The main legal point established in the judgment is the applicability of the Limitation Act and the liability of legal representatives under a bond.

1. This is a Letters Patent Appeal from a judgment of Stone C.J., in Second Appeal No. 494 of 1940 decided on 10th April 1942. The suit out of which this appeal arises was brought by two plaintiffs who were the sons of one Abdul Wahab (also called Aboo) against seven defendants, the first five of whom were the legal representatives of one Moulvi Munawar Khan and the last two the legal representatives of one Munshi Mohammad Azimullah Khan.

2. On 29th September 1915, Munawar Khan was appointed by the District Judge, Saugor, guardian of the property of the plaintiffs who were then minors, And Azimulla Khan was his surety in the sum of Rs. 4000 and both the guardian and the surety executed a bond which is Ex. p-5 in the case.

3. The suit was filed on 15th June 1939 on the bond, which was assigned by the District Judge to the present plaintifis on 16-6-1986 under Section 35, Guardians and Wards Act. The plaintiffs Alleged that Munawar Khan was placed in charge of property worth about Rs. 6500, and they claimed that this property should be returned to them and that the defendants 1 to 5 should be asked to give account of all the property and its income received by Munawar Khan. If defendants 1 to 5 were held responsible but could not meet the demands of the plaintiffs it was prayed that a decree should be passed also against defendants 6 and 7 who were the legal representatives of the surety. Defendant 5 in the suit was one Mt. Asha Bi who was appointed guardian of the plaintiffs after the death of Munawar Khan in 1924.

4. Defendants 1 to 5 denied liability. Defendants 6 and 7 said that Azimulla Khan had died in the year 1922 and must, therefore, be deemed to be discharged from his liability under the bond. They further said that after Munawar Khan's death in 1924 Mt. Asha Bi (defendant 5) was appointed guardian of the property of the minors, and that this also resulted in the discharge of the surety. These defendants also pleaded that the suit was barred as not having been brought within the requisite period required by law. Defendants 2, 3 and 4 pleaded that they were not liable to render accounts as accounts had already been explained and further that there were no assets of the deceased Munawar in their hands; nor had they any property belonging to the minors. They also pleaded that the suit was barred under the Limitation Act.

5. The trial Court decided on the authority of Manubhai Chunilal v. General Accident Fire & Life Assurance Coproration Ltd.,1936 AIR(Bom) 363 that the suit was within time. It further decided on the authority of Durga Priya Chowdhury v. Durga Pada Roy, 1928 AIR(Cal) 204 that the death of the surety did not make any difference to the liability arising under the continuing guarantee indicated by the terms of the bond, Ex. P-5. Since the bond itself made a mention of the legal representatives of the surety it was held that it formed an exception to the rule contained in Section 131 Contract Act.

6. The learned trial Judge, therefore, passed a preliminary decree against all the defendants and ordered:

In the proceedings hereafter the dates of death of Munawarkhan and Azimulla Khan shall have to be found out. It shall also have to be found out as to what Munawarkhan received in respect of the property of the plaintiffs and what expenses he incurred and what money or property he (Munawarkhan) failed to account for or spent or disposed of in contravention of the orders of or without the sanction of the District Judge. After doing all this the liability of Munawarkhan can be determined. It would be useful to find out the liability of Munawarkhan before the death of M. Azimulla Khan and the liability incurred after his (M. Azimulla-khan's) death.

7. From this judgment and decree only defendants 6 and 7 appealed. The other defendants did not appeal. The learned Additional District Judge held that the plaintiffs were entitled to recover the property left to them though he held that the plaintiffs were not entitled