1. ' The plaintiff has filed this suit praying for, "declaration that the plaintiff is the real owner of Plots Nos.80/I, 80/II, Vth Commercial Road, Phase IV, Defence Housing Authority, Karachi, the transaction, if any, in the name of late Fazal Saeed is Benami".
2. ' In addition to the above, ancillary and auxiliary prayers also have been made for declaration that the sale of the above plots in favour of defendants Nos. 3 and 4 are illegal and fraudulent, for perpetual prohibitory injunction restraining the defendants from alienating or transferring the ownership rights, mandatory injunction directing the defendants to hand over physical possession of the above plots and for cancellation of the leases and all other documents conferring title upon defendants Nos.1 to 4 and any other further relief.
2. Briefly the facts disclosed in the plaint are that the plaintiff is the brother of defendant No,l's mother and he used to support the family of his said sister financially as and when required. He encouraged Fazal Saeed, the husband of his sister to start a construction firm and occasionally helped him with funds to carry out the construction work. In the year 1976, the plaintiff had purchased a plot of land bearing No,80, measuring 600 squares yards in the name of Fazal Saeed with an object to build a house and sell it and share profits equally. The above plot was sub- divided in two plots of 300 square yards each which were numbered as stated above. The 'C'
3. Leases in respect of the sub-divided plots were executed by defendant No,5, the Pakistan Defence Officers' Housing Authority, Karachi, which were registered on 5-4-1978. It is alleged that expenses and charges in respect of sub-division, etc. Were paid by the plaintiff to late Fazal Saeed. It is stated that late Fazal Saeed had executed certain transfer documents for submission to defendant No,5 for transfer of Plot No,80/II in favour of the plaintiff and also executed agreement of sale dated 1-5-1981 in favour of the plaintiff in respect of sale of Plot No,80/I.
4. ' Fazal Saeed died on 24-12-1982. Due to legal complications plots could not be transferred in the name of legal heirs of the deceased. In the year 1987, bank pressurised the legal heirs for repayment of the loan. The bank refused to give further time and insisted for sale of the plots. The above facts were brought to the notice of the plaintiff who was then abroad. Through his efforts, time for repayment of loan was extended by the bank. The plaintiff helped defendant No,1 and arranged another loan in the month of February, 1986 from Habib Bank Ltd. In the name of defendant No,l. It is alleged that both the plots were mortgaged with Habib Bank Ltd. By depositing original 'C' Lease document. In May, 1989, defendant No,1 and other legal heirs of the deceased were granted permission to sell the property. The plaintiff provided Rs,33,250 to defendant No,1 for the purchase of Defence Saving Certificates for depositing in Court as security against the share of two minor legal heirs of the deceased. The plaintiff had gone abroad and when he returned in September, 1989, defendant No,1 avoided to give correct picture of the case. The word "case" appears to refer .To the proceedings in respect of permission for sale of the property. It is then stated that after long chase the plaintiff came to know that defendants Nos.1 and 2 had obtained the permission from the Court and by fraudulent means sold the property to defendants Nos.3 and 4 in collusion with and through defendant No,2. The plaintiff was told that both the plots were sold by him for Rs,13,00,000 only, whereas their price was within the range of Rs,16,00,000 to Rs,17,00,000.
5. According to the plaint, it was done by defendants Nos.1. And 2 to misappropriate the balance sale proceeds in collusion with other defendants.
