1. This is the defendants' appeal in a money suit. The plaintiffs have filed cross-objections for being allowed interest pendente lite and till realisation.
2. The respondents and their father Bhaniram, since deceased, sued the appellants and their father Shrichand for recovery of Rs. 2000/- on the basis of a Khata dated Adad Such 13 Section 1988. It was alleged that the defendants were indebted to the joint family firm of the plaintiffs and on Asad Sudi 13 Section 1988, a sum of Rs. 1183/11/9 remained due against the defendants. Thereafter interest was added for a period ending Asad Sudi 13 Section 1991 making the amount due Rs. 1403/12/6 in payment whereof Rs. 195/- were received and the entry of payment was signed by Shrichand leaving a balance of Rs. 1207/12/6. The plaintiffs claimed Rs. 792/3/6 as interest till the date of suit making the claim at Rs. 2000/-.
3. Shrichand admitted his signature on the balance of Rs. 1183/11/9 outstanding on Asad Sudi 13, Section 1988, and also under one item of Rs. 144/-/6 debited on account of interest for two years ending Asad Sudi 13 Section 1990. He also admitted that under the second debit item of Rs. 76/3/3 on account of interest for a period of one year till Asad Sudi 13 Section 1991, the signatures were those of his son Zorawar Mal, defendant. He denied having repaid Rs. 191/- on Asad Sudi 13 Section 1992 or having affixed his signatures on the entry of repayment appearing in the Khata. It was alleged that this was a bogus entry & the signatures were forged and only brought into existence to save limitation. Defendants 2 to 5 were sons of Shri Chand and did not file any separate written statement. Defendants NOS. 6 and 7 were co-sharers of the plaintiffs and made pro forma defendants.
4. The trial Court after evidence found that the signatures of defendant 1 under the entry of repayment of Rs. 191/- on Asad Sudi, 13, Section 1992, were not genuine and dismissed the suit as barred by limitation. On appeal, the learned District Judge came to a different conclusion and his finding was that those signatures were genuine. He held that the entry amounted to an acknowledgment which gave a fresh start of limitation and the suit which was filed on Asad Sudi, 12, Section 1998, was within time. He accordingly decreed the plaintiffs' suit with costs in both the Courts.
5. In this appeal, the learned counsel for the defendants-appellants tried to argue that the finding as to the genuineness of the signatures of Shrichand, father of the appellants, on the entry of payment of Rs. 191/- dated Asad Sudi, 13, Section 1992, was arrived at after a misreading of the evidence and was not correct. It was, however, found that there was no mis-reading of the evidence except perhaps an observation while dealing with the evidence of P. W. 2 Roop Chand. This observation related to his having correctly identified the writing of Shrichand on a different document on the same page of the Bahi on which the Khata of Section 1988 was executed. It had, however, not been proved that that particular document was in the handwriting of Shrichand. It was only an additional ground for believing Roopchand and even if that observation be disregarded, the learned District Judge had given other reasons for believing P. W. 2 Roopchand. The learned District Judge has at great length discussed the evidence produced by the parties on the record before arriving that the finding as to the genuineness of signatures of Shrichand on the entry of payment and that finding cannot be disturbed because Of an erroneous observation in regard to the evidence of one witness. The learned counsel then tried to argue that the finding was not arrived at after a judicial consideration of the evidence. This argument is of no force whatsoever as a bare perusal af the judgment clearly shows that the learned District Judge took great pains to discuss the entire evidence on record and the contention of the learned counsel for the appellants is nothing more than that the evidence was not properly appreciated. This ground is, however, insufficient to reopen the finding of fact arrived at by the first appellate Court.
