1. The suit has been filed by the plaintiffs for the recovery of Rs.3,00,000, Rs.5,000 per month as profit from the date of suit as profit on capital amount of Rs.3,00,000 till realisation of the entire amount.
2. The facts leading to the filing of the above suit are that the plaintiffs are legal heirs of late Yousuf Wali Muhammad who expired at Karachi m 1952 and the defendants ire legal heirs of late Din Mohammad Wali Mohammad who also expired at Karachi in 1984. It is alleged in the plaint that late Yousuf Wali Mohammad and late Din Mohammad Wali Mohammad jointly owned plot No.1--- B, Measuring 492 Sq. Yards in Fidai Cooperative Housing Society, Garden East Karachi. The plot in question was purchased in the name of late Din Mohammad who at that time executed an 'Iqrarnama' in Gujarati and handed over the same to late Yousuf Wali Mohammad an a token of acknowledgement to the effect that the said plot and construction thereon was jointly owned by them. Thereafter in the same year they raised construction on the said plot jointly but unfortunately (late Yousuf Wali Mohammad) died in the same year leaving behind him the plaintiffs as his legal heirs. It is alleged in the plaint that after the death of late Yousuf Wali Muhammad) he (Din Mohammad) continued his love and affection with the plaintiffs in spite of severe opposition by the defendants. On or after 1977, late Din Mohammad sold out the said plot with construction thereon ignoring the share of the plaintiffs which they were entitled to receive as legal heirs of late Yousuf Wali Mohammad against sale consideration of Rs.6,00,000. However, time and again he told the plaintiffs that due to the circumstances created by the defendants, he was made to sell the said property at their instance.
3. He had also shown his inability to face the defendants due to his old age and domestic circumstances.
4. It is further alleged in the plaint that on 9-8-1984 prior to death of late Din Mohammad, he executed another undertaking in the shape of will wherein he stated that the above property was jointly owned by him and late Yousuf Wali Muhammad. It is further stated therein that he had executed `Iqrarnama' in 1952 in favour of his late brother and it was handed over to him during his life time admitting therein his equal share in the said property jointly purchased and constructed by both the brothers.
5. The case of the plaintiffs as set out in the plaint is that the deceased Din Mohammad by virtue of said document voluntarily executed by him about three months prior to his death had imposed legal obligation on the defendants in the capacity of his legal heirs for making payment of Rs.3,00,000 to the plaintiffs. It is the further case of the plaintiffs that reconciliation efforts again made and after failing negotiations to settle the dispute the defendant No.1 was served with legal notice dated 13-3-1986 but he failed to give any reply. The defendants have not paid the said amount and therefore, the suit has been filed.
6. On receipts of the summons of the suit, the defendants moved an application under Order 7, Rule 11 C.P.C. For rejecting the plaint on the grounds that the plaint does not disclose any cause of action and the suit is barred by limitation. The plaintiffs filed counter-affidavit wherein it is alleged that late Din Mohammad admitted the debt in document `aseehatnama' dated 9-8-1984.
7. I have heard the learned counsel for the parties at length. The main question which arises for decision in this suit is whether the suit of the plaintiffs is barred by limitation. According to the learned counsel for the plaintiffs, the suit is governed by Article 120 of the Limitation Act of 1908 and is instituted within time. According to the defendants, it is governed by Article 62 of the said Limitation Act which prescribes only a three years period of limitation and is thus barred.
8. Facts material for decision of the aforesaid questions may briefly be stated. Late Yousuf Wali Mohammad and Din Mohammad Wali Mohammad jointly purchased plot No.1-B, measuring 492 Sq. Yards in Fidai Cooperative Housing Society, Garden East, Karachi in the name of late Din Mohammad Wali Mohammad. They raised constructions jointly. Yousuf Wali Mohammad died in the same year. Late Din Mohammad sold the property in the year 1977 for total consideration of Rs.6,00,000.
9. The suit is for recovery of Rs.3,00,000 payable to the late Yousuf Wali Mohammad by late Din Mohammad Wali Mohammad. The plaintiffs right to their shares is denied by the defendants. The defendants case as set out m the written-statement is that Din Mohammad was the sole owner of the above property and Yousuf Wali Mohammad was not a co-owner of the said property. It is an admitted fact that Din Mohammad sold the above property in the year 1977. He received the entire sale consideration of Rs.6,00,000 in the year 1977. According to the plaintiffs the deceased Din Mohammad Wali Mohammad received Rs.3,00,000 for and on behalf of late Yousuf Wali Mohammad. That accordingly Rs.3,00,000 had been received to Yousufs use to the extent of his share.
