This is a suit for rendition of account and partition of immovable property. The plaintiff's case is that on or about 4th August 1949 plaintiff No. t on his own behalf and on behalf of his younger brother plaintiff No. 2 entrusted Rs. 2,00,000 to defendant No. 1. On 25th October, 1947 defendant No. 1 invested on behalf of plaintiff No. I some amount out of the said sum of Rs. 2 lacs for 6 annas share in a partnership firm known as Pakistan Cement Pipe Construction Company and on 12th March, 1951 defendant No. l purchased in his own name as a Benamidar for the plaintiffs and his were defendant No. 2 plot-of land with construction there--on bearing No. 420/G W R Lawrence Road for Rs. 1,27,000 in which the plaintiff had 50% share and defendant No. 2 had 25a/o share. On this basis the plaintiffs allege that only Rs. 65,000 was invested in purchase of the property and the balance remained with the defendant No. 1. The plaintiffs have alleged that defendant No. 1 as trustee/agent of the plaintiffs is liable to render true accounts of the principal, rent and profits to the plaintiffs.
They have claimed 50% share in the rent and profits recovered by defendant No. 1 and prayed for partition of the property.
Defendant No. 1 in his written statement has denied that any amount was entrusted to defendant No. 1 by the plaintiffs. Defendant No. 1 has stated that he had purchased the land in question, and took possession thereof from Shewratan Mohatta after making full payment before the alleged payment by the plaintiffs however, the sale-deed was registered on 12th March, 1951. The property was purchased by defendant No. 1 of his own money and therefore it has been denied that the plaintiffs are entitled to any share in the property or accounts in respect of the property. De-- fendant No. 2 has denied that Rs. 2 lacs was paid by the plaintiffs Nos. 1 & 2 to defendant No. 1 or that the said amount was invested as alleged in the plaint. It has been alleged that plaintiff No. 1 had invested Rs. 50,000 in the partnership and was holding the share to the extent of 6 annas as a partner for some time. It has been denied that defendant No. 1 has purchas--ed the property as Benamidar for the plaintiffs and for defendant No. 2. It has been stated that defendant No. 2 has no share in the property which entirely belongs to defendant No. I. In these circumstances the claim has been denied. On the basis of the pleadings the following Issues were framed
(1) Whether on or about 4th August, 1949 plaintiff No. 1 on his own behalf and on behalf of plaintiff No. 2 entrusted a sum of Rs. 2,00,000 (Rupees two lacs) to defendant No. 1 ?
(2) Whether on or about 13th March, 1951 defendant No. 1 purchased in his own name, as a Benamidar for the plaintiffs (for 50% share) and defendant No. 2 (for 25% share) plot of land measuring. 20,660 sq. Yards bearing No. 420jGWR situated at Lawrence Road Karachi out of the alleged sum of Rs. 2 lacs referred therein-- above or as the sole owner ?
(3) Whether defendant No. 1 is liable to render account in respect of the alleged sum of Rs. 2 lacs or the rent and mesne profits of the property No. 420/GWR ?
(4) Whether-the plaintiffs' alleged claim is time-barred ?
(5) What relief or reliefs the plaintiffs are entitled to ?
Issue No. 1. The plaintiffs in their pleading have taken up the plea that they had entrusted a sum of Rs. 2,00,000 to defendant No. 1 on or about 4th August, 1.949 for investment in business are I for purchase of the pro--perty, in dispute. It has also been alleged that defendant No. 1 has pur-- chased the property as a Benamidar for plaintiffs who hold 50% share and defendant No. 2 holds 25% share. The plaintiffs are completely silent to whom the remaining 25% share belongs but in the circumstances it can only be inferred that according to the plaintiffs remaining 25% share belongs to defendant No. 1. From the evidence of the plaintiffs and the de--fendants and the documents filed it seems that the plaintiffs and defendant No. 1 had business relations from a very long time.
