P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.‑--This is a defendant's appeal against the judgment of Mr. Abdul Kadir I. Kazi, the then First Class Sub‑Judge, Hyderabad, in the First Class Suit No. 48 of 1952 dated 30th October 1956, granting the respondent‑plaintiff a decree for Rs. 35,000 with interest at 30% per annum against the appellant. Briefly, the facts leading to this appeal are that on the 18th 'of February 1948 the parties obtained jointly a lease of 3512‑30 acres of agricultural land situated in Deh Hotki and Deh Bhimpur, Tapo Tando Jam and Deh Rajpur, Tapo Tando Qaisar, District Hyderabad, from Mir Sultan Ali Khan and others for a period of five years beginning from Kharif 1948 to 1953 at Rs. 42,153 yearly, under a registered lease deed dated 18th February 1948, registered on the 20th of May 1948. The respondent‑plaintiff claimed that the parties obtained this lease to share profits and losses in the ratio of 1 : 3 after deducting all expenses to be incurred in cultivation. He alleged that the parties in the beginning jointly managed the leased land and invested considerable amount towards it, but the appellant in spite of huge profits did not pay any amount towards his share of profits till the middle of 1950. In 1950 he demanded his share of profits from the appellant and after going through the accounts found that the net profit of his share was more than Rs. 50,

000. The appellant, after negotiations, agreed to pay Rs. 35,000 to the respondent in lieu of the respondent's share of profits for the whole period of five years and agreed to pay this amount in three instalments, two instalments of Rs. 12,000 each to be paid on 1st December 1950 and 1st January 1952 and the third instalment of Rs. 11,000 to be paid on 30th October 1952. He also agreed that in default of payment of any one of the instalments the whole amount would fall due and the respondent would be entitled to claim it. According to the respondent, the appellant in pursuance of this settlement executed an agreement in his favour on 21st May 1950 containing the above‑mentioned terms and conditions. The appellant, however, did not pay any amount out of the amount agreed upon between the parties. Consequently the respondent -plaintiff filed Suit No. 48 of 1952 in the Court of the First Class Sub‑Judge, for the recovery of the above‑mentioned amount with interest and in the alternative also claimed a decree for accounts in respect of his share of profits in respect of the lands obtained jointly in the aforesaid lands against the appellant on 26th of September 1952. The appellant resisted the suit oh various grounds. He claimed that he was an agriculturist, that the suit was in respect of partnership and was barred under section 69 of the Partnership Act. He also denied that the parties obtained jointly lease of the land in dispute from Mir Sultan Ali Khan and pleaded that the name of the respondent was shown in the lease deed nominally and he had nothing to do with its produce or cultivation. The appellant also denied the alleged settlement between the parties. He also denied the allegation that he agreed to pay Rs. 35,000 to the respondent in lieu of his profits for the whole period of the lease or agreed to pay this amount in instalments. He also denied the execution of the alleged agreement and pleaded that the thumb‑impression on it was obtained by fraud and misrepresen tation by the respondent‑plaintiff. He also pleaded that the agreement in question was without consideration and was not enforceable. On these pleadings the learned Subordinate Judge framed the following issues:‑ (1) Is the defendant an agriculturist? (2) Is the suit not in proper form? (3) Is the suit maintainable in law? (4) Is the suit barred under section 69 of the Partnership Act? (5) Is the plaintiff a co‑lessee along with the defendant? Did the plaintiff not pay the consideration of the lease? (6) Were the accounts settled? (7) Whether the agreement dated 21‑5‑50 was obtained from the defendant by fraud or misrepresentation? (8) Whether it was without consideration? (9) What should the decree be? Mr. Abdul Kadir I. Kazi, the learned Subordinate Judge, gave no finding on issues Nos. 1 to 3 as they were not pressed before him. He held that the suit was not barred under section 69 of the Partnership Act. He also found that the respondent -plaintiff was a co‑lessee with the appellant in respect of the land in dispute and that the lease was for consideration. On issue No. 6 he gave the finding that the allegation of the respondent that the accounts were settled between the parties was not proved. He further held that the agreement dated 21st May 1950 was not obtained from the appellant by fraud and misrepresentation and decreed the respondent's suit. The appellant has challenged these findings in appeal. Mr. Hassan Sheikh, the learned counsel for the appellant, has challenged the findings of the learned Subordinate Court inter alia on the ground that the suit could not be decreed as it was barred by section 69 of the Partnership Act, that the name of the respon dent in the lease was nominally shown and he was not a co‑lessee with the appellant, that the agreement dated 21st May 1950 was not proved to have been executed by the appellant and that it was obtained by the respondent from the appellant by fraud and misrepresentation and that it was without consideration. After hearing the arguments of‑the learned counsel for the parties we are satisfied that the findings of the learned Subordinate Court on the issue raised in the suit pending before him are absolutely correct and fully supported by the