P L D 1963 (W (PLP)

8. On the 5th of August 1960, plaintiff No. 1 gave a legal notice to defendant No. 1 alleging in it that the defendant had neither rendered account of the business done or expenses incurred by the defendant towards the maintenance and improve ment of the property, nor had paid anything to her as her share of the profits. She claimed a right to participate in the business, the 12 annas share of which had been purchased by the defendants, on the ground that the Evacuee Laws had ceased to be in force. She also called upon the defendants to render account of the business done and profits gained from January 1958. Her sons adopted the notice by their letter dated the 9th of August 1960, (Exh. 14). The defendants gave no reply to the notice and the plaintiffs instituted this suit on the 14th of September 1960.

9. Defendant No. 3 submitted his written statement on the 28th of October 1960, and subsequently defendants Nos. 1 and 2 submitted their joint written statement dated the 4th of April 1961. Issues were framed on the 22nd May 1961. After this, on the 17th of August 1961, defendants Nos. 1 and 2 got a registered lease deed executed by the lessors (Exh. 27) in favour of defendant No.

1. By this lease deed, the lessors have leased the plot of land only on which the Palace Cinema is situated and not any part of the superstructures. This is noteworthy because counsel for the defendants have advanced arguments that in virtue of the failure of Universal Theatres Ltd, to remove the superstructures in terms of `the lease deed (Exh. 18,. the relevant portion of which has been reproduced above and does not support this contention), their right to the buildings and structures has been forfeited. The latest lease deed (Exh. 27) proves that the lessors have no such claim to make. On the contrary, they have protected themselves against all claims of the plaintiffs by inserting clause 2 (b) in the lease deed (Exh. 27), which is as follows :‑ "The lessees hereby covenant and undertake to settle all claims made against the lessors in respect of any assets or right of Universal Theaters, Ltd., by any share‑holder, allottee or the Rehabilitation Department or the Custodian's Department, in respect of any dealings with any of the said persons or depart ments, and to make all payments that may be necessary in this behalf, and in particular all claims relating to the non evacuee shares in Universal Theatres Ltd. and other rights or claims of Mrs. L. C. Sitlani." In contrast to this, defendants Nos. 1 and 2 have agreed with the lessors (clause 2 (e) of the lease deed, Exh. 27) that on the termi nation of the lease all buildings and structures, including that part which they have not purchased will‑‑ "revert to the lessors as their absolute property free from any claim or right of the lessees", but that they can purchase (clause 5 (b) of the lease deed Exh. 27) the land within fifteen years at the rate of Rs. 160 per square yard, and that if they do so they will become, "the owners of the plot hereby demised together with all buildings and structures" including that part which they have not purchased. This means that they have recognised no interest of the plaintiffs in the tenancy rights to which the lessors have referred in their letter (Exh. 24) and no interest in the buildings, structures, though the interest of the plaintiffs in them was repeatedly admitted by the predecessors‑in‑interest of defendants Nos. 1 and 2 vide Exhs. 11, 15,17,20,30,33 and 38.

10. It was necessary to state the facts at length and to make a few obvious comments on them as these facts can be better appreciated by stating them fully. The plaintiffs and defendants Nos. 1 and 2 have also laid emphasis on facts by devoting the major parts of the plaint and the written statement to them. Moreover, defendants Nos. 1 and 2 have complained in paragraph 2 of their written statement that the facts stated by the plaintiffs are incomplete and misleading. Now, I am in a position to refer to the material pleadings of the parties which will be easily understood without the necessity of referring to the details set out above.

11. Stated briefly the plaintiffs' claim for rendition of account and injunction to restrain defendants Nos. 1 and 2 from excluding the plaintiffs from the management of the Cinema is based, according to the amended plaint, on the following grounds:‑ (1) The plaintiffs are the owners and proprietors of 25 per cent. of the buildings, machinery, furniture, business, goodwill and all assets of the Palace Cinema (Paragraphs 2 and 5 of the plaint). Defendants Nos. 1 and 2 have become owners of three‑fourth share in the Cinema by purchasing it from the Ministry of Refugees and Rehabilitation and Custodian (paragraph 13 of the plaint). (2) The defendants have the possession of the Cinema because the Rehabilitation Authorities gave it to them in exercise of the powers which were conferred on the Authority by the Evacuee Laws (paragraph 18 of the plaint). (3) Defendants Nos. 1 and 2 are liable to pay the plaintiffs' share of profits and render account as co‑sharers as well as in virtue of express and implied agreements to do so (paragraphs 16 and 17 of the plaint). (4) The three defendants have paid nothing from June 1957, and sent wrong accounts on 2‑9‑1959 up to 31‑1‑1958 with a cheque for Rs.

