Engineer, J.
1. This is a suit filed to enforce against the defendants, who are an insurance company, an administration bond which they joined the administratrix in giving to the Court for the due administration of the estate of Abdul Rahim Jaffer Allarakhia. The bond is put in action by the plaintiff to whom it was assigned under an order of the Court.
The defences to the action are:
(1) Limitation,
(2) that the assignment of the bond is not valid,
(3) that in fact the administratrix was not guilty of such devastavit as to make her liable to make good the loss, and that therefore the defendants are not liable, and
(4) the defendants put the plaintiff to proof of the actual loss and damage sustained by the estate.
2. As regards the points of limitation and validity of the assignment of the bond, it is contended on behalf of the defendants that Article 68 of the Indian Limitation Act governs the case, and that the breach of obligation of the bond occurred at the latest on the death of the administratrix, which was more than three years before the commencement of the suit. The plea of invalidity of the assignment is raised on the contention that if at the date of the assignment there was no sum recoverable as the claim was time-barred, the assignment cannot help the plaintiff to recover anything. Both the points were decided by the Appeal Court in . I.L.R. (1936) 60 Bom. 1027 where similar contentions of the defendants were negatived. The defendants in that case were the same as the defendants in this case. The Appeal Court there held that a bond like the one in this suit is a bond upon a condition, but a suit to enforce the bond by a person to whom it has been assigned is not a suit upon a bond within the meaning of Article 68 of the Indian Limitation Act. The suit is not a suit merely on the bond, but is a suit on the bond coupled with the statutory assignment on proof of title to the estate. It was held that Section 292 of the Indian Succession Act, 1925, which provides for the assignment of administration bonds, does not deal only with the procedure in case of assignment, but confers substantive rights, and that it provides a new starting point of time for the purpose of limitation and the assignee acquires by virtue of the assignment a fresh and independent cause of action, and that limitation would run from the time the assignment is made.
3. So long as that decision stands, the findings on the issues raised by the defendants must be against them. The defendants, however, do not abandon their submissions. The defendants in the suit decided in Manubhai Chunilal's case applied for leave to appeal to the Privy Council, but leave was refused by the Appeal Court on the ground that no leave to the Privy Council could be obtained at that stage. An application to the Privy Council for special leave to appeal was also rejected by the Privy Council on the same ground. The question, however, is to be taken up to the Privy Council and the defendants, therefore, desire to keep their submissions on these two questions alive.
4. The question whether the administratrix was guilty of devastavit, and would have been liable to make good to the estate the loss which the estate has suffered in this case, depends upon the answer to the question whether she was justified in delegating certain powers to one Bhatra to whom she gave a power-of-attorney in wide terms. But Before I consider that question, it is necessary to give certain facts, figures, and dates relating to the estate in question.
5. One Jaffer Allarakhia, a Cutchi Memon, Mahomedan inhabitant, died on September 20, 1918. Being a Cutchi Memon he was governed in matters of inheritance and succession by Hindu law. He died leaving as his heirs three sons, namely, Abdul Rahim, Ahmed and Allarakhia, and a grandson named Abdul Karim by his predeceased son Aboobaker. Each of these four persons became entitled to a one-fourth share in the estate of Jaffer Allarakhia. When Jaffer Allarakhia died his third son Allarakhia and his grandson Abdul Karim were both minors.
6. The estate left by Jaffer Allarakhia consisted of four immovable properties in Bombay. He had also shortly before his death entered into an agreement for the purchase of another immoveable property in Bombay. The moveable properties left by him consisted of his share in the partnership firm of Jaffer Allarakhia & Co., some outstandings and some shares in the Century Mills. Letters of administration to the estate of Jaffer Allarakhia were granted to his eldest son Abdul Rahim on August 22, 1919. Abdul Rahim duly carried out the agreement for purchase of the fifth property which was entered into by Jaffer before his death. Abdul Rahim as the administrator of the estate of his father Jaffer realised his share in the partnership firm of Jaffer Alla-rakhia & Co., and also recovered such of the outstandings of Jaffer as were recoverable. In the inventory and accounts relating to the estate of Jaffer Allarakhia, which were filed by Abdul Rahim as his administrator on December 20, 1920, he showed as the estate in his hands on November 10, 1920, in addition to the five immoveable properties aforesaid cash in hand amounting to Rs. 2,32,031-15-0, seven shares of the Century Mills of the value of Rs. 2,940, securities of the value of Rs. 200 and two carriages and a horse of the value of Rs. 1,200. The accounts show that up to November 10, 1920, some payments had been made to each of the four persons entitled to the estate of Jaffer, but the payments were not made in equal amounts. Abdul Rahim had himself by that time, i.e. November 10, 1920, taken Rs. 33,933-10-0, Ahmed had been paid Rs. 10,254-13-0, Allarakhia had been paid Rs. 4,115-4-9, and Abdul Karim had been paid Rs. 5,221-2-6.
7. Although Jaffer died in September, 1918, and letters of administration to his estate were granted to Abdul Rahim on August 20, 1919, Abdul Rahim did not distribute the estate up to the time of his death which occurred on September 18, 1924. By that time, however, further payments had been made to each of the four persons entitled to the estate of Jaffer. Abdul Rahim, instead of either distributing the estate among the persons entitled thereto or investing the cash realised in authorised securities kept the moneys in his own name in various banks and invested a part of the moneys in giving loans on hundis and otherwise to various persons at interest. The moneys kept in tanks and the advances made by Abdul Rahim were kept and made not in the name of Abdul Rahim as administrator of the estate of Jaffer but in his own personal name. At the date of the death of Abdul Rahim, the moneys paid to each of the four persons entitled to the estate of Jaffer were as follows:
Abdul Rahim had withdrawn in all Rs. 69,059 14 9Ahmed ... Rs. 37,240 13 6Allarakhia ... Rs. 5,644 7 9Abdul Karim ... Rs. 17,201 9 0
8. In addition to the five immoveable properties, Abdul Rahim had in his hands, after taking into consideration the withdrawals aforesaid, a sum of Rs. 1,64,819-14-7 as belonging to the estate of Jaffer Allarakhia. These moneys, as I mentioned above, stood in the name of Abdul Rahim himself, some in banks, and some by way of advances made to several persons.
