SAMIULLAH vs MUHAMMAD AHMED AND 6 OTHERS

' FAKHRUDDIN G. EBRAMM, J.-These are two Letters Patent appeals between the same parties, one arising out of a money decree and a preliminary decree for accounts, and another from the final decree after accounts were taken by the dmmissioner appointed for the purpose and accepted by the Court.

1. One Shaikh Muhammad Taqi, died at Karachi all of a sudden on 25th March 1954, leaving behind, among others, the respondents-plaintiffs as his minor children. His other heirs are his wife, Mst.

Zubeda Khatoon, his two major sons Muhammad Naqi and Muhammad Shafi by a previous wife, his mother, Mst. Janat Bibi, and father, Shaikh Barkatullah.

2. In 1954, Samiullah, the original defendant and the real brother of Sheikh, Muhammad Taqi made an application, being Misc. Application No, 15 of 1954, to this Court under section 10 of the Guardians and Wards Act for his appointment as guardian of the properties belonging to the minor children, the respondent herein, which was granted by this Court on 27-7-1954. In the application the only property disclosed as belonging to the minors was 11/15th share in the sum of Rs, 1,91,007.00 invested by the deceased in Messrs N. Y. Taqi & Co. The major heirs of the deceased Shaikh Muhammad Taqi consented to the grant of this application. This application was also consented to by one Ali Muhammad, the maternal grandfather of the respondents. The appplication also recited that Samiullah was not a debtor to or the creditor of the estate of the deceased and had no interest adverse to that of the minors. The sum due and payable to the minors, including the shares of Shaikh Barkatullah, Mst. Janat Bibi and Mst. Zubeda Khatoon, the father, mother and the widow of the deceased respectively in the said sum of Rs, 1,91,007.01 in the firm of Messrs, N. Y. Taqi & Co., was deposited in Court by Samiullah, together with the, audited accounts of the said firm and, with the permission of the Court, invested in the purchase of a property known as Mehar Terrace for Rs, 1,02,000.00 and half share in Nawab Manzil at the price of Rs, 4 5,000.00, the other half belonging to the widow, Mst. Zubeda Khatoon. The said two properties continued to be managed by Samiullah as the guardian of the minors until 24-6-1964 when his application dated 30-4-1964 for hi& discharge was granted by this Court. There is an affidavit on record' dated 23-6-1964 by Muhammad Shafi in which allegation was made that after the demise of his father Muhammad Taqi, Samiullah was entrusted with all the properties of his father including movable and cash and that Samiullah has been managing the affairs and the properties of his father for' the last ten years and the accounts submitted by him be referred to a qualified auditor for scrutiny before he is discharged under section 41(4) and that it was in the interest of the minors that Samiullah be directed to hand over the properties to the proposed guardian Mst. Zubeda Khatoon. Samiullah filed a counter-affidavit in which he denied that he had received. Any movable from the estate of his late brother Muhammad Taqi and that the accounts filed in the Court were always checked and audited by the Court's Nazir. Samiullah's application for discharge came up for hearing on 24- 6-1964 when it was by consent, including the consent of Mr. Muhammad Arif, the learned counsel for Muhammad Shafi, granted and hist. Zubeda Khatoon was appointed as guardian of the property of the the minors. On 1.3-1965, Muhammad Ahmad, one of the minor sons of late Muhammad Taqi and the respondent No, 1 herein, filed an application under section 41(4)(c) of the Guardians and Wards Act in which the allegation was that Samiullah had not properly accounted for the income of Nawab Manzil and, what is more important that he had failed to disclose that the deceased had left in the hands of Samiullah a total sum of Rs, 3,43,000 in terms of an acknowledgement dated 17-7-1955, and that the deceased was a partner in several firms along with Samiullsh, one Hajl Abdul Wahid and Ikramul Haq to which partnership the heirs of the deceased were admitted as partners subsequent to the demise of Muhammad Taqi which was also confirmed by the partners in an undated writing and Samiullah had, therefore, deliheretely and fraudalently suppressed the assets of the deceased over which he had the control and out of which he was receiving the profits falling to the shares of the deceased and continued to do so.

The prayer was to rectify the accounts of Nawab Manzil and to account for the assets of the deceased mentioned in acknowledgement dated 17-7-1955 and to call upon Satniullah to render full and faithful accounts of the partnership business mentioned therein, namely, Sami & Co., Barkat & Co., B. M. Naqi & Co., Muhammad Yousaf & Co. On 28-4-1965, Samiullah sought a direction from the Court that the original acknowledgement dated 17-7-1955 be sent to an authorised handwriting expert of the High Court. In his objections dated 11-8-1965, Samiullah described the acknowledgement dated 17-7-1955 as a forgery and further stated that he did not still know its scribe. (Its photostat had been supplied to him). As regards the reference therein to the sum of Rs, 2,45,000 (Safe deposit walay), Samiullah admitted that there was a safe deposit vault in the joint names of Muhammad Taqi and himself but it was meant to keep important papers and no money was kept in it and that the money was always kept in Bank in separate names of the deceased and himself. As regards the undated document in which it was confirmed by Samiullah. Abdul Wahid and Ikramul Haq that they were partners according to the shares detailed in it including 0=5=4 shares of the heirs of late Muhammad Taqi, the explanation given was that no partnership had come into actual existence, no capital was actually put or even mentioned by the three persons named in the document or by the heirs of late Muhammad Taqi, no legal document of partnership came into existence, no business of partnership was done and the alleged document was not signed by the major heirs and the widow of late Muhammad Taqi. It was however, admitted that the document which was called a note, was made and signed by the three persons but he stated nothing more. In particular he did not state that this document represented an intended partnership. He denied that the alleged partnership businesses in the names of Sami & Co., Barkat & Co., B. M. Naqi & Co., and Muhammad Yusuf & Co., were carried on at 51-A, Saleh Muhammad Street, Karachi and the applicant was put to proof. In his reply the applicant Muhammad Ahmed as regards the acknowledgement dated 17-7-1955 stated that it has been discovered in the bundles of papers lying with his mother, the original of which he produced, and further alleged that it was in the hand of Ataur Rahman who was at the relevant time working as an Accountant in Samiullah & Co. And on enquiries made from him the applicant had been informed that he had written the document at the dictation of Samiullah who had signed it in his presence. This application under section 41 (4) (c) of the G & W Act came up for hearing before Mr. Wahiduddin Ahmad, J, as he then was, on 6-9-1955, who was of the view that serious allegations relating to suppression of property and its misappropriation had heen made which could be suitably inquired in a regular proceeding only and, accordingly, dismissed the application while permitting the applicant to file a suit against Samiullah, the ex-guardian on the ground of alleged fraud. The order further recites that the acknowledgement dated 17-7-1955 which had been in the meanwhile sent to the handwriting expert be recalled and returned to the applicant for necessary action.

3. Then came the suit No, 31 of 1967 filed by the respondents herein on 1-2-1967 against Samiullah who died after his evidence had been recorded by this Court as well as before the Commissioner appointed for taking accounts, and the appellants are the heirs of deceased Samiullah.

4. In the plaint, it is alleged that out of the income of Nawab Manzi!, Samiullah had misappropriated a sum of Rs, 2,993.58 which sum was specifically claimed and a further sum of Rs, 2,53,000 being the plaintiff's share and the share of the father, mother and the widow of the deceased assigned in their favor in the sum of Rs, 3,45,000.00 said to have been left by the deceased and in the custody of Samiullah as acknowledged by him in writing date 17-7-1955 (Bah. 5/3). It is further alleged in the plaint that deceased along with Samiullah, Abdul Wahid and Ikramullah used to carry on various businesses in partnership in which the deceased had 0-5-4 shares and on his demise the surviving partners admitted the factum of the existence of the aforesaid partnership by means of a writing (Exh. (3-B) in which the heirs of the deceased are shown as beneficiaries of the partnership to the extent of 0-5-4 in place of their father Muhammad Taqi; that in so far as the plaintiffs have been able to ascertain the partnership carried on various businesses under the names of Sami & Co , Barkat & Co., B. M. Naqi & Co., and Muhammad Yousuf & Co., at 51-A, Saleh Muhammad Street, Karachi, which were ostensibly shown as proprietary concerns of one or the other partner. That of these B. M. Naqi & Co., and Muhammad Yousuf & Co., were wound up in the lifetime of the deceased but Barkat & Co., was continuing till 1955 and Sami & Co., is still continuing. The second prayer is, however, confined to a direction against Samiullah to render true and correct accounts of all moneys received by him for and on behalf of the plaintiffs out of the profits of the business of Sami & Co., and after taking accounts grant final decree for recovery of whatever amount is found to be due.

5. In his written statement Samiullah referred to the fact that all the major heirs of the deceased and so also Ali Mohammad, the maternal grandfather of the plaintiffs, had fully concurred in filing the guardianship application and the details of the assets disclosed therein and it was painful that he had now been made a target when he had taken great pains and benefitted the minors by purchasing Mehar Terrace and had himself suffered financial losses in looking after the miners only to be accused of fraud. As regards the allegation of the safe deposit vault amounting to Rs, 2,45,000.00 it was described as baseless and false to the knowledge of the plaintiffs and he denied that he ever acknowledged at any time any such amount and that the alleged writing was forged.

