1. This is a first appeal from a decree of the Additional Civil Judge of Ballia. It raises a point of some little interest. The facts are comparatively simple. The plaintiff, Sheikh Ghulam Rashid, is the son of one Abdul Waheed who died on 15th March 1921 possessed of quite a substantial estate. Abdul Waheed left him surviving the plaintiff and four daughters. We are not concerned with the daughters in this suit, as they are not parties to it. At the date of his father's death, Sheikh Ghulam Rashid was a little boy of about six and ultimately he attained his majority on 2nd January 1933. Abdul Waheed, the plaintiff's father, had three brothers including one, I think he was the eldest brother, called Sheikh Abdul Ahad, who was defendant 1 to the suit and remained in that capacity until he died. Sheikh Abdul Ahad was actually the senior uncle of the plaintiff and it is common ground that he took possession, on the plaintiff's behalf, of the property comprising Abdul Waheed's estate, or at any rate of that part of it which represented the plaintiff's share. That is pleaded in para. 2 of the plaint in this language:
After the death of the plaintiff's father, defendant 1, as own uncle (father's brother) and guardian of the plaintiff entered into possession of all the properties mentioned at the foot of the plaint. Since then He has bean in possession thereof and has been managing the same.
2. That went on until the plaintiff attained his majority on 2nd January 1933 and, indeed, beyond that, until, I think, about the month of December 1934, when steps were taken to substitute the plaintiff's own name as the owner of the properties. That was the position in November 1935, when this suit was started by the plaintiff against his uncle, Sheikh Abdul Ahad. It will, perhaps, be convenient to explain at this point that the other four defendants, who were original defendants and still are defendants to the suit, are four persons who, the plaintiff alleged, had been employed during his minority by Sheikh Abdul Ahad to collect the rents and profits of the properties. Prom para. 5 of the plaint, it appears that they were added in that other mysterious capacity which is known as that of a pro forma defendant. On 1st August 1936 Sheikh Abdul Ahad died and at some date, which is not given, his two daughters and two of his nephews were substituted as defendants in his place. It is that circumstance, which has given rise to the question which is now in debate before me. Presumably that substitution was made under Order 22, Rule 4 of Schedule l, Civil P.C. The persons substituted were, of course, added as legal representatives of Abdul Ahad, deceased. I cannot help feeling that the question which has now arisen should have been canvassed at that stage of the proceedings, rather than later, because, unless the cause of action survived the death of Sheikh Abdul Ahad it seems difficult to justify the substitution, even as legal representatives.
3. To complete the history of the matter, the suit came on for hearing in due course before the Additional Civil Judge of Ballia. It was then that the point was taken for the first time that the suit was demurrable as against those defendants who had been substituted for Sheikh Abdul Ahad, deceased, upon the ground that no cause of action had survived as against them. Thereupon,. the learned Judge framed an additional issue, issue 11, in these words : 'Is the suit for accounts maintainable against the heirs of the deceased?' This, in a very short judgment, he answered by finding first that the plaint had never since the beginning disclosed any cause of action against those four defendants who were described as pro forma defendants, and secondly - and this was the only matter really raised by the issue-that no cause of action survived the death of Sheikh Abdul Ahad, deceased, against the defendants who had been substituted after his death for him as defendants as his legal representatives. And, accordingly, the learned Judge dismissed the suit. The question is whether, on the death of Sheikh Abdul Ahad, the plaintiff's right to sue survived. Order 22, Rule 1 of Schedule 1, Civil P.C., is in these words: 'The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.'
