. Before the document was taken inside, the contents were read-over to the persons present in the house of Ali Ahmed. After the document came back with signatures of Mst. Baqridan and Ali Hussain deceased plaintiff also signed and it was signed by other witnesses also. Mst. Baqridan did not examine herself in the Court on the ground that she was pardahnasheen lady and with consent of parties she was examined on commission. It appears from her deposition that although she stated that she was illiterate and only could write her signature but could not read Urdu or English she insisted on seeing all the documents unfolded when she was asked to identify her signatures. The documents i.e. Agreement and vakalatnama were folded except the last portion where signatures were available and were shown to her in that condition so that she could see whether the signatures were made by her or not. Mst. Baqridan insisted that she could give reply only when the papers were unfolded so that she could see the contents. After that was done and Mst. Baqridan saw the contents she stated that signature on agreement did not belong to her but signature on vakalatnama was made by her. Any way this particular factor is not so material if Mst. Baqridan had denied her signature on the agreement, there is enough evidence on the record coming from the report of handwriting expert and also finding of the learned Single Judge which he gave after visual comparison of signatures available on the record. There is also evidence of deceased plaintiff and attesting witnesses.
13. So far the execution of the document mentioned above is concerned Mr. Badrudduja, Advocate for the respondent before us, has contended that there is absolutely no harm if the witnesses have attested the document after it was signed by the executants if the witnesses had done so after the assurance of executants that it was signed by them. Reliance is placed on the decision in Provakar Mukherjee v. Indra Narayan Ghosh and another (134 1 C 531) It is held therein that word "attested" as defined by the Transfer of Property Amending Act XXVII of 1926 takes retrospective effect because of Act XII of 1927. Where a mortgage suit was filed in 1925 and at the trial the defendants admitted execution but contested the attestation and one of the two attesting witnesses, when examined, stated that he did not see the defendants sign their names but that they admitted execution before him and the other witness and thereupon they signed their names as witnes--ses. It was held that mortgage bond was proved to have been duly attested: The view expressed in the above cited case is further reiterated in the case of Gangaram and others v. Umaji and others (AIR 1928 Nag. 70 (1)). In this context 4 may be pointed out that in the instant case Basharat in big evidence has stated that when he signed this document it had already been written but it was read over to him and other parties. It happened in the house of Ai' Ahmad. The document was taken by Ali Hussain to the adjoining house for obtaining signature of his were Mst. Baqridan. Ali Hussain returned with the signature of Mst. Baqridan. Witness Basharat further stated that be signed the document after he found signature of Mst. Baqridan on it. He also saw signature of Ali Hussain alongwith signature of Mst. Baqridan but both Ali Hussain and Mst. Baqridan did not sign in his presence. Ali Hussain made statement that Mst. Baqridan had signer document and he had also signed the document in her presence and there--after other persons including this witness put their signatures.
14. The fact that this document is not signed by `appellant Ali Hussain does not mean that this agreement cannot be attributed to him in the peculiar circumstances as stated above. It appears to be deliberate attempt on his part to get his signature forged with mala fide intention that the document ultimately would be declared invalid and fake. He had correctly obtained the signature of his were and it appears that subsequently explained to her that she too should deny her signature on the agreement and admit only signature on vakalatnama. Although this was not expected of a lady who is illiterate and does not know how to read and write Urdu and English but she still insisted that the document should be unfolded so that she should see the contents and then declared which signatures on them were made by her. This indicates the trend of mind of the appellant working even at that time when he was seeking further time from the deceased plaintiff for six months to make the payment of balance which was not done by him in the terms of dissolution deed. The anxiety was so great that appellant wanted to take a practical step to save the situation. According to the terms of Dissolution Deed when he had failed to make payment of Rs. 65,000 within one year properties relating to partnership had to be reverted to deceased plaintiff and the time was ripe for it when one year expired and appellant Ali Hussain failed to perform his part. In such circumstances he condescended to write a fresh agreement which would get him more time for payment. Instead of agreeing to the transfer of all the properties belonging to the partnership he agreed to the transfer of plot No. L-20-B, Block No. 21 Scheme No. 16 (2,400 sq.
15. Yds.) which was obtained under the signature of Ali Ahmad Khan and half of occu--pancy value of which has already paid from the funds of partnership and the other half remained to be paid. To convince further on the purpose of sincerity Ali Hussain further asked his were to hypothecate her house No. A-3003 as security if payment was not made within six months as stipulated in the second agreement. In the circumstances apart from technical defects pointed out in second agreement the learned Single Judge has rightly concluded that there was agreement between the parties which properly manifested the intention as is reflected therein and that agreement was binding on the parties.
16. Mr. Fani contended that Ali Ahmad contravened the provisions and terms and conditions of the Deed of Dissolution as provided under clause (7) and did not pay up the liabilities as such he was not entitled to the relief. Learned Single Judge has dealt with this aspect of the case in detail and has given sound reasons. It appears from the record to be an admitted position that appellant had paid a sum of Rs. 20,500 by 15th July, 1964 against an agreed sum of Rs. 65,000 thus leaving balance of Rs. 44,500. Against the above amount another adjustment of Rs. 4,800 being occupancy value of the plot and Rs. 1,500 drawn by deceased plaintiff had been adjusted. After these adjustments a sum of Rs. 38,200 remains outstanding payable to the deceased plaintiff.
17. Lastly it was contended Mr. Fani that at the time when relief for recovery of possession was allowed by the Court at subsequent stage of the proceedings of the suit proper valuation was not made and the valuation was made at the rate of Rs. 30 per sq. Yds. Instead of market value prev--alent at that time. This contention is repelled by the counsel for the other side who stated that effect of granting of amendment is that relief would be deemed to have been included in the plaint when it was presented and F therefore, value prevalent at the time of filing of the suit was rightly taken into consideration. The learned Single Judge has agreed with this proposi--tion and we are in respectful agreement with him.
18. For the facts and reasons mentioned above we uphold the impugned judgment and decree passed by the learned Single Judge and dismiss this appeal with no order as to costs.