6. ' The plaint then states that the plaintiff ultimately agreed to a compromise, under which it was agreed that the plaintiff will not make any claim in respect of the rights acquired by him in the aforesaid sub-divided plots under the documents executed in his favour by deceased Fazal Saeed in 1981 and a new agreement was executed by defendants Nos.1 and 2 jointly undertaking to honour all commitments made in the new agreement. Such document was executed on 23-9- 1989, in which, according to the plaintiff, his rights and claims were acknowledged and recognised and it was jointly agreed by defendants Nos.1 and 2 that an amount of Rs,6,00,000 will be paid to the plaintiff, out of which Rs,4,75,000 would be paid by defendant No,2. It was also undertaken by them that they will repay the entire loan to Habib Bank Ltd. From the remaining sale proceeds and that the full account of sale of the plots will be given to the satisfaction of the plaintiff by defendants Nos.1 and 2. Defendant No,2 under the above document stood guarantor and executed demand promissory note in favour of the plaintiff. Defendants Nos.1 and 2 failed to fulfil their commitments and undertaking given on 23-9-1989. The plaint further states that in view of deliberate breach of commitments/ undertaking on the part of defendants Nos. 1 and 2 the plaintiff is entitled to withdraw the concession allowed under the aforesaid document and is legally entitled to both plots and claim value thereof along with costs, damages, losses and expenses. He accordingly wrote letter dated 26-11-1992 and then reminder dated 28-4-1993 to defendant No,5 for its interference but it declined to intervene by its letters dated 7-12-1992 and 18--5-1993 respectively.
3. The learned counsel for defendant No,1 and so also for defendant No,3 have filed C.MAs.
7. Nos.87/94 and 1752/94 respectively for rejection of the plaint under Order VII, Rule 11, C.P.C.
8. ' I have heard the learned counsel Mr. Siddique Mirza for the plaintiff, Mr. Aurangzeb Mirza for defendants Nos.1 and 2, Mr. Muhammad Siddique Kiyani for defendant No,4.
9. ' The learned Advocates for the defendants contended that (i) the relief for declaration, which is the main and basic relief, is barred by time, (ii) the plaintiff having accepted the deceased to be the owner of the property and agreed to purchase the property for consideration paid, had surrendered his rights, if any, as Benami owner, and is not entitled to the relief of declaration sought, (iii) the sale transactions made by the deceased were superseded under agreement dated 23-9-1989 and as such there was novation of the agreement and the right, if any, vested in the plaintiff, was for recovery of the amount undertaken to be paid under the new agreement dated 23-9-1989 by defendants Nos.1 and 2 and the promissory note executed by defendant No,2.
10. ' On the other hand, the learned Advocate for the plaintiff controverting the above submissions urged that the cause of action accrued to the plaintiff on receipt of letter dated 16-11-1992 from defendant No,5. He accordingly submitted that the limitation is to be computed from the said date.
11. It was alternatively urged that defendants Nos.1 and 2 acknowledged the plaintiffs right in the plots as Benami owner on 23-9-1989 and accordingly the limitation is to be computed from the said date. He further submitted that the plaintiff was entitled to 50% share in the profits earned on the sale of the plots and defendant No,1 was under an obligation to account for the sale proceeds.
12. Defendant No,1 was bound to pay bank loan and get the property redeemed. Since the above was not done by defendant No,1, the plaintiff has rescinded the agreement dated 23-9-1989 and is entitled to the declaration that he is the real owner of the property in question.
4. Before proceeding further, it is to be noted that there is no clause relating to accrual of cause of action in the plaint. Defendant No,2 is not the heir of deceased Fazal Saeed and out of the heirs of the deceased only defendant No,1 has been joined in the suit.
5. The plaint discloses that the plaintiff had purchased the disputed property in the name of Fazal Saeed in the year 1976 and it is on the basis of the above averment that he claims to be Benami purchaser of the property. It is then disclosed that Fazal Saeed received sale consideration of Rs,1,50,000 towards Plot No,80/I and executed sale agreement dated 1-5-1981 in his favour. He also executed various documents in favour of the plaintiff like undertaking, loan affidavit, transfer affidavit and letter requesting defendant No,5 for transfer of Plot No,80/II in favour of the plaintiff. No date is mentioned in the above documents but looking at the narration in the plaint and the issuance date of non-judicial stamp papers on which they are typed, it can be said without fear of contradiction that these documents were executed simultaneously With the Agreement of Sale.