Even the pre decessors of the plaintiffs were in business and commercial relations with defendant No. 1, who in his own capacity as well as on behalf of certain other businessmen was representing their interest. The impression given by the plaintiffs is that defendant No. 1 was representing the interest of one Ismailjee Tyabjee and had business relations with Rasooljee Bukhshjee who were the real investors in the business that was being car--ried on in Pakistan. Mohammad Hussain and Abdul Hussain the plaintiffs claim their interest in the business through Rasooljee Bukhshjee in Pakistan. It also seems that there had been continuous relations between defendant No. 1, Rasooljee Bukhsice and Ismailjee Tyebjee from whom defendant No. I had been taking money also for personal needs. Defendant No. l being employee in KPT, perhaps, could not enter into business in his own name and therefore defendant No. 2 who at the material time was his were and later on was divorced was made business partner along with the business interests of Rasool Bukhshjee and Ismailjee Tyabjee. The matter has therefore, to be considered in the light of the fact that the parties were, running business and were having dealings amongst them selves. In this background it has to be considered whether Rs. 2 lacs was paid to defendant No. I and if so whether it was an investment or paid in trust to defendant No. 1. The learned counsel for the plaintiffs has contended that in view of the relationship between the parties the amount was entrusted and for all specific and practical purposes a trust was created. To establish the plea that trust was created in favour of plaintiffs Nos. 1 and 2 in which defendant No. I played the role of a trustee reliance has been placed on the averment made in para. 1 of the plaint that the money was entrusted to defendant No. 1 who acted as a trustee. Furthermore the learned counsel has referred to the evidence of P.W. 2 and Exhs. 6, 8 and 11 in which reference has been made that money was entrusted and that the plaintiff had trust in defendant No. 1. Mere allegation in the plaint that money was deposited in a trust or that the parties had trust amount themselves does not create any trust. In order to show that a trust has been created it has to be proved that on party has in confidence paid some money on express condition for specific purpose in trust. If such payment is made the money vests in the payee for the benefit of the payer. But before any trust is created the question to be decided is whether any payment was made. The plaintiff has led evidence mainly oral to show that plaintiff No. 1 had paid Rs. 2,00, to defendant No. I.. In this regard reference has been made to the evidence of P.W. 1 Mohammad Hussain who has stated that, he wanted to start business with his brother from money which he had brought from India and started negotiating with defendant No. 1. In August, 1949 when the defendant came to visit him in his flat, where his cousin late Ahmad Ali and his brother Mansoor Ali Taj were present to discuss about the business terms defendant No. 1 invited him to join him in business and in purchase of plot in dispute and therefore he paid Rs. 2 lacs to the defendant. He has stated that it was agreed that plaintiffs will have 50% share in business and 50% in the land and money was given as trust. No partnership deed was signed but he again stated that partnership deed had been signed. No partnership deed has been produced on record. P. W. 2 has stated that he had brought money from India and handed it over to his brother who after negotiating paid Rs. 2 tics to defendant No. 1 in August, 1949 in his presence and in the presence of his cousins Ahmed Ali and Mansoor Ali Taj. No receipt was obtained by them. He has further stated that an agreement was prepared in October, 1949 but copy was not produced. The plaintiff had share in Pakistan Cement Pipe Manufacturing as partners. The 3rd witness is Mansoor Ali Taj who has stated that plaintiffs are his cousins.
Mohammad Hussain the plaintiff No. 1 came to his brother Ahmed Ali and asked him to come as he wanted to have some negotiation with defendant No. 1. This witness also accompanied his brother.
He does not seem to have any knowledge of the negotiations but stated that plaintiff No. 1 paid Rs.
2 lacs to defendant No. I for investment in business and property. This is the entire oral evidence on the basis of which the plaintiffs allege that Rs. 2 lacs were paid to defendant No. 1. There is no documentary evidence that Rs. 2 lacs were paid. The first two witnesses are brothers and are plaintiffs. They wanted their statement to be corroborated by P.W. 3 who is also their cousin. The presence of P.W. 3 is nothing more than a chance witness as according to him plaintiff No. 1 had come and asked his brother to accompany him to witness the negotiations but he also followed them. His brother has died and it therefore seems that he has been produced to prove the alleged payment. The plaintiffs had business relations with defendant No. 1 through their predecessors-in- interest and it seems that there were regular correspondence and accounts that were maintained by the parties. It also seems that there were regular visits by those partners whose interests were being represented here in Pakistan and disputes and policies were being settled by them from time to time. In this state of affairs if Rs. 2 lacs were paid to the defendant No. 1 there should have been some mention of this payment either in the correspondence between the parties or there should have been some document or account book maintained by the plaintiffs to show that this amount was paid to defendant No. 1. It is unbelievable that where the parties have been transacting business and keeping their accounts which referred to the persons who were living abroad controlling the interest, no mention would be made of payment of Rs. 2 lacs anywhere.