504. The accounts have not been accepted by the plaintiffs (paragraphs 14 and 15 of the plaint). (5) The Authorities have now refused to intervene; hence this suit (paragraphs 19 and 20 of the plaint).

12. Defendants Nos. 1 and 2 have resisted the claim of the plaintiffs, according to their second written statement, dated the 4th of April 1961, on the following grounds :‑ (i) It is admitted that under the orders of the Custodian and Rehabilitation Authorities‑ "the plaintiffs were entitled to 1/4th of the properties and profits of the concern" (paragraph 1(d) of their written statement). but the (joint?) business of the Cinema was "co‑terminous" with the lease (Exh. 18 read with Exh. 51) which expired on the 31st of January 1958 ; therefore, the interest of the allottees and the plaintiffs in the concern has terminated on that date and that business has also "ended" (paragraphs 3, 4 and 17 of their written statement). (ii) The plaintiffs can have no claim in the buildings and structures of the Cinema because under the above‑mentioned lease the lessees were to remove all buildings and structures within three months of the expiry of the lease, but they have failed to do so (paragraph 5 of the written statement). (iii) The plaintiffs are not entitled to claim anything now (para graph 28 of the written statement) except Rs. 7,500 (paragraph 19 of the written statement) because the Authorities have valued the entire Cinema at Rs. 30,000 (paragraphs 10 to 12 of the written statement). They have received from defendants Nos. 1 and 2 Rs. 22,500 and relinquished the possession of the whole Cinema (paragraphs 15 and 16 of the written statement) leaving Rs.7,500 in the hands of these defendants the plaintiffs' share of the price which the defendants are pre pared to pay to the plaintiffs (paragraph 19 of the written statement). (iv) There is no agreement of partnership between the plaintiffs and defendants Nos. 1 and

2. These defendants are running the business "on their own" and not as "co‑sharers" (paragraphs 24 and 25 of the written statement). Defendants Nos. 1 and 2 have never paid anything to the plaintiffs but made payments to the managing allottee and the Rehabilitation Authorities. These defendants are under no liability to make payments or render account to the plaintiffs (paragraphs 22 and 23 of the written statement).

13. The defences of the managing allottee (defendant No. 3) are that :‑ (a) he has managed the Cinema from 18‑9‑1954 to 31‑1‑1958 on behalf of the Rehabilitation Authorities and made payments for them and under their directions without any liability towards the plaintiffs. The plaintiffs' claim for their dues, if any, should be against the Rehabilitation Board (paragraphs 2, 6, 7 and 9 of the written statement) (b) payments were stopped by him when the Income‑tax Authorities ordered him to do so (paragraph 5 of the written statement).

