' KARAM ELAHEE CHAUHAN, J.-This judgment shall dispose of four Regular First appeals bearing Nos.
46 of 1967, 47 of 1967, 46 of 1968 and 47 of 1968. In each appeal Sheikhupura Central Co-operative Bank Ltd., is the appellant and Ch. Khushi Mohammad son of Ch. Chandi is respondent No,
2. There are only two respondents in each appeal. Ch. Habib Ullah the respondent No 1 in R. F. A. No, 46 of 1967 is a son of respondent No,
2. Similarly Ch. Tawakkal Uliah, respondent No, 1 in R. F. A. No, 47 of 1967, is also a son of respondent No, 2 while respondent No, 1 in the other two appeals are the daughters of respondent No,
2. Each of these sons and daughters of Ch. Khushi Mohammad respondent sued the appellant-Bank (hereinafter referred to as the Bank) for the realisation of the amount lying in Fixed Deposit in their respective accounts basing the claim on the Fixed Deposit Receipts. They named their father as the co-defendant. The bank contested all the four suits on the ground that although the accounts had been opened in the names of the plaintiffs, the money in each case belonged to their father. As he owed a large sum of money to the bank, the amounts lying in the accounts of the plaintiffs were adjusted against their father's loan and as such there was nothing due from the bank to any of the plaintiffs. The reply of each of the plaintiffs to the averments made by the bank in the written statement was that the amount with which his/her Fixed Deposit Account had been opened or subsequently renewed was a gift from the father and as such vested entirely and exclusively in the plaintiff; and legally it was not liable to be adjusted against the father's loan, if any. That the father had obtained some loan from the bank was also specifically denied by the plaintiffs. However, the father himself did not file any written statement in any of the suits.
' The pleadings of the patties gave rise to the following issues:-
(1) Whether the amounts standing in the name and accounts of all the four plaintiffs were in reality the property of Khushi Muhammad, defendant No, 2 and the accounts in the name of the plaintiffs were benami ? (Onus objected to).
(2) Whether defendant No, 2 took no loan from defendant No, 1 amounting Rs, 83,000 and Rs, 20,000? (Onus objected to).
(3) Whether the defendant No, 2 did not pledge the accounts of Ch. Habib Ullah and Ch. Tawakal Ullah for those loans? (Onus objected to).
(4) Whether defendant No, 2 has any right or authority to pledge the accounts of Habib Ullah and Tawakal Ullah for the said loans? (Onus objected to).
(5) Whether defendant No, 1 was entitled to adjust the loans against the accounts of the plaintiff?
(Onus objected to).
(6) Whether this Court has no jurisdiction to try the suit?
(7) Relief, ' After recording the evidence adduced by the parties, the learned trial Court found all the issues in favour of the plaintiffs and decreed the suits with costs and interest. Needless to say that the suits were tried and disposed of jointly.
2. Before proceeding further with the appeals it is necessary that some lore details be also taken notice of At the time the Fixed Deposit accounts of the plaintiffs were opened, three of them, namely, Habib Ullah, Tawakal Ullah and Mst. Kalsoom Begurn were minors. Only the fourth plaintiff Mst. Aziz Fatima was major but no independent account had been cpended in the name of Mst.
Aziz Fatima plantiff. Her account was joint with her father. The account of Ch. Habib Ullah plaintiff was opened on the 19th November, 1951 and his date of birth is 10th of April, 1940. Similarly the account in the name of Ch. Tawakal Ullah plaintiff was opened on the 27th November, 1961 and his date of birth is 15th June, 1937. The account of Mst. Kalsoom Begum was opened on the 15th of November, 1958. Her date of birth is 10th of August, 1944 as per recital in Exh. D. W. 1/81 page 264 but 2/16-10.1942 as per Exh. P/1 (pages 247-248). And the joint Fixed Deposit account of Mst. Aziz Fatima plaintiff and her father Ch. Khushi Mohammad was opened on the 27th of November, 1961. She was admittedly a major on that date. The amounts lying in the accounts of the plaintiffs were adjusted against their father's loan in November 1963 when all the plaintiffs had attained majority and could operate their accounts.
3. From the facts narrated above learned counsel for the plaintiffs-respondents have submitted that several legal issues arise in these cases even apart from the controverted facts. But in our opinion a proper appreciation of the evidence on record and a correct determination of the nature of the accounts opened by their father in the names of the plaintiffs will eliminate the suggested legal quibbles. It is to be noted that when the bank asserted that the accounts in the names of the plaintiffs were &nand, the plaintiffs on their own turn claimed in replications (and not in plaints) that their father had transferred those sums of money to them by way of gift. Thus there automatically arose two main issues, namely:-
(i) Whether the plaintiffs were only Benamidars; and
(ii) Whether the father had made valid gifts in favour of his sons and daughters?
' Both these issues attracted a plethora of case-law which was cited before us from both sides in the maze of which the real nature of the transactions became obscure.
4. However, in our opinion, the use of the term 'banami' in the context of the suits in question was unfortunate though not wholly unjustified. We have from Exh. D. W. 1/44 (pages 28 29 of English Paper Book) and Exh. D. W. (nil) (pages 29-30) that Ch. Khushi Mohammad deposited a sum of Rs, 81,700 with the bank on 11-10-1950 payable on 11-10-1951. Exh. D. W. 1/8 (page 117, English Paper Book) shows that the sum total of the deposit as per details given therein was Rs, 1,03,334. On 19-11-1951.
