DORAB PATEL, J.---The dispute In this Letters Patent Appeal relates to a cinema in Karachi known as the 'Eros' theatre. The cinema is situated an No. 2, Preedy Quarters, Marston Road, Karachi. In view of its location, the building on which the cinema is run is very valuable and the cinema business ix also very profitable, and according to all the respondents in this appeal, the building of the Eros threatre, as well as the business of running that cinema are owned by a firm of the same name, namely Eros theatre. There is however a dispute about the identity of the partners of this firm, and I would explain the relationship between the parties. A firm with the name of the Eros theatre was formed on 20-9-1948 and registered with the Registrar of Firms, Karachi, on 14th February 1949, under No. 4937, and one Mr. M. C. Parekh (hereafter called Parekh) and one Mr. S. A.
Rizvi (hereafter called Rizvi) were the managing partners of this firm. Parekh died in 1953 and Rizvi during the pendency of the suit in appeal. Respondent No.1.In this appeal is the Eras theatre, whilst respondents 2 to 7 are the legal heirs of Parekh, including two widows Qamar Bano and Mst. Amina, whilst respondent No. 27 is a son of Parekh. All the other respondents in this appeal are the legal heirs of Rizvi and of his deceased mother and sister, namely Mst, Bismillah Begum and Samad Begum. The appellants also fall into two groups. There was one Malik Muhammad Ishaq (now deceased) represented through his legal heirs. Appellants 2 and 3 are his widow and son respectively. The other appellants belong to a family known as the Dastoor family. Respon--dents 5 and 6 are the sons of one Manekjee Dastoor, deceased, and appellants 4, 7 and 8 are also the legal heirs of the said Manekjee Dastoor, deceased.
2. In the events that happened, respondents 2 to 7 had filed a suit against all the other parties in this appeal on the original side of this Court being Suit No. 159 of 1964. The pleadings are very lengthy, because of the prolonged litigation about the cinema which is now almost in its 20th year.
However for the purpose of this appeal, it is sufficient to state as follows. According to the plaint of respondents 1-7, respondent No. 1 (namely the firm Eros theatre) consisted of five partners: Parekh and his first wife Qamar Bano, and Rizvi and his step-mother, Bismillah Begum, and his sister Samad Begum. The partnership was for a period of 30 years from 20 September 1948, Qamar Bano was a benami partner for her husband, whilst Bismillah Begum and Samad Begum were benami partners for Rizvi, and on the death of a partner, his legal heirs were entitled under para. 8 of the Partnership deed to become partners in the firm at their option. Further according to the plaint, only Rizvi and Parekh were entitled, under the partnership deed, to manage the firm and to enter "into any other arrangement with any party or parties for the benefit of partnership." Then, according to the plaint, Rizvi and Parekh entered into sub-partnership on 6-10-1952, with retrospective effect from 1-4-1952 for a period of 8 years up to 31-3-1960 with appellants 5 and 6 and their father, the late Manekjee Dastoor, but this sub-partnership related only to the cinema business and not to the property No. 2, Marston Road. Parekh died on 1-12-53, leaving respondents 2 to 7 and respondent No. 27, as his legal heirs, and on 2-6-54, one Hussain Malik Wed a suit in the Sind Chief Court against Rizvi, the Dastours and she said lap representative of Parekh, being Suit No. 631 of 1954. The Duct was for accounts and in the alternative for the recovery of the advances made by the said plaintiff. Later, the two widows of Parekh as filed suits for accounts, and much later, so did Bismillah Begum Samad Begum. The history of these suits is lengthy and is not relevant to the arguments advanced by the learned counsel, therefore I would only point out here that according to the plaint in the suit under appeal, the Sind Chief Court had appointed its official Assignee as interim receiver of the Eros Cinema in the suit filed by Mr. Hussain Malik. This suit was settled five years later, and as the order for the appointment of an interim receiver was vacated, the official Assignee of the High Court handed over possession of the cinema to Rizvi, who immediately handed it over to Malik Muhammad Ishaq now deceased. And here It Is necessary to point out that according to the said Malik Muhammad Ishaq, he had entered Into another unwritten partnership with the Dastoors and Rizvi in 1953 immediately after Parekh's death. And even according to the plaint, he the Dastoors and Rizvi had entered Into a partnership on June 1959, with Malik Muhammad Ishaq in pursuance of which the said Malik Muhammad Ishaque took over the Management of the cinema. But according to the plaint, Malik Muhammad Ishaq, to whom I shall refer a5 Ishaq, was a ruthless man, who took advantage of the Impecunious conditions of the widows of Parekh, namely Qamar Bano and Mst. Amina, to obtain pronotes from them for fictitious amounts. Finally, as these two widows had difficulty in maintaining their children, Ishaq obtained from them deeds of assignment of Parekh's entire interests in the firm Eros theatre. Bp a deed of assignment dated 6-5-1959, Qamar Bano assigned for con--sideration to Ishaq her Interests in the firm and also that of her minor children, and her adult son respondent No. 27 was also a party to this deed. Amina Begum assigned her interests and that of her mirror children by a similar deed on 10-10-1959. Qamar Bano had thereafter filed an application. In this Court to be appointed the guardian of her minor children and also for the approval by the Court of the deed of 6-5-1959, in so far as it affected her minor children. But Mst. Amina repudiated the deed executed by her on the ground that she had been induced to sign it by fraud and misrepresentation. She therefore filed an application for the appointment of the Official Assignee as the guardian of her minor children, and having realised her error so did. Qamar Bano. This Court appointed its official Assignee as the guardian of all the minor children of Parekh, and as guardian he made an application to set aside the deeds of assignment executed by the two widows on the ground that they had been induced to sign them by Ishaq's fraud and misrepresentations. As Constantine, J.th Dismissed this application, he filed an appeal in the Supreme Court, and their Lordships set aside the deeds of assignment in so far as they affected the minors. 'The claim of Qamar Bano and of Mst. Amina in their plaint therefore is that these deeds are void against them also, as they were 'Pardanasheen' ladies and had been induced to execute them by fraud and misrepresentation on these allegations, respondents 1 to 7 filed a suit against the Dastoors and against Ishaq, his wife and son (who are the appellants before us) and also against Bismillah Begum and heirs of Rizvi.
The relief sought in the plaint was as Follows:--
(1) A declaration that the registered partnership of 1948 was subsisting and valid.
(2) That the sub-partnership with the Dastoors had come to an end on 31 Match 1960.
(3) A. Declaration that the deeds of assignment executed by Qamar Band and Mst. Amina were void,
(4) The delivery of possession or of joint possession of the Eros theatre to respondents 1 and 7.
(5) An order to restrain the first three appellants from managing the affairs of the Eros theatre and to restrain them from interfering with its management.
(6) A direction to the appellants to give the accounts of Eros Theatre from 17-4-1959 and a decree for accounts.
3. No relief was sought against Bismillah Begum and the legal heirs of Rizvi, who did not take any part in the suit before the learned Single Judge after filing the written statements, therefore it is sufficient to state here that these respondents have denied the allegations that Bismillah Begum and Samad Begum were benami partners. But as the relief was sought against the Dastoors and the Ishaqs, it is necessary to examine their written statements. Strange though it be, the Dastoors did not file any written statement and merely relied on that of the Ishaqs, who filed a joint written statement. Iii this written statement, the Ishaqs dented the very existence of the partnership of 1948 rind even its registration. In the alternative they contended that it was illegal and had not been acted upon. They also submitted that it had been superseded by the partnership entered Into between Rizvi and Parekh with the Dastoors in 1952, which was a full-fledged partnership. They also further pleaded that the heirs of Parekh had not become partners in the Eros Theatre on his death with the result that the first three appellants had validly entered into a new partnership to run the Eros Theatre with the Dastoors and Rizvi, and under this partnership the first appellant Malik Muhammad Ishaq was entitled to manage this firm as the other partners had duly authorised him so to do. Finally, it was submitted that the deed of assignment executed by the various parties in favour of the Ishaqs their respective shares were valid and binding on the assigners.
4. The learned Single Judge decreed the suit of respon--dents 1 to 7 and held that the partnership of 1948 "still continues to exist". He also held that Rizvi and Parekh had entered into a sub- partnership with the Dastoors in 1952 which had expired on 31st March 1960. He further held that the deeds of assign--ment executed by Mst. Amina, Qamar Bano and respondent No. 27 were void, and that respondents 2 to 7 were entitled to joint possession of the Eros Theatre and of all its assets and properties with the said Parekh and the heirs of Rizvi, As a corollary of this finding, the learned Single Judge held that the appellants were not entitled to the possession of the Eros Theatre or of its assets and properties or to manage the same, end that they were liable to render accounts to the said respondents 1 to 7 for the income of the Eros Theatre from 17th April 1959, onwards and to pay the amount found due from them to these respondents and to respondent No. 27 and to the heirs of Rizvi. Finally, the learned Single Judge set out the shares of the heirs of Parekh and appointed Mr. Ghulam A.I Memon, Advocate, as Commissioner for taking accounts and gave detailed directions to the Commissioner about the manner and mode of taking accounts.
5. The' appellants filed a Letters Patent Appear against this judgment which was fixed for hearing on 24th January 1973. Mr. Brohi and Mr. Abdul Sattar Pirzada requested us on that date to give preference to this appeal in view of the direction by the Supreme Court for the early disposal of thisst appeal and accordingly we commenced hearing it. As I have indicated earlier, the appellants fall into two groups, the representatives of Ishaq, and the Dastoors, and Mr. Brohi assisted by Mr. K. A.
Ghani appeared on behalf of the Ishaqs, Mr. Iqbal Kazi appeared on behalf of the Dastoors and merely supported the arguments of Mr. Brohi. Mr. Brohi concluded his argument is on 30th January 1973, and at the joint request of all the learned counsel the case was adjourned for the arguments of the learned counsel of the respondents to 20th February 1973. Mr. Abdul Sattar Pirzada then commenced arguments on behalf of the respondents who were the plaintiffs in the trial Court, namely the heirs of Parekh. However, one of his heirs, Ahmad Parekh, respon--dent No. 27, who did not contest the suit before the learned Single Judge was represented before us by Mr. Shah Yaqoob, whilst all the other respondents were represented by Mr. Khursheed. Mr. Shah Yaqoob relied only on the arguments of Mr. Abdul Sattar Pirzada whilst Mr. Khursheed generally relied on the arguments of Mr. Abdul Sattar Pirzada. Again at the joint request of the learned counsel, we fixed the 7th of March 1973, for the reply of Mr. Brohi to the arguments of Mr. Abdul Sattar Pirzada. Mr. Sbarifuddin Pirzada appeared instead, and in his reply he advanced a completely new case which has not been pleaded even in the very lengthy memorandum of appeal of the appellants. Mr. Abdul Sattar Pirzada therefore submitted that most of the arguments advanced in the reply went far beyond the scope of a reply. But despite this vary, legitimate objection, as we did not wish to do anything which might lead to further litigation; we heard Mr. Sharifuddin Pirzada at length and allowed Mr. Abdul Sattar Pirzada to reply to the new points raised by Mr. Sharifuddin Pirzada. Finally, arguments, were concluded on 28th March 1973. But before I consider them it is necessary to refer to two other circumstances. The first is that as soon as we commenced the hearing of the appeal, both sides presented applications and I will consider them in the proper context. The second circumstance is that although many issues bad been framed by the learned Single Judge and although arguments were advanced at very great length, neither Mr. Brohi nor Mr. Sharifuddin Pirzada nor Mr. Abdul Sattar Pirzada placed any reliance on the issues, therefore I will only consider the questions on which the learned counsel Advanced their submissions.
6. In order to appreciate the arguments of the learned counsel, I may point out that all the respondents in this appeal now rely on the partnership deed of September 1948, on which the plaintiff's respondents had based their claim in the trial Court. The appellants deny the existence of this partnership and as the original partnership deed has not been produced, Mr. Brohi vehemently submitted that the copies of the partnership deed produced by the plaintiffs-respondents were not admissible. However, before I consider these objections, I would first refer to the terms of the partnership deed, as stated in the copies produced before the learned Single Judge. The partnership deed is dated 31st December 1948, but the first clause states that the partnership shall be deemed to have commenced from 20th September 1948, and that it was for a term of 30 years.
