JUDGMENT Sale, J. - This is a suit brought by the adult son of the late Manick Lall Dutt on behalf of himself and his infant brothers Nundo Lall Dutt and Gopal Lall Dutt against the surviving partner of their father for an account of the share of the profits of the partnership which was dissolved on the death of Manick Lall Dutt and for certain other relief to which I shall more particularly refer later on. The Defendant is the surviving partner of Manick Lall Dutt and he has raised various defences to the Plaintiff's suit. The only one of these which has been discussed before me at present is that which raises the plea of limitation. It is necessary having regard to this defence to ascertain precisely what the nature of the suit is and what are the allegations which the Plaintiff makes and relies upon in support of his claim. It appears that one Sagore Dutt, who was a wealthy trader in Calcutta, died In the year 1866. He carried on a jute-bailing business in his lifetime and by his Will he made a gift of certain jute-marks belonging to him to his son Manick Lall Dutt and his nephew Raj Narain Dutt in equal shares with liberty to use the same in any trade or business in jute they might engage in on their own account. The Administrator-General who was appointed the sole executor of the Will of Sagore Dutt took out probate of Will and after administrating the estate made over to Manick Lall Dutt the assets of the father's estate including the jute-marks and the good-will retaining a certain portion of the estate to be dealt with under the provisions of Will. After the death of Sagore Dutt it appears that Manick Lall Dutt and the Defendant Raj Narain Dutt agreed to carry on a jute-bailing business in partnership utilizing the marks bequeathed by Sagore Dutt in their business, It appears that Manick Lall Dutt and the Defendant and one Johur Lall Dutt in partnership carried on certain other businesses under a partnership deed, dated the 22nd March 1888. Johur Lali Dutt appears to have had no interest or concern in the jute-bailing business. Johur Lali Dutt appears to have had no interest or concern in the jute-bailing business. Johur Lall Dutt retired from the partnership on the 30th April 1894 and after his retirement Manick Lall Dutt and the Defendant, as and from the 1st May 1894 carried on all the businesses including the jute-bailing business in partnership and a further deed of partnership was executed between Manick Lall Dutt and the Defendant on the 12th December 1895. Shortly after the execution of this deed Manick Lall Dutt died, the date of his death being the 25th January 1896. Manick Lall Dutt died intestate leaving him surviving the Plaintiffs who were then all infants and Sm. Sarat Coomaree Dassee his widow. Sm. Sarat Coomaree Dassee applied for and on the 29th June 1896 obtained Letters of Administration to the estate of Manick Lall Dutt during the minority of the Plaintiffs. In the 11th para, of the plaint the Plaintiffs alleged that their mother Sm. Sarat Coomaree Dassee after obtaining Letters of Administration had considerable correspondence with the Defendant as to the adjustment of accounts of the partnership and that on the 16th November 1896 a sum of Us. 8,000 was paid by the Defendant to her on account of the partnership debt due by him to the estate of his deceased partner. Some 3 years afterwards, on the 25th January 1899, a further sum of Rs. 57,814-4 6 was paid by the Defendant and the Plaintiffs allege that such payments did not include certain outstandings still unrealized and due to the partnership and were made pending the final adjustment of accounts between the estate of Manick Lall Dutt and the Defendant. The Plaintiffs also allege that in arriving at the sum of Its. 65,814-14-6, that is the total of the 2 sums I have mentioned, neither the jute-marks nor the good-will of the businesses were taken into account and that the partnership accounts were not then and never have been finally adjusted. The Plaintiff, Mohit Lall Dutt, attained majority on the 21st February 1903, his co-Plaintiffs his brothers being still infants and they submit that the grant of Letters of Administration to their mother ceased on Mohit Lall Dutt attaining his majority on the 21st February 1903. The Plaintiff, Mohit Lall Dutt, attained majority on the 21st February 1903, his co-Plaintiffs his brothers being still infants and they submit that the grant of Letters of Administration to their mother ceased on Mohit Lall Dutt attaining his majority on the 21st February 1903. It is alleged that after attaining his majority Mohit Lall Dutt through his attorney made further demands on the Defendant to come to a final adjustment of the account of his father's interest in the partnership and it is alleged that the Defendant has taken no notice of these demands. The Plaintiffs thereupon allege that they are entitled to an account of the share and interest of their father in the partnership and to a declaration that they are entitled to a half share of the jute-marks and of the good-will in the businesses and to compensation for the use of the half share of their father in the partnership assets and also for the half share in the jute-marks and in the good-will in the businesses, since their father's death, and in the 20th para, of the plaint it is alleged that the Plaintiffs' cause of action on the account arose in Calcutta on the 25th January 1896, but owing to their minority they are advised that they are now entitled to institute this suit and as to the other matters the subject of this suit the Plaintiffs are advised that their cause of action arises in Calcutta and from day to day. The prayer of the plaint is for an account of the partnership between the Defendant and Manick Lall Dutt, for a declaration that the Plaintiff's are entitled to a half share in the jute-marks and good will and co the amount which was due to Manick Lall Dutt at the time of his death on a proper adjustment of the account of the partnership less the sum already paid and that they are entitled to compensation for the use by the Defendant of the jute-marks and good-will and to the share of their deceased father in the business or at their option the profits made by such use by the Defendant. 