On that date he split up the aforesaid amount into two halves depositing Rs, 51,667, in the name of Ch. Habib Ullah (See Exh. D. W 1/43) page 31, English Paper Book) and a similar amount in the name of Ch. Tawakal Ullah (Exh. D. W. 1/7 page 118, English Paper Book).
5. Following up the case of Ch. Habib Ullah plaintiff we have found from Exh. D. W. 1/46 dated 24-11- 1953 (pages 36-37) that Ch. Khushi Mohammad deposited another sum of Rs, 11,000-5 3 in the account of Ch. Habib Ullah Exh. D. W. 1/51 dated 25-11-1955 (pages 46-47) shows a further deposit of Rs, 2,999-0-9 by Ch. Khushi Mohammad. Exh. D. W. 1/53 dated 26-11-1956 (page 49) shows that Ch. Khushi Mohammad received Rs, 999-8-0. Exh. D. W. 1/63 dated 27-11-1961 (pages 68-69) shows that Ch. Khushi Mohammad withdrew in cash a sum of Rs, 56,724.84 whereas a sum of Rs, 32,275 84 was adjusted towards a credit i,e, debt (from the aforesaid amount so withdrawn). Ch. Khushi Mohammad again deposited a sum of Rs, 55,626 as a fixed deposit in the name of Ch. Habib Ullah as per Exh. D. W. 1/66 dated 27-11-1961 (page 69 of the paper book). This deposit was renewed on 29-11-1962 as per Exh. D. W. 1/70 (pages 71-72) read with Exh. D. W. 1/65 dated 29-11-1962 (pages 72- 73) when the total accumulated by interest to Rs, 57,572,92 and then on 26-11-1963 it accumulated to Rs, 59,587.04 vide Exh. D. W. 1/69 (page 76, English Paper Book). It was this last total/balance which was adjusted by the bank towards the loan account of Ch. Khushi Mohammad but which the plaintiff Ch, Habib Ullah claimed at Rs, 60,460.92 by including further interest therein.
6. Taking up the case of Ch. Tawakal Ullah plaintiff we have already mentioned that Ch. Khushi Mohammad deposited a sum of Rs, 51,667 in his name on 19-11-1951. (See Exh. D. W. 1/7 and Exh. D. W.
1/8 pages 117-119, English Paper Book). Exh. D. W. 1/12 dated 24-11-1953 page 123 shows that Ch. Khushi Mohammad deposited a further sum of Rs, 11,000-5-3 and total became Rs, 65,836 as per details contained therein. Exh. D. W. 1/38 dated 3-9-1954 (page 126) shows that he handed over the fixed deposit receipt of Rs, 65,836 as a security for loan amount of Rs, 83,000. Loan voucher is Exh.
1/37 (page 125-126). Exh. D. W. 1/16 dated 25-11-1955 (page 130) was another deposit of Rs, 2,999-0-9 by Ch. Khushi Mohammed and total comes to Rs, 72.850-. Exh. D. W. 1/18 dated 26-11-1956 (page 1321 shows that Ch. Khushi Mohammad received back Rs, 999-8-0. Exh. D. W. 1/28 dated 27-11-1961 (pages 154-155) shows that the total deposit amount on that date was Rs, 89,000 68 out of which Ch. Khushi Mohammad got adjusted an amount of Rs, 37,298 03 towards his loan and the balance Rs, 51,702.65 he received in cash- Exh. D. W. 1/31 dated 29-11-1961 nage 158 shows that he deposited again a fixed deposit amount of Rs, 55,626, in the name of Ch. Tawakal Ullah. Exh. D. W. 1/29 page 156 entry dated 29.11-1962 shows that a sum of Rs, 15,106.03 was adjusted towards a loan of that amount dated 13-10-1962. This fact stands corroborated from Exh. D. W. 1/32 dated 29-11-1962 page 160 which shows that the balance left in that amount on that date was Rs, 42,466 which was received in cash by Ch. Khushi Mohammad and re-deposited vile fixed deposit receipt on 29.11- 1962 at page 162 of the paper book. It is this amount with interest which has been claimed by Ch. Tawakal Ullah in his suit of Rs, 44,611.59 but not the aforesaid adjustment of Rs, 15,106.03. He himself produced Exb. D. W. 1/ P-19, pages 167-168 which is a copy of his own account which shows that at one stage in November 1961 Ch. Khushi Mohammad deposited only Rs, 55,626 which as explained above was the amount left with him after getting an earlier loan of Rs, 37,298.03 adjusted from the previous balance of the fixed deposit. The amount of that adjustment has also not been disputed nor claimed by the plaintiffs or their father,
7. Taking up the case of Mss. Aziz Fatima, Exh. D. W. 1/93 dated 25-11-1960. Pave 202, shows that Ch. Khushi Mohammad deposited a sum of Rs, 10,000 in his own name. Exh. D. W. 1/89 dated 2741-1961 page 204 shows that it developed into Rs, 10,350 while he had withdrawn a cash amount of Rs, 350 and the balance of Rs, 10,000 was again deposited in the joint names of his ownself and his daughter Mst. Aziz Bagum Exh. D. W. 1/92 pages 205-207 dated 27.11-1961 and received back by Khushi Mohammad on 29-11-1962. It may he read with Exh. D. W. 1/91 dated 29-11.1962, page 208 and Exh. D. W. 1/93 dated 29-11-1962 showing again a deposit in the sum of Rs, 10,350 (pages 209 -211) which got accumulated to Rs, 10,712.26. From this deposit a sum of Rs, 5,519.76 was got adjusted towards a loan of Ch. Khushi Mohammad and corresponding entries of adjustment are on page 43 Exh. D. W. 1/72 leaving a balance of Rs, 5,119.50. The suit filed by Mat. Aziz Begum is, however, for a sum of Rs, 10,872.25.