The second clause of the deed states that the name of the firm was to be Bros Theatre. The third clause states as follows "(3) The respective shares of the said parties hereto in the profits and loss of the said business shall be a8 under:- Rs.
(1) Bismillah Begum 0 1 0
(2) Samad Begum 0 1 0
(3) Syed Abdul Momin Rizvi 0 6 0
(4) Kamar Bano daughter of Late Moulvi Syed Suleman 0 4 0
(5) Muhammad Cassam Parekh 0 4 0 Total1 0 0 The fourth clause is important; it states that Rizvi would manage the firm on behalf of the partners of the Rizvi group, whilst Parekh would act on behalf of himself as well as Qamar Bano. According to clause 6, even the bank accounts of the firm were to be operated only by Parekh and Rizvi jointly.
Clauses 7 and 8 are important and read as follows "(7) That partners Nos. 3 and 5 have right to raise loan with or without security for the better and efficient management of partnership and for that purpose No. 3 and No. 5 can enter into any other arrangement with any party or parties for the benefit of partnership.
(8) If during pendency of the partnership any partner dies his share of assets and liabilities of the partnership will go to the heirs and legal representatives of the said deceased partner and 4f heirs and legal representatives are not willing to continue the remaining partners shall make up and clear the account of the deceased partner and at such time the valuation of the property of the partnership will be taken into account according to the Book value of the same and the value of the whole goodwill will be taken as Rs. 10,000 (ten thousand) fixed and the same will be paid to them according to their shares after taking a due discharge from them and the firm shall continue."
7. The contention of the respondents is that clause 8 conferred a right on the legal heirs of Rizvi and Parekh to become partners in the firm on the death of Rizvi and Parekh respectively, and that was also the view of the leaned Single Judge. However, Mr. Brohi had criticised this construction of the clause because it states " . . . . . . And if heirs and legal representatives are not willing to continue the remaining partners legal heirs of deceased partners were entitled to become partners, Mr. Brohi submitted that the clause was intended to confer on the legal heirs of a deceased partner only thereunder sub- section (8) of section 30 of the Partnership Act. According to this subsection, if the heir of a deceased partner elects not to become a partner, his rights and liabilities continue to be those of a minor under section 30 up to the date on which the minor gives statutory notice under that section. Now clause 10 expressly provides that on the death of the ladles of the Rizvi group the children of Rizvi would succeed to these ladies. The partnership was obviously an arrangement between two families, the Rizvis and the Parekhs, for running a lucrative business for a period of 30 years. In these circumstances, it seems to me, as rightly held by the learned Single Judge (I say so with respect), that clause 8 was Intended to confer a right on the heirs of a deceased partner to become partner In the firm. Further, without prejudice to his submission that this partnership deed was a sham transaction, Mr. Sharifuddin Pirzada stated before us on 26-3-1973 that this clause conferred a right on the heirs of a deceased partner to become partners of the firm. Learned counsel's concession was proper and it is unnecessary to discuss this aspect of the case further.
The view of the learned Single Judge is correct, and I will presently revert to this finding.
8. I have pointed out earlier that the plaintiffs-respondents bad produced four copies of the partnership deed. Now, as I shall presently show, the appellants had objected to the produc-- petition of two/three of these copies on the ground that no case for adducing secondary evidence lead been made out. But in his arguments Mr. Brohi submitted that all the copies were inadmissible as tine plaintiffs-respondents had failed to bring their case under section 65 of the Evidence Act.
Section 65 in so far as it is relevant reads as follows:- "(65) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power, of the person against whom the document is sought to be proved or of any person out of reach or, not subject to the process of the Court, or of any person legally bound to produce it, and where after the notice mentioned in section 66, such person does not produce it;
(c) when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) (e) (f) and (8) ------------------------------.
On the plain language of the section, secondary evidence of the partnership deed could be given by proving that the respondents did not have the original deed through no fault of their own or by proving that the appellants were likely to be in possession of the original deed. Qamar Bano said in her evidence that Ishaq had once shown her the original deed, and indeed this would be the necessary corollary of the case advanced by the appellants, Their case is that Qamar Bano and the ladies of the Rizvi group were non to quote the words of Mr. Brohi and if they were non est. How they could possibly be in possession of any partnership deed. Further, according to the appellants, the firm was first run by Rizvi and Parekh, then the Dastoors were taken into partnership in 1952, and the next year Ishaq became a partner and he immediately took over as the managing partner of the firm. Finally, a registered partnership was formed on 6-6-1959 between Rizvi, the Dastoors and Ishaq, and once again Ishaq was the managing partner of this firm. Now, as according to the appellants these; firms ran the cinema, it there was a partnership deed of 1948, it would be with Ishaque. It is true that he denied having it, but Qamar Bano said in her evidence that Ishaq had showed her the original partnership deed of 1948 and she was not cross-examined on her categorical assertion. I am aware that there is little to choose between the evidence of these two witnesses, both of whom appear to me to be unreliable. But on the whole, as Qamar Bano never denied being a benami partner, she could not have been in possession of the original deed, therefore I believe her statement. In any case, the evidence is sufficient to lead to the conclusion that the partnership deed "would appear" to be in Ishaq's possession within the meaning of section 65 of the Evidence Act. And as he has been served a notice under section 66 (Exh. 7) to produce the deed, I agree with Mr. Abdul Sattar Pirzada that the plaintiffs-respondents 8 have brought their case under clause (a) of section 65 of the said Act. Additionally, I am satisfied that the failure of these respondents to produce the original deed was not due to any fault on their part, so that the case also falls under clause (c) of section 65. Mr. Brohi's argument fails and I may observe here that in the circumstances discussed "any secondary evidence" of the partnership deed "is admissible" under section 65 of the Evidence Act.
9. Mr: Sharifuddin Pirzada sought to overcome this difficulty in his reply by advancing a more sophisticated argument. Mr. Sharifuddin Pirzada submitted that partnership deeds were generally executed in several parts, so that each partner kept a copy for himself whilst the original deed was kept at the firm's office or with its accountant. In these circumstances, he invited us to hold that a stamped copy of the partnership deed must have been in the personal custody of Parekh and therefore his widows should have produced it with the result that any other form of secondary evidence was not admissible. The submission is based on assumptions of fact, and as the widows of Parekh were not cross-examined on these assump--tions, despite a most prolonged cross- examination, I agree with Mr. Abdul Sattar Pirzada that this novel submission cannot be accepted at this appellate stage. I would therefore turn to the second objection of Mr. Brohi about the copies of the partnership deed and this objection was that the copies did not come within the purview of section 63 of the Evidence Act.
Section 63 of the Evidence Act reads as follows "63. Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained ;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies ;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them 3
(5) oral accounts of the contents of a document given by some person who has himself seen it."
I have held that the respondents were entitled to prove the partnership deed by any mode of secondary evidence, but of course this means only by-any of the modes of secondary evidence described in section 63. I may however point out that even oral evidence of the partnership deed was admissible, and therefore I would turn to the copy first produced through Mr. Shah Yaqoob, Advocate, who was examined by Qamar Bano. I have observed earlier that litigation has been going on between the parties for almost two decades, and it was admitted before us that Mr. Shah Yaqoob had been the Advocate of Mst. Amino Begum in a suit filed against her by Mst. Bismillah Begum, being Suit No. 112 of 60 of this Court. Mr. Shah Yaqoob had therefore to file a written statement on behalf of Mst. Amino and others, and he stated in his evidence that the plaint in the suit filed against Mst. Amino was accompanied with a copy of the partnership deed of 1948 which he produced as Exh. X/1. He also said that Rizvi had shown him the original deed of partnership and then said: "Before I had filed my Vakalatnama in that suit. Mr, Rizvi showed me the original document when he approached me in connection with the filing of the written statement. It was on account of the original of this partnership deed having been shown to me that I admitted the existence of it in the written statement filed by me on behalf of the defendants". As the Advocate of the defendants in Suit No.-112 of 60, it was the duty of Mr. Shah Yaqoob to admit or deny the copy of the partnership deed annexed to the plaint in Suit No. 112 of 60 after comparing it with the original deed if possible. That is what the witness claims to have done, and his categorical assertion that he had admitted as correct the copy of the partnership deed only after personally comparing it with the original partnership deed means that this copy (Exh. X/1, now Exh. 79/3) was a copy verified by comparison with the original document within the meaning of subsection (3) of section 63 of the Evidence Act, whilst Mr. Shah Yaqoob's assertion that the contents of this copy tallied with the original partnership deed would bring his statement under subsection (51 of section 63.
10. I now turn to the copy (Exh, 34/6) prepared by the office of the Official Assignee of this Court. I may explain here that in the suit filed by Hussain Malik (Suit No. 631 of 1954 of the Sind Chief Court), the Official Assignee had been appointed the receiver of the Eros Cinema, a responsibility he continued to discharge until 1959 when the suit was settled. Apparently, the parties in this suit bad made applications for maintenance, and as the views of the Official Assignee were required by the Court, he had directed the parties to produce the partnership deeds. According to the plaintiffs- respondents, the copy (Exh. 34/6) had been prepared by the office of the official Assignee after comparison with the original partnership deed. Evidence in this respect was given by Mr. Zahoor Khan, an Assistant in the Office of the Official Assignee. The witness said that the Official Assignee had directed both Rizvi and Mr. Manekji Dastoor deceased to produce the partnership deeds on which they relied, and thereafter copies of the partnership deeds had been prepared by his office and returned to Rizvi and Manekji Dastoor respectively. The witness identified (Exh. 34/6) as the copy of the partnership deed produced by Rizvi and Exh. 34/7 as the copy of the partnership deed relied upon by the Dastoors. The latter is not relevant, but Mr. Abdul Sattar Pirza invited us to accept the evidence of Mr. Zahoor Khan and to hold that the copy (Exh. 34/6) fell with the meaning of subsection 3 of section 63 of the Evidence Act. No criticism has been advanced against the veracity of the witness, and he has clearly stated that the copy (Exh. 34/6) was prepared from the original deed and returned to Rizvi. In these circumstances, we had invited Mr. Brohi to show us how this copy was not secondary evidence, especially in view of sub--section 3 of section 63. Mr. Brohi's only reply was that Mr. Zahoor Khan had not prepared the copy (Exh. 34/6). Therefore the copy had been prepared by a typist, who has not been ,examined, and the result of the failure to examine that typist was that the respondents had not brought their case under any of the provisions of section 63. But the section does not contain any requirement that a copy made from or compared with the original (vide subsection 3) can be produced only through the person who had prepared it. Therefore, the learned counsel's submission implies reading into the section a qualification which is not contained in it. That was also the view of S. A. Rahman, J. As he then was, in Muhammad Khan v. Ghulam Rasool (PLD 1952 Lah. 40) the case to which Mr. Abdul Sattar Pirzada referred us. We also find that the same view has been taken by the Allahabad High Court in Sri Babu Lal v. B. Ganga Saran (AIR 1952 All. 48and I may, with advantage, quote Monir's observations on section 63 of the Evidence Act. The learned author has observed in his commentary (4th Edition) .At page 405 as follows: "The copy to be given in evidence must be proved to be correct copy by the evidence of some one who can swear to its being a true copy. It is not necessary that the scribe of the copy should be produced. What is required to be proved is that the document is a true copy of the original. Any one who has heard the original and the copy read out to him may swear that the contents of the two were identical."
I would follow these observations and hold that the copy produced by Mr. Zahoor Khan (Exh. 34/6) was admissible under section 63 of the Evidence Act.
11. I have said that the appellants had objected to the production of two or three copies of the partnership deed, and T may point out that they had objected to the production of the copy Exh.