2. Now the first question which arises is as to the nature of this suit because upon that question must depend the article of the Limitation Act which applies to it. 2. Now the first question which arises is as to the nature of this suit because upon that question must depend the article of the Limitation Act which applies to it. It is admitted that so far as the jute-marks and good-will of the businesses are concerned, they are part of the assets of the partnership business, trade-marks being indeed part of the good-will of the business. A distinction, however, is sought to be drawn between the right to partnership accounts and the right to the share of the deceased partner in the good-will and trade-marks employed in the business both before and after the death of the deceased partner. It appears to me that on principle no distinction can be drawn in fact between the right to partnership of account and the right to the good-will and trademarks. Doubtless in taking the partnership account it will be necessary that a valuation should be made of the good-will and trade-marks as part of the assets of the partnership businesses and it also may be conceded that upon the taking of the partnership account the fact of the share of the deceased partner being retained in the business would give the Plaintiffs the right to an account of what has been gained by the Defendant by reason of the retention of the share in the business. It seems to me that the right of the Plaintiffs to the good-will and trademarks is merged in the general right to a share in the partnership assets which can only be ascertained on the taking of the partnership accounts. 3. An attempt has also been made to distinguish this suit from an ordinary action for partnership accounts by reason of the fact that there were some assets unrealized belonging to the firm. There is no statement in the plaint that since the death of the deceased partner assets then unrealized have in fact been realized but the fact that there were unrealized assets outstanding at the death of the deceased partner which were still outstanding at the time of the suit would not alter the nature of the suit. There is no statement in the plaint that since the death of the deceased partner assets then unrealized have in fact been realized but the fact that there were unrealized assets outstanding at the death of the deceased partner which were still outstanding at the time of the suit would not alter the nature of the suit. I think therefore that the suit comes within the language of Art. 106 of the Limitation Act as a suit for an account and a share of the profits of a dissolved partnership and that accordingly the period of limitation ordinarily applicable to a suit of this nature is 3 years from the date of the dissolution of the partnership. 4. The next question is whether the Plaintiff has succeeded in showing that having regard to sec. 7 of the Limitation Act they are exempted from the application of the general rule governing suits of this kind. Now sec. 7 provides, " If a person entitled institute a suit or make au application, &c, at the time from which the period of limitation is to he reckoned a minor, or insane, or an idiot, he may institute the suit, or make the application within the same period, after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the second schedule hereto annexed Now at the date of the death of Manick Lall Dutt the Plaintiffs were undoubtedly minors and assuming they wire entitled at that time to institute a suit of the character of the present suit they would undoubtedly under the terms of the present section be entitled to a further period for the institution of their suit after their disability ceased of the same extent as that prescribed by Art. 106 of the Limitation Act. The question, however, is how this right was affected by reason of Sm. Sarat Coomaree Dassee having taken out Letters of Administration of the estate of her deceased husband on the 29th June 1896. Under sec 4 of the Probate and Administration Act the effect of this grant was that the entire estate of the deceased husband vested in her and she for the purposes of administration represented in every respect the estate of her deceased husband. If so, did this fact affect the operation of the law of limitation? 5. Under sec 4 of the Probate and Administration Act the effect of this grant was that the entire estate of the deceased husband vested in her and she for the purposes of administration represented in every respect the estate of her deceased husband. If so, did this fact affect the operation of the law of limitation? 5. That seems to me to depend upon the question whether the provisions of sec. 17 of the Limitation Act apply to the facts of this case. Sec. 17 provider, "When a person, who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application," Now does this section apply to the case where a partner dies leaving, as in this case, infant sons and leaving the partnership account unadjusted as between himself and his partner. 