Objection was also raised as regards the admissibility of the alleged acknowledgement dated 1/-7-1955 for want of proper stamping. With reference to the allegation that Samiullah and other partners had acknowledged partnership and the admission of the heirs, Samiullah denied that the deceased did any business in partnership with him as alleged or otherwise and as regards the document Exh. 6/8, Samiullah in the written statement admitted that a note for entering into a partnership was made but nothing was finalized and no partnership came into existence and that the writing speaks for itself and not denied that it was in the nature of an admission as alleged. As regards Sami & Co. He alleged that he was its sole proprietor and this fact was known to all the heirs of the deceased. As regards Barkat & Co. He alleged that he had nothing to do with it and had neither managed it nor had received anything from it at any time and to the best of his knowledge this firm was solely owned by one Abdul Wahid who closed his business in the year 1956.

6. On 2-10.1967 the trial Court was pleased to adopt following consent issues:-

(1) Whether the defendant misappropriated the amounts shown in para. 7 of the plaint ?

(2) Whether the deceased Muhammad Taqi had left assets of Rs, 3,45,000.00 in the hands of the defendant ? Did the defendant acknowledge this as alleged ?

(3) Whether the deceased Muhammad Taqi carried partnership business with persons mentioned in para. 11 of the plaint ?

(4) Whether deceased was partner in the firms named in para. 13 of the plaint and whether defendant received any amount from any of these firms falling to the share of the deceased and/or his heirs ?

(5) Whether defendant is liable to account for sums to recover ?

(6) Whether the defendant fraudulently suppressed the assets of the deceased in his hands ?

What is the effect of acceptance of accounts by Court in G. W. Application No, 15 of 1958 ?

(7) Whether the suit is time barred ?

(8) Whether the suit is bad for misjoinder or causes of action or non-joinder of necessary partiss ?

(9) Whether the suit is barred under Partnership Act ?

(10) Whether the defendant is entitled to special costs ?

(11) To what relief if any are the plaintiffs entitled ?

7. After framing of the consent issues on 2-10-1967, the suit came up .For hearing before Abdul Kadir Shaikh, J., as he then was, on 3-10-1968 when it would appear from the diary sheet that the plaintiffs had summoned several witnesses including a clerk from the Court of VI Civil Judge to produce certain documents and these documents were by consent placed on record subject to further proof. Further by consent documents from the record of J. Miscellaneous Application No, 15 of 1954 were exhibited. The case was then at the request of the counsel appearing for the parties adjourned for one month for evidence of both the parties to 5th November 1968 when, it was agreed that only the plaintiffs' evidence will be recorded. The suit again came up for hearing on 3- 10-1968, when a complaint was made on behalf of the plaintiffs that one Ikramul Haq, a partner in Sami & Co., had refused to accept the service of summons issued by this Court which fact was confirmed by the learned Judge from the report of the bailiff and the Court ordered notice to Ikramul Haq to show cause why he should not be punished for the contempt of Court under sections 2 and 3 of the Contempt of Courts Act. Ikramul Haq was on 12-11-1968 found guilty of contempt and sentenced to pay a fine of Rs, 500.00.

8. The suit thereafter came up for hearing before Noorul Aran. J., as he then was, on 9-1-1969. On this day the learned Judge examined the defendant under Order X, C. P. C., brought on record and exhibited certain documents admittedly bearing the signatures of the defendant. Confronted the witness with the acknowldgement dated 17-7-1955 but he denied his signature thereon. The document was marked Exh. 5/3 and the signature Exh. 5/3/A. The order-sheed for 9-1-1969 recites that the main dispute in the case was whether Exh. 5/3 bears the signature of the defendant ; that the learned Judge compared this signature with the admitted signatures of the defendant on Exh.

5/1 and 5/2 and it appeared that prima _lack the signature of Samiullah in English on Exh. 5/3 was in the hand of the defendant. The objection that the document was under stamped and, therefore, inadmissible was overruled "in view of the proviso (a) to section 35 of the Stamp Act, 1898". The order concluded with the observation:- "that in view of what has been stated above the initial burden in the case now shifts to the defendant, who is required to proceed with his evidence."

' The order also records that the defendant will prepare a statement of account of the rent realised from Nawab Manzil from the receipt books which were summoned from the Court of VI Civil Judge and the difference between this account and the accounts filed by the defendants in the Guardianship proceedings will be paid by him. This suggestion was accepted by the learned conunsel appearing for the plaintiffs.

9. The oral evidence led on behalf of he defendant consists of Samiullah himself and five other witnesses who have produced certain documents relating to bank accounts and the locker in the safe depcx it vault. More particularly these witnesses are D. W. 2 Zubair Jafrani, an officer from Preedy Street Branch of Habib Bank Ltd., to prove that Ikramul Haq had an account with Habib Bank Ltd., and the defendant's case was that it was in fact opened by P. W. Ataur Rehman who had forged the signature of Ikram which is of course denied by the former. D. W. 3 Abdul Wahid from another branch of Habib Bank Ltd., to produce the genuine account of Ikramul Haq ; D. W. 4 Khokhar who produced the Bank account of Sami & Co. Since 18-11950 operated by Samiullah as its sole proprietor. D. W. 5, Muhammad Hayat, who had been summoned to produce Bank account opening form of Barkat & Co., could not do so because of insufficient notice. D. W. 7 Syed Abdul Wadood, who came in his place did not produce this form but stated from the record that account in the name of Barkat & Co , was opened on 9-10.1952 by Abdul Wahid as its sole proprietor. Lastly.

D. W. 6, M. A. Farooqi, from the Security Safe Deposit Vault to prove the locker No, 2680 in the joint name of deceased and Samiullah opened on 21-8-1951 and closed on 27-8-1954, and the same locker taken afresh in the name of Samiullah and his wife. The witness also produced documents showing the operation of the locker by Samiullah from time to time including after the demise of Muhammad Taqi.

10. The oral evidence of plaintiffs consists of P. W. 1 Ikramul Haq and P. W. 3 Abdul Wahid, said to be partners, P. W. 4 Ataur Rehman, the accountant of Sami & Co., and P. W. 2 Ali Raza, who produced certified copy of the account of Barkat & Co. From September, 1951 to August, 1951 opened and operated by Samiullah as its sole proprietor.

11. The documentary evidence among other things consists of 'Exh. 5/3, the alleged acknowledgement in the hand of Samiullah that he held in custody the sum of Rs, 3,45,000.00 belonging to the heirs of the deceased, Exh. 6/8 said to acknowledge the admission of the heirs of the deceased in the partnership and Exhs. 13/12 to 13/14 copy books allegedly showing the shares of the heirs of deceased Taqi in the unofficial income of Sami & Co. From the year 1954 to 1958.

12. The learned Single Judge Arfin, J., by his impunged judgment dated 21-5-1969, was pleased to grant a decree for the sum of Rs, 2,59,963.96 being the total of plaintiff's share in the sum of Rs, 3,45,000.00 and a sum of Rs, 6,504.49 towards the rental income, latter by consent, together with interest at 6% per annum from the date of the suit until payment and rendition of true and correct accounts by Samiullah of all moneys received by him for and and on behalf of the plaintiffs out of the profits of the business, namely, Sami & Co. Following this decree Mr. S. A. Moulvi, a a Senior Advocate of this Court, was by consent appointed as Commissioner for taking accounts who by his report dated 5-8-1970 found that a total sum of Rs, 2,85,919.40 was due to the plaintiffs. This figure was arrived .At as follows:- ' Rs, 14,824.01 As per regular account books.

' Rs, 99,971.50 As per Exhs. 13/12 to 13/14.

' Rs, 1,72, 123.89 Profits outside the goods from 1959 to 1969 on the basis of average profit from Exhs.

13/12 to 13/14.

' Samiullah filed objections to the report which objections were heard by my learned brother Dorab Patel, J., who was pleased to accept the Commissioner's report after correction of certain arithmetical mistake (the sum of Rs, 14,824.01 was reduced to Rs, 12,601.83) and addition of profits for the year 1969-70 which brought the amount due to the plaintiffs to Rs, 3,00,909.22. The final decree is for this sum together with interest thereon from the date of the suit until realization.

13. Before coming to the merits of the appeal I may first deal with two preliminary matters referred to by Mr. Kbalid M. Ishaque, and Mr. Abdul Hafiz Lakho the learned counsel on behalf of the appellants. Mr. Khalid Ishaque contended that the learned trial Judge had so conducted the suit as to cause serious prejudice to the appellants amounting to mistrial and a proper order to be made in this appeal is to order a fresh trial. I must hasten to add that the learned counsel was at pains to reiterate again and again that it is not the case of the appellants that the learned trial Judge was improperly motivated but that in his anxiety to ascertain the truth, he unreasonably assumed that the plaintiffs being minors, required support from the Court, arrayed as they were against a more experienced and mature uncle. The learned counsel contended that the trial Judge had tilted the balance in favour of the plaintiffs and did not '.Conduct himself with that degree of impartiality and even-handedness as expected of a Judge. It was urged that the learned Judge was biased in id favour of the plaintiffs. Our attention was invited to the definition of 'bias' `appearing in several dictionaries and reported decisions, as includln .Partiality, propensity towards an object, a real likelihood of an operative prejudice, whether conscious or unconscious [(1955) 3 All E R 3001, "denoting a departure from the standard of even-handed justice which the, law requires from those who occupy judicial office [(1947) 2 All E R 2891. This bias the learned counsel went on to argue was sufficiently established by-

(i) the shifting of the burden of proof by order dated 9-1-1969 ;

(ii) examination of Samiullah under Order X, C. P. C. I

(iii) the manner in which Exh. 5/3 was admitted in evidence and the objection to its admissibility overruled ;

(iv) examination of several witnesses as Court witnesses ;

(v) failure to examine witnesses material to the trial including the plaintiffs.