14. The above pleadings raise the following issues only, although fifteen rather discursive issues were framed on the suggestion of counsel for the parties on 22‑5‑1961 :‑ (1) Whether the plaintiffs are entitled to claim rendition of account from the defendants from January 1957, to 31‑1‑1958? (2) Whether the plaintiffs are entitled to claim rendition of account from defendants Nos. 1 and 2 from 1‑2‑1958 onwards ? (3) Whether the tenancy rights created by Exh. 18 read with Exh. 51 have come to an end on 31‑1‑1958 ? (4) If issue No. 3 is decided in favour of the defendants, whether the joint business of the Cinema was co‑terminous with the lease and has, therefore, come to an end ? (5) Whether the plaintiffs can have no claim in the buildings and structures because of the failure of the lessees to remove the buildings and structures within three months after 31‑1‑1958 ? (6) Whether the valuation made by the Authorities is binding on the plaintiffs and the plaintiffs cannot claim anything from defendants Nos. 1 and 2 except Rs. 7,500? (7) If the decision of issues Nos. 5 and 6 is in favour of the plaintiffs, are they co‑owners and as such entitled to participate to the management of the Cinema ? (8) Relief. On 14‑12‑1961, I wanted to recast the issues that were framed on 22‑5‑1961, after the case was stated by counsel for the parties, but vide my order of that date, at the request of Mr. Tyabji, A had postponed to do so at the conclusion of full arguments which have been addressed by four counsel. The above issues have been accordingly framed by me now. As this procedure was adopted at the request of the senior most counsel without objection from other counsel, they can have no grievance on that account. Counsel for defendants Nos. 1 and 2 at least can have) no grievance because at the time of stating their case, they had disclosed the contentions they wanted to raise. Those, contentions fall within the above issues. Counsel have addressed arguments accordingly and have in their own style covered the entire field of discussion, except, in so far as I was able to understand them, Issue No.

4. The omission is understandable because I am unable to see how defendants Nos. 1 and 2 could support this issue, if the plaintiffs are co‑owners with them in the buildings, structures, equipment, goodwill and business of the Palace Cinema.

15. Before adverting to their arguments, I may mention that no oral evidence has been led by the parties. All documents produced by them have been exhibited by consent without formal proof. This was mainly the result of what was concede by Mr. Tyabji on behalf of defendants Nos. 1 and 2, on the 8th of December 1961. On that date a plaintiffs' application dated the 6th of December 1961, carne up for hearing. The plaintiffs had alleged in that application that‑ "the defendant with a view to present a fait accompli to the Court and defeat the very purpose and object of the suit, has already demolished a substantial portion of the "Pucca" ,joint property. He has demolished several other constructions and has started new constructions on the land. These constructions are progressing and foundations have already been dug. The defendant is negotiating with the prospective tenants for letting out the show‑rooms and shops he is now constructing after demolishing the joint property. That on 24‑11‑1961 the plaintiff moved an application for appointment of Receiver and in the meantime for an injunction." The prayer which the plaintiffs' counsel made was that the application for the appointment of Receiver be heard at an early date and that ad interim injunction be issued to maintain status quo. Mr. Tyabji did not submit a written reply to the application but opposed it on the ground that no harm could be done to the plaintiffs by the demolition and construction of buildings or by agreements made by defendants Nos. 1 and 2 because‑ "If for any reason the Court comes to the conclusion that they (i.e., the plaintiffs) have interest in the property, then the agreements made, alterations effected and the rights and obliga tions created will accrue for the benefit of the plaintiffs in proportion to their share that may be found in the property." In view of this admission made conditionally on the interest of the plaintiffs being found in the property, I dismissed the appli cation of the plaintiffs.

16. It became clear that the main question for decision was a short one. Counsel agreed that a very short date could be fixed for the hearing of the case. T therefore fixed the 14th of December 1961 on which date, Mr. Tyabji made an application on behalf of defendants Nos. 1 and 2 for substituting paragraph 1 (d) of the written statement, so as to eliminate from it the admission that‑ "the plaintiffs were entitled to 1/4th of the properties and profits of the concern." Mr. Ibadat Yar Khan for the plaintiffs opposed the application on the grounds that (1) he had received a copy of it just at that moment ; (2) that the application Nvas very belated and that (3) a fact admitted in pleadings could not be treated as admitted merely because the party wished to get rid of the admission. The application on the face of it lacked bona fides and was made merely to get out of the situation created by the admission of their plaintiff's' right made by Mr. Tyabji on the 8th of December 1961 subject to only one condition which condition was filled by paragraph 1 (d) of his clients' written statement itself. These defendants had admitted the plaintiffs' title "to 1/4th of the properties and profits of the concern" in paragraph 1 (d) of their. written statement dated the 23rd of November 1960 and had repeated is in their second written statement dated the 4th of April 1961. This admission was therefore made deliberately and, obviously in view of the facts of the case and orders made by the. Rehabilitation Authorities and the Custodian to which references have been made above. The application for amendment was very belated also, but I postponed its decision in order to have the benefit of hearing counsel for the parties on the case as a whole. I have the advantage now of having fully heard counsel and find no reason whatsoever to allow the amendment. The application is accordingly dismissed hereby.

