Judgement

Consolidated Appeals (No.43 of 1939) from a decree of the High Court in its appellate jurisdiction (March 31, 1938), which confirmed, with a minor variation, a decree of that Court in its ordinary original civil jurisdiction (May 24, 1937).

The suit which gave rise to these appeals was brought by the respondent, Janmahomed Abdul Rahim, as the assignee of an administration bond, against the appellant, the General Accident Fire and Life Assurance Corporation, Ld., as surety, claiming Rs.3,98,060, or such part thereof as might represent the loss to the estate of his father, one Abdul Rahim, through the failure of his mother, one Hawabai, to carry out the obligations under the bond.

The defendant (appellant) did not admit the alleged loss to the estate of Abdul Rahim; denied the alleged breaches of duty, and contended (inter alia) that the bond had not been validly assigned in law to the plaintiff (respondent), and that the purported assignment was the transfer of a mere right to sue and, as such, was void and inoperative, and that the plaintiff was not therefore entitled to maintain the suit. It was further alleged that the claim of the plaintiff was barred by the law of limitation.

The trial judge (Engineer J.) passed a decree in favour of the plaintiff for Rs.1,04,831-1-0, and costs, and for interest on the judgment sum at six per cent, until payment.

On appeal the Appellate Court (Beaumont C. J. and Kania J.) in separate but concurring judgments confirmed the decree of the trial judge, subject to a variation in the date from which the interest should run.

The principal question for determination in the present appeal was whether the suit was barred by limitation. The High Court in appeal, holding themselves bound by the decision in Manubhai Chunilal v. General Accident Fire and Life Assurance Corporation, Ld. (( 1936) I. L. R. 60

B. 1027.), had held that the defence of limitation was not open to the present, appellants.

The facts and the terms of the relevant statutory provisions appear from the judgment of the Judicial Committee.

1940. July 4, 8, 9. Sir Thomas Strangman K.C. and W. W. K. Page for the appellant. The question which arises at the outset is one of limitation, and if that point is a good one it disposes of both the appeal and the cross-appeal. Neither of the Courts below has dealt with this question, inasmuch as each Court considered itself bound by the decision in Manubhai Chunilal v. General Accident Fire and Life Assurance Corporation, Ld. (( 1936) I. L. R. 60 B. 1027.) The bond was in the form required by the Bombay High Court Rules. The material upon which the limitation point is to be decided is The

Law. Rep. 67 Ind. App. 416 ( 1939- 1940) General Accident Fire v. Janmahomed Abdul Rahim

172

Supreme Court Charter of December 8, 1823, which in cl. 45 gave jurisdiction to the Supreme Court to require security by bond before the grant of letters of administration, and there was a provision in cl. 46 of the Charter that if a bond was to be put in suit it was to be done under the order of the Court directing the Registrar to file the suit; the Letters Patent of the High Court, of June 26, 1862, which provided that the High Court had all the jurisdiction of the Supreme Court; the Amended Letters Patent of December 28, 1865; the Probate and Administration Act, 1881, ss. 78 and 79; the Indian Succession Act, 1925, which is a consolidating Act; the Bombay High Court Rules of 1922, rr. 495, 582 and 630; and the Indian Limitation Act, 1908, art.68, which has to be read with s.2, sub-s.3, which contains the definition of " bond,” and art. 120. [Detailed reference was made to the foregoing material.] It is submitted that this is a simple action on the bond, and that the cause of action arose at the very latest on the death of the widow, Hawabai—namely, on April 27, 1929, and the suit having been instituted on November 2, 1932, was time-barred under art.68 of the First Schedule to the Limitation Act, 1908. Articl