34/6, as well as the copy produced by Mr. Shah Yaqoob. As the copy produced by Mr. Shah Yaqoob was later produced by Ishaq himself as Exh. 79/3, Mr. Abdul Sattar Pirzada submitted that the appellants had waived their objections to the production of this copy. But according to Mr. Ghani, Ishaq had produced the copy subject to his objection. It is a little difficult to understand how a defendant can produce a copy of a document and at the same time object to the produc-- petition of that very copy on the ground that it is secondary evidence. Be that as it may, I agree with the learned Single Judge that (X/1) was properly produced by Mr. Shah Yaqoob. Additionally, the copy (Exh. 39) was produced by Qamar Bano during her cross-examination on behalf of the appellants by Mr. Ghani, who continues to be their junior learned counsel before us. Mr. Ghani explained that this copy had been pro--duced in order to prove a material discrepancy between this copy and other copies. Whatever be the motive for producing a copy, an objection about secondary evidence can always be waived, and as the appellants have themselves had the copy j (Exh. 39) produced, they cannot turn around and object to the admissibility of the very copy produced at their instance.
12. Finally, the learned counsel for the appellants contended that the 4th copy of the partnership deed (Exh. 67) produced by Mst. Amino in her evidence-in-chief was inadmissible. I agree with this objection, but this will not help the case of the appellants because of the three other copies (Exhs.
34/6, 79/3 and 39). However, as I have just pointed out, Mr. Ghana had attempted before the learned Single Judge to challenge the evidentiary value of the copies by reference to the copy (Exh.
39). Mr. Brohi dropped this objection as trivial, but since it was raised I may briefly examine it. The date of the partnership deed in this copy (Exh. 39) is 31st December 1949 but in the other copies it is 31st December 1948. Qamar Bano was cross---examined on this discrepancy, and she asserted in her evidence that the partnership had been formed and registered in 1948 and not in 1949. Apart from her evidence and the certificate of firm's registration (Exh. 31/2), Mr Zahoor Khan of then Official Assignee's department and Mr. Shah Yaqoob, who had produced the two other copies, were not cross-examined on the date of the partnership deed in the copies produced by them, although in both cases the date was 31-12-1948. In these circumstances, it is obvious that the date. In the copy (Exh. 39) was a clerical or typing error. Mr. Brohi had rightly dropped this objection, and he had further stated that even if there were some other discrepancies between the copies of the partner--ship deed, he would not rely on them as they were of a clerical nature. Bearing in mind the fact that none of the witnesses were cross-examined on any other discrepancy except about the date of the partnership deed Mr. Brohi's concession was fair and proper.
13. However, Mr. Sharifuddin Pirzada submitted in his rely that the copies of the partnership deed were not fit to be accepted because they were full of errors and discrepancies, and in support of this submission he placed before us a chart of discrepancies which I have examined. I may first state here that according to Mr. Abdul Sattar Pirzada, Mr. Sharifuddin Pirzada could not, in the guise of a reply, repudiate the stand taken by Mr. Brohi and reargue the entire case. However as we have heard Mr. Sharifuddin Pirzada, I would briefly examine his submissions about the alleged discrepancies with reference to the three copies which are admissible. Thus the copies (Exhs. 34/6 and 79/3) show that they had been executed on stamp paper, and the name of the vendor and other particulars are stated at the top of these copies, but this Information is not contained in the copy (Exh. 39). Again, in the recitals clause of the deed. Bismillah Begum is referred to in the copies (Exhs. 34/6 and 79/3) as "the widow of the late Nawab . . . . . . . .", but in the copy (Exh. 39) she is described as "the wife of the late Nawab . . . . . . .". Similarly, the recital in the copies (Exhs. 34/6 and 79/3) refers to Samad Begum as Samad Begum daughter of late Nawab Molvi Syed Muhammad Rizvi, whilst in the copy (Exh. 39) she is referred to as the "daughter of late N. M. S. M. R." Not only are these discrepancies in the nature of obvious typing errors, but they are to be found only in the copy (Exh. 39). It is very clear that the person who prepared this copy was very negligent. To illustrate my point further I will refer to a few more discrepancies mentioned in this chart. Thus, Parekh is referred to in clause (4) in the copies (Exhs. 34/6 and 79/3) as Muhammad Cassum Parekh. But in the copy (Exh. 39) his name is abbreviated to M. C. P. Additionally, this clause relates to the maintenance of accounts which are correctly described as books of account in the copies (Exhs. 34/6 and 79/3).
But the expression used in the copy (Exh. 39) is not books of account but balance of account. There are several other discrepancies of a similar nature between the copy (Exh. 39) and the other copies, but they all are of a clerical nature. Now, as this copy (Exh. 39) was attached to a plaint, it means that the Advocate who drafted that plaint was negligent in preparing a copy containing such errors. However the duration of the partnership and the names of the partners is also proved through the firm's certificate of registration (Exh. 31/2). In this background merely because one copy of the, partnership deed (Exh. 39) is full of clerical errors, why should we reject the other copies (Exhs. 34/6 and 79/3) which are free from these clerical errors? Additionally, if the appellants thought that these minor discrepancies were material they should have cross-examined the witness who produced the other copies (Exhs. 34/6 and 79/3). They did not do so. And I see no reason whatever for doubting the evidentiary value of the other copies, the more so as the copy (Exh. 34/6) was really a part of this Court's records. I am therefore not impressed by the grievance about the alleged discrepancies in the copies of the partnership deed, and the position taken by Mr. Brohi in his opening address was correct.
14. Mr. Sharifuddin Pirzada than submitted that as clause 9 of the partnership deed of 1948 amounted to a conveyance of immovable property by Rizvi to the firm, so that the deed required registration under the Registration Act and because it had not been registered, the partnership was illegal and the copies of the alleged partnership deed were inadmissible. His second objection was that the copies of the partnership deed (Exhs. 34/6 and 70/3) show that the original partnership deed had not been properly stamped and as the original deed was not available, the result, according to learned counsel, was that the copies admitted were inadmissible under the Stamp Act. It appeared to us that neither of these objections could be decided without evidence or at least without giving an opportunity to the respondents to produce evidence. There is also no issue nor any evidence about these objections, because they had not been pleaded by the appellants in their written statements. These objections were also not raised before the learned Single Judge, nor have they been raised in the memo randum of appeal, although this memorandum exceeds 30 pages. I therefore observed that the proper course for the appellants would be to seek permission for the amendment of the memorandum of appeal. Learned counsel replied that he would not amend the memorandum of appeal, and on further enquiry he informed us that an amendment of the memorandum of appeal was not necessary because the objections raised by him were pure questions of law.
15. There cannot be any doubt about the proposition that an appellate Court, may, in the exercise of its discretion, permit a pure question of law to be argued before It, even though it was not pleaded or raised in the lower Courts. However, as rightly submitted by Mr. Abdul Sattar Pirzada, .The real point for determination is whether the objections advanced by Mr. Sharifuddin Pirzada are pure questions of law. And in this connection Mr. Abdul Sattar Pirzada referred us to the observations of the Supreme Court in Haji Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 6 90). There, with reference to this very question, Kaikaus, J. Observed at page 696: "It is true that a pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that it could have been met by an allegation of fact."
I would now apply the principle, laid down in the observations to the present case.
16. I would first consider t e objection advanced on the basis of the Registration Act. And in support of his submission, Mr. Sharifuddin Pirzada relied on the judgment of Farooqi, J. In Zainab Bai v.
Ibrahimji (PLD 1962 Kar. 209). There Farooqi, J. Observed at page 218 as follows:-- "There can be no doubt that when an immovable property belonging to a partner is by means of a deed so brought into the common stock of the firm so as to become the property of all the partners in the firm, it clearly comes within the mischief of section 17(b) of the Registration Act. It is true that when there is already an existing right into an immovable property and there is merely a declaration by way of a settlement it would merely amount to an acknowledgment of an existing right and a document containing such a declaration would not be compulsorily registerable."
Mr. Sharifuddin Pirzada naturally relied on the first part of the observations which I have quoted but the second part, on the fads of this case goes against his submission. On the other hand, Mr. Abdul Sattar Pirzada submitted that the view taken by Farooqi, J. In the first part of the observations quoted was not correct and required reconsideration. It is not necessary for the purpose of this appeal to decide whether the view of Farooqi, J. Is correct. But I will assume that it is correct. I will also first assume that the partnership deed requires registration. But even when these assumptions are made, the appellants can succeed only by showing that the partnership deed was not registered. But where is the evidence to show that it was not registered? Mr. Sharifuddin Pirzada stated that the deed was not registered because the copies produced did not show that it had been registered. That is true, but Mr. Abdul Sattar Pirzada pointed out that section 23 of the Registration Act gives a period of 4 months for the registra--petition of documents. This being so, the partnership could well have been registered within 4 months from that date 31st December 1948. It is true that none of the copies contain any endorsement to show that the partnership deed had been registered. But the copies could have been prepared before the deed had been registered, therefore the mere fact that the copies do not show that the partnership deed was not registered does not mean that the deed was not registered. I may also point out here that Mr. Sharifuddin Pirzada left, afar finishing his reply, we invited Mr. Ghani to meet this difficulty, and he merely said that evidence should have been produced to show that the partnership deed was registered and that no one had contended that the partnership deed had been registered. But the question whether the deed was registered or not was a question of fact. No objection in this respect had been taken in the written statements, nor was any issue framed in g this respect, nor was the point even argued before the learned Single Judge. Further, although Mr. Shah Yaqoob said so emphatically In his examination-in-chief that he had seen the original partnership deed, he was not cross-examined on the' allegation that it had not been registered. In view of the appellant's failure to cross-examine Mr. Shah Yaqoob, I agree with Mr. Abdul Sattar Pirzada that it is not open to the appellants now to contend that this partnership deed was not registered.
17. However, even if I assume for the sake of argument that the partnership was not registered, the question is whether this objection is a pure question of law. And as rightly sub--mitted by Mr. Abdul Sattar Pirzada, the objection can be a pure question of law only if the partnership deed by itself amounted to a transfer of property. It is therefore necessary to examine the, deed, but only clause 9 is relevant. This clause states: "That the incomplete construction work of the cinema situated at Preedy Quarters, Marston Road, which is agreed to be purchased by S. A. M. Rizvi in his own name from, M. Y. Sitlani and Ghulam Vaswa ni is the property of the partnership and belongs to the partnership."
This clause has a reference to the building in which the Eros Cinema is situated, and according to Mr. Sharifuddin Pirzada, it operated as a transfer of this building by Rizvi to the firm, therefore the partnership deed was an instrument within the meaning of section 17 of the Registration Act and required registration. Thus, the argument binges on at least two assumptions. The first is that the building was transferred to the firm under the partnership deed on 31st December 1948 and the second is that Rizvi had purchased it before the date of the partnership deed, 31st December 1948.
But as according to clause 1 of the partnership deed the partnership had commenced on 20 September 1948, Mr. Abdul Sattar Pirzada submitted that the building of the Eros Cinema might have been transferred to the firm on its formation and that this was merely recorded in the partnership deed. Now if the partner--ship deed merely recorded what had taken place 3 months earlier, then even according to the view taken in Zainab chi's case, it did not require registration, and I may place on record: here that Mr. Abdul Sattar Pirzada advanced this submission only to show that the respondents were entitled to meet the objection raised by producing evidence.
Turning now to the other assumptions on which Mr. Sharifuddin Pirzada's argument was based, clause 9 is not free from ambiguity, and the question is whether by itself it amounts to a transfer of an interest in property. It could amount to a transfer only if, as submitted by Mr. Sharifuddin Pirzada, Rizvi was already the owner of the property at the date of the execution of the partnership deed.
But if he was not, the clause amounts to an agreement by Rizvi to transfer the building to the firm after acquiring title to it. Mr. Sharifuddin Pirzada's argument therefore assumes. That Rizvi was tile owner or the building on 31st December 1948. Not only is there no evidence to support this assumption, but the assumption is contrary to the evidence of the 5 appellant and to clause 6 of the partnership deed of 6-10-1952 on which the appellants base their case. Finally, Qamar Bano was cross-examined by the appellants not on this allegation but on the allegation that Rizvi's agreement for the purchase of the cinema building from Sitlani was subsequent to the date of the partnership deed, and her reply was that she did not remember whether the partnership deed was prior to the agreement with Sitlani or after it. She further claimed that the sale agreement by Sitlani was with all the partners of the firm, and if this be correct, it would follow that the building of the cinema would pass to the firm under the sale agreement and not under any clause of the partnership deed. Mr. Abdul Sattar Pirzada referred us to these statements of Qamar Bano to show that the appellants were now taking a position com--pletely inconsistent with that adopted by them before the learned Single Judge, and that this objection about registration could not be decided without evidence. The submission is correct, and the objection about registration is not a pure question of law.