4. The short point therefore is whether the suit abated on Sheik Abdul Ahad's death or whether the right to sue survived. The learned Judge has held, though in terms he has not said so, that the suit abated. In my view this raises a question which cannot be satisfactorily answered without considering the principles upon which the maxim 'actio personalis moritur cum persona' ought to be applied in a case of this kind. I am not aware that these principles differ in India in any way from the principles which are applicable in England to the same question. The maxim, whatever its wisdom or policy may be, has been said to be as old as the English law itself. I cannot do better than to begin with the well-known case in Phillips v. Homfray (1884) 24 Ch. D. 439 in the Court of appeal, which was affirmed in the House of Lords in Phillips v. Homfray (1886) 11 A.C. 466. The judgments of Cotton and Bowen L. JJ., delivered by the latter, contain an exhaustive examination of the principles which ought to be applied and the reasons for them; and, for this purpose, I see no difference between the position of an executor or administrator who represents the estate of a deceased person under English law and that of a legal representative who represents the estate of a deceased person under Indian law. It is clear that there are certain types of wrongs which, though a remedy for them is available against the alleged wrong-doer during his lifetime, do not permit of a remedy against his representatives after his death. By English law an executor represents the debts and the property of his testator but not his person. And that in general is, I think, true of the position of a legal representative in India. Speaking generally, the only cases, apart from cases of contract in which a remedy for a wrongful act can be pursued against the estate of a deceased person is one in which the wrong consists of the appropriation by the deceased of property, or the value of property, belonging to another. In the words of Bowen L. J.:
The only oases in which, apart from questions of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person -who' has done the act, appear to us to be those in which property, or the proceeds or value of property, belonging to another have been appropriated by the deceased person and added to his own estate or moneys. In such cases, whatever the original form of action, it is in substance brought to recover property, or its proceeds or value, and by amendment could be made such in form as well as in substance. In such cases the action, though arising out of a wrongful act, does not die with the person. The property or the proceeds or value which in the lifetime of the wrongdoer could have been recovered from him, can be traced after his death to his assets, and recaptured by the rightful owner there... Where there is nothing among the assets of the deceased that in law or in equity belongs to the plaintiff, and the damages which have been done to him are unliquidated and uncertain the executors of a wrongdoer cannot be sued merely because it was worth the wrongdoer's while to commit the act which is complained of, and an indirect benefit may have been reaped thereby...
5. Bowen, L. J., goes on to illustrate this by taking the position of a tenant for life charged with committing waste. He points out that, if a tenant for life wrongfully cuts, timber, its proceeds or value can be followed and an action will lie against the legal personal representative of the tenant for life. That, of course, is because the tenant for life has put into his own estate the proceeds of his own misappropriation. But no suit would lie against his legal personal representative for the mere act, for the abstract tortious act, of cutting the timber. As he points out; by not repairing a house, or by ploughing up an ancient meadow, the tenant for life may have indirectly benefited himself or saved his own pocket. But, notwithstanding the wrong, no remedy lies against the representative for the mere wrong itself. It is only when you reach the point of being able to say that there have been proceeds of the wrong and that those proceeds have gone into the estate of the deceased wrongdoer, that you can have recourse by action against his representatives. In this way such wrongs as a mere personal tort can never be sued out against the representative of a deceased tort-feasor. In those cases the principles are inflexibly applied. But as Bowsn L.J., points out for himself and Cotton L.J.:
There was however a species of personal actions to which the rule in question was not extended. These were such as were founded upon some obligation, contract, debt, covenant, or other duty to be performed...
6. That for the purpose for which we are considering the matter, is an important passage in view of the subsequent decision by Cotton L.J., himself, also in the Court of, appeal, to which I shall refer in a moment. The foundation of the whole doctrine under which English law has refused to apply the maxim of 'actio personalis moritur cum persona' to those special types of wrongs which have produced for the wrongdoer either property or money which has accrued to his estate is, I think, based upon the simple truth, to use the words of Cowper L.J. in Bishop of Winchester v. Knight (1695-1735) 1 p.w. 406, that
it would be a reproach to equity to say that where a man has taken my property, as my ore, or timber, and disposed of it in his lifetime and dies that in this case I must be without remedy.
7. If these be the true principles, as I think they are, to be applied not only in England but in India also, then we have to consider whether this is a case in which the plaintiff is in reality claiming that Sheikh Abdul Ahad had, by the wrongs he is alleged to have done attracted to his own estate the proceeds, whether in kind or in money, of his own alleged wrong-doing. If it is such a case, then the maxim 'actio personalis moritur cum persona' will not apply. If it is not - if it is a ease which in reality consists merely of a personal wrong, as for instance the abstract wrong of not delivering accounts, then the suit abated on his death. That, to my mind, is the real question that falls to be determined in this case. But before coming to the law as it has been explained in India, I must refer to one more English case which arises out of that passage from the judgment of Cotton L.J., in Phillips v. Homfray (1884) 24 Ch. D. 439 to which I have already referred in which he points out that English law has always excepted from the scope of the maxim those cases in which in reality the relief sought arises either out of contract, express or implied, or out of some duty or obligation derived from a fiduciary relationship. The case to which I want to refer is Manmothonath Bose v. Basanto Kumar (1900) 22 All. 332. That also is a case in the English Court of appeal and it is possibly fortunate that the leading judgment in it is given by Cotton L. J., himself who was a party to Bowen L.J.'s judgment in Phillips v. Homfray (1884) 24 Ch. D. 439.
