P L D 1967 Karachi 755 (PLP)

(ii) On 3-8-1948, a sum of Rs. 16,000 was advanced as loan to Imambux Haji Chandu and Yusufali Muhammadali Lookmanji. On 5-10-1950, a voucher was prepared by the manager debiting in suspense account Rs. 16,000and purporting to show as if the amount was being repaid to one Asmabai M. Tayabali which had been originally deposited by her in suspense account on 11-10-1949. No such amount was however deposited or held in suspense account in her name. This amount was shown as again received from Imambux Haji Chandu and Yusufali M. Lookmanji in repayment of the loan. The bank was thus put to a loss of Rs. 16,000 and a proper audit of these vouchers and accounts would have at once revealed to the auditors that the sum of Rs. 16,000 as a result of the above had been misappropriated and the bank put to a loss of Rs. 16,

000. The audit report in respect of this period was made by the defendants on 15-11-1951. (iii) On 25-5-1956, two vouchers were prepared by the manager, by which a sum of Rs. 30,000 was debited to current account suspense against a similar sum as held in suspense on 23-9-1953 on behalf of Mistry Patel & Co. and was credited to their loan account. No amount was, however, entered in current account suspense as received from Mistry Patel & Co. on 23-9-1953 and a proper audit of these vouchers and accounts would have at once revealed that the sum of Rs. 30,000 had been drawn out by the manager and was misappropriated. The bank was thus put to a loss of Rs. 30,

000. The audit report for this period was made by the defendants on 9-4-1957. (iv) On 12-1-1953 two vouchers were prepared showing purchase of 3 % Pakistan Loan 1963 Government Securities of Rs. 3,00,000 at Rs. 100 4 % for the total amount of Rs. 3,00,

750. To these amounts were added interest accrued amounting to Rs. 1,512-8-0 net. The total sum of Rs. 3,02,262-8-0 was debited to the bank's investment in Government securities account and was credited to current account of Pakistan Contractors Co. from whom the aforesaid securities were shown to have been purchased. No details of securities as to their distinctive numbers and dates were entered either in the vouchers or in the bank's register of Government Securities. In fact, however, no such securities were purchased at all from Pakistan Contractors Co. and by means of the above-mentioned vouchers the sum of Rs. 3,02,262-8-0 was drawn out from the bank and was misappropriated. A careful or proper audit would have revealed the unauthorised. withdrawal of the amount and had the securities held by the bank properly checked, it would have been found that no such securities were in fact purchased or held by the bank. (v) On 23-11-1953, vouchers were prepared showing purchase of 3 % Pakistan Loan. 1963 Government Securities of Rs. 2,00,000 for the price of Rs. 1,96,

000. This sum of Rs. 1,96,000 was debited to the bank's investment in Govern ment securities account and was credited to current account of Pakistan Contractors Co. from whom securities were shown to have been purchased. No detail; of securities or their distinctive numbers and dates were entered in the vouchers and in the bank's Register of Government securities. In fact, however, no such securities were purchased at all from Pakistan Contractors Co. and by means of the above-mentioned vouchers, the sum of Rs. 1,96,000 was drawn out from the bank and was misappropriated. A careful or proper audit would have revealed the unauthorised withdrawal of the amount and had the securities held by the bank properly checked, it would have been found that no such securities were in fact purchased or held by the bank. The accounts for this period were audited by the defendants as per their report dated 7-1-1955. The bank accordingly was put to a loss of Rs. 1,96,000. (vi) On 5-12-1953 vouchers were prepared showing purchase of 3 % Pakistan Loan 1963 Government Securities of Rs. 2,00,000 for the price of Rs. 1,96,