8. Taking up the case of Mat. Kalsoom Begum plaintiff Exh. D. W. 1/73 dated 14-11.1958 page 249 shows an amount of Rs, 11,730 lying in a suspense account of Ch. Khushi Mohammad but was converted into fixed deposit account to the extent of Rs, 10,000 leaving Rs, 730 still in the suspense account (line 10 of that page refers). Exb. D. W. 1/74 dated 25-11-1958 page 252 shows a deposit of Rs, 10,003 in the account of Mst. Kalsoom Begum. It is to be read with letter Exh. D. W. 1/76 and Exh. D.
W. 1/75 dated 25.114953 pages 251-252. Exh. D. W. 1/77 dated 25.11-1959 page 257 shows an additional deposit of Rs, 3 000 by Ch. Khushi Mohammad making the total deposit at Rs, 13,303. It is to be read with Exh. D. W. 1/79 dated 25.11-1959 page 258. Eca. D. W. 1/78 dated 25.11-1960 page 262 shows a further deposit of Rs, 1,231-8.0 into that account.
' Exh. D. W. l/80 dated 27-11-1961 page 264 shows that Ch. Khushi Mohammad withdrew a sum of Rs, 525 leaving the total at Rs, 15,000. Further documents relevant in this respect are Exh. D. W. 1/81 dated 25-11-1960 rages 264-266; Exh. D. W. 1/82 dated 29-11-1962 pages 269-70; Exh. D. W. 1/84 dated 26-11.1963 page 272 showing total of Rs, 16,068.38 which was adjusted by the bank towards the loan of Ch. Khushi Muhammad. It is this amount which was claimed by Mst. Kalsoom Begum in her plaint with interest as Rs, 16,309.
9, It is evident from the above record that the source of the Fixed Deposit Account of each plaintiff was exclusively the original bank balance of Ch. Khushi Mohammad respondent and the money in each case was his money which he deposited or put in various names. None of the plaintiffs contributed a single penny towards his or her account. It is also evident from the record without there being any assertion to the contrary that none of the plaintiffs ever operated his or her accounts even after attaining majority. On the other hand the father has been withdrawing interest from those accounts at d adjusong and pledging various amounts as detailed above. It was in fact doubtful whether the plaintiffs were even aware of the existence of accounts in their names until the suits were instituted. It was on this account perhaps that the plaintiffs who had earlier claimed the amounts in suit as their own were forced in replication to shift that stand and plead that the amounts bad been gifted to them by their father. The Bank on the other hand asserted that the suits had been instituted in collusion with their father.
10. Taking up the plea of gift, the source of the money having been properly traced out to the father it was for the plaintiffs then to prov their aforesaid plea. In the face of the circumstances noted above we ar of the firm view that the father never parted with dominion over the mom deposited by him in the names of his sons and daughters. Therefore, this is not a case of gift. There was no transfer of proprietary rights from the father to his children. The transactions in question were simply in the nature of one person keeping his money in different names or accounts just like, for example, keeping it in his own home by placing it in separate packets of different nomenclature with the intention of never parting with dominion over each packet though having a mind to utilise different packets on different occasions or for different needs. Obviously such a person retains dominion over the amount and can reshuffle those sums between different packets and can even use the whole or part of it for a purpose different from the one intended originally. Similarly, because a man has made a mental allocation of a share in his wealth to each son regardless of whether the sons are adults or not, none of them can demand any part of that allocation as of right. See Sandeo Koran Singh end others v. Usman Ali Khan and others (1) (at page 467, column 1 bottom and column 2 top). In the present case also the opening of accounts by the father in the names of his sons and daughters is no different in nature from the kind of allocation mentioned in the above illustration. Such a transaction or such types of arrangements were taken note of in Guran Ditta and another v. T. Ram Ditta (2), where at page 173, column 2, it was observed as follows:- "In the argument before their Lordships, and in the Courts below, it was admitted that the money deposited belonged to Teku Rain, who had supplied it from bis own resources, by a transfer from his current
(1) AIR 1939 Pat. 462 (2) AIR 1928 P C 172 ' account at the bank. It was argued on behalf of the appellants that, apart from outside evidence, there was a presumption that the sum deposited constituted an advancement, or resulting trust, in favour of Mst. Gujri, the wife of Teku Ram, It was said that one of the provisions of the destroyed will of Teku Ram was evidence that it was the intention of Teku Ram to make an advancement in favour of his wife under the terms of the deposit note; but in the opinion of their Lordships, no weight should be attached to this evidence. They agree in this respect with the views expressed in the judgments of the Divisional Judge at Peshawar and of the Judicial Commissioner of the North- West Frontier Province. Tne question, therefore, to be decided is the construction of the terms of the deposit note. The general principle of equity, applicable both in this country and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended.
An exception has, however, been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in the name of a wife, or, where a deposit is made, in the joint names of both husband and wife. This exception has not been admitted in Indian law under the different conditions which attach to family life and where the social relationships are of an essentially different character. The principle to be applied has been stated in Kerwick v. Kerwick (AIR 1921 P C 56).