There is a letter of defendant No. I written to one of the constituent in India for payment of Rs.
25,000 to his father which he had assured that he will pay to them. Even for such minor things records were kept but it is unimaginable that the plaintiffs who were doing business would not have maintained account for refreshing their memory that on a particular date Rs. 2 lacs were paid to defendant No. 1. The plaintiffs had entered into a partnership firm Pakistan Cement Pipe Manufacturers and carried on that business for a long time which was later converted into a public Limited Company and thereafter on payment of Rs. 65,000 they transferred their shares to defendant No. L and her son. All transactions seem to be witnessed by document but there is no mention anywhere in any document about the payment c-' Rs. 2 lacs to defendant No. 1. Even in the copy of the wealth statement of the plain-- tiff that has been produced on record for the years 1957 and 1960 the plaintiffs have not mentioned anywhere that they had advanced Rs. 2 lacs to defendant No. 1 nor they have mentioned that the property in suit belongs to them. In Exh. 23/3 which is the main document on which the plaintiffs are relying there is no reference to the payment of Rs. 2 lacs except that there is a mention of share of the plaintiffs in the property in suit: Therefore, my finding on this issue is in the negative.
Issue No. 2.-The plaintiffs have pleaded that Rs. 2 lacs were en trusted to the defendant No. 1 on 4th August, 1949 and it was to be in--vested in the business as well as in the purchase of property and ultimately the purchased the property in dispute on 12th March, 1951 in his own name. They have stated that he was a Benamidar for the plaintiffs for 5011, share and for defendant No. 2 for 25% share. I have held that Rs. 2 lacs have not. Been proved to have been paid to defendant No. 1. The defendant has produced the sale-deed dated 12th March, 1951 from which it is clear that defendant No. I had entered into an agreement of sale with the vendor on 12th May, 1949 for Rs. 1,27,000 and the amount was paid to the vendors at the time of the execution of this agreement who had acknowledged its receipt and delivery of possession. It has been recited that defendant No. 1 had been in possession since 30th August, 1947. Defendant No. I has stated that he had purchased this property much before the plaintiffs had come into Pakistan and due to certain for--malities the sale-deed was registered in 1951. He has also produced ex--tract from the property register of the City Survey Karachi in which defendant No. 1 has been shown as the owner having purchased the pro--perty on 16th March, 1951 which was confirmed by the Custodian of Evacuee Property on 14th July, 1951. Thereafter the plaintiffs continued their business as partners in the aforestated firm which had its factory on the said premises. The plaintiffs have admitted that they have been paying rent to defendant No. 1 and the explanation given by the-.,n is that as defendant No. 1 was only a trustee the rent was being paid which he is liable to account. In view of my finding on issue No. 1 and the evidence my finding on this issue is that defendant No. 1 did not purchase the pro--perty as Benamidar out of the alleged payment of Rs. 2 lacs.
Issue No. 3.-As my finding on Issues 1 and 2 is in the negative the question of rendering accounts does not arise.