9. Abdul Rahim died leaving a widow Havabai, three sons, and three daughters; all the sons and daughters were minors at the time of the death of Abdul Rahim. His three sons became entitled to his estate in equal shares subject to the right of the widow to maintenance during her lifetime, and subject to the right of the three daughters to maintenance till marriage and marriage expenses. The widow Havabai applied for letters of administration to the estate of her husband for the benefit of her sons and limited until any of them attained majority. Letters of administration were granted to her on June 9, 1925. Prior to that, she and the defendants entered into a bond with the Registrar of the High Court in its testamentary and intestate jurisdiction and the Head Assistant to the Registrar for Rs. 3,98,060, being double the amount of the net estate shown in the schedule to the petition for letters of administration. One of the conditions of the bond was the due administration by the said Havabai of all the property and credits of the deceased which have or shall come to her hands or to the hands of any person or persons for her. On July 2, 1925, Havabai gave a power-of-attorney to one Haroon Mahomed Bhatra, exhibit A-14. The terms and recitals of the power-of-attorney are important. It states that Havabai being a pardanashin lady is desirous of appointing a fit and proper person to be her attorney to act for her in all matters relating to the estate of Abdul Rahim Jaffer Allarakhia. The power authorises Haroon Mahomed Bhatra to call for and settle all. accounts relating to the estate, to demand and receive from all persons moneys and securities belonging to the estate and to give receipts in discharge for the same, to commence, prosecute and enforce any action or proceeding in relation to the estate, and to compromise, abandon, submit to judgment, or become non-suited in any such actions or proceedings, and to deposit the moneys received by him by virtue of the power in banks, and to invest them in the name of Havabai in or upon such investment authorised by law for investment of trust funds, and,-and this is a very important part of the powers-' to withdraw such sums from time to time as her attorney should deem necessary, proper or expedient, and to endorse or sign her name to any cheque, dividend or interest warrants or other instruments payable to her as administratrix of the said estate of Abdul Rahim Jaffer Allarakhia,' and lastly generally to do all acts and things in relation to the premises as her attorney should think fit.
10. Thereafter Bhatra managed the estate of Abdul Rahim, and in doing so dealt with the moneys which belonged not only to Abdul Rahim himself but which were in the hands of Abdul Rahim at the time of his death as belonging to the estate of Jaffer Allarakhia. The moneys were not invested in authorised securities, but large sums were allowed to remain in banks, some of them as fixed deposits and some in current account. Various large sums were also advanced to people at interest. Some of these sums were lost to the estate as the borrowers became insolvents, but the principal loss caused to the estate was not caused by the failure of some of the borrowers, but because Bhatra under the power-of-attorney given to him withdrew large sums from the moneys which were kept in banks in the name of Havabai and misappropriated them for his own purpose. Several cheques signed by Bhatra as the constituted attorney of Havabai in favour of his own firm were put in as exhibits, being exhibit 1 collectively. These cheques cover a period from August 5, 1926, to June 22, 1927. These moneys, however, do not exhaust the amounts wrongfully withdrawn and misappropriated by Bhatra. It is in evidence that the total amount thus misappropriated by Bhatra came to about Rs. 90,000.
11. For the defendants it is contended that Havabai was entitled to delegate the powers which she delegated to Bhatra, and that she could not be held liable to make good to the estate the loss caused by the misappropriation and fraud of Bhatra, and that, therefore, the defendants also are not liable under the bond. This contention, if accepted, goes to the whole root of the defendants' liability.
12. The contention on behalf of the defendants is based on certain answers given by the plaintiff's witness Joosab Esmail in the witness box. He admitted that Bhatra managed the estate of Jaffer after Ahmed's death which occurred in May, 1926, and that Abdul Karim was also taking part in the management. He admitted that Bhatra was trusted as an honest man by Ahmed, and that he was also a business man. He further said in evidence as follows:-
When Ahmed died Bhatra was the only person familiar with the affairs of the estate. He was the only person then alive who had taken part in the management of the estate. He was the obvious person for Havabai to look to in order to manage the estate. Up to the time of Bhatra's death there was never any suggestion that he was anything but honest or that he was in any way financially embarrassed.
13. It was further contended on behalf of the defendants that as Havabai was ill it was necessary for her to give a power-of-attorney to Bhatra. The only evidence in support of the illness of Havabai are certain letters written on her behalf by her attorneys to the defendants between April 19, 1926, and June 15, 1927. These letters were written in answer to demands made by the insurance company calling upon Havabai to file her inventory and accounts and to explain the delay in doing so. It was stated in two of the letters that the delay was due to her illness. In the letter of April 19, 1926, Messrs. Payne & Co. on her behalf wrote to the insurance company stating that Havabai had gone upcountry owing to her illness. In another letter of June 15, 1927, they wrote to the insurance company informing them of the inventory and accounts having been filed, and stating that the delay was due to her illness from which she had not yet completely recovered. These letters were no doubt tendered in evidence by the plaintiff himself, but I do not think that the mere statement in these letters that Havabai was ill is proof of Havabai's. illness. The plaintiff does not claim through Havabai but against her, and the statement cannot be said to be an admission binding on the plaintiff. The power-of-attorney itself does not recite that it: was given by reason of any illness of Havabai. The only reason given in the power-of-attorney was that she was a pardanashin lady and was desirous of appointing a fit and proper person to be her attorney.
14. I hold that it is not established by the defendants that Havabai was in fact-ill or so ill or for so long as to justify her in giving the power-of-attorney, or that the power-of-attorney was given because of such illness. As a matter of fact the illness of Havabai could not have been a good ground for delay in filing the inventory and accounts, because it is in evidence that Havabai did not know anything about the accounts or in fact about the administration of the estate. According to the evidence everything was done by Bhatra, and the inventory and accounts could have been prepared only by him and under his instructions. Havabai could not have done anything more than merely put her signature to them.
15. But it seems to me that the real question at issue is not whether Bhatra was the proper person to whom the powers of Havabai could be delegated, or whether Havabai exercised due care and caution in selecting an agent, or whether she had any reason to doubt the honesty of Bhatra, but whether Havabai could be said to be justified at all in giving a power-of-attorney to anybody in the wide terms in which it was given. What Havabai in fact did was to renounce all her powers as administratrix, and to hand over the whole administration of the estate to Bhatra, and the question is whether she was justified in doing so. Even if she was justified in doing so, a further question arises whether she exercised proper or any supervision over Bhatra's management. As I have said before, the misappropriation by Bhatra extended over a considerable period, and Havabai never took the least trouble to look into the accounts, or to see that the moneys were safe in the banks. Jusub Ismail in his evidence said:-
After the death of Abdul Rahim the books of account of the estate of Jaffer Allarakhia were under the control of Bhatra. Up to November, 1928, Havabai took no steps to realise the share of Abdul Rahim in the estate of Jaffer Allarakhia. Havabai never looked into the books of accounts maintained by Bhatra of the estate of Jaffer or Abdul Rahim. She never made any inquiries as to what Bhatra was doing in respect of these estates. Havabai did not know what Bhatra was doing with the moneys belonging to the estate. Whenever moneys were required for the purpose of the estate of Jaffer, Bhatra was paying the moneys, He paid on behalf of Havabai.
16. Bhatra committed suicide on October 22, 1928. Thus it is clear that Havabai left him to do what he liked with the estate and the moneys belonging to the estate for more than three years. In fact the first misappropriation proved was on January 22, 1926, within six months of the power-of-attorney being given to him and nearly two and a half years before his death.