' The general rule and principle or the Indian law as to the resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordship? View it has been established by the decisions in the case of Gopeekrist v. Gungaprasad ( (1854) 6 M I A 53) and Uzhur 41i v. Bebee Ultaf Fatima ( (1869) 13 M I A 232) that owing to the widespread and presistent practice which prevails amongst the natives of India, whether Muhammedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person, providing the purchase- money such as has, by the Court; of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases, where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England.
' Applying the principle thus stated to the present case, their Lordships hold that there is no presumption in the deposit note of an intended advancement in favour of Mst. Gujri, and that the sum of Rs, 1,00,000 and interest were the property of Teku Ram, and remained at his disposal at the date of his death, as found in the decision of the Courts below."
' The same view was reiterated in Shambhu Nath Shivpuri v. Pushkar Nath and others (1).
(1) AIR 1945 P C 10 Applying the above principle to the facts and circumstances of the present' case, we are satisfied that there is no element of gift in the transactions in question. In fact gift was not pleaded in the plaint. It was only when the bank pointed,out that the source of each of the plaintiff's account was the father's B money that the plaintiffs came up with the plea of gift otherwise in the plaints the money was claimed as plaintiffs' own deposit money. Apart from the question as to whether such a plea could be allowed to be taken in the replication, it is to be noted that none of the plaintiffs asserted as to when he or she became aware of the gift. Their conduct clearly belies their assertions of ownership. So far as the bank was concerned, these accounts were as good as accounts standing in the name of Ch. Khushi Mohammed himself though with different account numbers. Some effort was made by Ch. Khushi Mohammad who appeared as P. W. 5 to depose that he had made gifts of these amounts to his children. In this respect plaintiff produced P. W. 3 Bafiz Abdul Hyee who deposed that he had performed nikah of the two daughters of Lb. Kbushi Mohammad. He stated that at the time of rukhsati, Ch. Khushi Mohammad had given cheques of the amount in dispute to his two daughters in jahez. One cheque was of Rs, 10,000 and the other of Rs, 5,000. Those cheques were issued on the defendant-Bank. The gift to daughters was sought to be proved through aforesaid witnesses. This is nobody's case that gifts aforesaid were made by issuing or giving the cheques to the two daughters and this is a completely new plea which does not fit in the other context and nor any such cheque or its counterfoil was produced in Court. On the other hand we have on record that the amount in the name of one daughter Mst. Aziz Fatima was rather a joint account with the father. P. W. 2 Ch. Mohammad Iqbal deposed about delivery of (not cheque) but relevant receipts' to the daughters while we have in evidence that these receipts always remained in the custody of the father and he used to operate the accounts. The aforesaid witness does not talk of issuing any cheques. Ch. Khushi Mohammad as P. W. 5 tried to support his children by deposing that but (URDU TEXT) his statement on this aspect of the matter is not correct.
The detailed evidence in each case, as elaborated above, shows various withdrawals and adjustments. As a matter of fact each amount used to be withdrawn and then re-deposited with various changes and shufflings and re-shufflings. He then deposed that (URDU TEXT) No doubt in the initial deposits the two sums were equal but the situation did not remain constant and underwent drastic changes. We have in evidence that the relevant amount claimed by both the aforesaid plaintiffs in their suits is entirely different from one another. Similarly the details respectiveof their respective amounts show that the account of Ch. Tawakal Ullah at certain stages reached at very fabulous figures and from that Rs, 37,298 and at another stage another sum of Rs, 15,106 was got adjusted by Ch. Khushi Mohammad towards certain loans. He then withdrew various amounts, though on certain occasions he made further deposits as well. The deposition of Ch. Khushi Mohammed, therefore, is net supported by and is rather falsified by the record. Ch. Tawakal Ullab, plaintiff, who appeared as P. W. 6 admitted that accounts were always operated upon by Ch. Khushi Mohammad and even the interest money was also being received by him i,e, the father.
(Page 35, Urdu lines 15-16). The documentary evidence is already much against the plaintiffs and we must say that the oral evidence has rather made the plea of gift all the more false and fake.
The finding of the learned trial Court who has not taken all these facts and circumstances into consideration on the subject in hand was erroneous and cannot be maintained.
11. When confronted with the above situation, learned counsel fur the plaintiffs referred to Mst.
Zaitoon Begum and another v. The Central Exchange Bank Ltd, Lahore (In Liquidation) and another (1), where there were three types of deposits, namely, (1) deposits in the name of wife Mst. Zaitoon Begum and (2) and (3) deposits in the names of two minor daughters, Mst. Yasmeen and Mst.
Shamim Akhtar. At page 895 there occurs an observation that "the worst that can be assumed against her is that her husband has deposited these monies in her name or in the name of her minor daughter, and since this is one of the recognised modes of making a gift to a wife or a daughter, it cannot be presumed that because the money belonged to the husband or father, the purchase was banami ". Learned counsel for the plaintiffs argued that putting of monies in the names of minor children was thus one of the recognised modes of making a gift and the mere fact that the money belonged to the father could not make that money benami in the accounts of the children. The observation referred to by the learned counsel for the plaintiffs has no application to the facts and circumstances of the present case, because, in the precedent case the position or plea of banaml was not taken, inasmuch as, on the same page it is written that "here it should be remembered that it was never the case for the official liquidator that Mr. Rafi Butt being himself the depositor, the appellants could not prefer any claim to the receipts. It was in fact on the assumption that the appellants were the depositors that a balance of Rs, 2,081.1-6 was allowed to them". This case went up in appeal to the Supreme Court in The Central Exchange Bank Ltd. v. Mst.