(vi) calling for the records, statements and account books without any application by any of the parties ; giving time to the plaintiffs for examination of the account books produced during the course of the examination of Samiullah ; and

(vil) numerous interventions by the trial Judge in favour of the plaintiffs in the course of examination of the witnesses.

14. It will presently show that there is no merits in any of the aforesaid objections except the last which I am constrained to say with utmost respect to the learned Judge for whose erudition and intelligence I have great admiration, to be not without substance.

15. The learned counsel invited our attention to the diary sheet dated 3-10-1968, when the suit came up for regular hearing and it was by consent of the parties adjourned by Abdul Kadir Shaikh, J. (as he then was) to 5-11-1968 "when it was agreed that only the plaintiffs' evidence will be recorded". The suit, thereafter, on 9-1-1969 came up for hearing before Arfin, J. (as he then was) who has passed the impugned Judgment. On this date the learned Judge observed that the main dispute in the case is whether Exh. 5/3 bears the signature of Samiullah and, therefore, the learned Judge examined Samiullah under Order X, C. P. C. So that his admitted signatures are obtained and compared with the disputed one on Exh. 5/3. That the learned Judge had the power to examine the defendant under Order X, C. P. C. Was not seriously questioned by Mr. Khalid lshaque. The learned Judge was right in taking the view that the main dispute between the parties related to Exh. 5/3.

The learned Judge was equally right in comparing the disputed signature on Exh. 5/3 with his admitted signatures under section 73 of the Evidence Act and having come to the conclusion that the disputed signature tallied with the admitted signature, he again rightly shifted the initial burden of the case on the defendant, who was directed to lead his evidence. The related grievance of Mr. Khalid Ishaque that the learned Judge had shifted the burden of the whole of the case of the plaintiffs on the defendant is not justified for the burden was shifted to the extent only of the plaintiffs' case for a fixed sum of money as represented by Exh. 5/3, and not their case relating to partnerships and accounts. The words of the learned Judge that:- "the initial burden now shifts to the defendant who is required to proceed with the evidence," ' have to be read in its proper context, namely, the defendant's examination under Order X, C. P. C.

And the admission in evidence of Exh. 5/3. Even otherwise the defendant could have relied on the provisions of Order XVIII, C. P. C. And reserved his evidence in rebuttal on issues other than the issue relating to Exh. 5/3, but he did not choose to do. Again, at the conclusion of the plaintiffs' evidence the learned Judge expressly gave liberty to the defendant to lead evidence in rebuttal, if any, and there would be no occasion to give such a liberty if the burden had been shifted in respect of all issues on the defendant. As to the admissibility of Exh. 5/3, as being unstamped, there is no doubt that it was wrongly overruled by reference to proviso (a) to section 35 of the Stamp Act, 1899 but that was because the attention of the learned Judge had not been invited to the Sind Amendment viz , Sind Act II of 1932.

16. Coming to objection No, (iii) and (iv), it is factually incorrect to say that the trial Judge examined several witnesses on his own for he merely examined Mr. Ikramul Haq Faruqui, as a Court witness whose evidence was of formal character being confined to the locker No, 1623-B, in the joint names of Ikramul Haq and his son Zafar Ahmad.

17. As regards the grievance that most relevant witnesses were not examined by the learned trial judge, namely, the mother Zubeda, or step- brothers Naqi and Shafi it will suffice to say that they were summoned by the defendant but expressly dropped. Samiullah was never prevented from examining them if he had so desired. l8. Coming to the trial Court's directions to produce record, statement of account books I find that there is only one order by the Court made on 9-1-1969 for production of books of Sami & Co., which was promptly complied with by Samiullah on 10-1-169.

The books of accounts of this firm were necessary for determining the question as to whether Sami & Co., was the sole proprietary concern of Samiullah and as to its connection with other concerns which were said to be partnerships. No time was sought by or given to counsel for the plaintiffs for further cross-examination after the production of these account books. The account books as aforesaid were produced on 10-1-1969. The next date of hearing was 14-1-1969 when Mr. Ghulam Ali Memon, the learned counsel for the plaintiffs, continued his cross-examination of Samiullah inclushe of the questions put on the books of accounts produced by him. The record further shows that there was only one order regarding the preparation of the statement of accounts by the learned Judge made on 14-1-1969 showing the credits in the name of deceased Muhammad Taqi, his heirs and Abdul Wahid in the books of accounts of Sami & Co., which had already been produced and the order was to jointly prepare a statement showing yearly balance for the sake of convenience only. The order was complied with without objection and the appellants cannot now be heard to complain about it. The only other statement which the learned Judge directed Samiullah to file related to the locker in dispute bearing No, 2826 but this statement Samiullah was unable to prepare and instead he himself summoned the Manager, Safe Deposit Vault, to produce the relevant statement. There is, therefore, no substance in this grievance either.

19. Finally, I come to the objection relating to interventions by the learned Judge during the examination of the witnesses. These are I am in duty bound to point out quite a few in number and give the appearance of rescue operations on behalf of the plaintiffs. The learned counsel referred- to the following matters in relation to different witnesses'

'D. W. Samiullah:

(I) It was the case of the plaintiffs that Exh. 5/3 was given by Samiullah before he went for Hajj, while Samiullah deposed that he had not decided to go for Hajj uptil later than 17-7-1955 (which is the date of Exh. 5/3) and it was only on 20th/21st of July, 1955, that by chance he was able to get airway ticket from Saudi Arabia. The Court intervened to ask when he for the first time went to the Airways Company. fii) Next were a series of questions in relation to locker No 2680 including its non-disclosure in the guardianship proceedings and its operation before and after the demise of Muhammad Taqi including the occasion when the locker was opened in presence of the major heirs of the deceased Muhammad Taqi.

(iii) The Court asked several questions regarding the moneys brought from India by the defendant.

' P. W. Ikramul Haq:

(1) A series of questions relating to the business of Sami & Co. And Barkat & Co., where these businesses were carried on who used to write their accounts, the position held by Ataur Rehman in these firms and whether the witness was a partner in M. Y. Taqi & Co.

(ii) Whether the salary drawn by the witness was entered in the books of Sami & Co.

(iii) A series of questions in two installments relating to M. Y. Taqi & Co., the witness's contribution in Messrs M. Y. Taqi & Co., its accounts, its partners, the witness's Martial Law declaration; whether be wrote accounts of Sami & Co., and if so up to which year and his working hours in the company.

(iv) The Court asked him after how many days of the demise of Muhammad Taqi, was his locker opened. Kv) A series of questions relating to witness's own locker, his verified claim, and the cash brought by him from India.

' P. W. Abdul Waheed:

(I) When the witness stated in his examination-in-chief that deceased Muhammad Taqi had not contributed towards the capital of the firm the Court promptly asked him to explain how Taqi became partner in Sami & Co. Without contributing towards his capital and whe the reply was he had no answer, the Court recorded the note that the witness is obviously trying to conceal some facts from the Court.

(ii) After the witness had deposed that in addition to accounts which Sand & Co maintained for income-tax purpose, a separate account of black transaction was also maintained in ordinary copy books, the Judge intervened and the witness stated that the shares of the partners of Sami & Co. Were recorded in their copy books.

(iii) A series of questions were asked relating to business carried on by Muhammad Taqi & Samiullah in India and how business under different names snowing one or other partners as sole proprietor was started in Karachi.

(iv) The witness was asked whether he received any money from Sami & Co., and he replied that he had received Rs, 70,000.00.

' Ataur Rehman:

(i) In his case there was only one intervention but was considered so vital by Mr. Khalid M. Ishaque that it may he reproduced in its exact context: "I see Exh. 13/15 in which address of 'B. M. Naqi & Co.' is shown as shop No, 120, Liaquat Bazar, Karachi.

Exh. 5/3 was not written on a Sunday. I do not know whether the date of this document, dated 17th July, 1955, was a Sunday. It is correct that the bazars in Karachi remain closed on Sundays. The shop of Sami & Co., also used to remain closed on Sunday. ' se-examination to Mr. Ghulam All Memon: Q. The shop of Sami & Co. Itself used to remain closed on Sunday.

' To Court.-It is possible that the day '17th July, 1955' may have been written wrongly due to the fact that the leaves on the calander for Saturday and Sunday both may not have been torn off on Monday, but leaf only for Saturday may have been torn off.