18. I now turn to what Mr. Sharifuddin Pirzada called his second legal objection. This was that the partnership deed of 1948 required stamp of Rs. 20, but the copies (Exhs. 34/6, 79/3 and 39) showed that it was stamped with only Rs. 2, therefore, according to learned counsel, the copies were not admissible in view of the section 35 of the Stamp Act. As the appellants had not raised this objection when the copies were produced and as they had themselves produced a copy (Exh. 39),th th we observed that section 36 might be attracted to the facts of the case. The effect of this section is that a document cannot be challenged on the ground that it has not been duly stamped if objection was not taken at the time of its production. Mr. Sharifuddin Pirzada's reply to our observations was that section 36 applied only to original instruments and that relief under the section was not available to documents which were copies only. Learned counsel also cited case law on this point, but it is not necessary to examine the case law because the burden is on the appellants to prove that the copies produced (Exhs. 34/6, 79/3 and 39) were under-stamped. Now, as stated earlier by Mr. Sharifuddin Pirzada, partnership deeds are generally prepared in duplicate and according to entry No. 46 of the Schedule to the Stamp Act, as it stood in 1948, it is only the original partnership deed which requires a stamp of Rs. 20 and that only when the capital of the partnership exceeds Rs. 500. But under entry No. 25 the counter-part of duplicates of such deeds require a stamp of only Rs.
2. Additionally, as pointed cut by Mr. Abdul Sattar Pirzada, the effect of section 62 of the Evidence Act is that the counter-parts or duplicate copies of the partnership deed are also primary evidence. Mr. Sharifuddin Pirzada's objection has to be considered in this background, and it is that the copies of the partnership deed (Exhs. 34/6, 79/3 etc.) are inadmissible because they are copies of a deed executed on stamp paper of Rs. 2, whereas the law required that the deed should have been stamped with stamp of Rs.
20. The statement of this objection is sufficient to show that it is based on an assumption of fact, namely that the copies produced were the copies of the original partnership deed which fell under entry No. 46 and not of the counterparts which would fall under entry No. 25. Not only is there no evidence to show that the copies produced were the copies of the original partnership deed, but although Mr. Shah Yaqoob.
Advocate, had said in his evidence that he had seen the original partnership deed, the appellants had not cross-examined on this objection. The result of their failure to cross-examine this witness is that there is no evidence to show that the partnership deed was not properly stamped. There is no evidence also to show that the copies (Exhs. 34/6, 79/3 and 39) were copies of the original partnership deed. They could well have been copies of the duplicate partnership deed which required stamp of only Rs. 2 under entry No. 25. Therefore, not only have the appellants failed to prove the objection about under stamping now raised by them, but it is also clear that the objection cannot be decided without evidence, so that it is not fit to be considered at this stage.
19. Finally, Mr. Abdul Sattar Pirzada pointed out that notice had been given to the appellants under section 66 of the Evidence Act to produce the original partnership deed. This notice is Exh. 7 and he therefore referred us to section 89 of the Evidence Act. This section reads "The Courts shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required-by law". I am satisfied, for the reasons given earlier, that the original partnership deed was with Ishaq and he falsely denied having it. Therefore, In view of section 89 also the objections about stamping and non-registration of the partnership deed are not fit to be entertained.
20. I now turn to the criticism of the learned counsel for the appellants about the existence of the partnership of 1948, despite the production of the copies of the partnership deed. And here I may point out that the plaintiffs-respondents have averred In para. 1 of the plaint that the partnership was registered with the Registrar of Firms under registration No. 493? Dated 14-2-1949. The Dastoors have merely relied on the written statement of the Ishaqs, and with reference to para. 1 of the plaint, the Ishaqs in their written statements have denied knowledge both of the alleged partnership and its registration. Hence the plea of the learned counsel that they did not admit even the existence of the partnership of 1948. But the plaintiffs respondents produced (Exh. 31/2), which is the certificate issued by the Registrar of Firms under section 68 of the partnership Act, and this certificate supports to the hilt the averments in para. 1 of the plaint. However, because the learned Single Judge had observed that this certificate was conclusive evidence in view of section 68` of the Partnership Act, Mr. Brohi criticised this observation and submitted that the certificate did not estop the appellants from proving that no such firm as shown in the certificate had even been formed. I agree with the submission that the statutory presumption under section 68 is not conclusive, but In my humble opinion what the learned Single Judge meant was that in view of the evidence or rather the non-production of evidence by the appellants, the certificate was conclusive, and in this reasoning I can see no flaw. On the plain language of subsection (2) of section 68, the certificate (Exh. 31/2) has to be presumed to be correct and similarly under section 114 of the Evidence Act, therefore the effect of the certificate was to shift the onus of proof to the appellants, who had to produce evidence in rebuttal. Now, not only have they Dot produced evidence in rebuttal, but Ishaq admitted in his evidence that Rizvi had informed him about the firm of 1948, but said that it had not been acted upon. Ishaq was compelled to make this admission because the firm is referred to in the deed of agreement (Exh. 79/8), on which he relied. That Ishaq also asserted that the firm had not been acted upon is another matter, and the burden of this plea was heavily upon him. I shall presently examine this plea, but in view of Ishaqs' admission and the certificate issued by the Registrar of Firms (Exh. 31/1), I do not see how It can possibly be con.
Tended that the firm of 1948 did not exist. In order to get over this difficulty, Mr. Brohi had argued at length to show that the three lady partners of the firm were benami, and I will now examine this submission.
21. According to the partnership deed of 1948, the firm was formed in September, the written partnership deed was executed on 31st December 1948, and the firm was registered under the partnership Act on 14th February 1949. In these circumstances, as it would be very difficult to prove that this firm had never existed, Mr. Brohi submitted that Qamar Bano, Samad Begum and Bismillah Begum were only benami partners whose names had been inserted in the partnership deed in order to evade income-tax and therefore the firm was illegal or did not exist. Now a benami transaction may be genuine or it may be illegal, and if it is illegal, it can be illegal for various reasons. Thus, even in the instant case, according to Mr, Sharifuddin Pirzada, the partnership deed was illegal not only on the plea advanced by Mr. Brohi but also because it was hit by the Registration Act. Therefore, as the case of the appellants now is that the firm of 1948 was illegal, they should have raised this plea in their written statement, and as pleadings have to state facts and not law, this means that they should have set out in their written statement the facts constituting the alleged illegality in the 1948 firm. This they have done in ground No. VII of thcir lengthy memorandum of appeal. But this will be no avail to them unless the same plea has been taken In the written statement. Now, as I have pointed out, the Dastoors have only relied on the written state--ment of the Ishaqs, and the relevant averments of the Ishaqs is contained in para. 1 of their written statement. I may however explain here that the plaintiffs-respondents have stated in para. 1 of the plaint that the 1948 firm consisting of five partners had been formed for a period of 30 years and that it had been registered with the Registrar of Firms, Karachi on 14-2-1949. With reference to these averments, the reply of the Ishaqs in para. 1 of their written statement is that the firm "was a fake partnership and was neither acted upon nor intended to be acted upon at any time". They have also denied the registration of that firm with the Registrar of Firms and further pleaded that the allegations "that (Qamar Bano) and Bismillah Begum were benami partners are not admitted as there was no partnership and that such alleged benami partners in law could not have been made". As the appellants have thus expressly pleaded that they did not admit the allegation that Bismillah Begum was a benami partner, Mr. Khursheed submitted that they could not now be permitted in this appeal to contend that Bismillah Begum was a benami partner. It is true that this averment about Bismillah Begum in the written state--ment is coupled with an allegation that the 1948 firm could not have existed. But if the appellants fail to prove that the firm had not existed, can they be allowed to contend that Samad Begum and Bismillah Begum were benami partners? I agree with Mr. Khursheed that the submission with regard to Bismillah Begum is contrary to the express averments of the appellants in their written statement. Mr. Sharifuddin Pirzada therefore submitted that the plea that Bismillah Begum was not a benami partner had to be read with the plea that the firm was fake firm and illegal. But as a firm may be fake or illegal for various reasons, it was incumbent on the appellants to have pleaded the facts resulting in the alleged illegality or in making the firm a fake one, as they call it. This they have done in their memorandum of appeal, and therefore they could have furnished the same particulars in their written statement. Additionally, the alleged illegality is that the names of the benami partners were a device to evade income-tax. The allegation being one of fraud had to be specifically pleaded and according to the settled law, as this allegation is completely vague, it is not fit to be considered. Therefore, in my humble opinion, the submission on which Mr. Brohi and Mr. Sharifuddin Firzada laid so much stress is not fit to be considered on the short ground that it relates to questions of fact, which were not pleaded.
22. Mr. Brohi was conscious of the clumsy manner in which the written statement had been drafted, and he sought to over--come the difficulty by contending that the submission about the firm being illegal stood proved on the plaint itself. According to learned counsel, this was because the plaint itself stated that Qamar Bano, Samad Begum and Bismillah Begum were benami partners.
The argument must be rejected on more grounds than one. In the first place, an allegation that a partner in a firm is a benami partner does not make the firm illegal. Secondly, pleading are not evidence. Mr. Brohi of course relied on Order VIII, rule 5, C. P. C. The effect of this rule is that every allegation of fact in a plaint if not denied "shall be taken to be admitted except as against a person under disability". But not only does the proviso to the rule confer discretion on the Court, but b the rule itself shows that it is not applicable to minors. In the present case, the majority of the plaintiffs as well as many o the respondents of the Rizvi group were minors, therefore, I would not apply this rule to the present case at all. However, even if I am wrong, the rule is attracted only when an allegation. In a plaint has not been denied. But the allegation that Samad Begum and Bismillah Begum were benami partners has been expressly denied by Bismillah Begum and the other respondents of the Rizvi group in their written statement. In any view of the matter, this rule is of no avail to the case of the appellants against Bismillah Begum and Samad Begum, but even it is assumed that it is open to the appellants to resist the suit against them by alleging that these ladies were benami and bogus partners, the burden was on them to prove these allegations.
23. Mr. Brohi was conscious of the flimsy evidence produced by the appellants in support of these allegations and he therefore advanced an extraordinary argument. Bismillah Begum and the respondents of the Rizvi group had not contested the proceed--ings against them after filing the written statement. The result was the: Bismillah Begum did not give evidence, and according to Mr. Brohi, as she had thereby failed to make herself available for cross-examination by the appellants, an adverse Inference had to be drawn against her, and in this background the evidence produced by the appellants was sufficient to prove that she was a benami and bogus partner. I am aware of the principle that an adverse inference may be drawn against the litigant under illustration (g) of section 114 of the Evident Act, but there cannot be any inflexible rule, as submitted by Mr. Brohi.
Regard must always be to the facts and circumstances of each case, and in the instant case the plaintiffs respondents had not sought any relief against Bismillah Begum or the Rizvis. Therefore, even if they had not filed any written statement, their Interests would not have been jeopardised in any way. In this situation, I are no reason whatever to draw any adverse inference against Bismillah Begum for not giving evidence. Secondly, I have observed earlier that the submission now advanced by Mr. Brohi is inconsistent with the written statement of the appellants. But even if I am wrong, the submission cannot fairly be said to arise out of the written statement, therefore how could Bismillah Begum have anticipated it? Thirdly, the burden of proving that the lady partners of the 1948 firm were benawidars is on the appellants, and can an adverse inference be drawn merely l because a co-defendant did not oblige them by going in the witness-box? Monir has made in this connection the following observations in his Law of Evidence (4th Edition, page 692): "Where a party on whom burden of proof lies does not request the Court for the cross-examination of the opposite party it cannot be held that the theory, in respect of which the onus lies, is established merely by the failure of the opposite---party to offer himself for cross-examination."