Zaitoon Begum etc. (2), where the above position was again taken note of. On page 88 it was written that "in the reply, on behalf of the Bank, the Liquidator did not take up the position in the High Court that the fixed deposit receipts standing in the name of the wife and the minor children of Mr. Rafi Butt, were benami and that in fact they belonged to Mr. Rafi Butt deceased". However, in the instant case before us the Bank/Creditor has taken up such a plea which will have to be examined on its own facts and circumstances, salient features whereof' have already been highlighted above and which speak volumes against the plea of there being any gift. The question in the instant case is not about the modes which can be adopted for making gifts, but whether despite a particular mode there in fact took place any gift or not. At this stage learned counsel for the plaintiffs submitted that law of benami was not applicable to negotiable instruments. Without going into the soundness of this sweeping contention the plea is not available in this case, because, negotiable instruments are defined in the Negotiable Instruments Act XXVI of 1881 and none of the documents under examination on the present record constituted a negotiable instrument within the contemplation of the aforesaid Act. The documents on which reliance has been placed in our discussion are the fixed deposit receipts, original vouchers, and letters of Ch. Khushi Mohammed etc.
12. The next question for consideration is whether Ch. Khushi Mohammed, defendant No, 2, ever secured a loan or had any loan transactions with the Bank or not. The said defendant/respondent, as already mentioned, appeared as a witness. His statement besides being evasive does not inspire confidence and is against the documentary evidence on
(1) PLD 1961 Lab. 888 (2) PLD 1968 SC 83 the record (apart from the infirmities highlighted earlier in other respects). He deposed that he never secured any loan from the bank, but it is incorrect, because, the details and history of the very fixed deposits mentioned above shows that various amounts were got adjusted by him in different loans and which amounts have neither been claimed by Ch. Khushi Mohammad by any separate suit and nor by the plaintiffs concerned in their present suits which are based, if we can say so, after in a way accepting the aforesaid adjustments except, of course, the last major adjustments which will be attended to separately. We have shown the stages through which the various fixed deposits passed, the balance struck on various dates, the amounts withdrawn and additions or adjustments made. No exception was taken to the entries contained in large number of documents mentioned above and as already observed it was the balance after allowing some of these adjustments which was being claimed by the plaintiffs. In these circumstances, the general sweeping deposition of Ch. Khushi Mohammad that he had no loan dealings with the Bank does not contain any ring of truth. He admitted that:-{{URDU TEXT}} ' This statement he made on 10-11-1966 while prior thereto on 24-9-1966 large number of documents had been produced in original and their copies were duly exhibited on record through the statement of D. W. 1 Inayatullah who was an employee of the Bank from year 1929 and was its Manager from year 1952 to November 1962 and also himself a signatory of various documents. No obection to the tendering or exhibiting of the aforesaid documents was taken except regarding admissibility of a pronote dated 3-9-1954 to which we will separately advert later. Rather on 10-11- 1956 when Ch. Khushi Mohammad appeared as a witness he did not categorically deny the said documents and his deposition on this particular subject was lukewarm leaving still a scope that the documents may be containing his signatures.
13. After pointing out the general features of this matter above, we can now proceed to examine the precise documents placed on record which proved the following:
(a) Exh. D. W. 1/37 dated 3-94954 (pages 125-126, paper book) shows that Ch. Khushi Mohammad was given a loan of Rs, 83,000. This document contains the signatures of Ch. Khushi Mohammed Exh. D. W. 1/38 dated 3-9-1954 (pages 126-127) shows that Ch. Khushi Mohammad, under his signatures, pledged fixed deposit receipt Exh. D. W. 1/13 dated 24-11-1953 of Ch. Tawakal Ullah for Rs, 65,836 which is at page 124. Exh. D. W. 1/39 dated 25-11-1958 (page 145) shows that one Ch. Sardar Mohammed (a relation of Ch. Khushi Mohammad) deposited a sum of Rs, 8,000 into the loan account of Ch. Khushi Mohammad. Exh. D. W. 1/40 dated 9-3-1959 (page 145) shows that a further sum of Rs, 6,000 was similarly deposited by Ch. Sardar Mohammed into the loan account of Ch. Khushi Mohammad. Both these documents are original pay-in slips whereby the amount of loan was correspondingly reduced, as is indicated in the relevant entries in the formal account Exh. D. W.
1/72 (pages 49 to 43). The balance loan which had accumulated to a high figure by way of interest with the aforesaid deposits was then reduced to Rs, 85,081.12 (page 41). Page 42 shows that on 29- 6-1963 debt in this account by way of interest had accumulated to Rs, 1.02,697.95 which was adjusted (along with future inrerest) on 25/26-11-1963 by the four fixed deposits presently in dispute. These documents clearly show that Ch. Khushi Mohammed took a loan of Rs, 83,000 on 3.9-1954 and the amount to which it accumulated by way of interest is shown in the relevant formal account D. W. 1/72 referred to above. At this place it may be mentioned that the defendant- Bank tendered in evidence a pronote dated 3-9-1954 executed by Ch. Khushi Mohammed for a loan of Rs, 83,000, but the learned trial Court held the same as inadmissible in evidence for want of proper cancellation of its stamps under section 35 of the Stamp Act II of 1899 to which we will advert later.