8. The facts of the case are singularly like those in the present case. It seems that a father was in possession of the property of his infant daughter. According to the law of Peru, which was the law applicable to the relationship of father and daughter in this particular case, the father was permitted during his daughter's infancy to administer the child's estate and to receive the income of it for his own benefit. There was therefore a relationship existing between the father and the daughter which was of a fiduciary character. The father was in possession of the property in right of his daughter and by the local law was permitted to derive for himself the benefit within certain limits. In our, case, the uncle, Sheikh Abdul Ahad, was also in possession of the property during the plaintiff's minority in the plaintiff's right. It really does not matter whether the relationship arises out of the law of Peru or arises out of the law of the United Provinces of Oudh and Agra in India. What is material is that there should be a relationship - whether strictly fiduciary or not I do not think matters - which involves an obligation in the nature of a trust and out of which a duty arises. When she came of age, this daughter alleged that her father had sold part of her property at such a price and in such a way that he had committed waste. And, he having died in the meantime, she sued his legal personal representatives for compensation out of his estate for the loss occasioned by the transaction. That is a very strong case, because it is not one in which he actually put the proceeds in his pocket but is one in which the complaint made is one of pure neglect of his duties, and the relief asked for was relief in the nature of simple damages. That, I think, makes it an extremely strong case. The English Court of appeal held that the maxim of 'actio personalis moritur cum persona' did not apply and this is what Cotton L.J. said:
It was urged upon us that to allow this claim would be contrary to the maxim of English law 'actio personalis moritur cum persona.' It is true that no action for a tort can be revived or commenced against the representatives of the person who committed it; but the case is quite different; where the act is not a mere tort but is a breach of a quasi contract, where the claim is founded on breach of a fiduciary relation, or on failure to perform a duty. Here the father, though I do not call him a trustee, was in a position in which he owed duties of a fiduciary character to his daughter. In the very careful judgment of Bowen L.J. in Phillips v. Homfray (1884) 24 Ch. D. 439, cases depending on breach of contract, express or implied, are excepted from the judgment. Here there is what we call quasi con-tract, the law implying a contract that a man will faithfully perform the duties which he has undertaken. Juan Jose Concha undertook a duty in consequence of his position, and losses arising from his breach of it can be followed up against his estate.
9. So much for the English law. I have already said that, in my view, I can see no difference in principle between the law as it stands in England in this respect and the law as it stands in India. The question is the same - did the cause of action survive, as against the legal representatives of the deceased man or did the cause of action die with him? In a number of Indian cases this question has' arisen, but in not many of them have the principles been considered. From our own Court the learned Judge of the Court below has referred to the case of Manmothonath Bose v. Basanto Kumar (1900) 22 All. 332, as an authority in support of his conclusion that the suit abated on the death of Sheikh Abdul Ahad. It is a case which has been referred to, and severely handled, by other Courts in India, but even assuming, as I must assume, that it was rightly decided, even then I do not think that it has any bearing on the present case. In that case, a guardian had been appointed under the Guardians and Wards Act. The plaintiff who was the ward and had come of age filed a suit before the Munsif of Allahabad against the legal representatives of his guardian for accounts. What the Court held there, I think, was that, inasmuch as Section 41(3), Guardians and Wards Act of 1890, itself provides a means for getting accounts from a guardian or, if he is dead, from his representatives it was not open to the ward to have recourse to an ordinary civil suit. It is said that if he wanted to proceed he could have proceeded under that section. That, I think, is the real meaning of the decision and it has been so understood in various other cases twice, for instance in Mohamad Jamil v. Mt. Mehran Bibi ('18) 5 A.I.R. 1918 Lah. 119. Nor is the case one which has found favour in the eyes of other Courts. In Maharaja Bahadur singh v. Basanta Kumar Roy ('13) 17 C.W.N. 695, the learned Judges upon a question similar to the one with which I am dealing draw a distinction between a case, such as this, in which the guardian 'himself is sued and dies during the pendency of the suit, and the case in which the guardian was dead at the date the suit began and his representatives are originally sued. They say:
The learned District Judge has overlooked the all important fact that the present suit was originally brought not against the representatives but against the defaulting manager himself. He filed his written statement and the original decree was passed against him and his application to have the matter re-heard was refused... We know of no authority for the proposition that a suit filed against a guardian under such circumstances could fail by reason of his death pending the hearing...