000. This sum of Rs. 1,96,000 was debited to the bank's investment in Government securities account and was credited to current account of Pakistan Contractors Co. from whom securities were shown to have been purchased. No details of securities, or their distinctive numbers and dates were entered in the vouchers and in the bank's Register of Government securities. In fact, however, no such securities were purchased from Pakistan Contractors Co. and by means of the above-mentioned vouchers the sum of Rs. 1,96,000 was drawn out of the bank and was misappropriated. A careful and proper audit would have revealed the unauthorised withdrawal of the amount and had the securities held by the bank properly checked, it would have been found that no such securities were purchased or held by the bank. (vii) Out of the aforesaid three items of so-called purchase of the Government Securities of the aggregate value of Rs. 6,94,262-8-0, representing Pakistan securities of the face value of Rs. 7,00,000 securities of the face value of Rs. 1,00,000 were subsequently shown as sold out on 23-1-1954 for Rs. 99,000 and was credited to the plaintiffs investment in Government securities account. The vouchers show that the securities were sold out to some unknown party and the amount received from him was in cash. The plaintiffs, however, give credit for the aforesaid sum of Rs. 99,000 and. claim that the plaintiffs have suffered a loss to the extent of Rs. 9,95,262-8-0 which amount they claim from the defendants. (viii) On 16-7-1954 a voucher was prepared by which Rs. 2,98,120-5-0 was credited to the current account of Pakistan Contractors Co. being the proceeds of cheque on the State Bank of Pakistan received from the Mercantile Bank of India Ltd. The real position with regard to this cheque for Rs.2,98,120-5-0 received from the Mercantile Bank of India Ltd. for credit to the account of Pakistan Contractors Co. are these. The proprietor of Pakistan Contractors Co. was one M. Ghulamali. It is made to appear that he had made a contract with Messrs Sultan H. M. Merchant for sale of 3 % 1963 Pak. Government Loan of the face value of Rs. 3,00,000 for a total price of Rs. 2,98,120-5-0. The said Messrs Sultan H. M. 'Merchant directed the aforesaid M. Ghulamali to deliver the 3 % 1963 Pakistan Loan of the face value of Rs. 3,00,000 to the Mercantile Bank of India Ltd. against payment of Rs. 2,98,120-5-0. It appears that Mr. Ghulamali and the deceased manager were acting in conspiracy. The Government securities, that is, 3 % 1963 Pakistan Government Loan of the face value of Rs. 3,00,000 which were held by the plaintiffs on their own behalf and on their own account were delivered to the Mercantile Bank of India Ltd. who forwarded to the plaintiffs the above-mentioned cheque for Rs. 2,98,120-5-0 on the State Bank of Pakistan to the plaintiffs for credit to the account of M. Ghulamali. The voucher therefore was prepared to credit this sum to account of Pakistan Contractors Co. The accounts for this period were audited by the defendants on 2-12-1955 and it was the duty of the defendants to check the Government securities held by the bank on their own behalf and on their own account which they failed to do. As a matter of fact the Investment Register of the plaintiffs showing the Government securities continued to show the above-mentioned securities as still held by the plaintiffs when they had been delivered to Mercantile Bank of India Ltd. The securities of the plaintiffs delivered to the Mercantile Bank of India Ltd. on behalf of M. Ghulamali are as under: Twelve G. P. Notes 3 % Pak. Loan 1963 each of the face value of Rs. 25,000 Nos. KH 001174 to 1185 of the total face value of Rs. 3,00,000.

4. It is further stated that throughout the above-mentioned period one Abdullah Bhai Tayabali was the manager of the plaintiff's. He died suddenly only 10th June 1959 and on the securities being checked all of them could not be traced. This aroused suspicion of the Board of Directors, whereupon the said auditors were required to carry out a thorough audit which they did and made their report on 26th August 1959. In this report they brought to the notice of the plaintiffs that amongst others the securities of Rs. 9,00,000 relating to the transaction of Pak Contractors were not in existence and that the particulars of these purchases, that is distinctive numbers of the certificates, etc., were not recorded in the books or in the purchase vouchers and hence it remained doubtful whether these securities had actually been acquired by the plaintiffs.

5. It is the case of the plaintiffs that as a result of the carelessness and negligence on the part of the defendants (the auditors) the plaintiffs have been injured and sustained a total loss of Rs. 10,52,371.50, for which the auditors were liable to compensate the plaintiffs and pay the said amount. The cause of action is stated to have accrued on or about the 26th of August 1959, when the negligence on the part of the auditors was first discovered in respect of the securities which were not in existence.

6. As has been already stated the suit was filed on 15th August 1961 and the only defendant Sajan died on 26-9-61 and the question which requires to be considered for the purposes of the preliminary issue is whether the plaintiffs' right to sue survives against the present four defendants who are the legal representatives of the original defendant Sajan. From the averments of the plaint it is clear that the basis of the claim against the original defendant is his failure to perform the duty which he owed to the plaintiffs as their auditor and that this failure was due to his negligence. There is no allegation of fraud, dishonesty or misappropriation on the part of the said Sajan, nor is it alleged that as a result of the said negligence any benefit has accrued to the estate of the original defendant. The claim is thus for unliquidated damages based upon the negligence of the original defendant in the performance of his duty as an auditor without, however, he or his estate having derived any material benefit from it. The action, therefore, is plainly one for tort. The fact that the original defendant was appointed as auditor by the plaintiffs does not by any means render this claim as being based upon contract. The question which then arises is whether such an action could only be sustained as a personal action against the deceased and whether that action died with him by the application of the common law maxim actio pesonalis moritur cum persona.