(b)Ch. Khushi Mohammad had also taken a loan of Rs, 20,000 as per pronote Exh. D. W. 1/35 dated 10-4-1963 (pages 164-165). D. W. 1/34 dated 10 4-1963 (pages 163-164) is security/pledge letter for that loan whereby fixed deposit receipt of Ch. Tawakal Ullah Exh. D. W. 1/33 (pages 161 to 163) worth Rs, 42,466 was pledged). Exh. D. W. 1/36 dated 25-11-1963 (pages 165-166) shows that the aforesaid deposit by way of interest on 25-11-1963 amounted to Rs 43,952.32 out of which Rs, 20,568.32 were adjusted towards this loan and remaining Rs, 23,384.00 to the above loan of Ch. Khushi Mohammad mentioned in sub-para. (a) above.
(c) Exh. D. W. 1/30 dated 13-10-1962 (page 157) shows that Ch. Khushi Mohammad, under his signatures, pledged fixed deposit receipt dated 27-11-1961 of Ch. Tawakal Ullah worth Rs, 55,626 Exh.
D. W. 1/31 (pages 158.159) against a loan of Rs, 15,000 taken on a pronote by Ch. Khushi Mohammad on that very date. Exh. D. W. 1/32 dated 29-11.1962 (pages 160-161) shows that the loan which had by then accumulated to Rs, 15,106 was deducted from the aforesaid fixed deposit which in its term had accumulated to Rs, 57,572.92 and the balance fixed deposit of Rs, 42,466 00 was taken in cash by Ch. Khushi Mohammad and re-deposited vide Exh. D. W. 1/33 (pages 161 to 163). The account of this loan of Rs, 15,000 is Exh. D. W. 1/29 (page 156) which corresponds with and is in accordance with the aforesaid connecting documents. This amount of Rs, 15,000 has not been claimed by the plaintiffs concerned.
14. These documents clearly bring home and prove the loans taken by Ch. Khushi Mohammad.
When confronted with the aforesaid learned counsel for the plaintiff-respondents argued that as regards the loan mentioned in para. 13(a) above, the relevant pronote for Rs, 83,000 being improperly stamped, inasmuch as, stamps thereon were not properly cancelled and the trial Court having rightly held the same to be inadmissible Its result was that the other evidence above referred to could not be made the basis of liability on the ground that when an original document is disallowed, as being inadmissible under section 35 of the Stamp Act, then secondary evidence about the contents of the original document or the same subject-matter cannot be allowed. The objection on the facts and in the circumstances of the present case, in our opinion, is not well- foundedh., Or the reasons to be presently noted. The documents referred to para. 13(a) are not of a secondary nature or secondary evidence but original documents with regard to their own contents and incidents. These documents were duly tendered and exhibited and were not specifically denied or rebutted. In their own way these documents independently showed the receipt of loan money by Ch. Khushi Mohammad. Merely because one document e.g. Pronote was inadmissible it does not mean that the other documents also became inadmissible. In Ghisulal and others v.
Chatar Singh and others (1) it was held that where a pronote is written on one side of a sheet of paper and the 'receipt' on the other and a pointed line in black stands drawn in between so as to demarcate the two portions clearly the 'receipt' is admissible though the pronote might be altogether inadmissible, Similarly in Woodroffe and Ameer Ali's `Law of Evidence', 11th (1963) Edition as edited by P. N. Ramaswa mi and S. Rajagopalan, under commentary on section 91 of the Evidence Act I of 1872 at page 1503 in paragraph 12 headed as "Consideration, evidence as to" it is written that "it has been held that since the considsration for a contract is different from the terms of such contract, in proof of which alone this section says that no evidence can be given, this section does not prevent extraneous evidence as to consideration, and that a landlord may prove the improvements in consideration of which an entanced rent was agreed on". In our view these documents in their own place were sufficient to authorise the bank, if otherwise authorised under the law of the land, to adjust their loans from the various deposits put by Ch. Khushi Mohemmed in different forms or nomenclature which, as already held by us, really belonged to and remained his property throughout. Again one of these documents which is a document of pledge or security creates independent rights in favour of the bank to enforce its debt or debts. These documents in a way also contain admissions of loan. Learned counsel for the plaintiffs referred to section 35 of the Stamp Act which, however, bars the use of inadmissible/unstamped documents alone and subject to the present discussion not of any ether document. Learned counsel for the plaintiffs then referred to sections 63, 65 and 91 of the Evidence Act, but the same prohibit -proving otherwise the contents of a document in writing. The documents in pare, 13(a) prove thier own contents and not contents of another document.
15. Learned counsel then argued that when a pronote became inadmissible in evidence a suitor could not file a suit on the original cause of action. For this purpose he referred to K. M. Muneer v.