I agree with this passage, which applies with greater force to the instant casts because the appellants and Bismillah Begum were co-defendants, and I am not aware of any decision in which un adverse inference has been drawn against a defendant because that defendant has not made himself or herself available for' cross-examination by a co-defendant. The submission is without merit, and the appellants have only themselves to blame for their failure to summon Bismillah Begum to give evidence.
24. However on the assumption that it is open to the, appellants to contend that Bismillah Begun and Samad Begum were benami and bogus partners, I will now examine this submission, and I will first briefly refer to Qamar Bano's evidence, as Mr. Brohi placed great stress on it. Qamar Bano said in her examination-in-chief that she was a benami partner and she admitted that she had not advanced the consideration for her share In the 1948 firm. She was therefore a benami partner, as admitted by her in the plaint, but a benami partnership is no per se illegal, nor does a partner cease to be a partner if he or she is a benamidar. However the appellants cross-examined Qamar Bano about the registration of the 1948 firm with the Income-tax Department and she said that it was registered, and then said "I. Do not know whether I have paid any income-tax in respect of my share of the 1948 firm as my husband was managing my affairs. It is possible that the partnership deed of 1948 was prepared for production before the Income-tax Department". According to Mr. Brohi, these admissions by Qamar Bano prove that their name had been put in the partnership deed by Parekh only in order to evade income-tax. I am not able to accept this submission. At the highest, the reply of the, witness raises the possibility that Parekh might have kept Qamar Bano's name in the partnership deed in order to evade income-tax. But an illegality is not be presumed so lightly. It should have been proved by proper evidence to show, for instance, that the Income-tax Department had rejected the claim that. Qamar Bano was a partner. It Is true that the appellants would not have been able to prove their assertion through the Income-tax Department, but they could have cross-examined-, Qamar Bano more specifically on their allegation. Secondly, as held by the Privy Council in a similar situation in Kunwar v. Ranjit Singh (AIR 1915 P C 96they should have given Qamar Bano notice to produce her income-tax assessment orders and other relevant documents under Order XI, C. P. C. Not only did they nod do so, but they also did not confront Qamar Bano with the account books and other records in their possession. The, result is that they have failed to prove even with regard to Qamar Bano that the partnership was illegal.
25. I would now examine the plea of the appellants that: Samad Begum and Bismillah Begun were benami and bogus partners and in view of the certificate of registration of the firm (Exh. 31 /2), the burden of proving these allegations is entirely on the appellants. But according to Mr. Brohi, the appellants bad proved these allegations because Qamar Bano and Mst. Amina had said in their evidence that Rizvi and Parekh were the real partners of 1948 firm. Mst. Amina did not even claim to have anything to do with the farm in her husband's life time, and as to Qamar Bano, although she said that Rizvi, and Parekh were the real partners, she also said: "Samad: Begun, Bismillah Begun and I were benami partners in the partnership firm of 1948, but I deny that this means that: Samad Begum Bismillah Begum and I had no interest in the partnership". It is obvious that the witness had no comprehen--sion of the meaning and significance of a banami partnership, and ft would be absurd to accept her statement as evidence against Bismillah Begum.
26. It is also relevant to remember that Rizvi had two wives and many children and Samad Begum was his sister. In the circumstances is it likely that he would make his sister a benami partner? And as Bismillah Begum was his stop mother, it is improbable in the extreme that he would have made her a benami partner for the purpose of evading income-tax. In these circumstances, the burden is very heavily on the appellants to prove that these ladies were benami partners, and the least that the appellants were required to do was to give evidence to show that Rizvi had advanced the consideration for the shares of Samad Begum and Bismillah Begum. In the firm of 1948. Nor would this have been difficult, as according to them, they had taken over the firm from Rizvi and Parekh, who in turn had been the sole partners of the firm now run by them. Therefore the account books and records of the firm would be in their possession, and they could easily have produced them to show that Rizvi had advanced the consideration for the shares of Bismillah Begum and Samad Begum in the 1948 firm. They did not do so, and there is absolutely no evidence to prove their contention. On the other hand, it is admitted before us that Bismillah Begum bad filed a suit against Rizvi for her share in the firm of 1948, Mr. Brohi emphasised the fact that Bismillah Begum had later withdrawn her suit. Neither the pleadings in this suit nor the order by which it was withdrawn are before us, and merely because the suit was filed and withdrawn neither helps the plea of the appellants nor goes against it. However, Ishaq was compelled to admit in evidence that Rizvi had told him that Bismillah Begum had a claim against him (Rizvi) for Rs. 40,000 for her share in the firm. But Ishaq also said that Rizvi had told him that he had repudiated that claim because he owed Bismillah Begum only Rs. 25,000, and that as a loan. This plea of a loan seems improbable.
And as according to the learned Single Judge, who had the advantage of watching the witness, Ishaq was not a witness of truth. Mr. Abdul Sattar Pirzada invited us to reject this story of a loan and hold, on Ishaq's evidence, that Bismlllah Begun had been a partner in the 1948 firm. Not only would we not be justified in interfering with the appreciation of evidence by the learned Single Judge on matters affecting the veracity of witnesses, but as I shall presently show, according to a judgment of the Supreme Court, Ishaq had obtained deeds of assignment from the widows of Parekh by fraud and mis--representation. Therefore reliance cannot be placed on his testimony, and I agree with Mr. Abdul Sattar Pirzada that the story of a loan is not fit to be believed. But assuming for the sake of argument that this plea was true, Ishaq's evidence is still sufficient to prove that Bismillah Begum was a lady of means in her own right, and as she was Rizvi's step--mother, it is not possible to accept the plea of the appellants that she eras a benami partner.
27. The only other evidence to which Mr. Brohi referred us was a profit and loss account (Exh. 74/1) and a balance-sheet (Exh. 74/2) prepared by an accountant who was not examined. The heading of the balance-sheet is "Eros theatre Karachi" and it contains entries for the loan advanced by Mr. Manekjee Dastoor deceased as well as the Rehmatullahs. According to the profit and lose account (Exh. 74/1), the income of this firm for the year ended 31-3-1952 was divided equally between Rizvi and Parekh, and according to Mr. Brohi that was a very important piece of evidence to show that Qamar Bano. Bismillah Begum and Samad Begum were never partners of the firm running the Eros Cinema. As these documents were not produced through the accountant who had prepared them, the first point for determination it of their admissibility and I have to point out here that the 5th appellant, Hoshang Dastoor, was confronted with them in his cross-examination by Qamar Bano's Advocate. He stated "I am shown a document being a balance-sheet for 1951-52. There are two signatures on it and I recognize thereon Mr. Rizvi's signature. I cannot say whether the other signature on this balance-sheet is of Mr. Ashraf our clerk". Mr. Ghani, the learned counsel for the appellants, had objected to the production of this document and the Court recorded the following note: "Mr. Ghani does not object to the question about the signature of Mr. Rizvi. But he submits that the contents of Exh. 74, other than Mr. Rizvi's signature are not admissible, because the same have not been proved according to law. If Mr. Lari relies on the contents of this document, Mr. Ghani's objection will be considered at the time of arguments." In view of this objection by the learned counsel of the appellants, It Is clear that the contents of the document have not been proved and are not admissible. Secondly, a litigant cannot approbate and reprobate, therefore having objected to the production of these documents, the appellants cannot now be permitted to rely on them. Thirdly, the balance-sheet contains a reference to the loan of the father of the witness to the firm, vet the witness was not prepared to admit the contents of this balance-sheet, presumably because the contents were not correct; but as the balance-sheet and the profit and loss account Purport to have been prepared by the same person, even If it is assumed for the sake of argument that they are admissible, can they be relied upon in order to establish a claim against minors? Here I have to refer to Another circumstance which casts doubt on this profit and loss' account. The no income of the Eros Theatre for the year 1951-52 is shown in this profit and loss account as Rs.
75,907/2/7. However, the Official Assignee had been running the cinema from 1954 to 1959, and according to Mr. Zahoor Hussain, who was examined on 13-5-1969, the Official Assignee had learned the cinema at a monthly rent of Rs 12,000. Therefore, making all possible allotments, the profit of running the cinema in 1952 could not have been much less than the rent of the cinema in view of the profitability of the cinema business, yet according to this profit and loss account, the not profit of the firm was about Rs. 6,600 per month--- or about half of the rent obtained by the Official Assignee. Such a document cannot inspire confidence even if it Is admissible, and in the circumstances discussed, the appellants have failed to prove that Samad Begum and Bismillah Begum were benami partners, and therefore their further plea that the 1948 partnership was illegal in consequence also fails.
28. Mr. Brohi's next submission was that even if the 1948 firm was illegal, it had never been acted upon. Now there is a distinction between the allegation that the firm was never acted upon and the allegation that it may have ceased to exist after some years, and this distinction is material to the case of the appellants whose allegation is that the firm was never acted upon because it was not intended to be acted upon. And for a change, I have to observe that this precise plea was taken by the appellants in their written statement. However, they did not care to have an issue framed on the precise question, and in a suit affecting minors, can this be ignored? I will however assume that the submission falls under the first issue and examine the arguments advanced. But at the outset, I must point out that according to the partnership deed (Exhs. 34/6 and 79/3), the partnership had been formed in September, whilst the deed of partnership was executed on 31st December 11948.
Further the partnership was registered with the Registrar of Firms on 14th February 1949. As these facts are proved by the application for the certificate of registration (Exh. 31/1) read with the certificate (Exh. 31/2), it is difficult to see how the appellants can possibly contend that the firm had never existed. But assuming that they can advance this submission, It is obvious that it c in be established only by very cogent evidence.
29. According to the learned counsel, Rizvi and Parekh, 1 and Rizvi alone after Parekh's death had executed four partnership deeds between 1949 and 1959 which were inconsistent with the 1948 firm, therefore, according to the learned counsel, this proved that the 1948 firm had never been acted upon. At the outset, I must observe that even if a firm formed in 1953 or in 1959 was inconsistent with the existence of the 1:948 firm, I do not think that this can lead to the conclusion that the 1948 firm had never existed. At the highest, it would lead to the inference that the 1948 firm had been abandoned, but in view of section 109 of the Evidence Act the burden of proving such an allegation would fall heavily on the appellants, and further this would not help their case because they do not rely on adverse possession. With these observations, I will now briefly examine the four partnerships as contained in the respective partnership deeds.
30. Rizvi and Parekh had formed a partnership with a family by the name of Rehmatullah on 6th May 1949, under a registered deed which is Exh.
70. As this deed was executed within less than 3 months of the registration of the 1948 firm, it can lend support to the plea of the appellants if this partnership deed Exh. 70 is really inconsistent with the 1948 partnership deed (Exhs. 34/6 and 79/3).
Here I may recall that Rizvi and Parekh were entitled during their joint lives to take new partners in order to raise finance for the firm. And in view of clause (3) of the partnership deed with the Rehmatullahs (Exh. 70) it is very clear that the Rehmatullahs had been taken into partnership because they were providing funds for the firm. As this partnership deed (Exh. 70) falls within the purview of clause (7) of the 1948 partnership deed, it cannot be contended that the existence of this partnership was inconsistent with that of the 1948 firm. Additionally, as stressed by the learned Single Judge, the partnership under this deed (Exh. 70) did not extend to the building of the cinema.
As it was thus a partnership within a partnership, the learned Single Judge described it as a sub- partnership. Despite Mr. Brohi's criticism, the view of the learned Single Judge that this deed constituted a sub-partnership is amply supported by authority (see Desai's Law of Partnership, 2nd Edition, page 145). However, what is important is that the partnership with the Rehmatullahs was a partnership to share only the profits of the business of running the cinema. As the partnership (Exh.
70) did not include the building of the cinema, it seems to me that on this ground also and apart from clause (7) of the 1948 firm, this partnership was not inconsistent with the rights of the other partners of the 1948 firm. I therefore agree with the view of the learned Single Judge that the existence of this sub-partnership does not help the case of the appellants.