20. Both Mr. Khalid Ishaque as wz11 as Mr. Lakho conceded tha 'under section 165 of the Evidence Act the Judge has the discretion to as any question he pleases in any form at any time of any witness or of th parties about any fact, relevant or irrelevant, but went on to argue that th Judge should be at all time reasonable in the exercise of his discretion and should not thereby cause or appear to have caused prejudice to any party. As to how a party can be prejudiced by interventions made by a Judge, th counsel referred to the following observations of Lord Green M. R. In Yuill v, Yuill (1):- "It is quite plain to me that the Judge was endeavouring to ascertain the truth in the manner which at the moment seemed to him most convenient. But he must, I think, have lost sight of the inconveniences which are apt to flow from an undue participation by a Judge and it is his duty to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the Judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think generally more convenient to do this when counsel has finished his questions or is passing to a new subject. It must always be borne in mind that the Judge does not know what is in counsel's brief and has not the same facilities as counsel for an effective examination-in-chief or cross-examination. In cross- examination for instance, experienced counsel will see just as clearly as the Judge that, for example, a particular question will be a crucial one. But it is for counsel to decide at what stage he will put the question, and the whole strength of the cross-examination may be destroyed if the Judge, in his desire to get to what seems to him to be the crucial point, himself intervenes and prematurely puts the question himself."

' The learned counsel also relied on the observations of Denning L. J. In the ease of Jones v. National Coal Board (2): - "Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the Judge sits to hear and

(1) (1945) 1 All E R 183 (2) (1951) 2 All E R 159 determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a Judge is not a mere umpire to answer the question 'How's that'? His object above all is to find out the truth and to do justice according to law; and in the daily pursuit of it the advocate plays an honorable and necessary role. Was it not Lord ELDON, L. C., who said in a notable passage that 'truth is best discovered by powerful statements on both sides of the question' (see Ex. P. Lloyd (1822) Mont. 70n.) and Lord GREENE, M. R. Who explained that justice is best done by a Judge who holds the balance between the contending parties without himself taking part in their disputations? If a Judge, said Lord GREENE, should himself conduct the examination of witnesses, he, so to speak descends into the arena and is liable to have his vision clouded by the dust of the conflict."

21. In the above case the Court of Appeal ordered a new trial and it was contended that same should be the course adopted by us in this appeal. It must, however, be noted that retrial was ordered in the above case as the Court of appeal was unable to come to the conclusion that the decision reached by the Judge was an inevitable decision for they did not have the material for the purpose. In other words the Judge's Interventions and the lack of even-handedness will not Ipso facto result in the judgment becoming nullity for if the judgment was an inevitable decision it will be allowed to stand, and to my mind rightly so, for no purpose would be served by ac retrial if the decision is shown to be otherwise correct. As will be seen hereafter I am more than certain that the decision by the learned Judge was the inevitable decision and the retrial will only result in its confirmation. Mr. Khalid Ishaque was also good enough to refer to us Anwar's case reported in Anwar and another v. The Crown (1) in which case the question before the Federal Court was whether bias in a Judge vitiates proceedings and must, therefore, result in retrial. The Federal Court expressly overruled the earlier Khairdi Khan's case in which it was laid down that where proceedings were held before a biased Judge the entire proceedings are void irrespective of the correctness or otherwise of adjudication and went on to lay down the law as follows:- "We are, therefore, perfectly entitled to hold, as we do in this case after a full argument, that the rule laid pown in Khairdi Khan's case that bias vitiates all judgments and all orders made by a Judge are void is incorrect and should no longer form part of the law of Pakistan. Lest there might be any misunderstanding I sum up below the conclusions I have arrived at:- (1J Every accused person has the right to a fair trial, namely, the right to be tried on evidence by a judicially minded person.

(2)If the Judge is functioning under an influence brought about by his own act or "by the act of another person, which has the effect of paralysing his judicial faculties, there is no fair trial.

(3) The fact that there was a paralysis of judicial faculties in a Judge cannot be proved by independent evidence but must appear from the manner in which he held the proceedings or arrived at his conclusions. Unless, therefore, it be shown that the proceedings held were not fair or impartial or that his conclusions were wrong, an allegation of

(1) PLD 1955 FC 185 ' paralysis of judicial faculties would be as much out of place as the record that he heard the evidence and prepared a true and faithful record of it.

(4)Bias in a Judge is the paralysis, complete or partial, of judicial faculties and therefore, the allegation of bias against a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one-sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous. In Khairdi Khan's case there being no finding that the Judgment of Mr. Ahmad Khan who held the second trial was wrong, it could not be held that he was a biased Judge. This Court's judgment in that case was restricted to showing that Mr. Ahmad Khan's findings were in confirmity with the observations of Mr. Justice Kayani in the order of retrial, and the judgments of the learned Chief Justice and of Shahabuddin and Cornelius, JJ., expressly proceeded on the assumption that Mr. Ahmad Khan was influenced in his decision by the order of retrial and not on the finding that his judgment was in fact wrong. The learned Judges did make some observations to the effect that the view of evidence taken by Mr. Inayatullah Khan was not unreasonable but this cannot be said to amount to a finding that the judgment of Mr. Ahmad Khan which had been affirmed by a Division Bench of the High Court was wrong on the evidence adduced at the retrial. In the absence of any such finding no bias could have been attributed to Mr. Ahmad Khan.

(5)Bias in judicial matters may be caused by the judgment, order or observations of a superior Court or it may spring from personal, political, religious, communal, racial, commercial or economic considerations. But whatever may be the case of it, it can never be held to be proved in the case of a Judge whose judgment is right because the fact that his decision was correct is a complete refutation of biased Judge producing a correct result is a contradiction in terms.

(6)The conclusions stated above must be read subject to one important exception, and that is that there is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party.

Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. The Grand Junction Canal (No, 1) and others (1852) H L C 759 and Rex v. Sussex Justices (1924) 1 K B 256."

22. Mr. Khalid Ishaque contended that the majority view in Anwar's case has been departed from in the case of Mohammad Ismail Chowdhury v.

Abdul Khallgue Sowdagar and anothor (1) in which at page 306 it has been observed as follows:- "The effect of bias in the mind of a trying Judge extends to every part of the proceedings conducted and recorded by him. It is impossible for any superior Court of correction to estimate the value to be placed upon the record of the evidence prepared by such a Judge. Being in control of the entire proceedings he is in a position to influence the course of the examination and cross- examination of witnesses in such a way that the result towards which his bias leads him is produced, but the processes are completely concealed and consequently it becomes impossible for a superior Court to distinguish that portion of the proceedings which is affected by bias in the trial Judge. The mere attitude of a biased Judge is often sufficient to determine the nature of the evidence given by witnesses appearing before him. They cannot be expected to speak their minds freely with single-minded adherence to the truth, if they are aware of the directions in which the Court desires to guide the case.

' Consequrntly, we are constrained to hold, that the trial of this case has been vitiated by bias in the mind of the trial Judge, and therefore his entire proceedings and all subsequent proceedings in appeal should be set aside, and the case should be remitted for retrial by a competent Court, and allowing the present appeal, we direct accordingly. The costs of the parties will be costs in the cause."

23. The judgment does not refer to Anwar's case at all and it is not open to us by reference to the above observations to say that the law laid down in Anwar's case is no longer good law and, therefore, not binding on us. We have, however, noticed that the Supreme Court observed that it was not possible to rely on the evidence already on record which was recorded by a biased Munsif as the only evidence in the case as it would be clearly dangerous to the dispensation of Justice which would go to show that if some other untainted evidence would have made the decision inevitable the Supreme Court would not have ordered retrial.

24. The other preliminary matter to which our attention was drawn was the alleged failure on the part of Dorab Patel, J., to re-examine the findings arrived at by Arlin, J., that deceased Muhammad Taqi was a partner in Sami & and after his demise his heirs were admitted to the partnership which finding resulted in the preliminary decree for accounts in the light of the evidence led before the Commissioner for taking accounts. Mr. Abdul Hafeez Lakbo, the learned counsel for the appellants, argued that till the final decree is passed the suit will be deemed to be pending and if subsequent evidence before the Commissioner reflects upon any matter decided in the preliminary decree than the Court passing final decree will not proceed to do so if subsequent evidence does not justify the preliminary decree. In relation to this Court it was argued that we have before us the entire evidence, the appeals are both against preliminary decree as well as final decree and, therefore, must determine the parties' case finally. The end in view before the learned counsel was to demolish the evidence of P. W. Ataur Rehman at the trial by reference to his deposition before the Commissioner, contending that the contradictions between the two cast serious doubt on the genuineness, of Exhs. 13/12 to 13/14 and, therefore, disproved the alleged partnership of Sami & Co.

(it may be noted that the author of these exhibits is Ikramul

(1) PLD 1960 SC 301 ' Haq and not Ataur Rehman). It was contended by reference to rule 10 of Order XXVI, C. P. C. That the evidence recorded before the Commissioner is the evidence in Suit and that when the suit came to be finally heard at the time of making of the final decree the evidence recorded by the Commissioner became relevant for all purposes. Same arguments were raised before my learned brother Dorab Patel, J., who rejected the same observing as followst- "Mr. Lakho submitted that the finding of the learned Single Judge was not binding because of the evidence recorded before the Commissioner. But according to the order of the learned Single Judge, the case had been referred to the Commissioner only for the purpose of taking accounts.