17. About nine days after his death, viz. on October 31, 1928, Havabai filed a suit for administration of Bhatra's estate. I will later on further refer to this suit as well as to another suit filed by her on November 17, 1928, for administration of Jaffer's estate.
18. The Trustee Act of 1925, 15 Geo. V, c. 19, of course does not apply in India. We are, therefore, not concerned with some of the radical extensions of the principles of trustees' indemnity effected by Section 23(2) of that Act. The law applicable in India is to be found in Section 47 of the Indian Trusts Act, 1882, which says that:-
A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
19. The explanation to the section says that-
The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.
20. Whether this section applies in terms to the case of an administratrix or not, I think those are the principles which should be applied to the present case.
21. The English authorities cited by the learned Advocate General on behalf of the defendants need only be examined very briefly. In Lord Dorchester v. The Earl of Effingham (1829) 48 E.R. 111, s.c. Tamlyn Rep. 279. an executor who had deposited moneys belonging to the estate with the same persons with whom the testator had deposited them in his lifetime, although they were not bankers, was held not liable. There was no corrupt motive, and it was held that he was not guilty of gross negligence. I do not think this decision is relevant to the facts of this case.
22. In In re Bird: Oriental Commercial Bank v. Savin (1873) L.R. 16 Eq. 203 a solicitor was engaged to compromise a claim against the estate. He wrote to the executor that the claim had been compromised and obtained moneys from the executor for making the payment, but instead of making the payment he misappropriated the moneys to his own use. It was held that the executor had done just what any prudent man would think himself safe in doing. There was no negligence on his part and no incautious trusting to some other person's representation.
23. In In re Speight: Speight v. Gaunt (1883) 22 Ch. D. 727, it was held that trustees may employ brokers and agents in cases in which they are employed in the ordinary course of business, and that trustees do not guarantee the solvency or honesty of the agents they employ.
24. In In re Brier: Brier v. Evison (1884) 26 Ch. D. 238 the trustee had employed an agent to collect moneys. He was held not liable for moneys misappropriated by the agent.
25. In Lakhmichand v. Jai Kuvarbai I.L.R. (1904) 29 Bom, 170 it was held that in appointing an agent the trustee should use the same degree of care as a man of ordinary prudence would in his own affairs. There the agent was employed for the purpose of conducting a business. But at the same time it was laid down in that case that the trustee would be liable if there was want of diligence either in selecting an agent or supervising his work.
26. I do not think any of these cases helps the defendants in this case. A personal representative ought not to employ an agent to perform the duties which by accepting the office he had taken upon himself except where the employment of the agent was reasonable. Delegation, of course, is necessary and would be reasonable in the regular course of business where, for instance, legal work is to be done for which a solicitor is to be employed, or where property is to be sold for which an auctioneer is to be employed, or where securities are to be purchased for which brokers are to be employed, or where business is to be conducted, or outstandings and rents are to be recovered for which collectors are to be employed. But a trustee or an administrator cannot delegate to others the confidence reposed in himself. Even where an agent has to be employed to receive moneys, the trustee would be liable if he allowed the agent to retain the moneys in his hands uninvested for a longer time than is reasonably necessary. Trustees have no right to shift their duties on other persons, and if they employ agents, they remain subject to responsibility towards their cestuis que trust for whom they have undertaken the duty.
27. I have already referred to the wide powers given by Havabai to Bhatra under the power-of-attorney, and I hold that the appointment of Bhatra as such constituted attorney of Havabai was in breach of her duty as administratrix. But even if the appointment could be justified, I have no doubt that Havabai became liable for the defalcations of Bhatra as she absolutely failed to supervise the management and dealings of Bhatra.
28. The next question to be considered is what is the loss or damage occasioned to the estate by the devastavit of the administratrix. [After discussing the evidence on this point his Lordship proceeded:] In my opinion, therefore, the two sums for which the defendants are liable are the sum of Rs. 58,496-11-5, and the sum of Rs. 23,935-7-6. These are, in my opinion, the amounts lost to the estate of Abdul Rahim by the mal-adminis-tration of Havabai.
29. The plaintiff claims interest on these sums relying on Section 23(e) of the Indian Trusts Act at the rate of six per cent, per annum with half yearly rests. But, in my opinion, the case is not covered by Section. 23 (e) of the Indian Trusts Act. The loss which was occasioned was not due to the failure to invest trust moneys and to accumulate the. dividends, but was due to the misappropriations made by Bhatra who ought never to have been delegated by Havabai with the authorities which she gave him. Nevertheless, the defendants are, in my opinion, liable to pay interest. If the moneys had not been lost they would have been available to be invested in authorised securities, and in my opinion, it is proper to allow interest on the two sums I have mentioned above at four per cent, from June 2, 1927.
30. At one time I thought that out of these sums the amounts for maintenance which the heirs of Abdul Rahim continued to get should be deducted. But, in fact, the moneys had been lost substantially by June, 1927, and the amounts for the maintenance of the heirs of Abdul Rahim received by them were really out of the rents of the immoveable properties. For the same reason it is not proper, in my opinion, to deduct from the above, the sum, small though it was, namely about Rs. 700 which the heirs of Abdul Rahim received from the estate of Jaffer as the result of the decree in the suit for the administration of Jaffer's estate.