10. If that view of the matter is sound, it would cover this case too. But, speaking generally and with great respect, I should prefer myself to rely rather upon the general principle of whether the right to sue survived or not, than upon the distinction to which the learned Judges draw attention. In Narayan Balaji v. Kashibai Keshav Naik ('20) 7 A.I.R. 1920 Bom. 166 an almost exactly similar question to the one with which I am dealing arose. In that case there were two periods during which a certain person was managing the property of a minor otherwise than by appointment under the Guardians and Wards Act. He was in possession, in exactly the same circumstances as Sheikh Abdul Ahad was in possession - by having taken the minor's property into his care. The Bombay High Court, though without expressly referring, I think, to the principles of Phillips v. Homfray (1884) 24 Ch. D. 439 came to the conclusion that the legal representatives of the guardian were liable to account, if it was established that the property of the minor did go into the hands of the guardian and thence into the hands of his representatives.
11. Speaking for myself, and again with great respect, I am not sure that that possibly is not putting greater limitations on the doctrine of Phillips v. Homfray (1884) 24 Ch. D. 439 than the law even in India justifies. If the suit is one in pursuit of property and that property can be actually traced into the hands of the representatives of the deceased manager, I should have thought that it would follow almost without question that it could be recaptured from them. The true doctrine, in my view, goes a long way farther than that. It goes to the point at which, whenever you find that the deceased person has by his wrong diverted either property or the proceeds of the property belonging to some one else into his own estate, you can then have recourse to that estate, through his legal representatives when he is dead, to recover it subject, of course, to the limitation that any decree obtained will be limited to the assets of the deceased wrongdoer's estate. And if the further principle propounded by Cotton L.J. and by Bowen L.J. can be applied in India - and I do not see why it cannot then, whenever you find a relationship based on contract, quasi contract, some fiduciary relationship or some obligation to perform a duty,1 that also is alone sufficient to entitle a remedy to be pursued against the legal representatives of the wrongdoer.
12. My attention has been called by Mr. Ambika Prasad to certain Indian authorities which he says place limitations on this doctrine in India. If I understand him rightly, he is not disposed to quarrel in general with the application in India of the principle of Phillips v. Homfray (1884) 24 Ch. D. 439 but he says that in order to avail oneself of it in India, it is not enough merely to ask for an account against the deceased trustee or the deceased wrongdoer. He points out that the obligation to account is merely a personal obligation. If by that he means to refer to the obligation to account in the abstract, then I should agree. It may be true that the liability of an agent or a manager or of a trustee or of a guardian in the abstract to deliver accounts is a mere personal duty and that, if he fails to deliver accounts, that is a mere personal wrong. It may be - though I must not be taken to be deciding it - that the principle of Phillips v. Homfray (1884) 24 Ch. D. 439 does not go so far in this country as to allow the legal representatives of a guardian to be called to account without 'alleging that he has appropriated either property or the value of the property during his lifetime. Mr. Ambika Prasad has referred to the case in kumeda Charan v. Asutosh Chattopadhya ('12) 16 I.C. 742. That was a suit brought by a principal against the legal representatives of an agent. Prom the report it appears that what was alleged against the agent was merely that he had failed to deliver accounts. That was all. It was not alleged, as far as I can see, that he had misappropriated any funds or anything of that kind. All that was alleged was that he had failed to deliver accounts - in other words, that he had failed in that personal and abstract obligation which lies upon an agent to account to his principal. The learned Judges of the Calcutta High Court who decided the case said this:
It does not follow that the estate o the agent who has not rendered an account escapes all liability in the hands of the representatives. The remedy of the principal in a case of this description is to sue the representative for any loss he may have suffered by reason of the negligence or misconduct, the misfeasance or malfeasance of his agent; in other words, the suit is not one for accounts strictly so-called, but a suit for money payable to the principal by the representatives of the agent out of the assets in their hands....
13. But the learned Judges then refer to Concha v. Murrieta (1889) 40 Ch. D. 543 in support of the view that, where an act is not a mere tort but is a breach of a quasi contract and the claim is founded upon a fiduciary relationship or on the failure to perform a duty, an action will lie against the personal legal representatives. In my view, this case in no way contradicts the principle of Phillips v. Homfray (1884) 24 Ch. D. 439, but rather applies it to India. Nor in the other case to which Mr. Ambika Prasad referred is there anything that I can see destructive of the same principle. That case is a case of the Patna High Court, Rmeshwar Singh v. Narendranath ('23) 10 A.I.R. 1923 Pat. 259. At page 920 the learned Judges say:
It is we think well established that the representatives of a deceased agent are not liable to render an account in the sense in which the agent, had he lived, might have been called upon to do so.. The liability to render accounts is a personal one attaching to the agent and cannot be enforced against his heirs. This does not mean however that the heirs must necessarily escape liability altogether for the defalcation or breach of duty of the agent if the principal can prove that he has suffered loss thereby. The suit is so framed as to include a claim for sums received by the agent for the use of the plaintiff and for the loss occasioned to the principal by reason of the defalcation and breach of duty of the agent and, to the extent of the assets of the deceased agent in their hands, the heirs would be liable...