Therefore, I cannot go into the question of credibility, except in so far as it relates to disputes over accounting. Mr. Lakho, however did not refer to any errors in accounts but instead he referred to the examination of Mr. Ataur Rehman before the Commissioner and stated that this witness was not a witness of truth. Thus for instance Mr. Ataur Rehman had once stated that the copy books were with one Shafi but in his evidence on 4-2-1970 before the Commissioner he stated that they had been kept by the defendant. According to the learned counsel, in view of this and other discrepancies in the evidence of Ataur Rehman, it was not fit to be believed. But although Mr. Ataur Rehman has stated that the copy books contained the record of the black market transactions of Simi & Co., he never maintained the copy books, therefore, even if his evidence is rejected, I do not see how it would advance the defendant's case, as the copy books were proved by P. Ws. Ikramul Haq and Abdul Wahid, and no argument was advanced before me with regard to their evidence."

' I am in respectful agreement with Dorab Patel, J. The proceedings before the Commissioner were limited in scope and that it was not a case of rehearing or re-trial before the Commissioner. It was not open to the Commissioner to reopen the question of a partnership or for the parties to lead evidence on issues already determined by the Court.

25. Mr. Lakho relied on the following observations in Saidur Rehmart v. Chief Election Commissioner (1):- "Once an appeal has been admitted against the decree or order of the' High Court, the matter became sub judice again and thereafter this Court has seisin of the whole case."

In the above case the question before the Supreme Court was whether Act XXIII of 1963, which was enacted after the petition for Special Leave to Appeal was granted by the Supreme Court, repealing Act XXV of 1957 under which the petitioner had been disqualified, could be availed of by the petitioner and the Supreme Court entertained no doubt that the Act of 1963 was retrospective in the sense that it applied to proceedings pending at the time when the Act came into force.

26. In the case before us there are two distinct and different decrees with its respective scope and limitation and it is not possible to upset one by reference to the evidence in the other. The argument of the learned -counsel is in any event inconsequential to the merit of the dispute for even if Ataur Rebman's evidence is rejected, who was incidentally not even confront ed with his earlier deposition, the plaintiff's case stands adequately proved-by other evidence.

(1) PLD 1957 SC (Pak.) 157

27. The two main issues In L. P. A. No, 109 of 1969 are t-

(1) Whether or not Exh. 5/3 bears the signature of Samiullah ; and

(2) Whether or not the heirs of late Muhammad Taqi were admitted as partners in the firm of Sami & Co. {{TABLE TXT}} Bab. 5/3 reads as follows :- "Date 17th July 1955 : Following amount of the heirs of late brother Muhammad Taqi which is with me and which is to be paid to them, to be recovered from.

Rs, Barkat & Co. ... ... ... 10,00,000.00 Of Safe Vault ... ... 2,45,000.90 Credit in the book ... ... ... 1,20,000.00 Credit of N. Y. Which was taken in Cash ... ... ... 10,000.00 Cash ... ... 1,15,000.00 ... 345,000.00 {{TABLE TEXT}} ' Because I am going with intention to perform Haj at Baitullah Sherif, I as a precautionary measure, am keeping the account duly written so that in case I do not return there may not be any cause of dispute. Semi & Co.

(Sd.)

Samiullah , Proprietor."

' The first contention of Mr. Lakho, the learned counsel for the appellants, in relation to Exh. 5/3 was that it was inadmissible in evidence. This document was admitted in evidence and marked as Exh.

By the learned trial Judge following the examination of Samiullah under Order X, C. P. C. An objection was taken on behalf of Samiullah that the document was not admissible as it was unstamped, presumably the contention was that it required, as an acknowledgement, two annals revenue stamp under Article 1 of the Stamp Act. The learned Judge's attention was invited to the unlamented provisions to section 35 which did not contain the words two annas. The objection was, therefore, overruled and the document exhibited and marked as Exh. 5/3. At the argument stage the attention of the learned Judge was invited to the Sind amendment, Sind Act I of 1938, whereby the words two annas had been added to the proviso (a) to section 35. The learned Judge, however, came to the conclusion that having admitted the document in evidence such admission could not be calle I in question at any stage of the suit under section 36 of the Stamp Act and thus disposed of the appellant's objection as to the admissibility of this document.

28. Before us Mr. S. M. Sadiq, the learned counsel for the respondents, has not only supported the view of the learned trial Judge that a document-once exhibited is not open to challenge at any subsequent stage including at the appellate stage on the ground that the detriment did not bear stamp required by the Stamp Act, but additionally, contended that Article 1 which was sought to be attracted had no application, for Exh. 5/3 was not an acknowledgement contemplated by that article. The learned counsel referred to the contents of Exh. 5/3 and argued that Samiullah under this document acknowledged that he was in custody of funds belonging to the heirs of the deceased Muhammad Taqi and these were payable to them in other words the document was in the nature of an acknowledgement of a trust or amanat and not a document signed by the debtor acknowledging the debt payable by him to his creditor. The contention was that Article 1 contemplates a relationship between a lender and a borrower and the acknowledgement by the latter of a debt payable by him and not what may loosely be regarded as a creditor, such as, a person who acknowledges that he holds a sum in his custody on behalf of some other person and payable to that person Article 1, it was argued it should be strictly construed being a fiscal statute and understood only as coming into operation when creditor-debtor relationship exists between two persons and not otherwise. We are inclined to agree with the learned counsel but for reasons appearing hereafter we do not think it necessary to give conclusive answer to this aspect of interpretation of Article 1 of the Stamp Act. It was next contended by Mr. S. M, Sadiq that in Exh. 5/3 there is a promise by Samiullah to pay to the heirs of deceased Muhammad Taqi the sums mentioned therein which will take the document out of its purview of Article 1. This promise was sought to be inferred from the words "in my custody and payable to them." But we are of the view that these words merely meant an acknowledgment of liability or that the sums mentioned are due and payable but not a promise to pay. The word "payable" cannot be equated with "I promise to pay", which are two distinct and different expressions.

29. Coming to the more formidable argument relating to section 36 of the Stamp Act. Mr Sadiq laid great emphasis on the language of the section which provides that except as provided in section 61 of the Act if an unstamped instrument has been admitted in evidence such admission shall not be called in question at any subsequent stage of the same suit or proceeding on the ground that it has not been duly stamped. Our Supreme Court in the case of Ch. Muhammad Saleem v.

Muhammad Akram and others (1) observed as follows :- "No objection, it appears, was taken to the admission of this document in evidence when it was proved and marked as an exhibit. It was, thereafter even put to several witnesses including two of the witnesses examined by the appellant himself. There is also nothing in the judgment of the trial Court to show that any objection was taken to the admission of this document on the ground of want of stamp. The document was held inadmissible by the trial Court on the ground of non- registration only. In the circumstances we are in agreement with the learned counsel for the respondent that this objection cannot be raised at this stage. The worst that can happen is that this Court may under section 61 of the Stamp Act even now impound the document, determine the amount of duty chargeable thereon and send it to the Collector for realization of the duty. This will not, however, affect the provisions of section 36 of the Act for the sole object sought to be achieved by section 61 thereof is the protection of the revenue."

' In the case from Indian Jurisdiction Javir Chand v. Pukhraj Surana (2) which case was approved by our Supreme Court in the above case, the trial Court had lost sight of an amendment in Mar war Stamp Act, 1914, and admitted in evidence an unstamped document. It was, however, held that :- "Once a document has been marked as an exhibit in the case and has

(1) PLD 1971 SC 516 (2) AIR 1961 SC 1955 ' been used by the parties in examination and cross-examination of their witnesses, section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of appeal or revision to go behind that order."

30. Mr. Lakho pointed out that our Supreme Court case is distinguishable for in that case, unlike in the present one, no objection was taken to the admission of the document in evidence on the ground of want of stamp. That is undoubtedly true but will such omission really make any difference if the bar contained in section 36 is, except for the limitation contained in section 61, total? I am inclined to think in the negative. If it was otherwise the Supreme Court of Pakistan would not have approved the decision from Indian Jurisdiction in which no such objection was taken.

31. Additionally, Mr. Sadiq invited our attention to the cases reported in Venkatakrishna Reddi v.

Batcha Reddi (1), Devachand and another v. Birachand Kama Raj (2), Benoy Bhusan Saha v.

Muhammad Abdul Samad (3), Abdul Hashem v. Serajul Hague and others (4) in support of his contention that section 36 of the Stamp Act admits of no exception except for the provision contained in section 61 of the Stamp Act which has been expressly excepted in the section itself.

The reference to the aforesaid decisions was made by Mr. Sadiq to meet the contention of Mr. Lakho that section 36 should be confined to curable documents only, that is, unstamped or inadequately stamped documents which are made admissible on payment of duty and penalty but not to documents the admission of which is totally barred in the negative language under section 35. The learned counsel contended that if this limited connotation is not given to section 36, section 35 will be made redundant in relation to documents which are totally inadmissible. I am, however, of the view, and that appears to be the view taken by Supreme Court of Pakistan, that section 36 is categorical in its terms and no limitation can be read into it more particularly as the limitation intended by the Legislature has been incorporated therein. As was observed by the Supreme Court stamping is a matter of revenue with which the parties are unconcerned and If the Legislature in categorical terms states that once a document is admitted it cannot be questioned later on at any stage of the trial such categorical language must be given effect to. It is possible to take the view that if the purport of section 35 was to impose a duty such a purpose must be given effect to and not allowed to be set at naught by section 36 but its effect being only limited to safeguarding revenue due to the State, it is a matter of no concern to the parties.

