KARUPPAYYA THEVAR Vs. SUBBAYYA THEVAR

JUDGEMENT

(1.) This civil revision petition raises a short point of law, viz., whether there is a sufficient signature within the meaning of the Limitation Act, Section 20, where A touches a pen and passes it to B and B writes : "22 March, 1930, Subbayya Thevar, paid Re. 1", subsequently adding his signature as scribe which is followed by the signature of the attestor. The Limitation Act requires that the endorsement shall either be in the hand-writing of the person to be made liable or shall be in a writing signed by the person making the payment. Under the General Clauses Act "sign" includes making a mark, and this High Court has held that if to an endorsement of that kind the mark of the person to be made liable appears, such an endorsement would be a sufficient signature. In Rajani Mandal V/s. Digindra Mohan Biswas 1932 Cal. 440 Jack, J., seems to have gone further. There no mark and no writing in the handwriting of the person to be charged appeared, but the person to be charged touched a pen, as here, and handed it to another person and that other person wrote something.

(2.) It is not very clear from the report exactly what he wrote; but it does appear that the scribe wrote on behalf of the debtor and signed the document on behalf of the debtor; and Jack, J., following a Patna decision which in; turn followed a Bombay decision, which: Bombay decision was arrived at in a case where the person to be charged made a mark, came to the conclusion; that in this country it is sufficient if an, illiterate person touches a pen and hands it to another, which other signs on his behalf. My attention has been drawn to a number of authorities which relate to the signing and attesting of wills, I put them on one side because the statutory provision in such cases is quite different. In Baliram V/s. Sabha Sheikh 1918 Cal. 49, Fletcher and Shamsul Huda, JJ., came to the conclusion that where the endorsement was neither signed by, nor marked by, the person to be charged, that was not a signing within the meaning of Section 20, Lim. Act. Fletcher, J.'s remarks at p. 223 are as follows: There is no case that has ever yet suggested that, in the absence of a mark, the clear word of the section requiring the payment and the handwriting to be made by one and the same person are complied with. I think the learned Judge of the lower appellate Court came to a correct conclusion when he held that, on the facts found, the fact of the payment did not appear in the handwriting of the defendant.

(3.) Of course since that case was decided, the Limitation Act has been amended by the addition of words, which enable the endorsement to be a good endorsement so as to bind the person to be charged though not made in his handwriting, if such endorsement has been signed by him; and I have now to consider whether in the circumstances of this case the learned Judge was right in holding that the endorsement was not signed within the meaning of the Limitation Act by the person to be charged. Now, it may well be - I say nothing as to it - that if what had happened was that Subbayya Thevar had touched a pen and handed that pen to the writer and the writer had written an endorsement of this nature paid Re. 1 and had then signed as agent for Subbayya Thevar, a Judge might infer that Subbayya Thevar had signed that endorsement by his agent, the writer, the agency being implied from the act of touching the pen. That is a point that can be decided when it arises. It does not arise in this case because that is not what happened. This endorsement is perfectly neutral endorsement. It is not signed, as I understand the meaning of that term, by anybody. The fact that the person who wrote it subsequently appended his signature amounts to nothing. He signed as scribe; he did not sign or purport to sign for and on behalf of Subbayya Thevar. So far as I can see therefore the endorsement is not signed by anybody. The fact that it contains Subbayya Thevar's name does not, in my opinion, amount to a signature. It is not signed by the scribe on behalf of Subbayya Thevar. In these circumstances I think it would be extremely dangerous, and contrary to the spirit of Section 20 Lim. Act, to hold that this endorsement was signed within the meaning of that section. In these circumstances I am of the opinion that the District Munsif was correct in his conclusion. This petition is dismissed with costs.