MOHAMMAD UBED ULLAH Vs. MOHAMMAD INSHA ALLAH KHAN

JUDGEMENT

(1.) The facts which have given rise to this revision are as follows: It seems that Syed Zahurul Hasan was a candidate for service in the Postal Department and had to famish two sureties for good aonduot during his term of service. On the 25th of March 1903, he executed a personal security bond, with two sureties in the form prescribed by the Postal Department, The two sureties were Hafiz Abdul Rahim and Insha Allah Khan. Hafiz Abdul Rahim died in 1910, and in 1916 Zihurul Hasan embezzled a sum of Rs. 482-2-0. The Postal Authorities recover-ed the amount from the surviving surety, Insha Allah Khan. The present suit is by him to recover half of this amount from the heirs of his deceased co-surety Hafiz Abdul Rahim. The suit was brought in the Court of Small Causes at Meerut and was decreed. The defendants some here in revision and contend that the Court below has erred in decreeing the suit, as the security bond ceased to be operative as against the deceased surety after his death. This revision came up for hearing before a Judge of this Court sitting alone, and having regard to the importance of the question of law he referred it to a Bench of two Judges.

(2.) The decision of the question raised in this revision depends upon the terms of the security bond, because it is admitted and is quite clear that the provisions of Section 131 of the Indian Contrast Act would apply to this case. A large number of cases, both Indian and English, have been cited during the course of the argument, but as the English Law on the subject of continuing guarantees is somewhat different from the Indian Law, we wish to confine ourselves to Indian Bases and the Indian Contrast Act alone. The important portions of the security bond which we have to construe are: (1) that the sureties bound ourselves, our heirs, executors, administrators and the representatives jointly, and each of us binds himself, his heirs, executors, administrators and representatives severally, formally, etc." and (2) "provided always that neither of the two sureties shall be at liberty to terminate his surety ship except upon giving to the head of the Said Postal circle for the time being six calendar months notice in writing of his intention so to do, etc. etc." and, in the event of any such notice being given, the liability of the surety by whom it shall be given, shall be thereby determined in respect only of acts and omissions happening after the expiration of the said period of six months.

(3.) Section 131 of the Indian Contract Act runs as follows: The death of the surety operates, in the absence of any contract to the contrary, as a revocation of a continuing guarantee so far as regards future transactions.