17. Reverting now to the contentions raised by counsel for the defendants and arguments addressed by them, I would like to give their summaries first and then to examine them.

18. Mr. Tyabji's stand was that on the expiry of the lease (Exh. 18 read with Exh. 51) and with the failure of the lessees to remove the buildings and structures from the plot of land, the interest in them, if any, of the share‑holders of the company (Universal Theatres Limited), who could have no interest under the Company Law in the assets of the company, has vanished. During his lengthy address counsel further argued that the Custodian has declared (vide Exh. 10) the 25%. shares only held by Sitlani to be non‑evacuee property but has not declared the corresponding one‑fourth of the property of the company to be non‑evacuee property. The whole company, according to counsel, was declared an evacuee person which was a separate entity from the share‑holders and therefore all the property of the Company which is a juristic person became evacuee property, but Sitlani as a share‑holder and the plaintiffs as his successors‑in -interest have nothing to do with it. These arguments of counsel cover issues Nos. 3, 5 and 7.

19. Mr. Tyabji is counsel for defendants Nos. 1 and 2, but Mr. Hassan Shaikh has also addressed arguments on behalf of defendant No, 2 without objection from me. He, added firstly, that the share‑holders of the company (Universal Theatres Limited) were bound by the Memorandum and Articles of Association of the Company which limited their interest to the dividends of the company only. They could, therefore, claim no interest in the assets of the company. Secondly, the Custodian had taken over the management of the whole company, representing all those who were interested in the company, and could bind them by his valuation of its assets. The Custodian has valued the assets of the company and the plaintiffs are bound by that valuation; therefore, they can claim nothing more than Rs. 7,

500. While elaborating this argument, counsel contended that in virtue of clause (e) of subsection (2) of section 2 of Ordinance XV of 1949 which was inserted in the Ordinance in 1951, every Company of which more than 50% share‑holders were evacuees became an evacuee company. As 75Y. of the share holders of the Universal Theatres Limited were declared by the Custodian to be Evacuees the company as a whole was an evacuee person in law. The Custodian has declared (vide Exh. 10) that "the joint stock company of Universal Theatres Limited is evacuee property to the extent of 3/4th which is the property of the shares held by evacuees", but a formal declaration by the Custodian that the Company was as a whole an evacuee person was unnecessary because the law operates automatically as pointed out by the Supreme Court in Seth Jassumal v. The Central Government, the Rehabilitation Department and another (P L D 1961 S C 206). Counsel argued that I had to give effect to the law and treat the company as an evacuee person and all its property as evacuee property. These arguments of counsel cover issues Nos. 6 and 7.

20. Thirdly, he argued that defendants Nos. 1 and 2 were not accountable to the plaintiffs as there was no privity of contract and no fiduciary relationship between them. This argument relates to issues Nos. 1 and

2. On issue No. 1 Mr. Aseem for defendant No. 3 has addressed concise and neat arguments. I shall examine these two issues later and take up issues Nos. 3 and 5 to 7 now to consider them in the light of the above‑mentioned arguments of Mr. Tyabji and Mr. Hassan Shaikh. 21. 1 may state at once that the Supreme Court has not held either expressly or impliedly, that by giving effect to clause (3) of subsection (2) of section 2 of Ordinance No. XV of 1949, it is possible for the Civil Courts to declare or treat any person as an evacuee person inconsistently with or without a declaration made by the Custodian. The Civil Courts have no jurisdiction to do so and even the Custodian has lost the authority to declare any person or property to be an evacuee person or property in virtue of section 3 of the Pakistan (Admi nistration of Evacuee Property) Act, 1957. I have reproduced the relevant part of the Custodian's order dated the 18th off November 1949, (Exh. 10) which leaves no doubt that only 3/4th of the property of Universal Theatres Limited was declared to be evacuee property. On the 11th or 12th of February 1958, the custodian made it clear (Exh. 15) that "1/4th share in the structures, fittings etc. of the Palace Cinema" was non‑evacuee property. I repeatedly pointed out to learned counsel for defendants Nos. 1 and 2 that it was not possible for me to hold differently but they persisted in their efforts to convince me to the contrary with the object of depriving the plaintiffs of their proprietary rights in the buildings, structures, equipment, goodwill and the business of the Palace Cinema.