31. Abdul Rahim left three sons and three daughters. One of the daughters was got married by Havabai after the death of Abdul Rahim, and in my opinion, the expenses of her marriage should be deducted from the above two sums. What the exact amount of this expense was is not before me, but it appears from two counterfoils of cheques, one dated January 21, 1926, and the other dated April 19, 1927, that Rs. 4,000 and 1,500 were spent for the wedding of the eldest daughter. These two cheques are drawn in favour of Haji Moosa & Co. The cheque for Rs. 4,000 is stated to be for ornaments, clothes, etc. for the wedding of the eldest daughter. The cheque for Rs. 1,500 is stated to be for wedding expenses. These could not be the only expenses incurred by Havabai for the wedding of her daughter. The plaintiff contended that it was for the defendants to prove how much was spent for the wedding of the daughter. But it seems to me that that fact would be especially within the knowledge of the plaintiff and the burden of proving that fact would be upon him. Although at the time the plaintiff's sister was got married the plaintiff was a minor, all the necessary information and materials ought to be within the reach of the plaintiff. The plaintiff's witness Joosab Esmail seemed to know all about the family and its affairs, and I think he would be in a position to depose to the expenses that were incurred on the wedding. At one time, I was inclined to refer the question of ascertaining the expenses made on the wedding of the daughter to the Commissioner, so that after his report the Court might be able to decide whether the amount found by him or a smaller sum should be deducted from the figures mentioned above. But on further consideration, I think it is possible to avoid a reference. At or about the time that the wedding; took place the estate of Abdul Rahim consisted roughly of the two sums of Rs. 58,496-11-5 and Rs. 23,935-7-6 and a one-fourth share in the five im-moveable properties which when sold in 1934 realised a gross sum of Rs. 1,75,000. Taking the estate to be worth roughly Rs. one and a quarter lacs and the persons entitled to it to be the three sons subject to the maintenance of the widow and the maintenance till marriage and the marriage expenses of the three daughters, I think a sum of Rs. 7,500 ought properly to be allowed for the marriage expenses of each daughter. In view of the fact that Rs. 5,500 were spent for ornaments and clothes for the wedding of the daughter and considering the somewhat opulent manner in which the parties were living (as appears from the household expenses debited in the books), I think I would be justified in inferring that at least Rs. 2,000 more must have been spent by Havabai on the wedding of her daughter. After all, the loss caused to the estate and for which the defendants are sought to be held liable cannot be weighed in scales of gold, and I think neither party should be aggrieved, if I hold, as I do, that from the two sums aforesaid the sum of Rs. 7,500 should be deducted as legitimately spent in fulfilment of the estate's obligation to provide the wedding expenses of one of the daughters. I hold that the defendants are liable to pay to the plaintiff the sum of Rs. 74,932-2-11 being the total of the two sums of Rs. 58,496-11-5, and Rs. 23,935-7-6, less the sum of Rs. 7,500. The defendants should pay interest on Rs. 74,932-2-11 at four per cent. per annum from June 2, 1927.
32. [After recording findings on the issues, the judgment concluded:]
33. There will be a decree for the plaintiff against the defendants for Rs. 74,932-2-11 and interest thereon at four per cent. per annum from June 2, 1927, till judgment.
34. The defendants must pay the costs of the suit to the plaintiff including the costs of the petition for assignment of the bond and the chamber summons relating to the same. The defendants must also pay interest on judgment at the rate of six per cent. per annum till payment. The decretal amount should be paid by the defendants into Court and the plaintiff should apply for further directions as regards the disposal of the amount after giving notice to the other parties now interested in the estate of Abdul Rahim.
35. The defendant company appealed against the decree of Engineer J., disputing liability of any kind and contending that the amount awarded was excessive.
36. The plaintiff cross-objected to the decree in regard to the alleged loss in respect of the immovable properties, the costs of the suit for the administration of Jaffer Allarakhia's estate and; the rate of interest (four per cent. per annum) awarded up to judgment.
37. The appeal came on for hearing before Beaumont C.J. and Kania J., who dismissed the appeal and cross-objections (March 31, 1938) subject to a variation in the date from which interest should run.
38. The following are their Lordships' judgments.-
Beaumont, C.J.
40. This is an appeal against a decision of Mr. Justice Engineer.
41. The plaintiff is the assignee of an administration bond on which the defendants stood sureties. The bond was given on May 14, 1925, to secure due administration of the estate of one Abdul Rahim by his widow Hava-bai to whom letters of administration were granted on June 9, 1925. The bond has been assigned to the plaintiff under the Indian Succession Act, 1925.
42. Questions of limitation were raised in the written statement. These questions are covered by a decision of this Court in . I.L.R. (1936) 60 Bom. 1027 and the learned Judge in the Court below overruled the objections on the strength of that decision and we must adopt the same course.
43. The only questions which have been raised on the appeal are questions of. account. The revelant facts are that Abdul Rahim was a Mahomedan but a Cutchi Memon and, therefore, the descent of his estate is regulated by Hindu law. He died on September 18, 1924, and as I have said letters of administration were granted to his widow. During his lifetime he had been the administrator of the estate of his father, Jaffer, who died in 1918, and that estate had not been completely administered at the date of the death of Abdul Rahim. Part of that estate consisted of some immoveable properties, but there was a good deal of personal estate which Abdul Rahim had received and to some extent mixed with his own money. There is no suggestion that Abdul Rahim had misappropriated any part of the estate of Jaffer, but undoubtedly Abdul Rahim's estate was a debtor to Jaffer's estate at the time of Abdul Rahim's death.
44. The administratrix, Havabai, is a pardanashin lady and illiterate. On July 2, 1925, i.e. within a month after the grant to her of the letters of administration, she executed a power-of-attorney in favour of one Bhatra. That power-of-attorney is expressed in wide terms and practically gives Bhatra complete control over Abdul Rahim's estate. It is alleged by the plaintiff in this suit that the administratrix had no right to grant a power-of-attorney in such wide terms to Bhatra. The learned trial Judge accepted that view, and I entirely agree with him. No doubt, Havabai, being a pardanashin lady, would require some assistance in the administration of the estate, and she could have appointed agents for specific purposes in the business of administration, but she was no more entitled than any other administrator to grant a general power-of-attorney which took the control of the estate out of her hands and placed it in the hands of somebody else. If she was not competent to attend to the business she ought to have stood aside and not taken out letters of administration. It seems to me impossible to contend seriously that she was justified in granting so wide a power-of-attorney to Bhatra. The result of the granting of the power-of-attorney was that a large part of the estate was lost. Bhatra misappropriated it and eventually committed suicide. The plaintiff now sues the defendants as sureties under the administration bond, and the real question in dispute in this appeal is as to the amount which the defendants are liable to pay. The learned Judge held in round figures that Havabai had received Rs. 58,000 in respect of immoveable estate of Abdul Rahim and that fact is not challenged in appeal. He also held that Havabai had received Rs. 23,000 in respect of moveable estate of Jaffer and the receipt of that money is also not disputed, but it is argued that deductions should be allowed in respect of costs of maintenance; but the short answer to that is that there is no evidence that any money was applied for maintenance of Havabai and her family. It is complained that counsel in the Court below did not cross-examine witnesses about the expenditure for maintenance because he was under the impression that there would be a reference to the Commissioner for taking accounts. However that may be, the fact remains that there is nothing on record to show that any part of the estate was applied in maintenance. The receipt of the amount being established, it is for the administratrix to show that she applied the same in due course of administration, and that she has not done. I think she is liable for that sum as well as Rs. 58,000.