7. The above-maxim is a part of the law of Pakistan and is enforced upon grounds of justice, equity and good conscience except in so far as it has been modified by statute. This was also the position in India before partition and thereafter. Reference may be made to the case of Arunachalam Chettiar (A I R 1958 Mad. 142). In another case of the Indian jurisdiction Baboolal v. Ramlal Nandram (A I R 1952 Nag. 408) it was held that "it is well-established rule o common law that if injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action dies with the person to whom or by whom the wrong was done except where a remedy is given to or against the' personal representatives by statute law." The general result of the application of the aforesaid common law maxim is stated in para. 985 of Halsbury's Laws of England, III Edn., Vol. 16 at p. 483, wherein it is said that the result of the application of the said maxim was that the representative could not sue or be sued for a wrong committed against or by the deceased for which unliquidated damages alone would be recoverable. The exception to that rule is stated to be in a case against the estate of the deceased person where property or the proceeds or value of property belonging to another had been appropriated by the deceased person and added to his own estate or money. In such cases the action though arising out of a wrongful act, did not die with the person. The application of the maxim in England has been modified by the Law Reform (Miscellaneous Provisions) Act, 1934, which has also specified the exceptions whereby causes of action for defamation, seduction and adultry would still die with the wrong doer. However, as far as we are concerned the statute law of England is not applicable in this country so that the maxim would still be applied on principles of equity, justice and good conscience except in so far as it is modified or altered by the statute law of this country. I shall now proceed to refer to such statute law, the effect of which has been the subject-matter of a number of judicial pronouncements.

8. The procedural law, i.e. Civil Procedure Code merely provides by Order XXII, rule 1 that the death of a plaintiff or a defendant shall not cause the suit to abate if the right to sue survives. The question whether the right to sue survives in a particular case falls within the realm of substantive law. In Pakistan, there is no statutory law of torts. There was and is none also in India. The Courts in such cases applied the rules of English Common law, one of which is contained in the maxim in question, as rules of equity, justice and good conscience However, there are provisions of two statutes which have limited the application of this maxim and to these I shall now refer.

9. The first of these is the Legal Representatives' Suits Act (XII of 1855). This Act consists only of two sections and the second part of section I which is material provides that an action may be maintained against the executors or administrators or representatives of any person deceased for any wrong committed by him in his lifetime, for which he would have been subject to an action, so as such wrong shall have been committed within one year before such person's death. This statute was recognised by Niamatullah, J. in the case of Dehradun Mussoorie Electric Tramway Co. Ltd. (A I R 1935 All. 995) as the first inroad upon the application of the maxim actio personalis moritur cum persona. It was, however, conceded that this left a big loophole inasmuch as the Act covered only torts committed by person deceased during the year preceding his death. Now, in the case before me the alleged negligence was committed during the years 1951 and 1956 when due to their alleged negligence the auditors had failed to notice the misappropriation, etc. which are alleged to have been committed by the bank's manager. The present suit was filed in 1961; therefore, Act XII of 1855 would not have been of any assistance to the plaintiffs if this suit had been filed after the death of G. L. Sawn.

10. The next statutory provision to which reference has been made in the argument is section 306 of the Succession Act (Act XXXIX of 1925). The rule of this section was formerly contained in section 89 of the Probate and Administration Act V of 1881. Section 306 reads:- "306.-All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Pakistan Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory." The question whether this section applies only to executors or administrators or also to the heirs of a deceased person has been considered in a number of cases which I shall now proceed to examine.

11. In the case of Peoples Bank of Northern India Ltd. v. Des Raj (A I R 1935 Lah. 705) a Division Bench of the Lahore High Court referring to this section observed: "It is true that the section governs the liability of the executors and administrators but there is no reason to hold that the liability of the heirs who have not taken out probate or letters of administration stands on a different footing." It may, however be mentioned that it had been found in this case that the directors of the company had utilised the company's money for their own interest. It was found that both the directors, namely Muhammad Ali and Hargopal had conspired to utilise the bank's money. Des Raj who was nominally shown to have borrowed the money was a cousin of the director Hargopal and the inference reached was that it was the director himself who benefited by the advance taken from the bank. It was in these circumstances that it was held that the directors had 'been guilty of fraudulent conduct towards the bank to which they stood in a fiduciary capacity and they were liable to account for it to the company.

12. The same Division Bench dealt with another case of the same parties reported in Peoples Bank of Northern India Ltd. v Hargopal and others (A I R 1936 Lah. 271). In this case their Lordships after referring to section 306, which expressly refers to the executors and administrators only, went onto observe: - "It may properly be assumed that the liability of the legal representatives who are not executors or administrators is the same." It may be noticed that in neither of these two decisions was any reason given for the application of this section to persons other than the executors and administrators.