22. They exercised their ingenuity in trying to make use of the Company Law for arriving at the conclusion that Sitlani being a share‑holder of 25% shares in Universal Theatres Limited, he and his successors‑in‑interest could have no interest in the assets of the Company ; but the Custodian and the Rehabilitation Authorities have made it abundantly clear that 1/4th of the property of the Palace Cinema is the property of the plaintiffs. This view is not only the necessary legal consequence of the manner in which Universal Theatres limited was treated and dealt with by them but amounts further to an admission of the predecessors‑in‑interest of defendants Nos. I and 2 who have purchased 3/4th of the property of the Palace Cinema subject to the condition that 1/4th of that property was the property of the plaintiffs. The attempts made by counsel to press into use the Company Law cannot be said to be the result of ignor ance of that law and therefore must be taken to be attempts to deliberately ignore its correct application or, to be precise, its inapplicability. It is true that the share‑holders of a company are not the owners of its assets so long as it is alive and functioning, but they are entitled to a proportionate share in its assets when it is wound up or defunct. Mr. Hassan Shaikb conceded this but argued that Universal Theatres Limited was neither wound up nor a defunct company, because the procedure to wind it up has never been followed, and because its name has not been struck off by the Registrar in terms of section 247 of the Companies Act. In other words, according to him, a company cannot be in fact defunct, obsolete and dead unless the procedure prescribed in the section has been followed. In this case 75% of the share‑holders and 75% of the property of the company were declared to be evacuee persons and property (Exh. 10). This evacuee property vested in the Custodian and therefore the Company was deprived of its ownership. Moreover, the evacuee property in the Palace Cinema has been sold to defendants Nos. 1 and 2 (Exh. 23). The remaining 25% of the shares were held by Sitlani who was declared to be a non evacuee person and 25% of the property of the Company, including the same proportion of its property in the Palace Cinema, was declared to be non‑evacuee property of Sitlani and his successors‑in‑interest (Exhs. 10 and 15). If in these circum stances we still talk of share‑holders then from the point of view of the Company Law there cannot be said to have been more than two share‑holders of the Company from the order of the Custodian dated the 18th of November 1949 (Exh. 10) until the death of Sitlani. After his death, the shares held by him were not recognised by the company to have devolved on the plaintiffs and were not transferred to their names. Thus after the death of Sitlani and the withdrawal of the Custodian from the scene without relinquishing the shares which vested in him, there is no share‑holder of the Company. Counsel for defendants Nos. 1 and 2 have however been generous to recognise the plaintiffs to be share‑holders of the company and to admit that they were entitled to receive dividends. As to dividends, it is clear that the company made profits from the Palace Cinema because its income was received and distributed b, the Rehabilitation Authorities but no dividend was ever declared by the company in terms of its Articles of Association.' No meetings of the company could be held during the last 12 years but if a meeting of the company could be called now and was held to‑day, the share‑holders entitled to attend it, according to the stand taken by counsel for defendants Nos. 1 and 2 qua the plaintiffs will be the plaintiffs only with full powers to decide everything as they liked. If their right to do so is conceded, as it should be on the basis of the stand taken by counsel for defendants Nos. 1 and 2, then the plaintiffs are entitled to declare and get dividends themselves and do not have to request defen dants Nos. 1 and 2 to give their share of the profits. Further, if the plaintiffs have the rights of a share‑holder and the company is not a defunct company, then under the Company Law it stands to reason that the plaintiffs should be able to question the proprietary rights of defendants Nos. 1 and 2 in that property of the company which has been sold to them because it has neither been sold by the company nor have its proceeds been received by the company. These are some of the considera tions which show that the more you try to apply the Company Law to the existing situation the more you are drawn into dabbling in absurdities. The true situation is that the Evacuee Laws, which have been operative in supersession of the Company Law, have wiped off the existence of the company and the Palace Cinema is now partly the property of the plaintiffs and partly of defendants Nos. 1 and

2. To contend, in these circumstances, that the Company Law is applicable is neither true to facts nor correct according to law nor in conformity with reason.