45. Then it is urged that she ought to be given credit for a sum of Rs. 35,000. Now that sum was received under these circumstances: Havabai died on April 27, 1929, and by an order of this Court made on April 29, 1929, the Administrator General was appointed administrator under Sub Section 10 and 11 of the Administrator General's Act to collect and get in the moveable and immo-veable properties forming part of the estates of Abdul Rahim and Havabai. Havabai, before her death, had started a suit against the representatives of Bhatra to recover the loss which he had occasioned to the estate. The Administrator General continued that suit after the death of Havabai, and eventually recovered a sum of Rs. 35,000 in that suit. That was very much less than the amount of his claim, but it was the total sum which he recovered, and he applied that sum in payment to the estate of Jaffer. It is argued, and I think rightly, that there was no breach of trust or devastavit in respect of that payment. Certainly there was no devastavit for which the defendants are liable. Abdul Rahim's estate was undoubtedly a debtor to the estate of Jaffer, and as the Administrator General represented Havabai and Abdul Rahim, I think he was entitled to apply this sum in payment of a debt due from Abdul Rahim's estate. But it does not follow from that that the defendants are entitled to credit for that amount. Indeed I am unable to see what the receipt and application of this sum of Rs. 35,000 has to do with the defendants. What it really comes to is that Havabai received Rs. 74,000, which she has not accounted for. She or her estate also received Rs. 35,000, which she has accounted for. The fact that she has accounted for the Rs. 35,000 is no reason why she should not account for the Rs. 74,000. I think the learned Judge was quite right in holding that the amount for which she must account is Rs. 74,000. That really disposes of the appeal.
46. Then there are cross-objections which relate to the immoveable estate of Jaffer. Havabai and the other persons interested in the estate of Jaffer agreed to partition the immoveable estate of Jaffer sometime in 1925 and in 1928 a suit was started for the purpose of partitioning the same. Eventually the property was sold in 1934. There is not a particle of evidence that any loss was occasioned to the estate by any wrongful act of Havabai. I do not think she was guilty of any unreasonable delay in her action in relation to the immoveable properties, and even if she was, it is not established that the estate suffered any loss thereby. In my opinion there is no substance in the cross-objections relating to the immoveable properties.
47. Then it is stated that the learned Judge made a wrong order with regard to interest. He allowed interest at four per cent. per annum from June 22, 1927, which was the date on which Havabai filed the inventory. I think the date should be from the expiration of the administrator's year, i.e. July 9, 1926. With that alteration in the date from which interest is to run I think there is no reason for interfering with the learned Judge's order. No doubt six per cent. is the usual rate of interest allowed in this Court, but the learned Judge was not bound to allow that rate. In my opinion there is no ground for interfering with the manner in which he exercised his discretion on that point.
48. The appeal will be dismissed with costs. The cross-objections will also be dismissed with costs subject to the alteration of the date from which interest is to run to July 9, 1926.
Kania, J.
49. The material facts to be considered for this appeal are these: Jaffer, a Cutchi Memon, died on September 20, 1918, leaving him surviving three sons, and a grandson by a predeceased son. Out of the three sons Allarakhia was a minor and the grandson Abdul Karim was also a minor. Abdul Rahim, the eldest son, obtained letters of administration to the estate of Jaffer. The estate consisted of four immoveable properties, a business, certain shares and cash. In respect of a fifth immoveable property a contract to purchase was made during the lifetime of Jaffer. That was completed by Abdul Rahim as his administrator. After obtaining letters of administration Abdul Rahim wound up the estate, collected the outstandings and paid the debts. The result was that at the end of October, 1920, there were in his hands five immoveable properties, seven shares of Century Mills and about three lacs of rupees in cash. Out of that sum Abdul Rahim had himself withdrawn before his death a sum of Rs. 69,1000 and odd, Ahmed, the second son, had withdrawn over Rs. 37,000, while to the two minors Rs. 5,600 and Rs. 17,000 were given, or were utilised for their benefit. The estate of Jaffer, to the extent it consisted of cash, was deposited in banks, or with different firms, in the name of Abdul Rahim as administrator. Apart from the estate so held by Abdul Rahim he had his own independent business and his own estate. That also was invested in his own name. That was the state of the estate of Jaffer and Abdul Rahim when Abdul Rahim died on September 18, 1924. After the death of Abdul Rahim, Ahmed, another son of Jaffer, tried to collect some of the estate and outstandings. Abdul Karim, the grandson, who had by that time attained majority also assisted in the recovery. As most of the cash was however invested in the name of Abdul Rahim, Havabai, on March 17, 1925, applied for letters of administration to the estate of Abdul Rahim. On May 14, 1925, the defendants joined Havabai in executing the administration bond. On June 7, 1925, letters of administration to the estate of Abdul Rahim were granted to Havabai.
50. On July 2, 1925, Havabai, who was a pardanashin woman, gave a general power-of-attorney to one Bhatra and in fact Bhatra thereafter continued to administer, collect and dispose of the whole estate (the estate of Jaffer which stood in the name of Abdul Rahim and Abdul Rahim's own estate). The amounts lying with different banks and with different merchants were collected and accounts were opened in the banks in the name of Havabai, which were operated upon by Bhatra. In the accounts so opened in the name of Havabai cash which originally belonged to Jaffer's estate was deposited. The personal estate of Abdul Rahim, which was also deposited in different banks or lying with different merchants, was also collected and put in the same banking accounts. Bhatra operated on these accounts and eventually committed suicide. It was then discovered that he had misappropriated almost the whole cash. On October 31, 1928, Havabai on behalf of herself and other creditors of Bhatra filed a suit in this Court for the administration of Bhatra's estate. Soon thereafter she also filed another suit for the administration of the estate of Jaffer and for recovering the share of Abdul Rahim in the estate of Jaffer. Pending those suits she died on April 27, 1929. An application was made to this Court under Sub-Section 10 and 11 of the Administrator General's Act and a combined order was made in respect of the estates of Havabai and Abdul Rahim. On the basis of that order the Administrator General of Bombay was made a party to the two pending suits in place of Havabai. In the suit filed for the administration of Bhatra's estate Rs. 35,000 were recovered, and it was declared that on that there was a first charge in favour of the Administrator General who was a party to that suit. Thereafter a consent decree was taken in suit No. 2414 of 1928 filed for the administration of Jaffer's estate. In that consent decree it was provided that Rs. 35,000, which was received from Bhatra's estate, should be paid over to Allarakhia the minor son of Jaffer. That appears to have been done because the adults had withdrawn larger amounts from the cash estate and the remaining cash estate had disappeared.
51. The present suit has been filed by one of the sons of Abdul Rahim, after obtaining an assignment of the bond passed by the defendants for the proper administration of Abdul Rahim's estate by Havabai. The first defence is of limitation. Ancillary thereto or as a part of it there is the contention that the debt having become time-barred, the assignment did not confer any title on the plaintiff to sue. These contentions are covered by grounds 1 to 4 in the memo of appeal. The decision in I.L.R. (1936) 60 Bom. 1027delivered by a bench of this Court is binding on us and the two contentions urged by the appellants were decided against them in that case. Those contentions must, therefore, be rejected in this appeal.
