Sri Ram Singh vs Kashi Mollah and Others

Jawala Prasad, J.—This is an application against the decision of the Small cause Court Judge of Gaya, dated the 20th of March 1920, dismissing the claim of the plaintiff.

The plaintiff brought a suit to recover a certain sum of money said to have been due on a registered bond, dated the 30th of October 1909, executed by one Kanhai Mallah, father of the defendants Nos. 1 and 2 and husband of defendant No. 3. The bond was held to be genuine.

The Court below, however, dismissed the suit, holding that it was barred by limitation. The suit was instituted on the 11th of February 1920, In order to show that the suit was not barred, reliance was placed upon the endorsement on the back of the bond showing payments on different dates, the last one being the 30th of Baisakh 1325 F.S., corresponding to the 25th of May 1918, the previous ones being of dates 30th of March 1910, 16th of May 1912 and 4th of September 1914. The Court below has held that these payments were with respect to the principal sum due under the bond.

The plaint itself shows that no interest was ever paid and, in fact, the plaintiff disclaimed from the very beginning any interest although it was stipulated for in the bond. The principal sum advanced was Rs. 500. The payments on the back of the bond show Rs. 2-0-14, and the plaintiff claims Rs. 212 2. It is true that the plaintiff stated in evidence that the payments were also towards the interest; but this statement was in direct conflict with the allegation in the plaint, and the court below was, therefore, right in holding ''that the payments were only towards the principal. The endorsement of payments further show that the payments were made by Kanhai, the debtor, but as be was illiterate, the endorsement was written by bis friend and agent Morhi Mallah, who wrote the debtor''s signature by his pen (bakalam) on the bond in suit. The endorsement does not bear any mark or thumb impression of the debtor. The Court below held that, as these payments were. not in the hand-writing of Kanhai, the debtor, making the same, as is required by proviso to Section 20 of the Limitation Act, they cannot save the claim from being barred by limitation.

The learned Vakil on behalf of the plaintiff contends that as the debtor who made the payments, was illiterate, the payments could not possibly appear in bis own handwriting and consequently, therefore, he had to get the endorsement of that payment written through the hand of another person, namely, Morhi Mallah, who throughout the transaction from the execution of the bond up to the several payments, acted on his behalf and signed for him. He also contends that Morhi Mallah was an agent of the debtor in the execution of the bond as well as in the several payments shown on the back of it, and that the payments, therefore, must be deemed to have been made by Morhi Mallah as a duly authorised agent of the debtor and the endorsement being in his handwriting, the requirements of the proviso to Section 20 of the Limitation Act were complied with.

Section 20 of the Limitation Act says that.

Where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: provided that, in the case of part payment of the principal of a debt the fact of the payment appears in the handwriting of the person making the same.

The law does not deal with the case of payments made by illiterate persons, but such oases ere numerous in this country. It was accordingly held in Madabhushi Seshacharlu v. Singara Seshaya. 7 M. 55 : 2 Ind. Dec. (N.S.) 623 and Ellappa Nayak v. Annamalai Goundan 7 M. 76 : 7 Ind. Jur. 596 : 2 Ind. Dec. (N.S ) 638, that it will be a sufficient compliance with the requirements of the proviso to Section 20 of the Limitation Act, if a person making the payment does not write himself but signs or affixes a mark beneath the endorsement. Sir Lawrence Jenkins in the ease of Jamna v. Jaga Bhana 28 B. 262 : 5 Bom. L.R. 1031 followed the aforesaid Madras decisions on the ground of the above view being a "long settled rule of law" which "should not lightly be disturbed." His Lordship further observed that, "were the matter res Integra we might have felt difficulty in arriving at the same conclusion." I share with his Lordship his difficulty, the reason being that the proviso does not require the endorsement to be singed or sealed. Section 19, Explanation (2), of the Limitation Act, requires the acknowledgment to be in the writing of, and signed by, the party against whom the acknowledgment is used and signing has been held to include a mark, stamp and seal. In Luchmun Pershad v. Busman Ali 8 W.R. 513 it was held that sealing does not amount to signing referred to in Explanation (2) but the view was questioned and was dissented from in Gur Sahai v. Sadik Muhammad 185 P.R. 1833.

The CPC explains signing as including a mark and stamping with the name of the person referred to. In the absence of any definition of the word signing" in the Limitation Act, we have to follow the definition given of it in the General Clauses Act of 1897, Clause (52), which says,

Sign," with its grammatical variations and cognate. expressions, shall, with reference to a person who is unable to write his name, include ''mark'' with its grammatical variations and cognate expressions.