31. The second partnership on which the appellants rely is a partnership entered into on 6-10-1952 by a partnership deed (Exh. 26) with the Dastoors. And it is important to note that according to clause (2) of this partnership deed (Exh. 26) the partnership was to expire on 31st March 1960.
Further according to clause (3) of the partnership deed, the contribution of the new partners, namely the Dastoore, was a loan of Rs. 1,00,000 which had been advanced by Manekjee Dastoor to the firm and had not been repaid by the firm. Therefore, this partnership also falls clearly within the ambit of clause (7) of the 1948 partnership deed, and it cannot be said to be inconsistent with the existence of the 1948 firm. Another circumstance, which according to the learned Single Judge, went against the plea of the appellants was that like the earlier partnership with the Rehmatullahs this partnership also was limited to the business of running the cinema and did not include the building of the cinema. This is certainly a circumstance relevant to the question whether the partnerships of 1952 and 1948 were so inconsistent that the existence of the later firm excluded the existence of the earlier firm. As the 5th appellant's evidence on this point was equivocal. I invited Mr. Iqbal Kazi to assist us. Mr. Iqbal Kazi had supported Mr. Sharifuddin Pirzada's submission that the partnership deed of 1948 was illegal because it included immovable property but bad not been registered under the Registration Act. I therefore observed that if the partnership deed of 1952 (Exh.
26) with the Dastoors included the building of the cinema, it would be hit by Mr. Sharifuddin Pirzada's argument. Mr. Sharifuddin Pirzada emphatically asserted that it was clear from the partnership deed (Exh. 26) that the partnership was limited to the business of running of the cinema. However, as the `Dastoors were represented by Mr. Iqbal Nazi, I was not satisfied with Mr. Sharifuddin Pirzada's reply. I therefore directed Mr. Iqbal Kazi to obtain instructions and inform us, and he emphatically asserted that the partnership deed with the Dastoors did not include the building of the cinema and therefore the partnership did not require registration and was valid.
Now as the partnership with the Dastoors did not extend to the building of the cinema, it is not inconsistent with the existence of the 1948 firm on the two grounds mentioned by me earlier, namely that this partnership fell under clause 7 of the partnership deed, and that it did riot extend to the entire assets of the 1948 firm because the building of the cinema was excluded from its partnership.
32. The third partnership relied upon by the appellants is alleged to have been formed immediately after Parekh's death and within a year of the 1952 partnership. According to the evidence of the 5th appellant and of Ishaq, after Rizvi's death, Rizvi and the Dastoors took Ishaq as a partner of their firm, and the new partner immediately became the Managing Partner of the firm. Now it is strange that this partnership was formed within little more than a year of the 1952 partnership. There are also other circumstances which cast great doubt on the existence of this partnership, therefore the appellants should have produced documentary evidence, such as account books etc. To press this strange plea. As they did not, the result is that the plea is supported only by the evidence of Ishaq and the 5th appellant. I have pointed out that I am not impressed by Ishaq's evidence, but that of the 5th appellant is no better. The 5th appellant gave evidence on behalf of the Dastoors and said that his family's association with the Eros Theatre began with his father's loan of Rs. 1,00,000, but he was not clear whether the loan had been given only to Parekh or to the firm. He was also not quite sure how this amount had been paid, although he claimed to have been present at the time of payment. He could not even remember the year an which this amount, enormous for an ordinary family, had been paid, and it was only in cross-examination that he had admitted that it was paid in 1948 or 1949. Again, although ire, his father and brother entered into a partnership 3 years later, he could not remember whether they had examined the firm's accounts before joining it. He could not even remember whether the firm was registered with the Income-tax Department. As the witness was a very intelligent witness, I am not impressed by his evidence, and I respectfully agree with the careful considered view of the learned Single Judge that the witness was not reliable. Can a plea of an oral partnership be proved by such evidence? Mr. Brohi was conscious of this difficulty, therefore he sought to by-pass it by submitting that Qamar Bano had acknowledged Ishaq as a managing partner, and according to learned counsel this was sufficient to prove the existence of this oral partnership. It is true that Qamar Bano has referred to Ishaq as the managing partner of the Eros Cinema do several documents. But she was chronically in debt and was borrowing from Ishaq, and she has referred to him as the managing partner on receipts and promissory notes signed by her (Exhs. 42 and 44 to 53). There is no doubt that Qamar Bano's admissions lend some support to this plea of an oral partnership, but when account books have not been produced, can such a plea be accepted on the basis of the admissions made by an ignorant widow to her creditor? Not only am I not impressed by this evidence, but the discrepancies in the evidence of the appellants casts very great doubt on the existence of this alleged oral partnership of 1953. I have said earlier that the 5th appellant has supported this plea of an oral partnership in his evidence.
And it is to be noted that according to him the partnership with Ishaq had been formed in 1953. But on 18th August 1954, Manekjee Dastoor, deceased, the father of the witness, wrote a letter to the Official Assignee of this Court (Exh. 79/17), according to which Manekjee Dastoor was thinking of introducing Ishaq into partnership, therefore the evidence of the son is falsified by the statement of his father. Similarly, in para. 7 of his counter-affidavit in Suit No. 631/54 of this Court to which I have referred, Rizvi had denied on 12-2- 1955 the allegation that Ishaq was a partner of the Erose Cinema. Again, whilst the 5th appellant supported Ishaq's claim that Ishaq had joined the firm very shortly after Parekh's death in 1953, her also referred to the partnership formed with the Ishaqs by a registered partnership deed (Exh. 27) on 6-6-1959 and said "this partnership of 1959 was a continuation of our 1952 partnership with an addition of some new partners". But if --the 1952 partnership thus continued until 1959, it completely falsifies the earlier statement of the witness that Ishaq had become a partner of the firm in 1953 under an oral agreement. It is also significant that despite the crucial importance of this allegation to their claim, neither Ishaq nor the 5th appellant disclosed what Ishaq's share was in the alleged oral partnership of 1953. Finally, the partnership of 1959 (Exh. 27) was a registered partnership and it is a most exhaustive document, yet. It does not anywhere state that Ishaq, the managing partner of this new partnership, had already been the managing partner for six years. In these circumstances, I am not able to believe - -this plea of an oral partnership of 1953.
33. However, the 4th partnership on which the appellants --rely was duly registered and has therefore been proved. Further, as this partnership was formed long after Parekh's death, it cannot fall under clause (7) of the partnership deed of 1948, therefore it is clearly inconsistent with the 194 partnership because it was not formed with the consent of Bismillah Begum and Qamar Bano, tile other surviving partners of the 1948 firm. . However, as this happened 11 years after the 1948 firm, in my humble opinion, this cannot possibly lead to the conclusion that the 1948 firm had never been acted upon. It can only support the inference that the partners of this 1959 firm had illegally taken over the assets of the 1948 firm, but this does rot help the case of the appellants because they do not rely on adverse possession.
34. Before parting with this aspect of the case, I have to point out that Mr. Brohi and Mr. Sharifuddin Pirzada bad also referred us to correspondence in order to prove the submission that the 1948 firm had never been acted upon, and I would briefly refer to some of the relevant documents. Thus, by a letter dated 24th January 1949 (Exh. 33/1, which was duly proved) the District Magistrate informed Rizvi and Parekh that they had been given permission "for completing the construction of the cinema house. . . : " Because the letter does not refer to the lady partners of the firm, the learned counsel feebly submitted that It supported their argument that the 1948 firm had never been established. The argument is fallacious. In the first place, the letter is of very little significance because Rizvi and Parekh were the only persons who were entitled to manage the firm under clause 4 of the partnership deed of the firm. Secondly, as pointed out by the learned Single Judge, at the highest the letter means that Rizvi and Parekh had not properly submitted returns to the District Magistrate, but this cannot lead to the conclusion that the 1948 firm had not been acted upon, the more so as it was registered a month after this letter. The learned counsel then referred us to a licence for the cinema (Exh. 78/1) which shows Ishaq as a partner of the firm running the Eros cinema. However, Mr. Abdul Matin who produced this licence, stated with reference to the names of the proprietors of the cinema on the licence as follows "I cannot say who typed these names and when". In view of this statement and the place on the licence where the names of the partners were typed, the learned Single Judge was of the opinion that the document Invited suspicion. The learned counsel did not assist us on the view taken by the learned Single Judge. Be that as it may, even if the licence has been duly proved, it was issued fin 1954, and this cannot possibly establish that a firm formed six years earlier had never been acted upon.
35. The learned counsel next contended that their claim was supported by the correspondence produced by Ishaq. Thus, for instance, Ishaq produced a copy of Rizvi's letter dated 23-12-1953 (Exh.
79/1) informing one Mrs. Judd that Ishaq had become a partner of the Eros Cinema. According to the learned counsel, the letter was important because Mrs. Judd was the owner of the land on which the building of the Eros Theatre was situated. This was the first time we were informed that the land on which the cinema was situated did not belong to the firm and there is no evidence about this allegation. Be that a3 it mad, the letter was a copy, and as it was produced subject to the objection of the plaintiffs. Respondents, it is not admissible. Ishaq also produced a statement dated 19-1-1954, and a copy of a letter by the District Magistrate dated 18-1-1954 (Exh. 79/5).
Accord--ing to both these documents, Ishaq was a partner of the firm running the Eros Theatre.
Unfortunately for the appellants, these and other letters produced by Ishaq were copies, and as objection had been taken to their production at the time when the witness attempted to produce them, I agree with the view of the learned Single Judge that all these documents are inadmissible under the Evidence Act. Finally, I may point out that Rizvi had purported to assign his 8 annas share in the firm running the Eros Theatre by a deed of assignment dated 29-12-1962. (Exh. 79/8) The learned counsel referred us to the recitals in this deed, according to which Samad Begum and Bismillah Begum bad been shown as partners of the 1948 firm, but according to the recitals this partnership had never been acted upon. The learned counsel relied upon the statement by Rizvi that the firm of 1948 had not been acted upon. But this statement is not an admission, and on the contrary it is a claim advanced by Rizvi in his own favour. Therefore, as he was not cross-examined, in my humble opinion, the statement is of no value whatsoever. I am also satisfied that this statement is a false statement, and 4n all the cir6mstances discussed, the appellants have failed to prove that the 1948 firm had never been acted upon.
36. The conclusion is fatal to the claim of the appellants, because, as the 1948 firm existed, they could join it only with the consent of all its partners, or under clause 7 of the partnership deed. As I have explained, this clause entitled Rizvi and Parek~ during their join lives to take in new partners, and the Dastoor were taken into partnership under this clause. But under the part--nership deed itself (Exh. 26), this firm, was to have come to an end on 31st March 1960, therefore, the Dastoors would automatically have ceased to be the partners on that date. However, their own claim is that this firm was substituted by another firm in 1953. And this means that the sub-partnership came to an end mucu earlier. At this date, Samad Begnm was dead, and clause 7 was no longer available on account of Parekh's death, therefore any new partners could have been taken into the firm only with the consent of Rizvi, Qamar Bano and Bismillah Begum. This follows from section 19 of the Partnership Act and as no usage to the con--trary is relied upon by the appellants, their claim has to be treated by the principle contained in this section. Taking first the case of the Dastoors, their own case is that in 1953 they commenced a new partnership with Rizvi and Ishaq. As the consent of Bismillah Begum and of Qamar Bano was not taken to this new partnership, it follows that neither the Dastoors nor Ishaq became partners, and similarly as the last partnership of 6-6-1959 (Exh. 27) was also formed without the consent of Bismillah Begum and of Qamar Bano, this partnership is also illegal.
37. It is true that the appellants have taken over the assets of the 1948 firm and are running a business in the name of that very firm, but in my humble opinion their conduct In so doing is absolutely illegal, and they have deliberately misappropriated the assets of the 1948 firm. But Ishaq was every clever man and he must have been aware of the grave risks he was running by such beha--viour, therefore he built up a second line of defence. Contrary to his plea that the 1948 firm was illegal and/or did not exist, he tried to buy up that firm from the heirs of Parekh and from Rizvi.