14. There, again, we have the same principle. In my view, neither of these cases is opposed to the view I take. So far therefore as the law is concerned, my view is this. If this was a suit by the plaintiff against Sheikh Abdul Ahad. founded upon a relationship either of contract or of quasi contract or involving an obligation or duty attributable to the special position of Sheikh Abdul Ahad as between himself and the plaintiff, then, I think, that the suit is not one which abated on his death. Moreover, if this is a suit which in reality alleges that Sheikh Abdul Ahad during his lifetime appropriated himself either property or the value of property belonging to the plaintiff, then, again, I think that, upon the principle of Phillips v. Homfray (1884) 24 Ch. D. 439, this suit did not abate, whether the actual assets misappropriated can be traced into the hands of the legal representatives or not.
15. It remains therefore to look at the plaint and to see exactly what this suit was. The respondents have urged me to take the view, if I understand them rightly, that, fairly looked at, the plaint asks for accounts and nothing more. In other words, they say that the cause of action was only the failure by Sheikh Abdul Ahad to perform what I have earlier described as his personal and abstract duty to account. I have considered the plaint very carefully. The substance of it is contained in para. 2. There is to be found what (exactly the plaintiff is charging against the defendant. The plaint, as I see it, alleges four things-four specific things against Sheikh Abdul Ahad. It says:
(1) 'He used to get collections made through, defendants 2 to 5.' That, I think, is an allegation that the guardian collected the rents through an agent throughout the period of his guardianship. (2) 'He got bamboo clumps and trees of considerable value cut down and sold them.' That, to my mind, is a distinct charge of, not only waste of the property committed to his care, but also of having converted the proceeds of the clumps and trees to his own use. (3) 'After taking considerable amount he admitted general non-occupancy holdings as occupancy holdings.' That seems to me to be an allegation that he took money in the form of either premia or fines from tenants and (4) 'He made others cosharers in the holdings which were to be left unclaimed and let out unclaimed holdings after taking a considerable amount of nazrana. That again, as it seems to me, is an allegation that he improperly took monies in consideration of dealing with the property.
16. It is quite true that it is not said in so many words that he put all this money into his own pocket. But I cannot read that paragraph fairly without concluding, not only that that was what was meant, but that every defendant to the suit must have known very well that that was what was meant. 'What Sheikh Abdul Ahad was being charged with was having disposed of various parts of the estate and of monies derived from the estate by (.putting them into his own pocket. The plaint then goes on to ask for an account and again, upon any fair reading of it, I think, it means that the plaintiff is demanding an account from Sheikh Abdul Ahad of the proceeds of the various wrongs which he is alleged in para. (2) to have committed and to. have benefited himself by. I concede that the plaint might possibly have been better drafted but that is a criticism which could be made probably of almost any plaint. One has to look at it reasonably and fairly. Applying my mind, to the best of my ability to it, I think that this plaint contains a distinct allegation that defendant 1 did owe a duty to the plaintiff and that in breach of that duty he appropriated to himself either the property of the minor or else its value. In these circumstances applying the principles I have endeavoured to explain, I think the learned Judge was wrong in treating the suit as having abated.
17. As regards those defendants who were sued as the collecting agents of defendant 1 it is expressly stated by para. (5) of the plaint that they are sued merely as 'pro forma defendants.' Mr. Khwaja has said very candidly that he has not the least intention of asking for any substantial relief against them and that he never had any such intention. I am far from saying that it was ever necessary for them to be made parties to the suit and that will eventually be a matter which the learned Judge will no doubt decide. In the meantime that is not a question which, I think, it is for. me to decide here. I see no harm in their remaining in the meantime in their present capacity as 'pro forma defendants' whatever that may mean. In the result therefore I shall set aside the decree dated 15th April 1937 dismissing the suit and order that the suit be returned to the Court of the Additional civil Judge of Ballia to be tried and disposed of in accordance with law. The appellant is entitled to his costs of this appeal.