32. On merits, Mr. Lakho contended that it had not been proved that Exh. 5/3 bears the signature of Samiullah or that any intrinsic evidence is available as to the genuineness of this document. The learned trial Judge compared the signatures of Samiullah on Exh. 5/3 with the admitted signatures of Samiullah on Exhs. 5/2, 5/3, 6/9, 6/10, 9/1 and 9/2 and on such comparison made under section 73 of the Evidence Act came to the conclusion that the signature on Exh. 5/3 was that of Samiullah.

We have with the assistance of the learned counsel for the parties examined these exhibits and also contemporaneous admitted signatures of Samiullah on his affidavit dated 1-10-1955 and on his statement of account dated 26.9-1955 in J. Misc. 15 of 1954, and the conclusion is unmistakable that these signatures resemble

(1) A T R 1934 Mad. 500 (2) T L R 13 Bom. 449

(3) PLD 1956 Dacca 14 (4) P I. D 1961 Dacca 596 the signature of Samiullah on Exh. 5/3. Admittedly, there are some minor variations but that is true of all the signatures of Samiullah. The overall impression created is that Exh. 5/3 closely resembles the admitted siguatures of Samiullah. I am not unconscious of the obvious hazards in comparing the signatures and that a forgeror would obviously imitate the genuine signature as closely as possible. The close resemblance, however, cannot be denied and if the defendant wanted to avoid the consequences of this comparison it was for him to lead expert evidence which he failed to do leaving the Court no other choice but to perform its functions under section 73 of the Evidence Act to the best of its ability. I am, therefore, of the view that the finding arrived at by the trial Judge that Exh. 5/3 bears the signature of Samiullah is justified. As to the oral evidence regarding the signature we have the evidence of its author Ataur Rehman, who deposed that it was signed in his presence by Samiullah. Samiullah even refused to identify the writings of Ataur Rehman though Ataur Rehman was his accountant from 1954 to 1964. What is more important, however, is the evidence of Ikramul Haq who though examined on behalf of the plaintiffs was at pains to support Samiullah in all and every matter. This witness who has been associated with Samiullah, being his employee for about ten years, first admitted that signature on Exh. 5/3 was that of Samiullah but changed his version to say that he did not know English but that the signature resembles that of Samiullah.

Additionally, there are other attending circumstances which will presently demonstrate the genuineness of Exh. 5/3.

' Coming to the contents of this document we have firstly the entry of Rs, 1,00,000.00 "{{URDU TEXT}}.

The ostensible proprietor of Barkat & Co. Was Abdul Waheed who himself has confirmed in his deposition that this was in fact a partnership concern of late Muhammad Taqi, Samiullah, Ikramul Haq and himself. He has further deposed that the entire capital, which was a lac of rupees in Barkat & Co., was invested by Muhammad Taqi. I have examined with care the evidence of Abdul Waheed who was at the time of his deposition almost totally blind and had reached the advanced age of 62 years and have found no reason to disbelieve him. In fact no suggestion was made as to why he was deposing against Samiullah. For the opposite reason that Ataur Rehman was on his own showing inimical to Samiullab, we have discarded his evidence except for such parts as were corroborated by documents or evidence of Abdul Wahid. We have examined the evidence of Ikramul Haq bearing in mind that he was anxious to support Samiullah even when confronted with documents in his own hand. Mr. Lakho contended that according to Abdul Wahid the business of Barkat & Co. Continued for two or three years after the demise of Taqi and there would be, therefore, no occasion for Samiullah to acknowledge on 17-7-1955 that he bad in his custody the sum of Rs, 1,00,000 of Barkat & Co. Which were due and payable to the heirs of the deceased. It is possible, as was contended by Mr. Sadiq, that Barkat & Co. Was at the fag end of its existence in the year 1955 and the expression {{URDU TEXT}} " was employed in anticipation of the closure of Barkat & Co. Samiullah could have easily proved that this business continued upto 1957 or 1958 by production of its accounts books. It is of significance that Samiullah to begin with totally denied any connection or concern with Barkat & Co., which according to him was, in the year 1951, a partnership firm of Barkatullah, his father, and Abdul Wahid, but Barkatullah resigned a year leer and the business was, thereafter, continued by Abdul Wahid as its sole proprietor. It was only when Samiullah in his cross-examination was confronted with the bank account opening form of Barkat & Co., opened by him in the year 1951 as its sole proprietor and extensively operated by him for a period of one year, that he admitted his association with this firm but went on to explain that this was on account of the fact that his father was lying ill with paralysis. The explanation deserves no consideration for the other partner, Abdul Wahid, was very much available and there would, in any event, be no reason to open an account in the name of Barkat & Co., showing Samiullah as its sole proprietor. According to Ikram, Barkat & Co , was part and parcel of Sarni & Co. And admittedly both these businesses were being carried on from the same premises by Samiullah. These circumstances would justify the entry "

33. The next entry is of Rs, 2,45,000.00 of the safe deposit vault which has been split up into three parts, namely, Rs, 1,20,( CO being the credit in the copy, Rs, 10,000 credit of tit. Y. Naqi which was taken in cash and lastly, Rs, 1,15,000 in cash. Mr. Lakho contended that there was no evidence as to the copy book in which the first sum of Rs, 1,20,000 was credited and that this entry should have found place at least in Exh. 13/12 which purports to give account to the heirs of Muhammad Taqi in Sami & Co. From the years 1953 to 1955. It is in the evidence that the transactions not finding place in the official books were recorded in copy books and separate copies maintained for each partner's share in this unofficial business. In fact it would follow from the fact that the unofficial business was done that its accounts must have been maintained separately. This sum of Rs, 1,20,000 is admittedly not reflected in Exh. 23/12 but it is possible that this is an amount which became due to Taqi in his lifetime, while Exh. 13/12 gives the shares of the heirs of Muhammad Taqi falling due to them after the demise of Muhammad Taqi. Again Exh. 13/12 does not carry forward any previous balance which may have been recorder in anotr.Er copy book of late Mahammad Taqi. Again it is not clear as to whether or not this sum of Rs, 1,20,000.0u represents unofficial income from Sami & Co. While Exh. 13/12 is confined to this firm. Once the conclusion is that Exh. 5/3 bears the signature of Samiullah in which he has acknowledged that these sums were in his custody, in so far as the plaintiffs are concerned no further proof was needed and the burden was on Samiullah to disprove all or any entry therein contained but he has failed to do so. As regards the second entry of Rs, 10,000, Mr. Lakho contended that M. Y. Naqi & Co. Continued to carry on business until 1964 and there would be, therefore, no occasion for Samiullah to give any credit relating to this business in the year 1955 in Exh. 5/3 and that the account of this firm was rendered in J. Misc. No, 15 of 1954 and accepted by the Court on 13-4-1954 and there would be, therefore, no occasion for Samiullah to refer to this credit entry in Exh. 5/3. It was further contended that this entry does find place in Exh. 13/14 for the year 19'8 and the contention was that it should have found place in Exh. 13/12 which relates to the year 1955. To begin with it was for Samiullah to explain this entry. It could well be that item of Rs, 10,000 in Exh. 13/14 may be an item independent of the item in Exh. a/3. It is also possible that it may be the same entry but entered in the year 1958 together with several adjustment entries. As regards its nondisclosure in J. Misc. No, 15 of 1954 it may be that income disclosed therein was confined to official business. The two entries of Rs, 23,000 and Rs, 10,0(0 in Exh. 13/14 are found credited in the books of Sami & Co. On 16-7-1957 and should have, normally, found place in Exh. 13/13 and not in Rib. 13/14. Mere discrepancy in dates of a particular entry is, therefore, of little significance. Then comes the last entry of Rs, 1,15,000.00. The author of Exh.

5/3, Ataur Rehman was examined on behalf of the plaintiffs. He stated that he wrote Exh. 5/3 on the dictation of Samiullah, and though be is an old employee of Sami & Co., and a person alleged to have been in the know of the affairs of the firm, was not asked any specific questions in relation to any of these entries.

34. Lastly, it was contended that the document Exh. 5/3 bears the date of a Sunday while its author, Ataur Rehman, categorically stated in his deposition that this document was not executed on a Sunday but on a working day in presence of the staff members of Sami & Co., at its business premises at Saleh Muhammad Street. The explanation from the witness came only after his re- examination, on a question put by the learned Judge that it was possible that the 17th July 1955, may have been written wrongly due to the fact that the leaves of the calendar for Saturday and Sunday may not have been torn on Monday but leaf for Saturday only may have been torn off. The explanation given, irrespective of the circumstances under which it came to be given, cannot altogether be rejected as incredible. On examination of all and several circumstances I am of the view that the wrong date on Exh. 5/3, assuming it to be so, cannot lead us to the conclusion that the document is a forgery. The first entry of Rs, 1,00,0,..0 finds corroborated in the evidence of Abdul Wahid that Muhammad Taqi had invested a lac of rupees in Barkat & Co. The entry of Rs, 10,C00 relating to M. Y. Naqi & Co., if the view taken by the learned trial Judge is accepted, finds corroboration in &h. 13/14.

' As regards " {{URDU TEXT}} " Rs, 2,45,000.00 it has been ' conclusively proved that Sami & Co. Used to carry on extensive business outside the books.