Mirza Rashid Ahmad (2) and K. M. Muneer v. Mirza Rashid Ahmad (3). By analogy he then argued that just as a plaintiff could not fall back or file a suit on the original cause of action in the same way the defendant-creditor in such a situation as present will also be prohibited to defend his loan or retain money of his debtor in his hands by way of adjustments against a loan advanced by him for which inter alto an inadmissible pronote was also taken. The cases referred to pertain to institution of suits and do not discuss the position of a defendant, and as such, it is not clear as to whether they can be made applicable to the facts and circumstances of the present case, because, situations cannot be lost sight of where, for example, a creditor may not be able to institute a suit on a time-barred debt, but if a money of Hs debtor comes into his hands, the law authorises him to retain or adjust the same against even a time-barred debt. This shows that whatever is disability for a plaintiff may not always be disability for a defendant. We asked the learned counsel for the parties to address some arguments on this aspect
(1) AIR 1952 Ajmer 14 (2) PLD 1963 Kar. 905
(3) PLD 1964 Kar. 172 ' of the matter or quote any text of law or precedents. No proper assistance was rendered to us on this particular point and, therefore, for the present we leave it at that by making the observations which have been heretofore made. However, even otherwise in the cases referred to, it is clearly laid down that the bar to a plaintiff to fall back on original cause of action in the matter of instituting a suit will apply only where the pronote contained all the terms of the transaction concerned and that the bar will also not apply where the pronote was executed merely as a collateral security or constituted a conditional payment or did not constitute a complete and full discharge of the debt. In the instant case the plaintiffs have not shown that the pronote contained all the terms of the contract of loan or constituted or was taken in complete and full discharge of the liability and so far as we have gathered from the record, tee pronote for example did not contain a term for adjustment of loan from any fixed deposit receipt, which term was provided by the letter of pledge itself Exb. D. W. 1/38 dated 3-9-1954 (pages 126.127) and which pledge according to that document was to attach D to or continue attaching to (from time to time) renewed fixed deposits. Manner of realising or enforcing a loan is obviously one of the important terms of a contract and if this term e.g. Of realising from certain pledged deposits Or amount is not contained in a pronote then the pronote cannot be said to contain all the terms of a loan and nor can it be said to have been taken in full or complete discharge of the debt and will thus not be of a type which may be a hurdle in the way of falling beck on the original cause of action as clarified by the two cases of the Karachi Bench of the erstwhile High Court of West Pakistan referred to above.
16. The next objection of the teamed counsel for the plaintiffs was that the various documents produced by the defendant-Bank had not been properly proved and, therefore, certified copies of these documents could not be relied upon. The plea has no merit. It was laid down in Gopal Das and another v. Sri Thakurji and others (1), Abdullah and 3 others v. Abdul Karim and others (2) and Malik Din and another v. Muhammad Aslam (3) that an objection as to mode of proving a document should be taken at the time it is tendered, exhibited and placed on record. If no objection at that time is taken, then such an objection cannot be taken afterwards. P. W. 2 Inayatullah brought all the original record with him in Court and placed their copies on record by deposing that they were correct according to the originals. The documents were duly marked as exhibits and placed on record without any objection or demur from the side of the plaintiffs except only one pronote which was objected to as inadmissible for want of proper cancellation of its stamps and the objection was upheld. No objection was raised with regard to the rest of the documents exhibited and placed on record. It is too late in the day to raise any objection as to the mode of proving of those documents at this stage, especially when Ch. Khushi Mohammed, the executant concerned appeared as a witness and when confronted with the originals was not in a position to categorically say that they did not contain his signatures. Here it may be mentioned that the plaintiffs also got exhibited certain documents of the bank in the same manner as was done by the defendant-Bank. Reference may be made to Exb. D. W. 1/P-1 to Exh. D. W. 1/P-27. From that point of view also it is not justified in these circumstances and at this late stage of appeal to
(1) AIR 1943 P C 83 (2) PLD 1968 SC 140
(3) PLD 1969 SC 136 ' raise objection to a common manner of proving and exhibiting documents as was adopted and accepted by all the parties in the Court below.
17. Another objection raised was that despite the exhibiting of the various documents entries in books of accounts of a bank were not sufficient by themselves to charge a person with liability and to prove the liability each item of liability had to be separately proved by some corroborative evidence and the nature of corroboration will depend upon the facts and circumstances of each case. The principle enunciated is quite correct and in the instant case the liability is not being carved out from mere entries in the relevant formal accounts but from corroborative evidence in the form of relevant vouchers and receipts etc. On the basis of which the formal entries in the accounts had been made. We have referred to all that evidence in detail which consists mostly of the documents containing signatures of Ch. Khushi Mohammad and also of D. W. 2 Inayatullah and other attending facts and circumstahces etc. It is to be pointed out that all the objections hereinbefore raised from the side of the plaintiffs were merely of a technical nature or of total denial of loan. The plaintiffs and their learned counsel have not raised any objection regarding correctness of the figures and precise amounts worked out or mentioned in the relevant documents, vouchers, letters and receipts etc. And nor have they set up any case to show that the figures or the amounts were different. Rather it is through all the aforesaid documents that it is connected and found out as to how the accounts mentioned in the last fixed deposit receipts were made out, from where and how. By relying on these figures (and rather balances) obviously the plaintiffs could not take objections to the earlier accounts of these receipts and deposits and rather by accepting the last figures they in a way took no objection to the transit history of the same and gave no counter version or counter-figures about each item which went to make out the last figures. Similarly they led no evidence to rebut these figures and nor showed any cause Or motive on the part of the bank in the execution and existence of the various vouchers, letters, receipts, accounts and other various transactions mentioned above. There was no enmity between the bank and Ch. Khushi Mohammad and there was no basis for the bank to invent allegedly false transactions of multifarious types in this case against him or to falsely implicate him with debts and liabilities. At least no such enmity has been brought on record.
18. The next point argued by the learned counsel for the plaintiffs was that as the amounts in dispute belonged to the plaintiffs, the bank had no authority to adjust or retain them against the loan of Ch. Khushi Mohammed. The contention has no force. Our finding, as recorded above, is that the amount in dispute throughout remained the property of Ch. Khushi Mohammad and that the gifts to the plaintiffs have not been established on the record. In that view of the matter, the objection raised has no substance and is hereby repelled. Even otherwise the relevant amounts remained pledged as is evident from the respective evidence tabulated above, and from that point of view also, the bark was justified to adjust them against its debt.
