RAJANI MANDAL Vs. DIGINDRA MOHAN BISWAS

JUDGEMENT

(1.) This Rule has been issued on the opposite party to show cause why a decree of the Small Cause Court Judge of Madaripore in a suit for money due on a bond should not be sot aside on the ground that it is barred by limitation.

(2.) The question at issue here is whether the endorsement of the payment of interst made on 2 September, 1928 by a scribe on behalf of the debtor, and also signed by him on behalf of the debtor who was illiterate and who made no mark beneath the endorsement, should be taken to save limitation as having been made within three years of the suit. In Section 20, Limitation Act, it is provided that the limitation can be saved where there is an acknowledgment of the payment of interest within the period of limitation in the handwriting of or in writing signed by the person making the same, and the question is whether the signature made by the scribe on behalf of the debtor who was making the payment brings him under this provision. Under the General Clauses Act the word "sign" shall with reference to a person who is unable to sign his name include the word "mark" and it is therefore argued that this would be extending the meaning of the word "sign" to that extent, but otherwise the word "sign" must be given its ordinary meaning. On the side of the applicant the case of Baliram Koer V/s. Sobha [l919] 44 I. C. 516 has been referred to. There it is stated; that there was no case that had ever yet-suggested that in the absence of a mark the clear words of the section requiring the payment and the handwriting to be made by one and the same person were not to be complied with. This case refers to the proviso to Section 20, Limitation Act (9 of 1908), under which the endorsement must be in the handwriting of the person making the payment. On the other hand for the opposite party the case of Sreeram Singh V/s. Kashi Molla A.I.R. 1921 Pat. 476 has been referred to. In that case it was held by Jwala Pershad, J., of the Patna High Court, that if the person making a part payment of the principal, being unable to write himself, gets another person to endorse for him and on his behalf, it is a sufficient compliance with the proviso to Section 20, Limitation Act (9 of 1908).

(3.) The learned Judge referred to the case of Jamna V/s. Jaga Bhana [1904] 28 Bom. 262 and it was suggested that in that case Sir Lawrence Jenkins based his decision on the fact that the affixing of a mark beneath an endorsement not written by the person making the payment was in accord with the prevailing custom of signing among illiterate persons. That judgment however appears to have been based merely, on previous decisions of the Madras High Court in which making a mark was regarded as sufficient compliance with the section and the learned Judge states: Were the matter res integra we might have felt difficulty in arriving at the same conclusion.