Samiullah of course denied it but his Martial Law declaration, Exh. 6/9, belies him and the explanation that he merely signed it at the instance of his income-tax adviser is unbelievable. His repeated assertions that the joint locker was used only for keeping documents of title is of no avail and stands falsified by his M. L. R. Declaration in which there is reference to cash in locker. It may be noted that this locker was a joint locker of late Muhammad Taqi and Samiullah and it was extensively operated by Samiullah. It is not Samiullah's case that Taqi had a locker of his own. The unofficial profits of Sami & Co. Would obviously fall in the hands of Sam iullah as its ostensible sole proprietor. What was the necessity of Samiullah taking the major heirs of Taqi and even the old and infirm Barkatullah to the Safe Deposit Vault for opening this locker in the joint name, if the locker contained only title deeds of certain properties left in India? Samiullah's refusal to identify the writing of Ataur Rehman on Exh. 5/3, Ikram's admission that signature on Exh. 5/3 was that of Samiullah, Samiullah's anxiety in his evidence to deny everything that may corroborate the entries in Exh. 5/3 go to show the genuineness of Exh. 5/3. The question also arises as to why a forgerer would include in Exh. 5/3 entries which may require explanation not available to him. To my mind, therefore, the genuineness of Exh. 5/3 stands duly proved and since Samiullah failed to discharge the burden of avoiding it or any of the entries contained therein he was rightly saddled with a decree in the sum represented by Exh. 5/3.

35. Coming to the other main issue relating to the plaintiff's share in the prefits of Sami & Co. In the hands of Samiullah the contention on behalf of the appellants was that the rewondents had faded to prove that late Muhammad Taqi was a partner in Semi & Co., or that his heirs were admitted as partners in this firm subsequent to his demise.

36. The documentary evidence on which the learned trial Judge has relied upon, and which has appeared to me to be vital to the plaintiffs case, are Exh. 6/8 and the copy book {{URDU TEXT}} La." Exh. 13/12 to Exh. 13/14 from 1-4-1953 to 1-6-1953, Exh. 6/8 reads as follows :- "This is to record that we shares of each partner as detailed Shaikh Samiullah Heirs of Late Qazi: Muhammad Taqi Haji Babu Abdul Wahid Ikramul Haq. Exh. 6/8-A.

Exh. 6/8-B. Exh. 6/8-C. The partners are partners according to the below :- 5/4 per rupee.

5/4 per rupee.

2/5 per rupee.

2/11 per rupee.

(Sd.) Samiullah (Shaikh Samiullah).

(Sd.) Abdul Wahid (Haji Babu Abdul Wahid).

(Sd.) Ikramul Haq. (Ikramul Haq)." {{TABLE TEXT}}

37. Abdul Wahid has deposed that Sami & Co., was a partnership firm and only ostensibly the sole proprietary concern of Samiullah and its partners were Muhammad Taqi, Samiullah, Ikram andhimself. He has further stated that after about two years of Taqi's death it was decided that his heirs should continue to be the partners in various businesses. He conErmed the contents of Exh.

6/8, which were read out to him. Even the reluctant witness Ikramul Haq admitted that Taqi's heirs continued to receive shares from Sami & Co , after his death though he added that these were received not by Samiullah but by Muhammad Naqi and Muhammad Shafi inclusive of the shares of the minor heirs. In relation to Exh. 6/8, the witness admitted that it bore the signature of Samiullah, Abdul Wahid and himself but went c n to state that the document related to an intended business and it was not acted upon. In his cross-examination he changed his version and asserted that Samiullah was the sole proprietor of Sami & Co. And Taqi was never a partner in this firm. Mr. Lakho reiterated the contention raised before the trial Judge that Exh. 6/8, was merely a record of an intended partnership but the contents of Exh. 6/8 belie this assertion. That it is undated is immaterial for Samiullah has admitted his signature thereon. It was contended in the alternative that the partnership, inclusive of the heirs of deceased Taqi, did not come into existence until two years after the death of Taqi when according to Abdul Wahid Exh. 6/8 was executed. Again the language of Exh. 6/8 records an existing state of affairs and not any future partnership. If it was intended to start a fresh partnership then obviously it would bear the signatures of at least the major heirs of deceased Taqi. The fact that it does not bear the signatures of the major heirs of Taqi is significant for it lends credence to the argument of Mr. Sadiq that the document was given to the heirs of Taqi with a view to assure them of their continued interest in the partnership business. Once we come to the conclusion that Taqi was in his lifetime a pirtner in Sami & Co., the fact that Exh. 6/8 was executed and signed two years after the demise of Muhammad Taqi becomes immaterial for as the accounts of the firm following the demise of Muhammad Taqi were never settled, the firm continued to carry on business which will go to show that by conduct if not expressly the partners intended that the firm would not stand dissolved on the death of Tacit but will continue with his heirs as partners.

38. Mr. Lakho referred to Abdul Wahid's statement that the entire capital of Sami & Co., was contributed by Samiullah and the witness was unable to explain how Taqi without any contribution became a partner in Sami & Co., which, according to the learend counsel, went to show that Taqi was never a partner in Sami & Co. The learned counsel is labouring under a misapprehension that every partner has necessarily to contribute to the capital of the firm. In any event the evidence is that the four partners carried on business in several names showing one or the other as the sole proprietor and Sami & Co., was one of such partnerships.

39. Mr. Lakho next pointed out the inference to be drawn from the inaction on the part of Shafi and Naqi, the eldest sons of deceased Muhammad Taqi in seeking rendition of accounts of Sami & Co.

In principle this inaction cannot affect plaintiff's right to file the present suit. Naqi it may be noted became son-in-law of Samiullah in 1956. Samiullah was on visiting terms with him which may explain his reticence in the matter. In so far as Shari is concerned, it was admitted that he has filed a suit for accounts but it is said that this was only in the year 1965 but the delay is understandable for Samiullah had neither denied nor had the occasion to deny the partnership until 1964. Apart from Exh. 6/8, the other important documents which to my mind conclusively establish the factum that the heirs of Muhammad Taqi were admitted to the partnership of Sami & Co., are Exhs. 13/12 to 13/14 which cover the period 1953 to 1958. For each of these years profits coming to the shares of the heirs of Taqi have been credited and at least Exh. 13/14 expressly states profits from Sami & Co.

In 1958. These exhibits are in the hand of reluctant witness Ikramul Haq. He admitted that the accounts contained therein were taken from the books of Sami & Co., and while avoiding an answer went on to state that he could not say from which books these accounts were taken. It was in the context of these exhibits that the witness stated that Taqi's heirs continued to receive shares from Sami & Co., after his death, but added for the benefit of Samiullah that minor's share therein was being received by Muhammad Naqi and Muhammad Shafi. In his cross-examination he was put a leading question that he had written these exhibits during the absence of Samiullah at the behest of Muhammad Shafi without consulting the books of accounts. He suddenly remembered it to be so and answered in the affirmative. It is impossible to believe that Ikramul Haq wrote Exhs.

13/12 to 13/14 to oblige Shafi against his own employer in the latter's absence. According to Ikramul Haq's changed version Muhammad Taqi was never a partner in Sami & Co., nor were his heirs admitted to this partnership, then why he should write totally fale and fabricated accounts merely because Muhammad Shafi allegedly asked him to do so? No doubt the entries of profits and expenses contained in Exhs. 13/12 to 13/14 do not find place in the regular account books of Sami & Co., but that would obviously be so for Samiullah was its ostensible proprietor. That this firm carried unofficial business stands duly proved by the Martial Law declaration of Samiullah in which he declared Rs, 1,01,400.00 as excess income from Sami & Co. As well as the evidence of Abdul Wahid and Ataur Rehman. Samiullah's anxiety to avoid these exhibits by his failure to recognize the writing of its author, Ikramul Haq. Is in this context understandable but not without significance. If some of the entries in these exhibits remain unexplained it is a consequence arising out of failure of Samiullah to produce the unofficial accounts of Sami & Co. The factum, however, of the partnership stands duly proved by these exhibits.

40. Now I proceed to deal with certain other issues which were argued by the learned counsel for the appellants.

41. Issues Nos. 3, 4 & 5.-Mr. Lakho contended that there was no evidence that there was any firm by the name of Muhammad Yusuf & Co., and B. N. Naqi & Co.. Except for the word of Abdul Waheed and a suggestion made to Ikramul Haq in his cross-examination. Both the witnesses confirmed that business in partnership was being carried on in several names and Waheed specifically referred to not only Yusuf & Co. But also B. M. Naqi & Co. These partnerships, however, have no material bearing on the controversy between the parties which relates to Sami & Co., and Barkat & Co. To the extent that latter's name appears in Exh. 5/3. I have already dealt with these firms in the earlier part of my judgment in great detail.

42. Issue No, 6.-Mr. Lakho, the learned counsel for the appellants, referred to the Guardian and Wards proceedings and pointed out that the major heirs of deceased Taqi were parties to the grant of J. Misc. No, 15 of 1954 and therefore parties to the fraud in suppressing the amount allegedly due to the minors, but they were being exonerated from the fraud by their exclusion from the present proceedings for it was equally their duty to see that the minors were not deprived of their just dues. The fact, however, remains that it was Samiullah who had applied for being appointed as guardian of the property of the minors. The fact also remains, and it has been so established, that Samiullah had in his possession the assets of the deceased inclusive of the minor's share in the business of Sami & Co. He was, therefore, bound to disclose these assets in the guardianship application and having omitted to do so is responsible for its suppression.