evidence on the record. The view expressed by the learned Subordinate Court on the legal issues raised in the proceedings before him are also correct and needs no inter ference. As already stated the case for the respondent before the learned Subordinate Judge was that the parties jointly obtained 3512‑30 acres of agricultural land known as Mir. Qaim Khan land situated in the various Debs described above in Hyderabad District from Mir Sultan Ali Khan and others under a lease deed dated 18th February 1948 (Exh. 37) with a view to share profits and losses in the ratio of 1 : 3 after deducting all expenses to be incurred in cultivation. According to' the respondent the appellant did not pay any share of the profits of the produce of the leased land till December 1950 and on the intervention of common friends the appellant agreed to pay Rs. 35,000 in three instalments in lieu of his share of profits for the whole period of the lease and admitted this fact in an agreement executed by him on 21st of May 1950. The appellant did not deny that the lease was obtained in the joint name of the parties, but he pleaded that the name of the respondent was shown in the lease deed nominally and he had nothing to do with the cultivation of the land or its profits. Therefore the burden to prove that the name of the respondent, was shown nominally in the lease deed was on the appellant. The appellant in his written statement claimed to be an agriculturist and had he proved this fact it was open to him to lead oral evidence to show the real nature of the transaction entered into between the parties with Mir Sultan Ali Khan and others in respect of the aforesaid lease deed. But there is not an iota of evidence on the record to show that he is an agriculturist. As such he was not entitled to lead any oral evidence on the allegation made by him and the learned Subordinate Judge was fully justified in holding that the appellant was not entitled to lead any oral evidence in respect of the contents of the lease deed under sections 91 and 92 of the Evidence Act. The learned counsel for the appellant has failed to draw our attention to any evidence on the record to show that the appellant was an agriculturist. In these circumstances we are also of the view that the appellant's contention that the respondent's name was shown nominally in the lease deed being not supported by the lease deed itself or any subsequent agreement: between the parties has not been sub stantiated. The evidence on the record further proves that the lands in question at the material time were with one Shamdas and the respondent being an old resident .of Hyderabad, Sind was responsible to persuade Shamdas to surrender his lease so that the land in his possession may be leased out to the parties. It was rightly pointed out by the learned Subordinate Judge that the best evidence about the fact whether the name of the respondent was shown nominally was that of Mir Sultan Ali Khan and the other co‑lessors who were parties to the lease deed, but none of them was produced by the appellant. On the contrary the evidence led by the respondent clearly shows that he invested a huge amount for the improvement of the land in dispute and towards the payment of the value of the crop of Shamdas and the lease money to the lessors. In the face of such evidence we are fully satisfied that the allegation of the appellant that the name of the respon dent was shown nominally has no foundation whatsoever and was rightly considered to be without any merit. Mr. Hassan Sheikh took most of our time to show that the nature of the relationship between the parties in respect of the land in dispute was that of partnership and as the claim in dispute refers to partnership accounts the suit was not maintainable under section 69 of the Partnership Act. The learned counsel for the appellant strongly argued that the partnership being not registered, the suit was clearly barred. The learned counsel's argument that the case of the respondent before the learned Subordinate Judge was that the relationship between the parties in respect of the land in dispute was that of partners is not borne out from the record. The respondent only alleged that the land in dispute was obtained by the parties jointly with a view to share profits. That by itself cannot make this adventure as of partnership and will not make the relationship of the parties as that of partners. According to section 6 of the Partnership Act in determining whether a group of persons is or is not .a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties as shown by all relevant facts taken together. Explanation I of this section says that the sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners. Thus, in the absence of any allegation of the respondent that the lease was obtained by them as partners or that the land in dispute was to be cultivated in order to carry on a partnership business, and further in the absence of any case of the appellant that the lease was obtained in partnership and the parties were carrying on any partnership business, it is difficult for us to appreciate how the question of partnership can arise in the present case. It, however, appears to us that if the co‑owners of the land or the co‑lessees of the land are shown not to have any interest in the land other than of receiving their share of its income, that by itself would not make them partners. It will be convenient to reproduce here the view of Lord Lindlay in this respect. The learned author in his well known treatise on partner ship observed at page 35 as under:‑ "If each owner does nothing more than take