GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION LTD Vs. JANMAHOMED ABDUL RAHIM

JUDGEMENT

(1.) There are here two consolidated appeals from a judgment and decree of the High Court of Judicature at Bombay in its appellate jurisdiction dated 31 March 1938, confirming with a variation a judgment and decree of that Court in its ordinary original civil jurisdiction. The facts are very complex and the questions raised on the appeals are questions of considerable importance. The appellants however who are the defendants in the suit, besides disputing liability on a number of grounds, have raised the contention that the suit was barred by Art.68, Limitation Act, (9 of 1908). This question was based on substantial grounds and their Lordships thought it right to hear the arguments of both sides upon it before embarking on the other questions raised on the appeal and the cross appeal; and in the result they have come to the conclusion that the point of limitation raised by the appellants is well-founded and accordingly it has not been necessary for them to go into the other matters above referred to. In order to deal with the question of limitation it is necessary to state the following facts: On 18 September 1924, Abdul Rahim died intestate at Bombay leaving him surviving a widow, Hawabai, three sons and three unmarried daughters. All his children were then minors. According to the law by which he was governed, his three infant sons became entitled to his estate in equal shares subject to the right of his widow to maintenance pending re-marriage or death, and to the rights of his daughters to maintenance until marriage or death, and to their marriage expenses. On 17 March 1925, the widow of Abdul Rahim (Hawabai), having been duly empowered by the High Court, filed a petition in the High Court for the grant to her of letters of administration to the estate of her deceased husband for the use and benefit of his three minor sons and limited to the period of minority of any of them. It was stated in the schedule to the petition that the moveable and immovable properties of Abdul Rahim were valued at Rs.2,75,791 and for the purposes of probate duty the estate was valued at Rs.1,99,025 after deducting funeral expenses and debts. On 6 May 1925 it was ordered that on the sureties being justified for the whole of the estate of Abdul Rahim and on filing the necessary administration bond, and on payment of fees and stamp duty, letters of administration should issue as prayed to Hawabai. On 14 May 1925, Hawabai and the present appellants as sureties executed a bond for Rs.3,98,060 in favour of the Registrar of the High Court in its testamentary and intestate jurisdiction and the head assistant to the Prothonotary and Registrar of the Court. The conditions of the bond were in the usual form. The obligation was to be void and of no effect if Hawabai, (1) should make or cause to be made a true and perfect inventory of the property and credits of the deceased which had or should come to her hand, possession or knowledge or to the hands or possession of any other person or persons for her and should exhibit or cause to be exhibited to the High Court such inventory on or before 14 November 1925; (2) should well and truly administer such property and credits according to law; (3) should make or cause to be made a true and just account of her administration on or before 14 May 1926; and (4) all the rest and residue of the property and credits which should be found remaining upon the said account after being first examined and allowed by the High Court should deliver and pay unto such person or persons as shall be lawfully entitled to such residue.

(2.) On 9 June 1925 the letters of administration were duly issued to Hawabai on behalf of the three minors sons of the intestate for their use and benefit until one of them should attain his majority. It is alleged by the plaint that on 2 July, 1925, Hawabai, who was a purdanashin lady, and illiterate, appointed one Bhatra who was related to her, being the son of her maternal uncle, her attorney to act for her in all matters relating to the estate of Abdul Rahim. This person, however, misapplied the property and subsequently (on 22nd October 1928) committed suicide. Hawabai commenced various proceedings in an endeavour to recover the property forming part of the estate of Abdul Rahim, but on 27 April 1929 she died. On 14 November 1931 the eldest son of Abdul Rahim, Janmahomed Abdul Rahim (who will be called "the plaintiff") attained his majority.

(3.) On 24 March 1932 an order was made by the High Court that the Court should assign the administration bond to the plaintiff, his heirs, executors or administrators, and it was further ordered that on such assignment the plaintiff, his heirs, executors or administrators should be entitled to sue on the bond in his or their name or names as if the same had been originally given to him or them, and should be entitled to recover thereon as trustee or trustees for all persons interested the full amount recoverable in respect of any breach thereof. By a deed of assignment dated 14 August 1932 certain officers of the Court appointed for that purpose by an order of the Chief Justice purported to assign the bond to the plaintiff (the present respondent) "to hold the same unto the assignee absolutely with all such powers, rights and remedies as are now subsisting thereon." The assignment was effected under S.292, Succession Act of 1925, which is in these terms : The Court may, on application made by petition and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court or otherwise, as the Court may think fit, assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all persons interested, the full amount recoverable in respect of any breach thereof.