13. These documents are not shown to have been ever acted upon.
6. In the Agreement of Sale dated 1-5-1981, Fazal Saeed is shown as the owner of the plot and the plaintiff has agreed to purchase the said plot from late Fazal Saeed for total consideration of Rs,1,50,000, which, according to the Agreement, has been paid by the vendee to the vendor. The Agreement further provides for delivery of possession of the plot to the purchaser within sixty days from the date of Agreement and the vendor shall ensure the transfer of the plot within the stipulated period which is the essence of the Agreement.
14. ' On execution of the Agreement it is evident that late Fazal Saeed had disowned the plaintiff as owner of the property in dispute and the plaintiff had accepted Fazal Saeed to be the owner of the property and paid to him the sale consideration. It is not disputed that neither the property was conveyed to the plaintiff nor its possession was delivered to him within the stipulated period of sixty days, which expired on 30-7-1981.
15. ' Under the above circumstances right to sue for declaration that the plaintiff was the Benami owner of the property accrued to him on 1-5-1981, when late Fazal Saeed had declared himself as the exclusive owner of the property in dispute. The First Schedule to the Limitation Act does not prescribe any limitation for institution of suit for declaration, therefore, the residuary Article 120 is atracted which provides six years for institution of suit from the date when the right to sue has accrued. The said period of six years expired on 30-4-1987. The suit filed on 21-7-1993 is, therefore, barred by time.
16. ' In so far as other documents are concerned, which relate to Plot No,80/II, were never acted upon.
17. They were not even submitted to defendant No,5 for implementation, such being the logical conclusion, in absence of any contrary averment in the plaint. This leads to the inference that the deceased had declined enforcement of the said documents contemporaneously with the non- observance of the stipulations in the agreement relating to conveyance and delivery of possession within sixty days. Therefore, the right to sue had accrued to the plaintiff when though the said documents were executed, but the possession of the property was not delivered. The limitation under such circumstances is to be computed from the date of execution of the said documents.
18. The suit is, therefore, barred by time in respect of the above plot also.
7. The learned Advocate for the plaintiff contended that defendants Nos.1 and 2 having acknowledged the Benami ownership of the property in suit in the document executed on 23-9- 1989, the limitation is to be computed from the said date under section 19 of the Limitation Act.
19. ' The document dated 23-9-1989 states that at the time of purchase of plot, it was financed by the plaintiff. The above averment is at the best acknowledgement of contribution made by the plaintiff, but cannot be construed as promise to convey the disputed property to the plaintiff.
20. ' Acknowledgment contemplated in the said section 19 does not confer any right or title on the person whose right is acknowledged but merely extends limitation, provided that such acknowledgment is made before the expiry of the time prescribed for institution of suit. As already noted above, the limitation had expird for filing suit in the year 1987. Thus, the acknowledgment made in 1989, after the expiry of the limitation period, cannot be treated as an acknowledgment under section 19 of the Limitation Act.
21. ' Distinction is to be made between express promise to convey the property on the one hand and an acknowledgment of the liability of the executant or the right or claim of the plaintiff on the other.
22. The former will create a new cause of action and limitation will commence from the date of such promise, even if it is made after expiry of limitation in respect of the original claim and in the latter case limitation is extended subject to the rider that such acknowledgment is made before expiry of the limitation.
23. ' No promise having been made in the document dated 23-9-1989 for conveyance of the property to the plaintiff, the limitation period cannot be computed from the said date. Since the acknowledgment was made after expiry of the period of six years, prescribed for institution of the suit for declaration and not before that, it is of no consequence and limitation cannot be computed from the date of execution of the said document.
8. As detailed above, the cause of action had accrued to the plaintiff during the lifetime of Fazal Saeed and on computation of limitation the suit has been found to be barred by time. But despite the fact that the plaint is silent with respect to the time of accrual of the cause of action, the learned counsel for the plaintiff has contended that no cause of action had accrued to the plaintiff during the lifetime of the deceased and it had accrued to him only when the so-called document was executed in 1989 or in 1992, when defendant No,5 had declined to interfere, it has become necessary to first consider the effect of section 17 of the Limitation Act. It reads as under:--- "17. Effect of death before right to sue accrues.---(1) Where a person, who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of institution or making such suit or application.