Issue No. 4.-The plaintiffs have contended that as their suit is based on Trust a/s. 10 of the Limitation Act no period of limitation is provided. In this regard reference has been made to AIR 1922 P C 212, AIR 1951 P C 91 and PLD 1955 Dacca 96. Section 10 of the Limitation Act con--templates a situation where a specific trust is created for specific purpose, From the language of section 10 it is clear that unless the property of one person is transferred to another as a trust for a specific purchase the transaction could not be regarded as a trust for the purpose of this section. The plaintiff has failed to prove that Rs. 2 lacs was paid by the plaintiff No. 1, defendant No. 1. Furthermore a close scrutiny of the pleadings and the evidence of the plaintiffs it seems that on all occasions emphasis has been laid on the word 'trust' but in fact as is evident from the evidence the parties had beets in regular business since long, and if it all Rs. 2 p lacs was paid which .Has been held otherwise then it was nothing else but an investment on partnership basis, P. W. 1 has stated that defen--dant No. 1 invited him to join with him in the business and in purchase of plots in suit to which they agreed and thereafter they paid Rs. 2 lacs to defendant No. 1. He further stated that it was agreed that the two brothers will have 50% share in business and 50--,o share in the aforestated plot of land. He has stated that this money was given as trust and a partnership deed was also signed. The execution of this partnership deed is also confirmed by the other witness P. W.
2. It therefore, follows that there was no trust created between the parties and if at all the money was paid it was because of business transactions on partnership basis. It has been stated in the plaint that defendant No. 1 purchased the property as a Benamidar for the plaintiffs and his were who has denied it. The plaintiffs have claimed that defendant No. 1 as a trustee or an agent of the plaintiffs is liable to render true accounts. A party from whom an account may be asked should be a trustee, an agent, partner or a Benaa midar. The relationship of partners or Benamidar if established twill: exclude the existence of a trust as contemplated by section 10. Therefore question of trust does not arise.
The only document which remains for consideration is Exh. 23/3 Which is reproduced as follows :-- "A meeting attended by the following was held at 16-00 hrs. On Sunday, the 2nd July, 1961 at the Factory to transact the following business Present
(1) Seth Ghulamaliji Kathawala (Representing Rasulji Buxji)
(2)Mr. M. Ghulam Ali (Representing Esmailji Tayabji)
(3)(a) Mrs. Razia Ghulam Ali Partners of
(b) Mr. Mohammad Husain Pakistan Cement
(c) Mr. Abdul HusainPipe & Construction Co.
1. Resolved:-That the following shares in the combined business in Pakistan is unanimously confirmed
(1) Rasulji Buxji50%
(2) Esmailji Tayabji 25%
(3) Mrs. Razia Ghulamali 25%
2. Resolved :-That on the authority of Seth Ghulamatiji Kathawala (Representating Rasulji Buxji) the entire interest of Seth Rasulji Buxji will vest in M/s. Mohammad Husain and Abdul Hussain as to sole heirsto Seth Rasulji Buxji in Pakistan. That the factory land (420/GWR) now held as trust in the name of Mr.' Mohammad Ghulam Ali is the property of the following
(1) Mr. Mohammad Husain & Mr. Abdul Husain50%
(2) Mr. Mohammad Ghulam Ali25%
(3) Mr. Mohammad Ghulam Ali25% (Nominee of Ismailji Tayebji)
It is further resolved that Mr. Ghulam Ali can be called upon at any time to hand over the land freely to the above-named jointly when called for.