52. The next contention was that the defendant company was not liable because Havabai was justified in entrusting the management of the estate to Bhatra. The power-of-attorney given to Bhatra is in very wide terms and in fact left the whole administration to Bhatra. Even conceding that a pardanashin woman who obtained letters of administration was entitled to leave some part of the administration work, subject to her supervision, to a male person, the present case goes much beyond that. The terms of the power-of-attorney and the actual work done by Bhatra establish that excepting that she obtained letters of administration in her own name for the benefit of her minor sons and limited to the period of their minority, Havabai did nothing and left the administration of the estate of the deceased completely to Bhatra. That cannot be supported in any event. That contention of the appellants must therefore fail.
53. The second contention was that Rs. 23,000 (the balance of the share of Abdul Rahim) which remained to be recovered from Jaffer's estate at the time of the death of Abdul Rahim were utilised in defraying the maintenance expenses of Abdul Rahim's children and of Havabai Herself. The evidence on record contains an admission that this amount was withdrawn by Havabai from Jaffer's estate. There is no evidence to show that the amount so withdrawn was utilised for the maintenance of any of those parties. In. the absence of any evidence to that effect the administratrix must be considered to have failed to establish her contention. A mere statement in the evidence that money was spent for the maintenance of the children and Havabai does not prove that those expenses were incurred from the estate. In the absence of such proof I am unable to differ from the conclusion of the learned Judge that the defendants were liable to make good that amount. It was suggested in the course of argument that the learned counsel for the defendants was under the impression in the trial Court that the matter was going to be referred to the Commissioner. If so, it is unfortunate, but that cannot help the defendants in appeal. The record does not show that at any stage the learned Judge had intimated to any party that the matter was to be referred to the Commissioner on any particular point or at all. Indeed the numerous entries and accounts put in before him lead to a contrary conclusion.
54. The third point urged on behalf of the appellants was that they were entitled to receive credit for Rs. 35,000 received from Bhatra's estate. The short answer to this contention appears to be that Abdul Rahim's estate consisted of various amounts which were deposited in various places and the estate was liable to pay different debts. Havabai, as administratrix, recovered different amounts which were deposited with banks and private firms. Instead of utilising the same in paying the debts, including the debt due to Ahmed, Allarakhia and Abdul Karim, she allowed the whole of the estate, which stood in the name of Abdul Rahim and which included the amounts which were payable to those parties and also the personal estate of Abdul Rahim, to remain in the hands of Bhatra. The result was that at the time the whole estate was handed over to Bhatra the debts due and payable by Abdul Rahim's estate remained unpaid. If, therefore, at a later stage some amount was recovered from Bhatra, it would not be improper to call it as estate of Abdul Rahim recovered from Bhatra. But there was no maladministration in paying over the money to a creditor of Abdul Rahim who had remained unpaid. If the amount was so paid; over to a creditor, I do not see how the defendants could claim to be exonerated from that liability. The fallacy underlying the contention of the appellants is the assumption that only two sums of Rs. 58,000 and Rs. 23,000 were handed over to Bhatra and out of that Rs. 35,000 were recovered. The second assumption (for which there appears to be no justification) is that the amount so left in charge of Bhatra was free from any debt due by the estate of Abdul Rahim. Both these assumptions are unjustified, and in law the only thing done was that a certain amount which was treated as of the estate of Abdul Rahim was received and paid over to satisfy a debt of Abdul Rahim. In that light the defendants' contention to recover that amount must fail. Apart from these contentions the learned counsel for the appellants has not pressed any other points. He has quite rightly conceded that the separate estate of Abdul Rahim which is stated in the judgment of the trial Court to be Rs. 58,000 was the correct figure.
55. Coming to the cross-objections, it was first urged that Havabai had mal-administered the estate because she had failed to sell the immoveable properties soon after entering on the administration. That contention must fail on two grounds. Firstly, I do not consider a suit filed in 1928 to administer the estate of Jaffer as undue delay on the part of the administratrix to recover the undivided fourth share in the five immoveable properties. Secondly, (and that is a stronger answer to the contention of the respondent), there is no proof at all on record to show that there was any loss caused to the estate by reason of this delay. Indeed the evidence of Mr. Kanga (architect) led on behalf of the respondent himself is that there was no depreciation in the value of immoveable properties between 1925 and 1928. This contention must, therefore, fail. It was next urged before us that the balance-sheet of the estate of Jaffer up to October 17, 1925, which was signed by Havabai, disclosed that she had in her hands a sum of Rs. 1,64,000. The balance-sheet further showed that the claimants to that amount were the four heirs of Jaffer. It was contended that instead of paying over the sum to the claimants Havabai did nothing and the cash is now lost. The result was that when the immoveable properties were sold the sale proceeds had to be utilised in paying over the claimants. Therefore, there was devastavit for which the defendants, who had guaranteed proper administration, were liable. This point was not urged before the trial Court because there is no reference to this contention in the judgment. It was contended that grounds Nos. 11 and 12 of the cross-objections covered this contention. I am unable to accept that construction of grounds Nos. 11 and 12. They cover merely the claims to one-fourth share of Rs. 1,75,000, which were the sale proceeds of the five immoveable properties. I do not find anywhere in those grounds the contention that because Havabai had failed to pay off the debts in 1925 there was maladministration, and the liability was the one-fourth share in the five immoveable properties. I do not think it is permissible to the respondent to raise that contention for the first time in appeal. It would be obviously unfair because there may be evidence available to the defendants which would explain how and why the debts were not so paid off in 1925 or how that fund was utilised by Havabai.
56. The only other point urged on behalf of the respondent was in respect of interest. As regards the date, in my opinion, the same should be altered and interest should run on the expiry of the administrator's year, i.e. from July 9, 1926. As regards the rate it is a matter for the discretion of the Court, and having regard to all the circumstances the learned Judge allowed four per cent. interest. I am not prepared to interfere with the discretion exercised, and except for the variation about the date the contention must be disallowed. The result therefore is that the appeal and cross-objections (except as to variation in the date as mentioned above) are both dismissed with costs.
57. The learned Judges in accordance with their judgments passed a decree for the plaintiff for Rs. 1,07,524-8-0 and interest.
58. The defendant company and the plaintiff being dissatisfied with the decree duly obtained certificates enabling them to appeal therefrom to His Majesty in Council. By an order of the High Court, dated October 14, 1938, the appeals were consolidated.
59. Sir Thomas Strangman K.C. and W.W.K. Page, for the appellants. We contend, first of all, that this action is clearly one on a bond, to which Article 68 of the Indian Limitation Act is applicable. Next, the latest date, it is submitted, at which the cause of action could arise was the death of the administratrix in April, 1929. Therefore this suit, instituted as it was in November, 1932, must be barred. [Counsel referred to the definition of 'bond' in Section 3 of the Indian Limitation Act, and to clauses 45 and 46 of the Letters Patent, (dated December 8, 1823) founding the Supreme Court of Bombay.]