Therefore, in the case of an acknowledgment, which requires to be signed under Explanation (2) of the Limitation Act, the thumb impression in the case of an illiterate person has been held to amount to signing the acknowledgment. However, no signature is required in the endorsement of payment under the proviso to Section 20. Therefore, no thumb impression or mark of the person making the payment is at all required. The Madras oases felt the difficulty in applying the proviso to Section 20 of the Limitation Act in the cases of illiterate parsons and. consequently, held that an illiterate person making the payment must put his mark or thumb impression beneath the endorsement, This was with a view to afford precaution against fabrication on behalf of the creditor, who is interested to prove the payment within the prescribed period in order to save his claim from being barred. Except upon the ground of this precaution, there is nothing in the proviso itself to justify the view taken by the Madras Court, The proviso requires that the payment must appear in the handwriting of the person making it. It is impossible to do so in cases of illiterate persons. Putting of the thumb impression or of any mark on behalf of the payer is only to ensure that the payment was made by him and to afford positive and conclusive evidence of the fact. Hence, if satisfactory and convincing evidence of the payment can be obtained otherwise than by the mark or thumb impression of the payer there is no reason why the thumb impression should be insisted upon.

The Section requires, again, that the payments should he in the handwriting of the person making the same. If the person is illiterate, there is no reason why he cannot authorise anybody else to write the endorsement for him.

It is necessary to look into the endorsement in the present case. The endorsement is 31th of Baisakh year 1325 F.S. Rs. 35 marfat khas (through self) bakalam (through the pen of) Morhi Mallah, This amounts to writing by the payer through the pen of Morhi Mallah, he himself not being able to use the pen. The evidence is, and it has been accepted by the Court below, that the payments were make by Kanha, (debtor) and the endorsement was made at his request and the document was signed on his behalf by Morhi Mallah. I do not know if any illiterate person can do anything more than that. All the verifications on pleadings in Court and the execution of documents by an illiterate person are always written bakalam (through the pen of) another, but this is not all. The execution in the bond in suit itself bears an exactly similar endorsement. "Sahi (signed) Kanhai Mallah Tamasuk likha So Sahi, Panso Rupaiya Paiya Mujhe Parhke vo. Somaj Lia Bakalam (by the pen of) Morhi Mallah".

An execution has to be written by the person executing the document, If the endorsement by the pen of another, as in the present case, is accepted as a vaild execution written by the person himself through the pen of another, he being himself illiterate, there is no reason why the endorsement of payment on the back of the bond written and signed by him through the pen of Morhi Mallah, should not be considered to be a payment appearing in the handwriting of the person making the same, as required by the proviso to Section 20 of the Limitation Act. The ease of Baliram v. Sobha Sheikh 44 Ind. Cas. 516 : 23 C.W.N. 930 : 28 C.L.J. 222, following the Bombay ease referred to above, has held that in the case of an illiterate person his mark or thumb impression must appear beneath the endorsement written by another for him; tide Girindra Nath v. Eenoy Gopal 26 C. 246 : 3 C.W.N. 84 : 13 Ind. Dec. (N.S.) 762.

We have not got, in any of the aforesaid reported cases, the exact words of the endorsement and we do not know whether the word "bakalam" (through the pen of) another, as in the present case, did or did not appear in the endorsements of payments in those decisions. The endorsement in the present case is in accordance with the prevailing custom of writing and signing by illiterate persons; and this is the reason upon which Sir Lawrence Jenkins based his decision in the aforesaid case of Jamna v. Jaga Bhana 28 B. 262 : 5 Bom. L.R. 1031. If it is intended that in the case of an illiterate person, there should also appear the signature, Mark or thumb impression, it would have been made clear in the proviso and we have no right to add the word to the proviso.

Again, in the present case both the plaintiff and Morhi Mallah were present at the time of the payment and the writing thereof at the back of the bond. The latter was, therefore, acting as the agent of the former and the payment, though actually made by the debtor, may be deemed to have been made through the agent and signed by him. In this view, it may also be held that both the debtor and the agent went with the money and the payment may be deemed to have been made by the agent who joined with the debtor in making it and signed the a(sic)dorsement. The provisions of Section 20 of the Limitation Act have, therefore, been complied with. The plaintiff''s suit is, there fore, not barred by limitation.

15 The result is, that the application is allowed and the order of the lower Court is set aside, The Court has held that the bond is genuine. The case is, therefore, remanded to it to determine as to what sum, if any, is due to the plaintiff and to dispose of the suit in view of its finding on this point. The costs will abide the result.