Initially, be was very successful, as Parekh's widows assigned to him by deeds of assignment (Exhs.
28 & 29) their own interest in the 1948 firm as well as the interest of their minor children, and 3 years later Ishaq obtained on his wife's behalf a similar deed from Rizvi. However, the Court's sanction was required for the assignment of the interest of the minor children of Parekh by their mothers, and as I shall presently show the Supreme Court set aside the assignment of the shares of these minor children. Meanwhile, Parekh's widows also had repudiated their assignments of their own shares in the 1948 firm and therefore they sought a declaration in the suit that these deeds of assignment Exh. (Exhs. 28 & 29) were void, against them. As the learned Single Judge allowed their claim, Mr. Brohi challenged this finding, but he conceded that in the events that had happened, he could challenge only the relief granted by the learned Single Judge to Qamar Bano and to her adult son Ahmed Parekh, the respondent No. 27 in this appeal.
38. Now Qamar Bano and respondent No. 27 had assigned their interest to Ishaq by a deed dated 6-5-1969 (Exh. 28) and under the same deed Qamar Bano had assigned the interests of her minor children. She then applied to this, Court to be appointed the guardian of her minor children and for approval of the deed (Exh. 28) on behalf of the minor children. Mst. Amine had assigned her interests and the interests of her minor children by a deed dated 10-10-1959 (Exh. 29), but she changed her mind immediately and persuaded Qamar Bano to do the same. Accord--ingly, Qamer Bano dropped her application, and both the widows applied to this Court for the appointment of the Official Assignee as the guardian of their minor children. As this application was allowed, the Official Assignee immediately moved an application in this Court, to set aside the deeds (Exhs. 28 and 29) in so far as they affected the said minor children. This application was pressed on the ground that Ishaq dishonestly induced Parekh's widows to believe that Parekh bad left behind heavy debts, a cir--cumstance obviously relevant to the value of Parekh's share of the firm, and on the ground that Ishaq had deceived the widows about the value of the cinema. As this application was dismissed by Constantine. J. The Official Assignee went in appeal to the Supreme Court. And the appeal was allowed by their Lordships on 9-4-1963 (Exh. 6). In allowing the appeal Kaikaus, J. As he then was, referred to the evidence about the income of the cinema, including Ishaq's own evidence that its not annual income was Rs. 98,000, and on this and other grounds Kaikaus, J. Held that Constantine, J. Had grossly underestimated the value of the Eros Cinema.
Kaikaus, J. Then examined Ishaq's claim that Parekh had left behind many debts, after examining the evidence, Kaikaus, J. Pointed out that Constantine, J. Had erred in accept--ing the claim of Ishaq about the debts left behind by the deceased. In this connection, it would be sufficient to observe here that according to the judgment of their Lordships, one of the alleged debts of Parekh for Rs. 55,000 was patently time barred, whilst another debt of Rs. 40,000 had been accepted on a bare statement without any proof. Then, whilst Ishaq's claim was that Parekh's other debts amounted to Rs. 2,71,000, the true position was that his liability was for only about Rs. 1,60,000.
Accordingly, their Lordships allowed the Official Assignee's appeal and declared that the assignments by Qamar Bano and Mst. Amine (Exhs. 28 & 29) respectively were void and illegal in so far as they affected their minor children.
39. I am glad to say that the learned counsel for the appel--lants did not attempt to defend the deeds of assignment in so far.....As they affected the minor children. The judgment of their Lordships (Exh. 6) can support the claim of the plaintiffs-respondents that the deeds of assignment (Exhs. 28 & 29) were void in so far as they related to the two widows Qamar Bano and Mst. Amina. Mr. Abdul Sattsr Parekh submitted that the view of their Lordships Pare', was very clear, and it was that Ishaq had induced the ladies to sign the deeds of assignment by fraud and misrepresentation. The submission is correct, but as rightly submitted by Mr. Brohi, even though these ladies had been deceived, they had to prosecute their remedies according to law. Both of them p.I repudiated the deeds of assignment and given legal notices to Ishaq in this connection, therefore, he bad filed suits against both of them for specific performance. Ishaq's suit for specific performance against Qamar Bano had been decreed by a learned Single Judge of this Court, and Letters Patent Appeal against that judgment had been dismissed. However, as Qamar Bano's petition for leave against; that judgment was pending in the Supreme Court, the learned Single Judge who heard the suit under appeal held that he was competent to grant Qamar Bano declaratory relief which he did. As it is admitted that Qamar Bano's patition for leave has been dismissed. Mr. Brohi submitted that the decree obtained by Ishaq against Qamar Bano bad become final. Mr. Abdul Sattar Pirzada's reply was that Qamar Bano might be able to challenge the decree against her. That is another matter, and no relief in this connection has been sought in the suit under appeal. On the other hand, as the burden of proving that the deed executed by her was void was on Qamar Bano and as the pleadings in Ishaq's suit for specific performance are not before us, I agree with Mr. Brohi that Qamar Bano is not entitled to any relief in the suit under appeal, but it may be open to her to prosecute her remedies under law.
40. I have pointed out earlier that Qamar Bano and her adult son respondent No. 7 had jointly executed the deed of assignment (Exh. 28), and this respondent had assigned his share for the stately sum of Rs. 12,0-0. Now as the Official Assignee had rented out the cinema at Rs. 12,000 per month, the considera--petition of the assignment was so inadequate to suggest that the deed was unconsionable, therefore the learned Single Judge had declar--ed the dyed (Exh. 29) to be void against this respondent also. But although impleaded as a defendant, this respondent bad not filed any counter claim to challenge the deed, hence Mr. Brohi's. Submission that the decree in his favour was illegal. In order to overcome this difficulty as arguments were being concluded, before us, Mr. Shah Yaqoob filed an application for the transpor--tation of this defendant as plaintiff in the suit under appeal. The sole object of this application was to meet Mr. Brohi's sub-- mission and enable the respondent to challenge the deed of assign--ment executed by him. Mr. Sharifuddin Piraada vehemently opposed this application] and Mr. Shah Yaqoob did not even attempt to show us how the respondent could be permitted to challenge a deed executed 14 years earlier and that in the --circumstances, the appeal of the appellants against the de--claration granted to this respondent has to be allowed.
41. The third assignor, who challenges the deed of assign--ment executed by her, is Mst. Amina. But as Ishaq's suit for specific performance against her has abated, Mr. Brohi stated in his arguments that he would not challenge the declaratory relief granted to her by the learned Single Judge.
However, Mr. Sharif--uddin Pirzada in his reply stated that he was instructed to chal--lenge the declaratory relief granted to Mst. Amina by the learned Single Judge, and the learned counsel challenged the finding of the learned Single Judge solely on the ground that Mst. Amina's claim was barred by section 42 of the Specific Relief Act. This was because, according to learned counsel, declaratory relief under this section can be granted only when the plaintiff is not entitled to any further relief. However according to learned counsel, the deed of assignment executed by Mst.
Amina was outstanding and was likely to cause her serious injury within the meaning of section-39 of the Specific Relief Act, therefore, she should have sued for the cancellation of the deed executed by her, and as she had deliberately refrained from seeking such relief, her claim was hit by section 42 of the Specific Relief Act. As the argument is based on the claim that the deed of assignment was outstanding, we observed that the plea was inconsistent with the admission that Ishaq's suit for specific performance had abated. As that suit has abated, it is difficult to see how the appellants can contend that the deed of assignment was outstanding, but Mr. Sharifuddin Pirzada made no attempt to show us how it could be said that the deed (Exh. 26) was outstanding. I also do not see how the learned counsel's submission can be considered in the absence of the pleadings in Ishaq's suit for specific performance. I would there-- fore agree with Mr. Brohi's contention that the appellants could not, in the events that had happened, challenge the decree of the learned Single Judge in so far as it declares that the deeds of assignment (Exh. 28) is void against Mst. Amina.
42. Finally, Ishaq had also obtained a deed of assignment from Rizvi on 29.12-1962 (Exh. 79/8) and although no relief had been sought with regard to this deed, both the learned counsel for the appellants and Mr. Khursheed, on behalf of the Rizvls, insisted on arguing on this aced. As to Mr. Khursheed, I may point out that he had filed two applications when arguments in the appeal begun. The first was an application for permission to produce documentary evidence in order to prove that Bismillah Begum was a lady of means. Mr. Sharifuddin Pirzada opposed this application, and as we observed that an attempt to reopen evidence at this stage would lead to endle5's delays, Khursheed dropped this application. However, he press--ed his second application, which was for the framing of an issue with regard to the deed of assignment executed by Rizvi (Exh. 79/8).
No relief was sought with regard to this deed in the plaint and as no counter-claim had been filed by Bismillah Begum with her written statement, I would dismiss this application. And I am also not able to accept the claim of the appellants, which is that the assignee of this deed, Mst. Ishaq, had acquired an 8 annas share in the 1948 firm and an 8 annas share in the building of the Eros Cinema. Reliance for the first limb of the argument was placed on Rizvi's statement in the deed of assignment (Exh. 79/8) that he had an 8 annas share in the firm, but as he had a 6 annas share only, he could assign that share and no more. Nor could Rizvi claim a specified share in the assets of the 1948 firm, therefore he was neither entitled to nor could he assign a specified share in the building of the Eros Cinema.
43. It is true that the legal title to this building must have vested in him jointly with the other partners of the 1948 firm, but because the legal title in partnership property is to be found in the partners, this does not make them the joint owners of any immovable property belonging to their firm. The law is too well-settled, and I may quote here a passage from Mulla in his commentary on the Partnership Act (1934 Edition page 87): "A partner's share, like that of a shareholder in a company, who is in fact a special kind of partner, is not a piece of tan--gible property or a specific fund. It is a mere personal right to claim a certain proportion of the divisible income and ultima--tely to reclaim a certain proportion of capital, at the proper times, if and whenever it is found that there is any profit to divide and any surplus assets to distribute."
As a corollary to this principle, section 29 of the partnership Act prescribes that when a partner transfer his interests in a firm, the transfer "does not entitle the transferee during the continuance of the firm to interfere in the conduct of the business. . . But entitles the transferee only to receive the share of profits of the transferring partner and the transferee shall accept the account of profits agreed to by the partners. "The law is thus very clear. But nonetheless Rizvi had, in a vague and confused manner, purported to assign under this deed (Exh. 79/8) a share in the Eros Cinema building. As a partner's share fn a firm i3 not, in the words of Mulla, "a piece of tangible property"
Rizvi neither owned, nor was he competent to assign any specified share in the Eros Cinema building. Secondly, as I have observed, the averments in the deed are vague and confusing. Thus, clause (1) describes the property of the firm as "consisting of partnership share in lease-hold rights of a portion of plot of land with Cinema building thereon . . . . End in running business of Erose Cinema with goodwill . . . ." Qamar Bano's deed (Exh. 28) shows similar confusion, and further there is not a shred of evidence to support the contention that the building of the Eros Cinema was owned by the partners of the 1948 firm as co-owners and not as partners. This plea has also not been advanced by the appellants in their lengthy written statement, therefore it is not open to them to con--tend at this appellate stage that the Ishaqs had become the co. Owners of the Eros Cinema building.
44. However, the strange plea was advanced for an ulterior purpose. According to the appellants, the suit itself was bad and should have been for partition and not for accounts. This was because the plaintiff's-respondents were seeking to evict the appellants from the building of the Eros Cinema and as the Ishaqs were co-owners of this building, the suit should have been for partition, and as it was for accounts it was not maintain--able and merited dismissal on this ground. And it was further submitted that the appellants sere entitled to raise this plea for the first time in this appeal because the objection was a pure question of law. The submission that this objection is a question of law is utterly frivolous. Similarly for the reasons I have given, on merits also, the submission is frivolous.