60. We submit that when the benefit of the bond is assigned to the heir, no new cause of action accrues to him: the starting point of time remains the date of the breach by the administrator. The grounds for the decision in Manubhai Chunilal's case are open to challenge. [Counsel referred to Black-well J.'s judgment in that case, and to Maung San U v. Maung Kyaw Mye I.L.R. (1923) 1 Ran. 463.; Kanti Chandra Mukerji v. Al-i-Nabi I.L.R. (1911) All. 414 and In the Goods of Young (1866) L.R.1 P. & D. 186 as showing that such cases had been decided each way.]
61. Pritt K.C. and S.C. Khambatta for the respondent. Article 68 is, we submit, not applicable. The action is a peculiar one to which no article of the Act is specifically applicable. Therefore by Article 120, the plaintiff had six years in which to bring his action from the date when his right to sue accrued. The question is when his cause of action arose. This action is not on the bond at all. It could equally well have been instituted against the personal representatives of the administratrix to compel them to make good any loss to the estate for which she was liable. No cause of action can, it is submitted, arise until the loss is ascertained.
62. Supposing, however, that Article 68 applied: in such a case the cause of action would not arise until the heir or some one similarly entitled to do so had claimed the estate and failed to obtain his due or some part of it. Section 292 of the Indian Succession Act, 1925, does not merely give a new starting point by implication: it is submitted that it is to be construed as an express statutory provision to that effect. An application is made to the Court, which thereupon confers on the applicant a statutory right of action. What else can the words 'who shall thereupon be entitled to sue' mean? This is clearly, we submit, an enabling section, such a section cannot be referable to a right which already existed before. It is not merely confirmatory, as its wording shows. It creates a new title to the estate.
63. Khambatta, following. If the assignee of such a bond were a minor, and his guardian failed to sue on it, the minor would surely not lose his interest. Clearly he would be entitled to sue when he attained majority, because a new cause of action would have arisen under Section 292 of the Act of 1925 and the right of action would have accrued on his attaining majority.
67.[Counsel referred to Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi ,
Strangman, in reply.
Cur. adv. vult.
Viscount Maugham, J.
68. There are here two consolidated appeals from a judgment and decree of the High Court of Judicature at Bombay in its appellate jurisdiction dated March 31, 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 were the defendants in the suit, besides disputing liability on a number of grounds have raised the contention that the suit was barred by Article 68 of the Indian Limitation Act (IX 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.
69. In order to deal with the question of limitation it is necessary to state the following facts.
70. On. September 18, 1924, Abdul Rahim died intestate at Bombay leaving him surviving a widow, Havabai, 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.
71. On March 17, 1925, the widow of Abdul Rahim (Havabai), 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 immoveable 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 May 6, 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 Havabai,
72. On May 14, 1925, Havabai 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 Protho-notary 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 Havabai
(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 November 14, 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 May 14, 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.
73. On June 9, 1925, the letters of administration were duly issued to Havabai on behalf of the three minor sons of the intestate for their use and benefit until one of them should attain his majority.
74. It is alleged by the plaint that on July 2, 1925, Havabai, who was a pardanashin 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 October 22, 1928) committed suicide. Havabai commenced various proceedings in an endeavour to recover the property forming part of the estate of Abdul Rahim, but on April 27, 1929, she died.
75. On November 14, 1931, the eldest son of Adbul Rahim, Janmahomed Abdul Rahim (who will be called 'the plaintiff') attained his majority.
76. On March 24, 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.
77. By a deed of assignment dated August 14, 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 Section 292 of the Indian 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,
78. It should be added that under Section 291 every person to whom any grant of letters of administration, with an exception not material to the present purpose, is committed must give a bond to the District Judge with one or more surety or sureties engaging in the due collection and administration of the estate of the deceased. The bond is in the usual form, It is the usual practice in such a case to apply Section 292 and to cause the bond to be assigned to the intending plaintiff. It does not appear to be necessary to discuss the older practice under the Letters Patent of 1823 founding the Supreme Court of Bombay.
79. On November 2, 1932, the plaintiff (respondent) filed the present suit claiming from the defendants, the present appellants, the sum of Rs. 3,98,060, or such lesser sum as represents the loss of the estate of Abdul Rahim due to the failure of Havabai as administratrix of that estate to carry out her obligations under the administration bond. The plaint alleged four specific breaches of duty by the administratrix which can be shortly stated as follows:-
(1) The appointment of Bhatra as her attorney to manage the estate of the intestate;
(2) allowing the sum of Rs. 50,003 shown in the inventory and accounts filed by her on June 2, 1927, as being in her hands on that date to remain in the hands of Bhatra;
(3) the failure to realise a certain share of the intestate in the estate of his deceased father and allowing such share to remain in the hands of Bhatra; and
(4) the failure to hand over to the Accountant General of Bombay the estate of Abdul Rahim, all his heirs being minors.
80. The learned trial Judge and the Appellate Court (Sir John Beaumont C.J. and Kania J.) in the course of their judgments held that on the question of limitation they were bound by the decision of the Appellate Court of Bombay in the case of I.L.R. (1936) 60 Bom. 1027. That case related to a similar bond, similarly assigned, and the Appellate Court, Sir John Beaumont C.J. and Rangnekar J., overruling Blackwell J., decided that the defence of limitation under Article 68 of the Indian Limitation Act was not available. In that case as in the present the beneficiaries at the date of the grant of letters of administration were infants, and in other respects the facts are not distinguishable from those in the present case. The question, therefore, arises whether the decision in Manubhai's case is or is not correct.
81. Article 68 of the Indian Limitation Act, 1908, is one of the series of 183 articles in a schedule which relate to the limitation of suits, appeals and applications. The articles are introduced by Section 3 in the following words:-
Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.
The provision contained in art 68 is to the following effect:-
On a bond subject to a condition,' the period of limitation is to be three years and the time from which the period begins to run is stated to be ' when the condition is broken.
82. Article 120 is stated to relate to any suit 'for which no period of limitation is provided elsewhere in this schedule.' The period of limitation is in that case six years and the time from which the period begins to run is 'when the right to sue accrues.' The word 'bond' is defined in Section 2(3). The word is stated to include 'any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be.' It is not in dispute that the bond in this case is a bond within the terms of that definition, and it is clear that Article 120 has no application if Article 68 applies to the present case. It may be added that Section 6 of the Act (which deals with suits by infants) clearly has no application.
83. Before considering the grounds on which the High Court in Manubhai's case came to the conclusion above referred to, it may be desirable to point out that a Limitation Act ought to receive such a construction as the language in its plain meaning imports. (See the decision of this Board in Abhiram Goswami v. Shyama Charan Nandi , . As was well stated by Mr. Mitra in his Law of Limitation and Prescription (Tagore Law Lectures), 6th ed. (1932), Vol. 1, p. 256:-
A law of limitation and prescription may appear to operate harshly or unjustly in particular cases, but where such law has been adopted by the State . . . . . . it must, if unambiguous, be applied with stringency;... The rule must be enforced even at the risk of hardship to a particular party. The Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it.