(2) Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute or make such suit or application.
24. ' Nothing in subsections (1) and (2) applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of an hereditary office."
25. ' The above section thus lays down point of time when or from which limitation is to be computed for institution of the suit by or against a legal representative of a person who dies before accrual of a right for institution of D suit by or against him. That point of time is prescribed to be when there is a legal representative of the deceased capable of instituting such suit or when there is a legal representative against whom such suit may be instituted.
26. ' The above section will have no application where cause of action for institution of the suit by or against the deceased has accrued during his lifetime as in such cases limitation is to be construed from the date when a right to institute a suit has accrued.
27. ' The term "legal representative" is not defined in the Limitation Act. It is, however, defined by section 2(11) of the Code of Civil Procedure as under:--- "2(11) 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:"
28. ' The words "when there is a legal representative" appearing in section 17 cover the cases where an administrator is to be appointed to represent the estate of the deceased and like cases. In such cases the commencement of the limitation is postponed till an administrator is appointed to represent the estate of the deceased.
29. ' Under Muslim Personal Law the succession to the estate of the propositus opens on his death and his estate devolves on his heirs in accordance with the personal law applicable to him. Thus, under the Muslim Law the property having devolved on the heirs they represent the estate of the deceased from the moment of his death and they are legal representatives of the deceased within the meaning of the term as used in section 17 of the Act.
30. ' It finds support from the definition of the term "legal representative" in section 2(11) of C.P.C. To the extent that the term means a person who in law represents the estate of the deceased person.
31. Although the extended meaning of the said term, mentioned in the inclusive clause can be applied only for the purposes of the Code of Civil Procedure and not to application of substantive laws.
32. Though in the case of Amarchand and another v. Parmanand and another AIR 1934 All. 474 it is laid down that the definition found in the Code is meant for the purpose of the Code only and not as a general statement of a substantive rule of law, but in my humble view the said observation would cover only the inclusive clause in section 2(11) of the Code.
33. ' Fazal Saeed had expired on 24-12-1982 and as stated in the plaint, left behind a widow who is sister of the plaintiff and seven children as his legal heirs, who, as heirs, succeeded to the property in suit on his death and are legal representatives of the estate of the deceased. Thus, the limitation in such a case is to be computed from the date when Fazal Saeed had died. The period of six years prescribed for filing a suit fort declaration under the aforesaid section commenced from the date when late Fazal Saeed died and there were the legal representatives against whom the plaintiff could institute a suit for the relief. The suit, therefore, ought to have been filed by 24-12-1988. The suit is also thus barred by time on computation of limitation as laid down in section 17 of the Limitation Act.
9. It may be mentioned that in agreement dated 23-9-1989 defendants Nos.1 and 2 had agreed to pay the amount stated therein. Therefore, the plaintiff is entitled to recover the amount from defendants Nos. 1 and 2 and accordingly, if any cause of action had accrued to the plaintiff against the said defendants was for recovery of the amount stated in the said document. The letters of defendant No,5 declining to interfere and informing the plaintiff to seek remedy from competent Court of law, neither create any right in favour of the plaintiff, nor give rise to any cause of action.
10. The second contention of the learned counsel for the defendants is that the plaintiff having agreed to purchase the property from the deceased, is not entitled to the declaration that he is the Benami owner. The agreement was executed on 1-5-1981. The plaintiff agreed to purchase the property from the deceased accepting him as owner thereof and paid him the agreed consideration as is stated in the plaint and so also in the agreement which has been filed with the plaint. By accepting the deceased as owner of the property, the plaintiff had relinquished and waived his rights that vested in him as Benami owner. He, therefore, cannot be permitted to over- step the agreement to seek declaration that he is 'the Benami owner of the property. It is the agreement which ought to have been enforced specifically. It was not done. On the contrary, as disclosed in the plaint, the heirs of the deceased sought permission of the Court for sale of the property and the plaintiff provided necessary funds for procurement of Saving Certificates required to be deposited in Court towards minors' share in the sale consideration of both the plots to facilitate their sale to the purchasers and consequently the plots were sold to defendants Nos.3 and 4. This happened in May, 1989.