43. Issue No, 8.-It was contended on behalf of the appellant that all the major heirs of the deceased Muhammad Taqi and the other partners, namely Abdul Wahid and Ikram, were necessary parties to the suit. The argument overlooks the relief sought in the suit which was to ascertain the sum which had come into the hands of Samiullah as a person who was managing Sami & Co., in which the minors were partners. For the grant of this relief it was unnecessary to join either the major heirs or the other partners as parties to the suit.

44. Issue No, 11. -Mr. Lakho contended that the trial Court ought to have dissolved the firm either from the date of the filing of the suit or the date of the preliminary decree or at least date of the final decree and ordered rendition of accounts upto that date only. The suit, however, is not for dissolution of firm. The suit is against a guardian who is a recepient of the plaintiff's share in the profits of Sami & Co. There was, therefore, no occasion to pass any decree for dissolution of the partnership firm on Sami & Co.

45. The final decree which is impugned in L. P. A. No, 34 of 1972 was challenged by Mr. Lakho, the learned counsel for the appellants, on three grounds. His first grievance was that in so far as the plaintiff's share in the unofficial business of Sami & Co., is concerned, it has been prepared exclusively on the basis of Exhs. 13/12 to 13/4. To my mind, the Commissioner who was taking accounts and who has ascertained the black profits, had, in view of the directions given, namely, that the Commissioner should take into consideration Exhs. 13/12 to 13/14 to arrive at the profits of Sami & Co., and the plaintiff's shares in the profits, no other choice but to rely on the said exhibits, and more so as Samiullah, the ostensible proprietor of Sami & Co , the accounting party, had withheld the accounts in which the black transactions were record.

46. It was next contended that mere production of these exhibits did not prove the entries contained therein. No doubt under section 34 of the Evidence Act, entries and account books have to be proved and mere production of account books would not be sufficient but this principle will apply where a creditor is relying on entries in his own books against the debtor and has no application in relation to a person charged with the duty to render accounts. Exhs. 13/12 to 13/14 were not produced on behalf of the plaintiffs with intent to show that the entries therein were correct but that these exhibits recorded the factum of black business that was being carried on by Sami & Co. And that the plaintiffs had a share therein. And it was only in the absence of any other evidence, obviously withheld by Samiullah, that the Commissioner had no other choice but to rely on Exhs. 13/12 to 13/14 for ascertaining the real profits of Sami & Co., and the plaintiffs' share therein.

47. Mr. Lakho next contended that the Commissioner should have accepted Exhs. 13/12 to 1/14 in their entirety and, therefore, while taking into account credit entries therein should not have ignored the debit entries of expenses mentioned therein. These entries relating to expenses incurred further stated that these were as per books of accounts but these books were not produced by Samiullah. What is more he has in his evidence before the Commissioner categorically stated that he had not incurred expenses represented by these entries. It cannot, therefore, be said that the Commissioner was wrong in disallowing this item of expenditure as shown in Exhs. 13/12 to 13/14. Be that as it may, however, the fact remains that Samiullah did maintain the plaintiffs from April 1964 to March 1961, and though he stated that he does not claim its reimbursement, Mr. Ghulam Ali Memon, the learned counsel for the respondents candidly conceded before the trial Court that the plaintiffs were being maintained by Samiullah and they will have no objection to reimbursing Samiullah for the same. I am, therefore, of the view that it would be reasonable to allow deduction of expenses incurred by Samiullah on maintaining the minors from April 1954 to March 1961 but it cannot be for the sumdi closed in Exhs. 13/12 to 13/14 for they do not expressly state that these sums were spent on the minors and the supporting account books from which these entries have been taken have not been produced by Samiullah. In the guardianship proceedings Samiullah did make an application in March 1961 for permission to incur a monthly expenses of Rs, 500 on the minors which prayer was granted. In the circumstances it would be fair and just that the expenditure for the maintenance of the plaintiffs for the period March I 9E4 to March 1961 be calculated at Rs, 500 per month and the total amounting to Rs, 42,000 (Rupees forty-two thousand only) deducted from the plaintitt's shire in the profits of Sami & Co.

48. Mr. Lahko next contended that the profits shown in Exhs. 13/12 to 13/14 cannot be the correct profits for Ataur Rehman who was examined before the Commissioner has given a basis for calculating profits outside books and if so calculated it will not conform to the profits shown in these .Exhibits. I have no hesitation in saying that Ataur Rehman's evidence before the Commissioner is not only based on surmises but he contradicts-himself in his estimate of black profits. But as aforesaid the burden was on Samiullah to produce the accounts of unofficial business which would have concluded the matter but left as we are with comparatively more reliable Exhs. 13/12 to 13/14 for ascertaining black profits, Maur Rehman's contradictions are of little assistance to the appellants.

49. Mr. Lakho next contended that Exhs. 13/12 to 13/14 represent the share of the heirs of late Muhammad Taqi in the entire business of Sami & Co., including its unofficial business. Exhs. 13/12 to 13/14 makes no-distinction as to black or white profits_ Mr. Lakho contended, not without force, that it would be reasonable to infer that these exhibits represent both official and unofficial profits for there would be no reason to confine it to profits outside the books only. It may be noted that in so far as the official books of Sami & Co., are concerned they were of an ostensible sole proprietor only. There would be no occasion to maintain two sets of books for other undisclosed partners, representing official and unofficial business for their interest would be sufficiently protected by books or copy books evidencing not only the fact that they were partners but their profits; there in all its business.

50. Mr. S. M. Sadiq, the learned counsel for the respondents, on the other hand contended that there was never any suggestion put either to the author of those exhibits or to Abdul Wahid that the exhibits represented both the black and the white profits of Sarni & Co., in spite of the plaintiff's case that these exhibits recorded only the share of the heirs of deceased Muhammad Ta qi in the black business. That no such suggestion was made is undoubtedly correct. But its absence is understandable for such a suggestion on behalf of Samiullah would immediately prove not only the fact that the heirs of deceased Muhammad Taqi had been admitted into partnership but that Sami & Co., carried on off the record business Exhs 13/12 to 13/14 not only do not make any distinction between official and unofficial profits but admittedly include at least some of the entri which are found in the official account books of Sami & Co., and I am, therefore, inclined to hold that the profits which the plaintiffs are entitled to are those mentioned in these exhibits which in all probability are inclusive of their share in the regular business of Sami & Co.

51. Mr. Lakho made a grievance of the fact that the trial Court ought to have dissolved the firm of Sami & Co., when making a final decree I not at the time when the preliminary decree was granted The learned counsel conceded that the plaintiff's suit is not for dissolution of Sami & Co. Nor was any prayer made on behalf of Samiullah that the partnership be dissolved. The learned counsel relied on section 44 of the Partnership A read with Order XX, rule 15, C. P. C. In support of his contention that it for the Court to grant such a decree for dissolution. In so far section 44 of the Partnership Act is concerned it merely gives the grounds on which a partner can seek dissolution of the partnership and in so far as Order XX, rule 15, C. P. C. Is concerned it only arises when the suit is one for dissolution of partnership and for accounts and not when the suit is by a partner who seeks his share in the profits of the firm but refrain from seeking its dissolution. In the present case even that situation did no arise for the prayer in the suit was for ascertaining the sum which had corn into the hands of Samiullah, as minor's guardian and/or as managing particle of Sami & Co., in which the plaintiffs were partners.

52. Lastly, Mr. Lakho contended that the trial Court had erred granting interest from the date of the suit in so far as it relates to the aintiffs' claim in the share of the profits of Sami & Co., is concerned and at it should have been granted from the date of the final decree until Is recovery. Now it is obvious to us that the plaintiffs cannot have both interest as well as the profits on the sums remaining in the hands of Samiullah onwards their share of profits. Mr. Sadiq did so concede but added that would be so only if it was proved that the profits in the hands of Samiullah were utilized in the business of Sami & Co , and not otherwise and that -there was no evidence that these profits were so utilized by Samiullah. The evidence, however, does disclose that the official business was very nominal as compared to its unofficial businesses. The plaintiffs have been granted their shares in the profits in both the business. It stands to reason that Sarni & Co., would not have been in a position to carry on extensively official business in the absence of sufficient funds and, therefore, the plaintiffs' profits in the hands of Samiullah must have been utilized in this extensive business. It is not the plaintiffs' case that independent funds were available for carrying on this business. In the circumstances, the plaintiffs would be entitled to interest not from the date of the suit but from the date f the final decree on the sum due to them on final accounting.

53. The result, therefore, is that L. P. A. No, 109 of 1969 is dismissed with costs and the final decree which is challenged in L. P. A. No, 34 of 1972 ill stand altered by deduction of Rs, 42,000.00 (Rupees forty-two thousand) nly) as per paragraph 47 and a further sum of Rs, 12,601.83 (Rupees welve thousand six hundred one and eighty three paisas) as per paragraph 50 and the interest on the balance sum will commence from the date of the final ecree until payment with proportionate cost. Z. A. CHANNA , J.-I entirely agree with the conclusions reached as well as the reasons on which they are based.