19. Before parting with this judgment we may attend to certain arguments of the learned counsel for the appellants with regard to admissibility of a pronote dated 3-9-1954 which was excluded from evidence by the learned trial Court on account of defective cancellation of its stamps. The pronote contains eight ad hesive stamps of one anna each which hate been affixed su two rows of four stamps. In tte upper row, the first stamp contains the endorsement baqalam, the second stamp contains the endorsement khud, the third stamp contains the endorsement Khushl and the fourth stamp contains the endorsement Mohammed. Similarly below that row almost touching the bottom ridges of the first row there is a second row of four adhesive stamps. In that row also the first stamp contains the endorsement baqalam. The second contains the endorsement khud and the third stamp contains the endorsement Khushl Mohammed. The fourth stamp in the second row has been held and found to be blank and uncancelled, On this basis the learned trial Court found probably all or at least the eighth stamp as uncancelled with the result that the document for that reason was held as unstamped and inadmissible in evidence. To meet this finding and in this respect learned counsel for the appellants raised a legal point. He referred to Sirajuddin A. Kadar v.
Chittaranjan Cotton Mills Ld., Dacca (I) which was a case of instruments of transfers of shares which though properly stamped, but were not properly cancelled. Abdullah, J. Of the then East Pakistan High Court held that the documents remained valid and the defect could be cured by cancelling the concerned stamps. The actual passage at page 198 (para. 7) of the report reads as follows:- "7. The third objection raised on behalf of the Company was to the effect that these stamps have not been cancelled. In my opinion, this could have been done easily at any stage. The cancellation of the stamp is required for the purpose that no fraud can be committed by the user of the stamps over again. Here no such question arises. Section 11, subsection (e) of the Stamp Act requires that an instrument recording a tranfer by endorsement of shares of an incorporated Company or other body corporate is required to be stamped with adhesive stamps of the prescribed value. Section 12 of the Stamp Act requires that whoever affixes any adhesive stamp to an instrument chargeable to duty which has been executed by any person shall when affixing such stamp cancel the same so that it cannot be used again. According to subsection (2) any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again shall so far as such stamp is concerned be deemed to be unstamped. The whole purpose of the legislation seems to be to prevent fraud by user of the non-cancelled stamps over again. In this case it appears that at the time of execution of the transfer deeds the adhesive stamps now found could not have been used.
It follows therefore that they were affixed at the time of presentation of the transfer deeds. The fact that these stamps have not been cancelled will not render invalid the document itself as has been held in the case of Joyman Bewa v. Yasin Sarkar (1926 Cal. 877) where their Lordships held "Failure to stamp duty a document which must needs be stamped by reason of the provision of the Stamp Act does not affect tie validity of any contract therein contained, but renders the document inadmissible in evidence". In this case there has been no failure to stamp a document but due to non-cancellation of the stamps, by provisions of law, the documents are to be deemed as unstamped. The omission can be rectified merely by cancelling the said documents and I hereby direct the Superintendent of the Original Side to do so, namely to cancel the said stamps by drawing two lines in red ink through each of the stamps in each of the transfer deeds."
(1) 20 D L R 196 Learned counsel for the appellant relied upon the above passage and submitted that in the instant case also if at all the cancellation of the eighth stamp was not effectual (or if it was not cancelled at all) that formality could be and should be now directed to be fulfilled as was done in the precedent case. We have considered the matter, but we regret we cannot accept the request made or point raised by the learned counsel so far as the advisability of cancellation of the stamp at this stage of the case is concerned, though we may accept that the other proposition seems to be sound that inadmissibility of a document for want of stamp does not affect the validity of the original deal or transaction. Section 12(2) states that "any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped". This will show that by virtue of the defect of cancellation of the stamp concerned the document has been given the deeming status of an unstamped document via-a-viz the said stamp, which means that in the eye of law it dces not contain the relevant stamp, tough in fact the same is there. Once that deeming status of "the document being unstamped" viz-a-viz the concerned stamp has by law been bestowed on such a document, we cannot get out of that status or its effects by again assuming that the document does contain a stamp defects of cancellation whereof can be rectified later on. In other words, if the Legislature says that a particular uncancelled stamp is to be deemed as not to exist in the eye of law, then the question of directing subsequent cancellation of that very stamp does not arise, because, obviously you cannot cancel such a stamp which does not legally exist. With due respect, therefore, we do not accept the view on this point as enunciated in Sirojuddin A. Kadar v.
Chittaranjan Cotton Mills Ltd., Dacca in which the effect of the deeming statute of such a stamp has not been fully given effect to. In our respectful opinion the only way to bring such a document within the scope of documents inadmissible for evidence can be, by treating it, as the law says, as unstamed and on that basis to proceed within the scope of five provisos (a) to (e) attached to section 35 or similar other provisions contained elsewhere in the Stamp Act which provisos or provisions, however, it is a common ground, are not applicable or attracted to and do not protect a promissory note of the present kind. We may mention that in our view it was only the eighth stamp which was uncancelled and not the other seven stamps which contain the endorsements mentioned above. The said endorsements, according to us, on the facts and in the circumstances of the case, could from the point of view of the executant of the document be considered as effectually cancelling those stamps. The result of our finding therefore, is that if the eighth stamp is to be ignored then the pronote remained insufficiently, stamped as it was short by a stamp of one anna (which was the stamp value of the eighth stamp) and was thus inadmissible in evidence under section 35 of the Stamp Act.
20. The upshot of the above discussion is that these appeals succeed and are accepted. The judgments and decrees of the learned trial Court in each suit are set aside and all the suits of the respective plaintiffs are dismissed with costs throughout.