MUTHIAH CHETTIAR Vs. KUTTAYAN CHETTY

JUDGEMENT

(1.) The plaintiffs appellant instituted the" suit to recover a certain sum of money alleged; to be due on a hundi, dated 7th March 1903, and the question in the second appeal relates to limitation. The suit was instituted on the 13th November 1909, and, therefore, it is conceded by Mr. Ananthakrishna Aiyar for the appellant that, unless he succeeded in establishing acknowledgment or part payment within the meaning of the law under Exhibits B and C-B being dated 29th September 1905 and C 19th July 1907--the suit will be barred. As regards B, which purports to be a letter written by the defendant, the first question that arises is whether there was any signature to it of the 1st defendant within the meaning of Section 19 of the Limitation Act. The parties are Nattukkottai Chetties and the 1st defendant wrote to the plaintiffs giving the name of his firm" at the top of the letter, but no signature was put at the foot of it. We have been referred to a number of cases and it seems to us that the decisions reported as Mathura Das v. Babu Lal 1 A. 683 : 1 Ind. Dec. (N.S.) 477 and Mohesh Lal v. Busund Kumaree 6 C. 340 : 7 C.L.R. 121 : 3 Ind. Dec. (N.S.) 222 bear out the contention of the appellant that, according to the custom and practice of Nattukottai Chetties who do not sign their letters at the foot, but begin by saying that the letter is from such and such a firm, the name so written at the top is a sufficient signature within the meaning of Section 19 of the Limitation Act. Our attention has a also been drawn to a decision reported as: Chidambaram Chetti v. Ramaswami Chettiar 26 Ind. Cas. 911 : 27 M.L.J. 631. In that case it appears that the name of the family deity was put at the bottom of the letter and Sankaran Nair and Spencer, JJ., taking that along with the name given at the top of the letter, held that that was sufficient signature within the meaning of the Act. We are inclined to hold that the law laid down in Mathura Das v. Babu Lal 1 A. 683 : 1 Ind. Dec. (N.S.) 477 and Mohesh Lal v. Busun Kumaree 6 C. 340 : 7 C.L.R. 121 : 3 Ind. Dec. (N.S.) 222 is correct and the ruling in Chidambaram Chetti v. Ramaswami Chettiar 26 Ind. Cas. 911 : 27 M.L.J. 631 cannot be said in any way to be opposed to it. Then, with reference to Exhibit B, another question also arises, namely, supposing it was not written by the 1st defendant but was written to his dictation, whether that would be sufficient to satisfy the requirements of Section 19. This has been answered in the affirmative in Mohesh Lal v. Busunt Kumaree 6 C. 340 : 7 C.L.R. 121 : 3 Ind. Dec. (N.S.) 222, and we think that the language of the section itself is clear on the point. Explanation 2 to Section 19 says, "for the purposes of this section, signed means signed either personally or by an agent duly authorised in this behalf." So if the 1st defendant dictated the name of his firm as authenticating the letter, that would apparently satisfy the terms of Explanation 2.

(2.) We may take it, therefore, that so far as Exhibit B is concerned, the contention of the appellant is made out. But that is not sufficient for his purpose, because Exhibit B was written more than three years before the institution of the suit. Coming to Exhibit C it only shows that the payment of Rs. 250 Was made by means of a hundi and that amount has been credited. But the document, as we read if, does not contain any acknowledgment of the defendant s liability for the rest of the amount. Then Exhibit C is sought to be used as evidence of part payment within the meaning of Section 20. It being conceded that the payment was made towards the principal, the proviso to Section 20, Clause 1, requires that, in the case of part payment of the principal of a debt, the fact of payment must appear in the handwriting of the person making the same. On this point, there, is a decision of this High Court, reported as Mackanzie v. Tiruvengadathan 9 M. 271 : 3 Ind. Dec. (N.S.) 585, of Muthusami Aiyar and Brandt, JJ., confirming the judgment of Parker, J., to the effect that the writing must show that the payment was made towards the debt in question and this seems to us to be the interpretation warranted by the language of the proviso, which speaks of the payment referring apparently to part payment of the principal of the debt: that is to say, there must appear in the payee s writing an endorsement that the payment was in the nature of and intended to be part payment of the principal. There is, however, an earlier decision of this Court, reported as Jada Ankamma v. Nadimpalle Rama Sastrulu 6 M. 281 : 2 Ind. Dec. (N.S) 475, which does not appear to have been noticed in Mackanzie v. Thiruvengadathan 9 M. 271 : 3 Ind. Dec. (N.S.) 585 and which is to the contrary effect. It is a decision of Innes and Kernan, JJ., and undoubtedly commands our respect, but we find that the case was not at all argued at the Bar and, therefore, it cannot be said to have the same authority as the case in Mackanzie v. Thiruvengadathan 9 M. 271 : 3 Ind. Dec. (N.S.) 585. So far as we have been told, the ruling in Mackanzie v. Thiruvengadathan 9 M. 271 : 3 Ind. Dec. (N.S.) 585 has not been dissented from, in any later decisions and, as we have stated, it is in accordance with the language of the section.

(3.) Mr. Ananthakrishna Aiyar then attempted to make out that, as a matter of fact; in the hundi itself there was a statement that the payment was made towards the debt. The hundi, it appears, had been paid by the person on Whom it was drawn. It may be also taken for granted that there was a subsequent settlement of account between that person and the defendant, the drawer of the hundi. But before secondary evidence was given, it was the duty of the plaintiff to make out the conditions under which alone secondary evidence could be admitted by the law The evidence regarding the contents of the hundi was objected to by the Pleader of the defendant and the plaintiff does not appear to have given any evidence to show that he had called upon either the defendant or the drawee of the hundi to produce the hundi. Besides we may say that none of the Courts below placed any reliance upon this evidence regarding the contents of the hundi and, having regard to the fact that the plaintiff s second witness was giving evidence at least seven years after he last saw the hundi, it would he extremely unsafe to say that he remembered all that he professes to remember. At any rate, the plaintiffs failed to lay a proper foundation for the production of secondary evidence, the reception of which was objected to by the defendant s Pleader. On these grounds, we are of opinion that the suit was barred and the second appeal must be dismissed with costs.