his share of the gross returns obtained by the use of common property, partner ship is not the result. On the other hand if the owners convert those returns into money, bring that money into a common stock defray out of it the expenses of obtaining the returns, and then divide the net profits, partnership is created in the profits if not also in the property which yields them." It is true that the evidence of the parties shows that in the beginning both of them managed or helped in the cultivation of the land in dispute but in the absence of other ingredients it also does not lead to the conclusion that the relationship between the parties was that of partners. On this view, the question whether the suit is barred under section 69 of the Partnership Act does not arise at all. Assuming for the sake of argument that the relationship between the parties was that of partners, it will be noticed that the claim in question is based on the allegation that the parties settled their dispute and the appellant agreed to pay a sum of Rs. 35,000 in lieu of respondent's share of the profits for the whole period of the lease to him. Thus the alleged partnership between the parties was no longer in existence at the time whet the suit was brought and it is obvious that the provisions of section 69 of the Partnership Act cannot be attracted and applied to the particular facts of this case. The learned Subordinate Judge in this connection relied on Chhaganlal Kalyandas Shah v. Jagjiwandas Gulabdas (A I R 1940 Bom. 54) and Bajrangla Maniram Singhvi Agarwal v: Anandilal Ramckandra Potdar and another (A I R 1944 Nag. 124). In the first case it was held that a suit on pronote executed by one partner in favour of another is maintainable without taking final accounts of partnership, and in the second case it was held that after the settlement of accounts between the parties of a dissolved partnership accompanied by a promise to pay, the amount found due, a suit by a partner entitled to recover the amount is not governed by section 69 (I). The learned counsel for the appellant has not drawn our attention to any contrary view on this aspect of the question. It appears to us also that in a case where partnership is dissolved and accounts are settled or a partner surrenders his right in the partnership business on promise of payment of a fixed amount, a suit based on such an agreement does not fall within section 69 (1) and is not barred under it. The main question for decision in this case is whether the document (Exh. 41) was obtained by the respondent from the appellant on misrepresentation or by fraud. Admittedly the appellant is a blind person and had he not admitted to his written statement that it bears his thumb‑impression and in Court that his thumb‑impression on it was obtained by the respondent by misrepresentation or fraud, it was incumbent on the respondent to prove the execution of the alleged document by the appellant. But Mr. Hassan Sheikh, the learned counsel for the appellant, has challenged this position and urged that this is not correct appreciation of the appellant's case. We have perused paragraphs 6 and 9 of the written statement and it is quite clear to us that this contention has no substance. In paragraph 6 of the written statement the appellant denied the validity of the document but about the agreement itself stated as under:‑ "In agreement, if any, was obtained by the plaintiff, in breach of confidence which the defendant had in the plaintiff who under misrepresentation obtained his thumb‑impression." The allegation in paragraph 9 of the plaint was that the appellant executed an iqrarnama i.e., an agreement in favour of the plaintiff on 21st May 1950 in the presence of witnesses embodying all the terms and conditions enumerated above. The appellant met the allegation in paragraph 9 of the written statement and stated as under:‑ "That para. 9 is denied. There was no iqrarnama but the copy supplied by the plaintiff shows that it is some sort of bond which is not properly stamped. It was without any consideration and as such void in law: The plaintiff got its execution on misrepresentation and the breach of confidence reposed in terms by the defendant." The only impression that can be gathered from these assertions is that the appellant denied the validity of the alleged document and his main defence was that it was obtained by fraud and misre presentation in breach of confidence. This appears to be the reason for not framing any issue about the execution, of the alleged document. In fact when the issues were recast on the second occasion, the defendant‑appellant's counsel did not claim any issue about it and the parties went to trial in the absence of any such issue. Even at the trial the appellant did not adopt any different attitude. He made the following statement in cross‑examination:‑ "The document Exh. 41 does not bear my thumb -impression. I have put my thumb‑impression on the written statement. The written statement was read out to me. I had given instructions for it and its contents are correct. It is correct that the thumb‑impression was obtained on the document Exh. 41 by misrepresentation by the plaintiff. The thumb -impression on Exh. 41 was obtained from me under fraud and misrepresentation. It is the plaintiff, who has played fraud on me." It is thus perfectly clear that the appellant under the strain of cross‑examination had to admit the execution of the document with qualification. In these circumstances it is too late in the day for the learned counsel for the appellant to argue that the appellant did not admit his thumb‑impression on Exh.