13. The question was also considered by a learned single Judge of the Calcutta High Court in the case of Bireswar Ghose (A I R 1946 Cal. 299). That case arose out of an action by a father against his youngest son for a declaration that certain conveyances which he had executed in favour of that son were inoperative and void and for recovery of possession of property which was the subject-matter of those conveyances. The father died intestate and his other sons applied to be substituted to continue the suit. The son in whose favour the conveyance had been made opposed the representation by the other sons after the death of the original plaintiff relying upon section 306 upon the ground that the father had died intestate and no letters of administration having been obtained the other sons did not have the right to maintain the action. In that context the learned Judge observed that on reading sections 305 and 306 together there could be little doubt that these two sections leave room for the survival of the action affecting property to persons other than the executor or administrator. It was further observed that- Where, therefore, it is the right to certain property that it disputed in a suit and declarations are asked for which will deny to the defendant his right to it, the causes of action themselves directly affect the property and in such a case the proper persona to be substituted are the heirs of the deceased plaintiff or defendant who died intestate." It may be noted that in this case also the defendant was shown to have benefited by the transaction, the legality of which was being challenged in the suit. On this ground, therefore, the action could not be affected by the maxim of actio personalis morittu cum persona because that common law principle has not been extended in such cases.

14. On the other band, a Division Bench of the Allahabad High Court in the case of Dehradun Mussoorie Electric Tramway Co. Ltd v. Hansraj to which reference has already been made while considering the inroads by the Indian Legis lature into the said maxim has first noted the Legal Representatives' Suits Act XII of 1855 and then section 306 of the Succession Act. With reference to this section it was conceded that this section again abrogates this maxim only partially; legal representatives other than executors and administrators are outside this section. In a case of our own Court F. M. Shefta v. Federation of Pakistan (P L D 1959 Kar. 678) the learned Single Judge who decided this case after observing that the estate of the deceased had not been affected by the alleged tortious act went on to hold relying upon two older decisions I L R 39 All. 6 and I L R 31 Cal. 993 at 999 that section 306 applied to executors and administrators and not to heirs of the deceased.

15. It may be noticed that section 306 of the Succession Act falls under Chapter VI which relates to the powers of an executor or administrator. Section 305 which is the first section of this chapter provides that an executor or administrator has the same power to sue in respect of all causes of action that survived the deceased and may exercise the same powers for the recovery of debts as the deceased had when living. . Section 306 provides for the survival to and against executors' or adminis trators of the demands and rights of action of or against the deceased. The exceptions are made in the cases referred to therein. Having given my anxious considerations to the question I find myself unable to extend the operation of section 306 to persons other than executors and administrators. If such other persons enjoyed an immunity against actions for unliquidated damages for a wrong committed by the deceased upon the application of the maxim actio personalis moritur cum persona in cases where the estate of the deceased had not benefited by the wrong, it is difficult to hold that they were deprived of such immunity by a provision in the Successions Act, which expressly applies only to executors and administrators. If it was contemplated by the Legislature to limit the application of the said maxim to cases provided under section 306 for persons other than executors and administrators, it would have enacted such a provision. I have-already referred to the provisions of the Legal Representatives Suits Act of 1855, which expressly referred not only to executors but also heirs or representatives of a deceased person for any wrong committed by him in his life time. My conclusion, therefore, is that in so far as the deceased or his estate had not benefited by the alleged negligence of the deceased Sajan, the claim for unliquidated damages against his heirs does not survive after Sajan's death.

16. There is another aspect of the matter. It has been repeatedly held that the right to render account is a personal right available against a person who is liable to account and that such a right does not survive against his heirs except in case where a claim for money is made and for which accounting is sought. The exception is upon the principle that where the deceased had appropriated money or property the cause of action even though personal to him survives. In the suit before me the damages are claimed not on the ground that the deceased Sajan had misappropriated any property or derived any material gain but upon the ground that in the performance of his duty he was negligent. This duty involved the auditing of the accounts maintained by the bank and doing such other things as an auditor might require to do. An inquiry into the allegations of the plaint would involve most complicated questions relating to auditing of accounts and it is difficult to see how the widow or the old mother or the two minor children can be called upon to meet cases of alleged negligence in the, matter of auditing complicated and involved accounts, etc. maintained by the bank. It is Sajan who might have been able to make a proper defence on facts relating to the allegations made in the plaint. He might have been able to show from his own knowledge of the working of this co-operative bank and the system followed by the manager and the directors that it was not really because of his fault that the bank had suffered as it alleges. To call upon these heirs to meet such a claim arising purely upon an alleged failure to perform duty by the deceased auditor would be against the principles of equity, justice and good conscience. By reasons of those principles the right of action must be deemed to have died with the deceased Sajan.

17. My finding, therefore, on the preliminary issue is that the cause of action has not survived and the suit has, therefore abated. I accordingly dismiss the suit. Considering that the suit was in situated in the lifetime of Sajan I make no order a to costs. K.B. A. Suit dismissed.