Pathma Re Krishna Chettiar vs Mu Pa Venkatachella Chettiar and Others

John Wallis, C.J.—This is an appeal from the decree of the Subordinate Judge, of Kumbakonam in so far as it dismissed the suit brought by

the plaintiff as assignee of a surety bond Exhibit A, dated 21st April 1896, charging the immovables therein mentioned for the due performance by

the 1st defendant of his obligations under the bond given by him to the District Court u/s 34 (a) of the Guardians and Wards Act as guardian of the

plaintiff who was then a minor. The Immovable properties of the other sureties being insufficient, the 1st defendant added certain properties of his

own and became a party to the surety bond, Exhibit A, as well as to the principal bond which is now missing The Subordinate Judge passed a

personal decree against the guardian and the 1st defendant who did not contest the suri, and otherwise dismissed it on the ground that the plaintiff

had no right to sue on the bond Exhibit A, at the date of the suit, as the principal bond had not been assigned to him and there had been no regular

assignment to him of the surety bond Exhibit A but only an order of the District Court that it should be assigned. He also dismissed the suit on the

ground that the plaintiff had failed to prove what were the terms of the principal bond which was missing, and held that the defendants who are

alienees from the sureties under Exhibit A took without notice and are exempt from liability.

As regards the first point, I am of opinion that the plaintiff had no title to sue on Exhibit A without an assignment to him by the court both of the

principal bond and of the surety bond Ex. A; but I do not think the case can be satisfactorily disposed of on this ground. The District Judge has

since assigned Exhibit A by a registered instrument, and though the principal bond has not yet been assigned, we might, I think, accept the

assignment even at this late stage if this was the only difficulty in the plaintiff''s way. The fact that the principal bond is lost would not prevent its

being duly assigned. The Ecclesiastical Courts were required by a Statute of Henry VIII to take bonds with sureties from persons to whom they

granted administration of the estates of deceased persons, and a Statute of Charles II settled the terms of the bond to be so taken. There was a

right of action on these bonds in the Common Law Courts, but the Ecclesiastical Judge to whom the bond had been given did not sue himself, but,

as stated in Boton v. Powell (1852) 2 De G.M. & G. 1 the Ecclesiastical Court made an order in favoui generally of one of the next of kin that the

bond be ""attended with"" and the party in whose favour the Order was made was allowed to sue in the name of the Ecclesiastical Judge to whom

the bond had been given. Whether under any circumstances the sureties could be proceeded against in Equity without such an order of the

Ecclesiastical Court was discussed in the case just mentioned. The Probate Act of 1857 first made these bonds assignable and its provisions in this

respect have been reproduced in the Indian Succession Act, the Probate and Administration Act, 1881 and lastly on Sections 34 and 35 of the

Guardians and Wards Act, 1890. The Court now being the obligee under the bond is alone entitled to sue on it in the absence of an assignment in

due form of law.

In the present case I feel constrained to hold in the present state of the evidence, that the suit fails on the broad ground that no breach of the

conditions of the bond Exhibit A has been proved. Section 34(a) of the Guardians and Wards Act obliges the guardian, if so required to give a

bond to the Judge of the Court "" engaging duly to account for what he may receive in respect of the property of the ward"". By Section 34 (b) he is

to deliver an inventory within six months and by Section 34(c) he is to... "" exhibit his accounts in the Court at such times and in such form as the

Court from time to time directs,"" and by Section 34(d) he is "" to pay into the Court the balance due from him on those accounts or so much thereof

as the Court directs."" The form of bond prescribed in Form 93 of the Civil Rules of Practice 1902, clearly follows the provisions of Section 34(c)

and (d) just set out, the condition of the bond being that the guardian shall duly account "" at such period as the Judge shall appoint and shall duly

pay or dispose of the balances which shall from time to time be found to be due from him as the said Court or Judge has directed, or shall hereafter

direct."" No doubt, this form was not in force in 1896 when the 1st defendant as guardian executed the principal bond which is now missing, but

there is no reason to assume that the bond then executed by the 1st defendant was of a more onerous character than the form now prescribed.

Now to constitute a breach of this bond there must be a failure either duly to account at a period directed by the Court, or a failure to pay as

ordered, by the Court a balance found due from him; and where there is no evidence of any order to account within a fixed time or to pay any

balance within a fixed period, there is no breach of the obligation of the bond. This follows from the language of the bond and has been expressly

ruled in the case of a similar provision in the old statutory form of administration bond. Archbishop of Canterbury v. Tappen (1828) 8 B. & C. 151

and Archbishop of Canterbury v. Robertson (1883) 1 Cr. & M. 690 The latter case also deals with the question of what amounts to a breach of

the condition well and truly to administer the estate in the old form of administration bond. To establish a breach of that condition it was not

necessary to show a failure to obey a specific order of the Court. Similarly u/s 81 of the Probate Act of 1857 the bond is to be conditioned for

duly collecting, getting in and administering the estate of the deceased, language followed in Section 256 of the Indian Succession Act and Section

78 of the Probate and Administration Act; and therefore in the case of these bonds it is enough to show a failure to administer or collect and it is

not necessary to show a failure to obey a specific order of the Court. Where, however, as we must assume in the present case, the only conditions

in the bond were to exhibit accounts when ordered by the Court and to pay or apply the balance found due as directed by the Court, if there is no

order there is no breach and the suit on the bond necessarily fails. There is no evidence of any order to account or of any order to pay in the

present case. All the District Judge did was to direct the assignment of the bond on the ground that there was a prima facie case of

maladministration against the 1st defendant. In the case of bonds under the Guardians and Wards Act the proper course appears to be to get an

order to pay against the guardian u/s 34 (d) or a decree against him, and if he fails to satisfy the order or decree then to sue the sureties in respect

of this breach as to which there will be no defence, and the article of Limitation will be Article 68 unless, as in the present case, the bond charges

Immovable property, when that article may be inapplicable. It is unnecessary to consider this point, or the other question raised in argument before

us as to when time begins to run when the condition in the bond is duly to administer. In my opinion the appeal fails and must be dismissed with

costs against defendants 3 to 9 the alienees. As those grounds apply also to the decree against the 1st defendant we set aside that decree also but

without costs in the exercise of our powers under Order 41, Rule 33.

Seshagiri Aiyar, J.

I agree.