41. The learned counsel, however, made an application towards the close of the arguments to raise this objection in the memo. of appeal. The application, besides being belated, cannot result in any material consequence. The appellant, as already observed, did not make an outright denial of the execution of the document in question, but set up a positive case of misrepresentation and fraud. We are satisfied that on this state of the pleadings the learned Subordinate Judge was perfectly justified in not striking any issue about the execution of the document. We will therefore decline permission to raise this objection in the grounds of appeal. We have, however, considered the evidence in support of the execution of the document (Exh. 41) by the appellant. The alleged document is scribed by P. W. Hisamuddin a clerk of Kazi Ahsanul Haq, Advocate. Both the respondent and P. W. Hisamud din stated on oath that it was written at the instance and under the instructions of the appellant and was thumb‑marked by him in their presence. They also stated on oath that this document was also signed by the brother of the appellant Muzafarali Shah. The appellant in his cross‑examination repudiated these allegations and stated that neither it was read out to him nor thumb‑marked by him, but when further pressed in cross‑examination he admitted that his thumb‑impression was taken on the document by misre presentation and fraud. He also admitted in his cross‑examination that he had confidence in his brother Muzafarali Shah and was on good terms with him, but would not accept the document as genuine even if it was signed by his brother. In this respect he stated: "The land affairs are looked after by Muzafar Ali Shah but the account is kept; by Manager. I fully trust my brothers. The document Exh. 41 may, have been signed by Muzafar Ali Shah. I would never 'accept the document Exh. 41 to be genuine even if it is signed by my brother as an attesting witness. "My brother is not expected to deceive me." This attitude shows that the appellant is not a straightforward witness. In our opinion the evidence of the plaintiff and Hisamuddin is much more. straightforward and clear on the points in dispute and the learned Subordinate Judge was perfectly justified in relying on their trustworthiness and in accepting their statements. On this evidence it is sufficiently proved on the record that the appellant put his thumb‑mark on the document (Exh. 41). If he wanted to challenge this fact, it was incumbent on him either to produce a handwriting expert or his brother Muzafarali Shah to show that it was not attested by him and was not thumb‑marked by the appellant, but he made no attempt in this direction. Mr. Hassan Shaikh, the learned counsel for the appellant, argued that the respondent did not produce other important evidence in support of the execution of the document namely, the other attesting witnesses to the document (Ex. 41). In our opinion it was not necessary for the respondent to produce any evidence on the point in view of the clear admission made by the appellant that the document was thumb‑marked by him. If the appellant thought that the other attesting witnesses would not support the respondent's case it was open to him to produce them in support of his allegation, but he also failed to do so. The very fact that the appellant did not produce his brother Muzafarali Shah in support of his case throws a lot of light on the weakness of the appellant's case in this respect. After careful consideration of the evidence on the record we are satisfied that the execution of the document by the appellant is fully proved and no doubt can be raised on this question. This brings us to the last question whether the document (Exh. 41) was obtained by the respondent on misrepresentation or by fraud. In this connection it will be noticed that no particulars of the alleged misrepresentation of fraud were given in the written statement. It was only a bare allegation. The appellant, however, for the first time stated in the witness‑box that the parties belonged to the same political party and were in political alliance. They used to issue joint statements and in that connection his thumb- impression was obtained on them on various occasions, but this case was not put by him to the respondent in the witness‑box. No suggestion was ever made to the respondent in the, cross -examination that the thumb‑mark on the document in question was obtained on the misrepresentation that the thumb‑impression of the appellant was required in connection with a political statement to be made by the parties jointly or by the appellant in respect of certain political affairs. In fact, even in the statement of the appellant there is no direct allegation