JANMAHOMED ABDUL RAHIMTHE GENERAL ACCIDENT FIRE AND LIFE ASSURANCE Vs. JANMAHOMED ABDUL RAHIMTHE GENERAL ACCIDENT FIRE AND LIFE ASSURANCE APPELLANTS: <APL></APL> VS RESPONDENT: <RP>

JUDGEMENT

(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 Manubhai Chunilal v. General Accident Fire and Life ASsurance Corporation Ltd. (1936) I.L.R. 60 Bom. 1027, s.c. 38 Bom. L.R. 632, 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.) 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.