23. Mr. Hassan Shaikh's argument that the Custodian had the power to evaluate the entire property of the Palace Cinema and could bind the plaintiffs by the evaluation made by him need not be examined because the Custodian had said on the 11th or 12th of February 1958 (Exh. 15) that "it is left entirely between the non‑evacuee owner and Messrs Hussain & Co. (defendant No. 1) to settle up the price of that 1/4th share." Moreover, defendants Nos. 1 and 2 have purchased 3/4th part of the property of the Palace Cinema subject to the condition, as stated by themselves in their application (Exh. 35), that "you (they) will also negotiate with the owner of four annas of the evacuee concern and settle the said share with that owner."

24. The plaintiffs must be held to be the owners of 1/4th of the buildings, structures, equipment, goodwill and business of the Palace Cinema. This has been admitted by defendants Nos. 1 and 2 in paragraph 1 (d) of their written statement. More over, Mr. Tyabji conceded on the 8th of December 1961, that in these circumstances "the agreements made, the alterations effected and the rights and obligations created accrued for the benefit of the plaintiffs in proportion to their share" and was able on account of the admission to get the application of the plaintiffs for the maintenance of status quo rejected. The co‑ownership of the plaintiffs combined with the admission makes the case of the plaintiffs unassailable. Further, owing to the dismissal of the plaintiffs application in virtue of the admission, defendants Nos. I and 2 are estopped from resiling from the admission.

25. Mr. Tyabji did not try to resile from it but Mr. Hassan Shaikh referred to paragraph 2328 at page 1093 of Woodfall on Landlord and Tenant, 25th Edition, under the heading "Renewal by persons jointly interested" which supports the plaintiffs contention and tried to distinguish it. The paragraph is as follows :‑ "If one of several persons jointly interested in a lease renews it in his own name he will hold the renewed lease in trust for the others according to the respective shares. And if a person jointly interested with an infant renews and the renewed lease turns out not to be beneficial, the person renewing must bear the loss himself ; if it turns out to be beneficial,) the infant can claim his share of the benefit derived.' Similarly if a partner renews a lease of the partnership property in his own name, he will usually be held to hold it as a trustee for the other partners, but this cannot be taken as being inevitably and invariably the case." Counsel contended that this Proposition of law was not applicable to the facts of this case because the Custodian had surrendered the lease (Exh. 18 read with Exh. 51), in virtue of the facts that the proposal made by defendants Nos. 1 and 2 for taking the plot of land on lease directly from the lessors as well as the agreement of the lessors to do so was accepted by the Ministry, Rehabilitation Department and the Custodian. It was a part of the proposal that‑ "You (defendant No. 1) obtain no objection certificate from the landlord in respect of the deed. The Rehabilitation Department, the Custodian or the Central Government shall not be responsible if the landlord raises objection later." There was no mention in it of the rights of the plaintiffs. This omission is the proof, according to counsel, that the Custodian abandoned the tenancy rights of the plaintiff which he could on behalf of the company.

26. This argument disregards the fact that the Custodian has completely excluded from the deal the 1/4th non‑evacuee property of the plaintiffs vide his letter Exh.

15. Moreover, as pointed out above, the lease created by Exh. 18 read with Exh. 51 was a monthly tenancy and has never been terminated. The 1/4th of that tenancy right was non‑evacuee property, as admitted by the lessors themselves in their letter (Exh. 24), and therefore, continued to be the property of the plaintiffs. The lessors were aware of this when they executed the new lease deed (Exh. 27) and have protected themselves by throwing the entire responsibility for all consequences arising from it by inserting in it clause 2 (b) (reproduced above). The distinction which Mr. Hassan Shaikh has tried to draw therefore does not exist.