4. Resolved :-That for case of working Pakistan Cement Pipe and Construction Company shall take over the assets of Sind Minerals and Refractories at Karachi at a negotiated price and will be exclusively owned by the following partners ;
1. Mrs. Razia Ghulam All
2. Mr. Mohammad Hussain
3. Mr. Abdul Husain
5. Resolved :-That Sind Minerals and Refractories now' defunct in Karachi will operate at Khairpur and Jungshahi and will be owned by the nominees and heirs of Esmailji Tayabji,
6. Resolved :-That Pakistan Cement Pipe and Construction Company agrees to Sind Minerals and Refractories to carry on concrete pipe business same as Sind Minerals and Refractories agrees to Pakistan Cement Pipe & Construction Company to manufacture S.W. Pipes and Fire bricks in Karachi:
(1) Seth Ghulamaliji Kathawala (Representing Rasulji Buxji-signed)
(2) Mr. M. Ghulam Ali (Representing Rasulji Tayabji)-signed
(3) Mrs. Razia Ghulam Ali-signed (4) M. Mohammad Husain-signed 5) Mr. Abdul Husain-signed It records the minutes of meeting of all the investors who had been doing business incogni to or through some other representatives. In this document it is stated that defendant No. 1 was representing the interests of Ismailjee Tayabjee. It has been also stated that plaintiffs will have 50*1d share in property in dispute which is in the name of defendant No. 1. Defendant No. 2 was allocated 25% and defendant No. I as nominee of Ismailjee Tayabjee was to hold 25% share in the property. It has been further confirmed that Ghulam Ali defendant No. 1 can be called upon at any time .To hand over the land to the abovenamed jointly. This document was prepared on 2nd July, 1961. Thereafter the plaintiffs entered into a deed of relinquishment in the year 1968 to which defendant No. 1 is not a party. Defendant No. 2, however, has stated that deed of relinquishment will not in any manner affect the rights of the plaintiffs in the land in dispute. This confirms that defendant No. 2 accepted the plaintiffs' right in the property. The plaintiffs can assert their right to the property on the basis of Exh. 23/3 and three letters of defendant No. 1 which were written by him after filing of the suit. In these letters he has stated that he was anxious to settle the land in question immediately. For that he had given a suggestion also that Seth Bhoorjee Bhai who were the predecessors-in-interest of the plaintiffs should withdraw the suit immedia--tely so that defendant No. 1 may proceed against defendant No. 2. It may be mentioned that by this time defendants Nos. 1 and 2 had fallen out. It was also demanded that a declaration should be made by Bhoorjee Bhai. This certainly referred to the internal and clandestine transaction between the parties, and it can throw some light on the interest in the land. Exh. 23/3 is a document in which the minutes of the meeting dated 2nd July, 1961 have been recorded. In this meeting besides the parties to the suit one Ghulam Alijee Kathawala was also present. He is one of those persons who had interest in the business. It seems that in this meeting the parties had settled their entire business disputes and the decisions taken related to such business and properties which were in one way or the other concerned with them. Item No. 3 related to the settlement of the property in which shares of each parties were specified, It was further resolved that "Mr. Ghulam Ali can be called upon at any time to hand over the land freely to the abovenamed jointly when called for."
This document has been admitted by defendant No 1 but it has been denied by defendant No. 2.
The document bears the signatures of the plaintiffs and the defendants. Defendant No. 2 has not come forward to deny her signature and therefore presumption has to be drawn against her. In any event by an agreement known as deed of relinquishment and release dated 31st October, 1968 defendant No, 2 has accepted the rights of the plaintiffs in this plot. Defendant No. 1 although admitted the document has stated that it was not acted upon, and was cancelled. In that regard no evidence has been produced to snow that it was not acted upon by the parties. The only document pro--duced by defendant No. Is the judgment in a suit filed by defendant No. I for cancellation of this document. The plaint in this suit was re--jected under Order VIIrule 11 as defendant No. 1 had term this agreement as a proposal. It was also observed by the Court that even other24'89 M=were the suit was barred by time. The defendants have not been able to establish by oral or documentary evidence that this document Exh. 23/3 was rescinded or was cancelled by the parties. In view of this document my finding is that under agreement between the parties which was reached on 2nd July, 1961 the plaintiffs have 50% share in the plot of land.
Defendant No. 2 in para. 6 of her written statement denied that she is owner of 25% share in the property. She has also pleaded that she does not claim share in the property in dispute. She has therefore waived her right to claim 25% share in the property. Defendant No. 1, therefore, have 50% share in the property.
Issue No. 4.-The learned counsel for the plaintiffs has contended that as the suit relates to trust in view of section 10 of Limitation Act no period of limitation is provided finding is that the suit does not relate to the trust. Therefore, it has to be considered whether the suit is within time. The plaintiffs are co-owners and are entitled to their specific share in the property. There is a continuing cause of action and so long they are co-owners they can sue for partition of the property. Therefore, the suit is not time-barred.
Issue No. 6. In view of my finding of the above issue the plaintiffs are entitled to 50% share in the property bearing No. 420 GWR Garden West, Lawrence Road, Karachi and for partition of the plot.
The plaintiff's claim for rendition of account and share in rent is dismissed.
The parties to bear their own costs.