34. ' The above conduct on the part of the plaintiff was in consonance with the relinquishment of his claim to Benami ownership an 1 also leads to the inference that he had further relinquished his rights that had accrued to him on execution of the agreement and other documents executed in 1981.
35. ' The plaint then discloses execution of agreement dated 23-9-1989. Reference needs to be made to the background of the execution of the said agreement as stated in the plaint. In para. 19 of the plaint it is specifically pleaded that the plaintiff had later agreed for a compromise in order to resolve the matter. He had agreed for a compromise under which claim on the bases of the documents executed in his favour would not be pressed on the condition that a new written agreement would be executed by defendants Nos.1 and 2 jointly undertaking to honour all commitments to be made under the new agreement. Para. 20 states that a new agreement/undertaking was accordingly executed by defendants Nos.1 and 2 in favour of the plaintiff on 23-9-1989, under which the defendants had agreed to pay him a sum of Rs,6,00,000 and the plaintiff agreed to receive the said amount in full and final settlement of all his rights. The said document has been filed with the plaint. It states that at the time of purchase of the suit plot, it was financed by the plaintiff and he had arranged various loans from two banks named therein for the deceased Fatal Saeed and that there is still loan of about Rs,1,67,000 outstanding with Habib Bank Ltd. It acknowledges that the profit made was agreed to be shared equally by the plaintiff and the deceased. It then contains the stipulation that defendant No,2 will pay a sum of Rs,4,75,000 to the plaintiff, to which defendant No,2 had agreed and Rs,1,25,000 shall be paid by defendant No,1 to the plaintiff later on, within three months from the date of execution of the said document. Thus, the only promise contained in the said document is with regard to payment of the specific amount.
36. ' In the said agreement the plaintiff having agreed to receive the specific amount stated in the plaint, in the manner detailed in the said document, and having accepted promissory note executed by defendant No,2, which is filed alongwith the plaint --- in part performance of the agreement dated 23-9-1989, as it has been termed in the plaint, has finally confirmed the relinquishment of all his rights that he had in the plots in question.
37. ' A cause of action presupposes the existence of a right in the plaintiff at the time of accrual as well as at the time of institution of the suit. On analysis of the averments made in the plaint and documents filed therewith, it is evident that the plaintiff had relinquished all his rights in respect of the suit property and if they are taken on their face value do not disclose that any right to sue had accrued to the plaintiff for enforcement of the reliefs sought in the plaint in respect of the suit property. The plaintiff as such is not entitled to any of the reliefs prayed for.
11. The learned Advocates for the defendants finally urged that there being novation of the contract on execution of agreement, dated 23-9-1989, the plaintiff cannot seek specific performance of the previous agreement and if any right is vested in the plaintiff is for recovery of the above amount.
38. Reliance is placed on section 62 of the Contract Act which provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. The present suit is not filed for performance of any previous contract and as such, the above section is not attracted in a present case.
39. ' Prayer in sub-para (a) of the prayer clause, is for declaration of title and is the main relief. The prayers contained in sub-clauses (b) to (g) are ancillary and can be granted only when the plaintiff succeeds in obtaining declaration that he is the Benami owner of the property. The suit in respect of first prayer has been found to barred by time. It has been further found on averments made in the plaint and scrutiny of the documents that the plaintiff had relinquished all his rights in respect of the plots in suit and as such no right to sue the defendants has accrued to the plaintiff in respect of the suit property. The plaint is, therefore, liable to be rejected under Order VII, Rule 11(a) and (d), C.P.C. The above are the reasons for the short order dated 13-10-1994, when C.MAs. Nos.87 of 1994 and 1752 of 1994 were allowed and the plaint was rejected.
40. Plaint rejected.