that the thumb‑mark on the document in question was obtained by the respondent on the misrepresentation that it was a statement which was to be issued on behalf to the peess. The statement of the appellant in this respect is not supported by any other independent evidence on the record. Mr. Hassan Shaikh, the learned counsel for the appellant, argued that his client is a blind person and therefore the standard of proof in respect of the execution of the document or the allegation of fraud or misrepresentation will be a little different from what is expected in the case of those persons who are not disabled or not bodily incapacitated. The learned counsel was unable to cite any authority in this respect. I appears to us that no hard and fast rule can be laid down in this respect, but in the circumstances of the present case the very fact that the appellant is a graduate of the Punjab University, was doing business in Jaipur before partition, was acting as an Advisor to the Chief Minister and was elected as a Member of the Sind Legislative Assembly leads us to the conclusion that in his case the standard of proof, about the execution of the document (Exh. 41) and the plea of fraud and misrepresentation would be the same as in ordinary cases. We are satisfied that the appellant has not been able to make out a case of fraud and misrepresen tation against the respondent. We find no support for his allegation that the thumb‑impression on the document in question was obtained by the respondent under the pretext that the paper in question contained his statement and was required for some political statement to be made to the press. In fact 'there is no independent evidence to show that any statement was issued by the appellant which was thumb‑marked by him. We find ourselves in full agreement with the view of the learned Subordinate Judge that the appellant has not been able to prove his case in this respect. It was next urged by the learned counsel for the appellant that the very basis of the respondent's allegation that the document (Exh. 4) was the outcome of the settlement of accounts did not exist as the learned Subordinate Judge has given a clear finding that there was no settlement of account between the parties. We find no force in this contention also. The mere fact that the respondent was unable to prove that there was a statement of account between the parties will not in any way affect the terms of the agreement agreed upon between the parties. Admittedly both the parties obtained jointly lease of a waste tract of land‑from Mir Sultan Ali Khan and others at an annual lease of Rs. 41,

000. There is also in evidence that the respondent invested about Rs. 44,000 immediately after the lease was obtained and this amount was paid back by the appellant to the respondent. The appellant, during the course of his examination, made and attempt to show that the land taken on lease did not yield any profit, but his bare statement in this respect is of no help and value to determine the question whether Exh. 41 was without consideration. Admittedly the accounts and the produce of the land and expenses were under the control of the appellant. It was for him to produce these documents to show that the land in dispute did not yield any profits and the document was without consideration. But the appellant failed to produce evidence on this question. In these circumstances the learned Subordinate Judge was fully justified in relying on the evidence of the respondent for holding that the land in dispute was yielding profitable produce. In our opinion Exh. 41 was for good consideration and the appellant's objection, in this respect has no substance. Before concluding, it may be mentioned that the agree men (Exh. 41) was executed on one rupee stamp paper. The appellant in the written statement took an objection that it was no properly stamped but the learned Subordinate Court admitted it in evidence and did not notice that it was not properly stamped. The learned counsel for the respondent admitted shat it was insufficiently stamped. We will, therefore, impound this document and direct the office to forward it in original to the Collector of Hyderabad for charging and realising the necessary stamp duty with the requisite penalty under section 40 of the Stamp Act. Any amount recovered from the respondent will not be include in the cost of the suit or towards the cost of the appeal. After careful consideration of the evidence on the record and the arguments advanced before us, we are satisfied that the learned Subordinate Judge's decision in the suit is fully justified and needs no interference. No other point was urged before us. As a result the appeal is dismissed with costs. A. H. Appeal dismissed.