6. The question appears to have been considered in the Bombay case reported in Rivett-Carmac v. Gokuldas ILR 20 Bom. 15 (1895) and a controversy on the subject of the applicability of sec. 17 was directly raised. Mr. Justice Candy in the first Court was of opinion that sec. 17 did not apply where a partner dies leaving an heir his view being that such heir might have instituted a suit foil account of the partnership through his next friend. The learned Judge says :-- "For the Plaintiff) it is contended that under sec. 17 of that Act the period of limitation should be computed from the time when the Administrator-General was directed to take out letters to administer the estate of Hembai, as until that happened there was no legal representative of the deceased capable of instituting a suit. But that it is not so. Here it was open to Tulsabai on behalf of Kissendas, the minor nephew of Hembai's husband, to have instituted a suit in the District Court at Karachi for an account of the partnership at any time within three years from Hembai's death." Then later, "But there was no reason why 'he person claiming to be Hembai's heir should not have, before 1st September 1892, filed a suit for partnership account." 7. The Chief Justice in delivering the judgment of the Appeal Court arrived at a different conclusion. At page 11 the Chief Justice says :-- Now Kissendas being an infant when Hembai died, and being her heir, there was, we are of opinion, no legal representative of Hembai capable of suing until Letters of Administration were granted to the Administrator-General. The expression 'capable of suing' in sec. 17 is, we cannot doubt, the antithesis to 'not under legal disability to sue.' It cannot, we apprehend, refer to incapacity arising from want of means or absence of other physical causes. What legal disabilities incapacitate from sung, are pointed out in sec. 7, amongst which infancy is foremost. If this were not so, the strange result pointed out in argument would result, viz., that up to the moment of the administrator to Hembai's estate being appointed, the claim for an account was admittedly not time-barred. By the very act of appointing an administrator to protect the estate, the claim became time-barred. Any reasonable interpretation which avoids such an anomaly should be accepted. Here the interpretation which we adopt is both reasonable and obvious. 8. The view therefore of the Appeal Court was that the words "a person capable of instituting or making such suit" mean a person not under such disabilities as are mentioned in sec. 7 of the Act and I think I must take it that the Privy Council approve of this view of sec. 17. The judgment of the Privy Council in this case is reported in Bhugwandas v. Rivett-Carnac 3 C.W.N 186: s.c.I.L.R. 28 Bom. 549 (1897). Their Lordships did not make direct reference to sec. 17 of the Limitation Act but what they say is that the Appeal Court held that the suit was not barred by limitation and that their Lordships agree in their views. I think that the construction which has been placed on sec. 17 by the Bombay Court in the case to which I have referred is right and consequently by the operation of that section time began to run against the present suit from the date on which Sarat Coomaree obtained Letters of Administration to the estate of Manick Lall Dutt. 9. 17 by the Bombay Court in the case to which I have referred is right and consequently by the operation of that section time began to run against the present suit from the date on which Sarat Coomaree obtained Letters of Administration to the estate of Manick Lall Dutt. 9. Now it has been laid down by a long line of authorities in this Court that the effect of the expiry of the period of limitation prescribed for any suit once it has begun to run is that the remedy becomes barred. It seems to me therefore that under Art. 106 of the Limitation Act the remedy by a suit for a partnership account on behalf of the estate of Manick Lall Dutt became barred at the expiry of three years from the date of the appointment of Sarat Coomaree as administratrix, that is to say it became barred on the 29th June 1899, nor do I think that sec. 7 of the Limitation Act can be so read as to revive a barred remedy for the benefit of the infant heirs. Sec. 7 must be read in conjunction 1 think with sec. 17 and the operation of the earlier section must be regarded as qualified by and subject to the exception prescribed by the later section. That being so it appears to me that the remedy in respect of the estate of the deceased partner was barred at the time the present suit was instituted. The case to which I have been referred by Mr. Pugh, Jagadindra Nath Ray v. Hemanta Kumari Debi 8 C.W.N.809.: s.c.L.R. II L A. 203 (1904), shows that where a shebait is an infant then under sec. 7 of the Limitation Act the rights to sue as shebait are preserved until after he attains full age and their Lordships think that must be so even though there is in existence a guardian of such infant who might have maintained the suit on his behalf and as his guardian but that decision appears to be of no assistance upon the question whether or not the present case is governed by sec. 17 of the Limitation Act. Under these circumstances I hold that the suit is barred and must accordingly be dismissed with costs.