10. The two decisions of the judicial committee just referred to were applied by the Madras High Court in A.I.R. 1941 Madras 767: (1941) 2 M L J 222. There two brothers A and B sold immovable property to K for Rs.3,000 and in past discharge of the purchase consideration K executed a promissory note for Rs.1,560 in favour of C, the wife of A.C quarrelled with her husband and left him. She then fraudulently endorsed the pronote to D without consideration, her object being to defeat her husband and his brother D sued the maker of the note and obtained a decree for 1653-80. The suit which gave rise to the appeal was filed by A and B to recover this amount from D. If Article 62 applied, the suit was out of time but within time if Article 120 applied. It was held that in endorsing the pronote to D, C wrongly converted it and D took it with full knowledge of the facts. In these circumstances he acquired no title to it. A and B had obviously-an equitable claim against D and it was held that by reason of the pronouncements of the Privy Council in AIR 1931 P.C. 9 and AIR 1913 P.C. 140 Article 62 could not be applied and that period of limitation was six years under Article 120.
11. The rule laid down in the above decision AIR 1946 Madras 248 was followed by a Single Judge of this Court in the case of Muhammad A.I and 7 others v. Sakar Khanoo Bai (PLD 1984 K 97).
12. It is now well-settled that where one receives money to which he is not entitled in law, the person legally entitled to that money may maintain an action for recovery of the same from the former even though there is no contract or quasi-contract for such recovery. It also cannot be disputed that such an action is governed by Article 120 of the Limitation Act, 1908 prescribing 'a period of six years for instituting such actions, the time from which such period of six years began to run being when the money was received. 1n the present case the money was received in the year 1977. It is not in dispute that Din Mohammad Wali Mohammad received Yousuf Wali Mohammad's share amounting to 3,00,000 in the year, 1977. The suit was presented on 24-11-1987; i.e., after period of ten years. The suit is clearly barred by limitation as it was filed beyond six years.
13. The case as set cu: in the plaint is that on 9-8-L9.S4 the said Din Mohammad Wali Mohammad executed `Waseeatnama' prior to his death wherein he admitted the debt. It is advantageous to reproduce the same which reads as under:- "I purchased plot No.1/B Fadia Cooperative .Society jointly with my brother Yousuf in 1952. It was constructed with his investment capital. This house was constructed with joint capital of we two brothers. I had executed an "IQRARNAMA" in Favour of my brother. I again confirm it and reiterate that the said house was constructed and purchased by me and my brother Yousuf jointly on equal investment basis. This house was sold out by me in 1977 against sale consideration of Rs.6,00,000 but I could not give any amount to the legal heirs of my brother. Hence I execute this will that my legal heirs have to give Rs.3,00,000 to the legal heirs of my brother, and this would be a legal obligation/duty on them. Because I have tried in my life time to give this amount to the legal heirs of my brother being their right but my legal heirs created hurdle in the way. This Will Deed is voice of nay conscience, implementation of which shall be a duty on my legal heirs, and would be a lien/debt on my property."
14. The execution of the document is denied by the defendants. For the sake of argument the execution is admitted then what is its effect. The document does not only contain acknowledgement but it also contains a definite promise to pay the debt in the following words:- "Hence I execute this will that my legal heirs have to give Rs.3,00,000 to the legal heirs of my brother, and this would be a legal obligation/duty on them."
15. It is advantageous to reproduce provision of Section 25 (3) of the Contract Act, which are as follows: "It is a promise, made in writing and signed by the person to be charged therewith or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits."
16. The legal heirs on the death of the father would be liable to pay the debt of their father to the extent of the estate of the deceased father in their hands or received by them. I, therefore, hold that on the basis of acknowledgement the suit is barred by time but also barred on the basis of the promise because the promise was made on 9-8-1984 and the suit wits filed on 24-11-1987.
17. On a careful consideration of the matter, therefore, in my judgment, Article 120 of the Limitation Act would apply in this case and the suit of the plaintiffs was riled beyond six years of the date of receiving of the amount by late Din Mohammad. Even the suit was filed beyond three years from the date of promise (9-8-1984). That being so, the application is allowed and the plaint is rejected but in the circumstances both the parties are directed to bear their own costs.
18. H.B.T./F-102/K