45. I now turn to the last submission of Mr. Brohi. This was that even if the appellants had misappropriated the assets of the 1948 firm, the loss had to remain where it had fallen because no relief whatsoever could be given to the 1948 firm, as it was an illegal association within the meaning of section 4 or the Companies Act, 1913. Mr. Brohi submitted that the suit fell within the mischief of this section, to which I shall refer as section 4, because the relief sought in para. 36(1) of the plaint was that the 25 persons mentioned therein should be described to be the partners of the 1948 firm. When we pointed out that this objection had not been pleaded, learned counsel submitted that it was a pure question of law because it arose from the plaint itself. But the plaint shows that 10 out of the 25 persons for whom relief was sought in para. 36(1) of the plaint were minors. When we drew Mr. Brohi's attention to this situation, he stated that he was bound by the plaint, and his objection was --based on the assertion in the plaint that the firm consisted of 25 persons of whom 10 were minors. But section 30 of the Partnership Act, 1932 makes it very clear the a minor cannot be a partner, and the position was the same under the Contract Act, 1872 when partnership law was contained in that statute, Mr. Brohi was aware of this position, but he submitted that the word "person" In section 4 included a minor in his means than a partnership under section 4 is something different from a partnership under the Partnership Act. I cannot accept this submission because it would mean attributing absurdity to the Legislature.
46. In order to understand this submission, I would first quote the section. This section reads as follows: "4. (1) No company, association or partnership consisting of more than ten persons shall be formed for the purpose of carrying on the bu1neis of banking unless it is registered as a company under this Act, or is formed in pursuance of err Act of Parliament (of the United Kingdom or some other (Pakistan Law) or ofRoyal Charter or Letters Patent.
(2) No company, association or partnership consisting of more than twenty persons shall be formed to the purpose carrying on any other business that has for its object the acquisition of gain by the company, association or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of an Act of Parliament (of the United Kingdom) or some order Pakistan Law) or of Royal Charter or Letters Patent.
(3) This section shall not apply to a joint family carrying on joint family trade or business and where two or more such joint families form a partnership, in computing the number of persons for the purposes of this section minor members of such families shall be excluded.
(4) Every member of a company, association or partnership carrying on business in contravention of this section shall be personally liable for all liabilities incurred in such business.
(5) Any person who is a member, of a company, association or partnership formed in contravention of this section shall be punishable with fine not exceeding one thousand rupees)."
As a "person" has not been defined in the Companies Act, the contention of the appellants was that the definition of a "person" in the General Clauses Act was attracted, and as that definition did not exclude a minor, the further submission was that a minor was a person under the Companies Act, or at least under section 4. In view of the definition in the General Clauses Act, there is no doubt that a minor may be a person for the purpose of other statutes. But that does not mean that a minor is a person under section 4. The question is entirely of construing the intention of the Legislature in enacting this section, and the only submission of the learned counsel for the appellants was that this section was intended to overrule sections 247 and 248 of the Contract Act, 1872 and even section 30 of the Partnership Act, 1932.
47. I demur to the view that an Isolated provision in the Companies Act was intended to supersede the law of partnership as declared by the Legislature from time to time, and that becomes obvious when it is realised that the Contract Act had been in force for more than 40 years at the date of the promulgation of the Companies Act. Now under section 2 of the Contract Act, an agreement not enforceable in law is not a contract at all, whilst a minor is not competent to contract in view of section 11. The result, as held by the Privy Council in Mohori Bibee v. Dharmodas Ghose (I L R 30 Cal.
539), is that a minor's contract is absolutely void, unlike the English law under which it is voidable.
Mohorf Bibee's case was decided ten years before the passing of the Companies Act, and this view was reaffirmed by the Judicial Committee a few years later is Mil Sarwarjan v. Fakhruddin Mahomed Chowdhury (I L R 39 Cal. 232). Now the Provisions of sections 247 and 248 of the Contract Act, according to which a minor cannot be a partner, are a corollary of the provisions of sections 2 and 11 of that Act. This is because apartnership can only be formed by a contract, and as a minor is not competent to contract he cannot become a partner. In this background, the construction sought to be placed upon the word "person" in section 4 by the appellants is in utter disregard of all canons of construction. Thus, as I have pointed out, section 4 is only an isolated provision in the Companies dealing with partnerships. But according to partnership law, a minor is not a person.
Now as the two statutes cover the same field, the rule of construction would be so to construe them as to avoid inconsistency between them. As observed by Max-well in his Interpretation of Statutes (11th Edition p. 153)''. . . The language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal". Therefore preferred which is consistent with the law of partnership] Secondly, as section 4 is a penal section which imposes penalties, it must be construed strictly, and on this ground also the submission of the appellants must fail. Thirdly, the principle that a minor's agreement is absolutely void is one of the cardinal principles of our jurisprudence. And I may point out that both the authorities of the Judicial Committee to which I have referred related to transfers of immovable property. The principle is thus applicable to the Transfer of Property Act also. Similarly, a minor under 7 years of age is incapable of committing an offence under the Penal Code, but any person contravening section 4 is punishable with a fine. Therefore if a "person" under the section includes a minor, there is an inconsistency between the section and one of the basic principles of our criminal jurisprudence. Secondly, subsection (4) of section 4 prescribes that any debt incurred by an illegal partner--ship can be recovered from the partners. If a minor is a person under this section, then this provision is totally inconsistent with the decisions of the Judicial Committee to which I have referred. I am aware that the Legislature was free to alter the law, but could it really have intended to make such a sweeping departure from the law in section 47 in the words of Lord Halsbury in Leach v. R. (1912 A C 305), it would be "perfectly monstrous" to construe the general words of a statute so as to alter the long established policy of the law. I would again quote here apassage from Maxwell at page 79 : "It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense must, usually, be construed as being limited to the actual objects of the Act."
48. I see nothing in the objects of the Companies Act to lead to the conclusion that the Legislature had intended to make a sweeping departure in the law by a side wind, so to say. On a contrary, the Companies Act has to be read with the Contract Act, and this also supports me in my conclusion.
Thus, for instance, no company can be incorporated until the subscribers have entered into a contract about the memo--randum of association of the company to be incorporated. Section 5 prescribes that a company's memorandum of association must be subscribed by 7 persons if the company is not a private company. And further if the company is a company limited by guarantee, these 7 persons must undertake to contribute to the assets of the company in the event of its being wound up. Now can there be any doubt that the word "person" in sections 5 and 7 of the Companies Act excludes a minor?" I have not found any case-law on the point, but my view is.
Supported by Ghosh's observations in his Company Law (6th Edition, p. 63). But if a minor cannot be a person under section 5 or under section 7, it would be absurd to contend that a minor is a person under section 4 of the same statute.
49. The learned counsel for the appellants did not make any attempt to analyse the provisions of section 4, but they merely referred us to the judgment of the Judicial Committee in Senaji v. Pannaji (AIR 1930 P C 300), and to Judgments reported in Hibaran Chandra Shahs v. Lalit Mohan Brindaban Shaha (AIR 1939 Cal. 187) and in Mewa Ram v. Ram Gopal (AIR 1926 All. 591). I have examined the cases cited. In all of them it was held that partnerships deliberately formed by more than 20 persons fell within the mischief of section 4. I am in respectful agreement with this view, but there is no question in the present case of a deliberate violation of the law and Mr. Brohi can succeed only if he can establish that minors are persons under section 4. But as this question did not arise for consideration in the judgments cited, they are com--pletely irrelevant and do not help the plea of the appellants. We had drawn Mr. Brohi's attention to this, and later Mr. Iqbal Kazi and Mr. Ghani informed us that there was no case-law on the question which has arisen for determination in this appeal; therefore we are free to decide it untramelled by authority, and I am satisfied that a minor is not a person within the meaning of section 4, and any doubts in this respect were removed by section 30 of the Partnership Act which was enacted in 1932 almost 20 years after the Companies Act. This section makes it clear that a minor is not a partner but is only entitled to the benefits of partnerships. However, I have to observe here that the learned counsel for the appellants hart half-heartedly submitted that this section was subject to section 4. Unlike section 4, it is this section which contains elaborate provisions for minors and therefore the plea of the appellants must fail on the principle generalia specialibus non derogant:
50. I have observed that a minor cannot be a partner in view of section 30 of the Partnership Act, therefore the ten respondents who are shown as minors in the plaint are not entitled to a declaration that they are partners but only to a declaration that they are entitled to the benefits of partnerships under section 30 of the Partnership Act. The decree of the learned Single Judge has to be modified accordingly, but this is only because this objection was not raised before him. Mr. Ghani and Mr. Iqbal Kazi then drew our attention to the fact that the respondents who were minors may have attained the age of majority now. That is obvious because they could not have grown younger. Our attention however was drawn to this very obvious circumstance in order to invite us to take evidence on this question. We saw no reason for oblige the appellants in this manner. But I have further to observe that when arguments began before us in the appeal, the appellants had filed an application that as the respondents specified in the application had become majors they should be described as majors. The application purports to be under Order XXXII, rule 12, C. P. C.
Which, according to the heading of the rule relates to the course to be followed by minors plaintiffs or applicants on attaining majority: It is therefore difficult to see how the appellants could invoke this rule, and Mr. Ghani did not even attempt to show us how this rule supported him nor did he refer us to any other rule under which the applica--petition was maintainable. I must also explain here that the minors referred to in this application are of the Rizvis family and as the Rizvis did not give evidence, there is absolutely nothing on the record about the age of these minors. In the circum--stances, we have either to allow the application without evidence which is absured, or to permit the appellants to produce evidence. And Mr. Abdul Sattar Pirzada opposed the application on the ground that it was a device by the appellants to produce evidence on a point on which they had failed to do so in the trial Court. He therefore opposed the application as mala fide, and as I have no doubt that it is mala fide I dismiss it.
51. Additionally, Mr. Abdul Sattar Pirzada and Mr. Khur--sheed submitted that in view of section 30 of the Partnership Act, the question was not whether the ten respondents who were minors at the date of the suit had now attained majority but whether they had exercised their option to become partners under section 30. And as none of the learned counsel for the appellants alleged that the said ten respondents had exercised their options. Mr. Abdul Sattar Pirzada and Mr. Khursheed's further submission was that the objection about the illegality of the firm was utterly frivolous. As the argument turns on the construction of section 30, I may point out that it is subsection (1) of this section which clarifies that a minor can only be admitted to the benefits of partnership in a firm.
The next three subsections deal with his rights, and subsection (5) then reads as follows :- "(5) At any time within six months of his attaining majority or of his obtaining knowledge that he had been admitted to the benefits of partnership, whichever date is later, such person may give public notice that he has elected to become or that he has elected not to become a partner In the firm, and such notice shall determine his position as regards the firm ; Provided that, if he fails to give such notice, he shall become a partner in the firm on the expiry of the said sit months."
It is clear from this subsection that a minor cannot become a partner of a firm automatically on attaining majority, and he can become a partner only by electing to join the firm in the manner prescribed in the subsection. But in the present case, although the appellants have advanced submissions not contained in their memorandum they have not alleged even in the argu--ments before us that any of the respondents, who were minors of the suit, had, at any time thereafter elected to become partners in the 1948 firm. Therefore, their plea that this firm was illegal under section 4 is frivolous and is rejected.
52. Before parting with this judgment x must point out that the learned Single Judge has given elaborate directions to the Commissioner about the mode of taking accounts, and further appointed the Official Assignee to manage the firm pending the taking of accounts by the Commissioner. No criticism has been advanced by arty of the learned counsel on this aspect of the judgment, and is: my humble opinion the directions to the Commissioner sufficiently safeguard any conceivable rights which the appellants may gave on account of their alleged advances to the 1948 firm.
53. As no other argument was advanced by the appellants I would allow the appeal only to the extent indicated earlier. The declaration granted by the learned Single Judge that all the respondents are partners of the 1948 firm is modified to the extent that respondents 2, 3, 4, 7 and respondents 16 to 21 are declared to be entitled to the benefits of the partnership of this firm under section 30 of the Partnership Act. I also set aside the order of the learned Single Judge declaring the deed of assignment (Exh. 28) to be void against Qamar Bano (respondent No. 5) and Ahmad Parekh (respondent No. 27). Subject to these modifications, the appeal is dismissed. The appellants shall however pay the costs of the respondents of the Parekh group and of the Rizvi group.
ABDUL HAYEB QURESHI, J.-I agree.