27. I may mention, in order to take into consideration all that has been said on behalf of defendants Nos. 1 and 2, that Mr. Tyabji tried to argue that the Custodian has declared (Exh. 10) the shares only held by Sitlani in Universal Theatres Limited to be non‑evacuee property and has not declared the corresponding 1/4th of the property of that company to be non -evacuee property, but whatever possibility of creating a doubt in this regard there was has been subsequently removed by the Custodian (Exh. 15). Mr. Tyabji stated with the authority, which he has, of being an Ex‑Chief Judge of the Sind Chief Court that the order of the Custodian declaring 1/4th of the property of the company only as non‑evacuee property vide Exhs. 10 and 15 was illegal in view of clause (e) of sub section (2) of section 2 of Ordinance XV of 1949, and that none of those who have dealt with this case including Mr. Muhammad Bakhsh, an ex‑Judge of this Court, and Mr. Faiyaz Ali, the late and respected Attorney‑General of Pakistan, knew Company Law enough so as to apply it correctly to the situations which were dealt with by them. This observation of counsel could create no other impression on me except amuse me because supposing for the sake of argument that the order of the Custodian is illegal, but not without jurisdiction, I can neither correct nor disregard it, an4, because I myself do not know Company Law enough to be able to accept the propositions advanced by counsel.

28. I would like to add here one more word. Supposing for the sake of argument that Sitlani and his successors‑in -interest have no interest in 1/4th of the property of the Palace Cinema, it does not mean that defendants Nos. 1 and 2 can claim to be its owners. If the entire property, and not the 3/4th only which these defendants have purchased, was evacuee property, then what these defendants have not purchased vested in the Custodian who has said (Exh. 15) that it belongs to the plaintiffs. These defendants, therefore, have no right to question it.

29. Lastly, I invite attention to the inconsistencies that exist in the arguments advanced by counsel for defendants Nos. 1 and 2.

30. My conclusion is that issues Nos. 3 to 7 should be decided against defendants Nos. 1 and 2, and I do so.

31. Issue No. 1 can be disposed of with the help of the arguments advanced by Mr. Aseem on behalf of defendant No.

3. He pointed out that the Palace Cinema was managed on behalf of the Rehabilitation Authorities up to the 31st of January 1958. Whatever payments were made on their account. There was no liability of the defendants to pay any money to the plaintiffs or to render account to the plaintiffs of the business that was being carried on. Moreover, the Rehabilitation Authorities had directed that fixed sums of money be paid to the plaintiff. The plaintiffs therefore, cannot claim more than those fixed amounts. In these circumstances the form of the suit could not be for rendition of accounts but for the recovery of a specific amount. Both objections are correct and counsel for the plaintiffs had no answer to them excepting that the plaintiffs have succeeded in a suit for the recovery of money from the managing allottee in a Subordinate Court. This answer is no refutation of the objections. Issue No. 1 is accordingly decided against the plaintiffs.

32. The liability of defendants Nos. 1 and 2 to render account to the plaintiffs from the 1st of February 1958, onwards is however to be decided on different considerations. It is true that there is no proof that these defendants in any manner agreed to pay any share of the income to the plaintiffs and that there is no partnership among them, but the plaintiffs are co -owners to the extent of 1/4th of the buildings, structures, equip ment, goodwill and business of the Palace Cinema and defen dants Nos. 1 and 2 are in possession and control of the whole property, without the consent of the plaintiffs, from the 1st of February 1958. Their possession of the property which they obtained in virtue of the orders made by the Custodian and the Rehabilitation Authorities continues although those Authorities have severed their connection with the property and those orders are no longer operative. As co‑owners defendants Nos. 1 and 2 are liable to render account to plaintiffs from the 1st off February 1958. Issue No. 2 is therefore decided in favour of the plaintiffs.

33. The overall conclusion is that the suit is dismissed with costs against defendant No. 3, and a preliminary decree for rendition of account from the 1st of February 1958, is given to the plaintiffs against defendants Nos. 1 and

2. The Official Assignee is appointed as Commissioner to check the accounts and make the necessary investigations relating thereto and to report within three months. The plaintiffs are directed to deposit Rs. 1,000 tentatively within 10 days towards the fee and charges of the Commissioner. Further, injunction is granted against defendants Nos. '1 and 2 as prayed in paragraph 24 (2) of the plaint. Defendants Nos. 1 and 2 shall pay the costs of the suit to the extent it is against them to the plaintiffs. A. H. Order accordingly.