1909 (10) TMI 2

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..... dian Limitation Act XV of 1877 is sought to be made applicable. It runs as follows: To make good out of the general estate of a deceased trustee the loss occasioned by a breach of trust. 3. The property that is sought to be made liable being the joint family property of the father and sons, which passes by survivorship to the sons on the death of the father, we do not think it forms "the general estate" of the deceased trustee within the meaning of the article. The sons are sued on the ground of the peculiar liability of the sons under the Hindu Law to pay the father's debts. It is unnecessary to determine which Article applies in the case of a suit to enforce the liability of the sons to pay the debts of the father. See how .....

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..... to the same effect, and Fry, L.J. concurred. This statement of the law has been accepted without question. See Chitty on Contracts, p. 465, 14th Edition, and Darby and Bosanquet on Limitation, 2nd Edition, p. 17. Does the Law in India make any difference on this question ? Does the running of the statutory period of time extinguish the debt as well as bar the remedy ? Mr. Mitra in his Tagore Law Lectures on Limitation, 4th Edition, says, at p. 14: "As to rights in personam it has been held that a right to receive payment of a debt does subsist even after the remedy by action has deen barred." The decisions in Mohesh Lal v. Busunt Kumaree (1880) I.L.R. 6 C. 340 and Anando Kishore Dass Bakshi v. Anando Kishore Bose (1886) I.L.R. 14 .....

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..... common law lapse of time does not affect contractual rights; such rights are of a permanent and indestructible character unless, either from the nature of the contract or from its terms, it be limited in point of duration. But though the rights possess this permanent character, the remedies arising from their violations are, by various statutory provisions, withdrawn after a certain lapse of time. The remedies are barred, though the rights are not extinguished." See Anson's Law of Contracts, 11th Edn., p. 343. It would, therefore, seem to follow that as mere omission to sue does not discharge the principal debtor, the surety is not discharged under Section 134 of the Indian Contract Act. It has been argued that the surety will be .....

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