1992 PLP 1141 (MLD)

KAMAL MANSUR ALAM, J.‑‑‑This High Court Appeal is directed against the judgment, dated 15‑12‑1987 passed by a learned Single Judge of this Court, sitting on the original side, in Suit No.329/77 whereby the suit was decreed against the respondent for a sum of Rs.50,

000. The appellant and the respondent No.1 are real brothers. It appears that Plot No.B‑274, Block‑VI, Gulshan‑e‑Iqbal, Karachi, was acquired in the name of the respondent No.1 from a Building Contractor and later under an agreement between the respondent No.1 and the said contractor, the latter constructed a house on the said plot. The cost of the house was initially estimated at Rs.69,000 but finally it was settled at Rs.86,

615. It is claimed by the appellant that the property comprising of the said plot and the house. thereon was in fact a joint project of the appellant and the respondent No.1 and the contribution of the appellant therein was to the extent of Rs.50,000 but, by mutual consent and as desired by their ,late mother, the plot was acquired in the name of the respondent No.1. Their mother is said to have died in 1976 and sometime later the first respondent was married. It was thereafter, it is alleged, that the attitude of respondent No.1 towards the appellant changed, whereupon the appellant asked for the transfer of half of the said property to him which the respondent No.1 refused. According to the appellant later with the help of some office colleagues the dispute was resolved and a document titled "Acknowledgement" was executed by the appellant and the first respondent whereby the first respondent undertook to pay to the appellant a sum of Rs.80,

000. The first respondent disputes the various allegations of the appellant. His case from his written statement appears to be that the property in question is his sole property having been acquired by him at his own expense, that no investment in respect thereof has been made by the appellant and that no one else is entitled to any share therein. He, however, contends that an amount of RsA.000 was borrowed by him by way of loan from the appellant but the same was returned. As to the execution of "Acknowledgement" the respondent admits his signatures but alleges that the same was obtained under duress. We have heard Mr. Abrar Hasan, the learned counsel for the appellant, and Mr. Salahuddin A. Malik, the learned counsel for the respondent No.1. The only point argued by the learned counsel for the appellant before us was in respect of the liability of the respondent No.1 to pay Rs.80,000 to the appellant. There is little doubt that the appellant had paid to the respondent No.1 certain amount in connection with the property in question, however, it seems that later dispute between the two arose with regard to the division of the property as also the amount advanced by the appellant. This dispute was resolved with the intervention of the respondent' No.2 resulting in the execution of the aforesaid "Acknowledgement" being Exh.6/4 (also Exh.5/1). Under Exh.6/4 the first respondent admitted having been provided a loan of Rs.40,000 by the appellant at the time of the purchase and construction of the house and undertook to pay back to the appellant a sum of Rs.80,000 being the principal loan together with profits out of sale proceeds of the said house. However, the respondent No.1 has denied his liability under Exh.6/4 which document he disputes both in his written statement as well as deposition. In his written statement he asserts that the document was obtained "under threats, duress, coercion, undue influence and under threat of life " While in his cross‑examination he states that "It is wrong to suggest that I have executed acknowledgement Exh.6/4 in respect of the above instalments amounting to Rs.49,

000. I see the stamped document Exh.6/4. It bears my signature. There was no writing above my signature on this paper at the time I had put my signature. It is not a fact that I had executed the document Exh.6/4 on the intervention of Abdul Latif, Iqbal, Maqsood and Ausaf Ali." It would appear from the inconsistent statements of the respondent No.1 that he was avoiding the truth. In so far as the "Acknowledgement" (Exh.6/4) is concerned, we agree with the learned Single Judge that the allegations of the respondent No.1 that the said document was got signed by him under threat or that his signature had been obtained on blank paper have been disproved. The, document is proved from the evidence of the various persons who were instrumental in bringing about the agreement between the contesting parties and were witnesses to the execution of that document. In the circumstances, we are convinced that Exh.6/4 correctly sets out the understanding reached ,A between the appellant and the first respondent whereby the respondent agreed to share with the appellant the profits from the sale of the house. We are unable to accept that while the appellant paid almost half the price of the property in question the respondent No.1 would alone be entitled to the gains therefrom. The appellant, like the first respondent, was working as a clerk on a small salary arid admittedly did not have the loan amount readily available with him. For the funds, according to the appellant, he had to mortgage his own property as well is had to take loan. It is unbelievable, in the circumstances, that the appellant went through all this botheration of arranging the large sum of money without there being any understanding about the sharing of the property or profit earned from its sale. The document Exh.6/4 having been established, there seems no reason why it should not be given effect to in full. The amount of profit payable to the plaintiff thereunder can neither be termed as interest nor an' unreasonable amount of profit and as such any reduction in that amount is not justifiable. According to Exh.6/4 the respondent No.1 agreed to pay to the appellant "Rs.80,000 (Rupees eighty thousand only) in lump sum i.e. actual Rs.40,000 plus additional Rs.40,000 as a profit out of the sale proceeds of the above Bungalow ". We consider that due to the unfair conduct of the respondent No.1 the appellant has already suffered substantial loss in that the present worth of money is just a fraction of what it was in 1977 while the appellant under Exh.6/4 is entitled to the same amount as in 1977. As against this the respondent No.1 has gained at the cost of the appellant by avoiding payment to him and thereby postponing the sale of the house till now when its) value is many times more than what it was then. In the circumstances, in our view, the learned Single Judge was not right in reducing the entitlement of the appellant from Rs.80,000 as contemplated by Exh.6/4 to Rs.50,000 and, therefore, we hold that the respondent No. 1 is liable to pay to the appellant the amount of Rs.80,

000. In the result we allow the appeal, set aside the judgment and decree passed by the learned Single Judge and decree the appellant's suit for a sum of Rs.80,000 with costs throughout. AA./S‑779/K Appeal accepted.