Very little reflexion is necessary to show that great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights; yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases. Their Lordships think it is possible that sympathy for the plaintiff in the case which must now be considered was allowed to affect a pure question of construction. In the present case, however, it may be observed that an administration bond is as often assigned when persons of full age are concerned as when the beneficiaries are all of them infants; and that such a bond is of the nature of an additional security taken by the Court for the benefit of the beneficiaries. If a right of action under the bond become statute barred by the operation of Article 68 of the Indian Limitation Act, that does not affect the rights of the beneficiaries against the administrator. While making these observations their Lordships think it right to repeat that mere considerations of hardship in such a case should not be taken into account.
84. In Manubhai's case Blackwell J. took the view that the bond being within the definition in the Indian Limitation Act and the action being on a bond subject to a condition, time began to run from the last date on which the condition was broken and no action could therefore be brought after the expiration of three years. In coming to this conclusion he followed the decision of the appellate Court of Rangoon in Maung San U v. Maung Kyaw Mye I.L.R. (1923) Ran. 463. Blackwell J. in an admirable judgment dealt with the effect of an assignment of a bond under Section 292 of the Indian Succession Act and observed that in his opinion such an assignment merely deals with the question of title and confers upon the assignee a right to sue which he would otherwise not have had previously to the assignment, and that the section thus merely entitles the assignee to recover as a trustee for all persons interested the full amount recoverable under the bond in respect of any breach of it. On appeal it was not doubted that the bond was a bond upon a condition, but the Court held that a suit to enforce the bond by a person to whom it has-been assigned under Section 292 was not a suit upon a bond within the meaning of the article because, it was said, the assignment confers substantive rights upon the assignee. Their Lordships, with all respect, are unable to follow this argument, nor can they agree; that there is any difficulty as regards the consideration for the assignment. It is of course true that a suit by the assignee of such a bond is a suit by a person who derives title) from the assignment which is authorised by the terms of Section 292 of the Indian Succession Act, 1925; but their Lordships are unable to see how this can be held to show that the action on the bond by the assignee is not a suit on a bond subject to a condition. Every valid assignment of a bond confers substantive rights upon the assignee, but those rights are not, in any case suggested to their Lordships, greater than the rights possessed by the assignor. It may be noted that the ordinary security bond which is given by receivers in India under the provisions of the Code of Civil Procedure, Order XL, Rule 3, is given to an officer of the Court (see. App. F. Form No. 10); yet it has never been suggested that a suit upon such a bond, if brought by an assignee, is in any way different from an ordinary suit by the holder of a bond, the condition of which has been broken.
85. There were two other grounds for the conclusion of the Court. First, it was held that, assuming that Article 68 applied to the case, it was impossible to say that the condition was broken until some person who was able to give valid discharge for the estate claimed it from the administrator or his representatives and failed to obtain it. The consequence of that view was said to be that the condition was not broken within the meaning of Article 68 until the plaintiff attained his majority which was less than three years before the suit was filed. In other words the death of the administrator was held not to put an end to his liability as regards future events. Their Lordships cannot agree. An administrator of an interstate is merely the officer of the Court in whom the deceased himself has reposed no trust. On the death of the former the estate of the interstate does not pass to his heirs or representatives and no authority whatever can be transmitted by him, nor has anyone claiming under him any right to interfere with or to complete the administration of the property of the intestate. The office comes to an end on death (if not. before) and the course which should be taken when an administrator dies is to obtain a grant of administration de bonis non, and the person to whom such grant is made will be entitled to take possession of the property. It therefore seems to their Lordships impossible to hold that the administratrix in the present ease could possibly have been guilty of any default or misconduct in relation to the administration after the date of her death, though, of course, her representatives would continue liable in respect of any such default or misconduct committed by her during her lifetime. It seems equally impossible to suggest that the condition of the bond could be broken by the administratrix by the default of some person in relation to the estate of the intestate after the original letters of administration had ceased to have any operation by reason of the death of the administratrix. The condition of the bond according to its terms was therefore broken at the latest on her death, that is, more than three years prior to the suit.
86. The other and perhaps the main ground for the conclusion of the Court in Manubhai's case was that Section. 292 of the Indian Succession Act had the effect of conferring a new cause of action on the assignee, and therefore provided a fresh starting point for the purposes of limitation. If the language of Section 292 of the Indian Succession Act be examined, it is difficult to suppose that the draftsmen intended to provide for the creation of a new cause of action upon the assignment of a bond thereunder. The essential words are taken verbatim from Section 83 of the (English) Court of Probate Act, 1857 (20 & 21 Vic. c. 77) which provides that-
The Court may, ... on being satisfied that the Condition of any such Bond has been broken, order One of the Registrars of the Court to assign the same to some person'. . .' and such Person, . . . shall thereupon be entitled to sue on the said Bond in his own Name, . . . as if the same had been originally given to him instead of to the Judge of the Court and shall be entitled to recover thereon as Trustee for all Persons interested the full Amount recoverable in respect of any Breach of the condition of the said Bond.
(The modern provision to the same effect is to be found in Section 167 of the Judicature Act, 1925.) It has never been suggested that under either of these sections there is upon the assignment being made a fresh cause of action. The origin of the ancient practice of requiring the administration bond to be given to the Judge of the Court of Probate (Section 81 of the Court of Probate Act, 1857) was no doubt to enable that Court to have control over all matters relating to the enforcement of such bonds. It is scarcely necessary to add that it had obviously nothing to do with the English period of limitation as regards the enforcement of such a bond which was twenty years from the breach of the condition. It seems to their Lordships that the words used in Section 292 of the Indian Succession Act like those used in Section 83 of the Court of Probate Act, 1857, are far from assisting the contention that a new cause of action arises upon the assignment. The bond is assigned to a person who is thereupon to be entitled to sue on the bond in his own name 'as if the same had been originally given to him, and he is to be entitled to recover thereon . . . the full amount recoverable in respect of any breach thereof.' These sentences do not in the least support the view that a fresh cause of action arises and that therefore the condition of the bond is not broken for the purposes of the Indian Limitation Act until the date of the assignment. The judgments of the appellate Court of Rangoon in Maung San U. v. Maung Kyaw Mye I.L.R. (1923) Ran. 463 and of Blackwell J. in Manubhai's caseVide 38 Bom. L.R. 632, at p. 634. are in the opinion of their Lordships correct and the decision of the Appellate Court in the latter case must be taken to be erroneous.
87. This view makes it unnecessary to consider any of the other questions raised on the appeal and cross-appeal. The defence of limitation under art 68 was a good one, and the suit should have been dismissed with costs.
88. Their Lordships will humbly advise His Majesty that the appeal should be allowed, that the cross-appeal should be dismissed, and that the respondent to the appeal should pay the costs here and below.