6. It was next argued that even if the finding of fact that the entry of the payment of Rs. 191/-on Asad Sudi 13, Section 1992, bore the signatures of Shrichand be accepted, the finding of the lower Court that it amounted to acknowledgment within the meaning of Section 19, Limitation Act, was not correct and that if recourse be had to the provisions of Section 20, Limitation Act to bring the suit within time, certain essential conditions mentioned in that Section had not been fulfilled. The entry when translated into English is in the following words:
'Received Rs. 191/-. The amount was due of Madras (Account) which is credited on Asad Sudi 13 Section 1992. The amount was spent by Manmal for Sagarmal which is being credited. Dated Asad Sudi 13 Section 1992, Signature Shrichand.'
7. The learned District Judge relied on --'Thakur Madho Singh v. Uttamnath', 1938 MLR 61 (A). The words of the endorsement are not found in the Marwar judgment and a reference to -- 'Venkata Krishnaiah v. Subbarayadu', AIR 1917 Mad 805(B) which was relied on in that judgment shows that it only lays down that a document which is insufficient to bring the claim within limitation under Section 20 may nevertheless be an acknowledgment of a liability so as to save limitation under Section 19, Limitation Act. There can be no dispute about the principle enunciated in this case but the question is to be decided with reference to the language of the document in each case. In the Madras case a payment made by a mortgagor who was able to write was recorded on the back of the mortgage bond by a servant of the creditor and signed by the debtor. The endorsement ran as follows:
'Rs. 378/- paid towards this document. K.V.S.' It was held that the endorsement amounted in terms to say that he paid Rs. 378/- towards the amount due on the bond and was a valid acknowledgment under Section 19 although insufficient under Section 20 as the requirements of that section were not fulfilled. In the case before us, the endorsement does not refer to any previous debt at all and, therefore, Section 19, Limitation Act is not at all applicable, and the finding of the learned District Judge that limitation was saved under Section 19, Limitation Act is not correct.
8. It was urged by the learned counsel for the appellants that Section 20, Limitation Act was also inapplicable as the conditions mentioned in that section had not been fulfilled. The law of Limitation applicable to the suit was promulgated in Marwar in 1930 and Section 20 thereof corresponds to the same section of the Indian Limitation Act as it was prior to 1927. The relevant portion is as follows:
'Where interest on a debt is before the expiration of the prescribed period, paid as such by the person liable to pay the debt or by his agent duly authorised in this behalf,
or 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.'
9. The contention of the learned counsel for the appellants is that it had not been alleged that the payment was of interest as such and if it be deemed to be a payment of part of the principal, the requirements of Section 20 had not been satisfied inasmuch as the entry of payment of Rs. 191/-was not in the handwriting of the defendant although he was literate and he himself is alleged to have paid the debt. It was urged that the signature taken at the end did not fulfil the requirements of the section.
10. The majority of the High Courts in India in interpreting Section 20, Limitation Act as it stood prior to its amendment in 1927 have laid down that the entry of payment should be in the hand-writing of the person making the payment and it was not sufficient if signatures alone were affixed under an entry scribed by another person. An exception was, however, made in the case of illiterate persons and in their case the signatures or thumb impression under the endorsement scribed by another person were deemed to be a sufficient compliance with the provisions of Section 20. --Haji Rahmuttulla v. Cooverji', 23 Gal 546 (FB) (C); -- 'Lodd Govinddoss Krishnadoss v. Rukmani Bhai AIR 1915 Mad 101 (D); -- 'Bisheshwardas v. Madho Rao', AIR 1921 Nag 46 (E) -- 'Niwajkhan Nathankhan v. Dadabhai Musse Valli', A. I. R. 1916 Bom 125 (1) CF). In Punjab, however, it was held that the requisites of tlie proviso were satisfied by affixing signatures only. -- 'Narsinghdass v. Bachatar Singh', 99 Pun Re 1884 (G). in British India, however, the law was amended in 1927 and signature of the person making payment under the endorsement of payment whether written by himself or another person were declared to be sufficient.
11. The law in Marwar, however, remained the same, till the date of the institution of the suit and certain decisions of the Jodhpur High Court seem to follow the law as construed by the majority of the High Courts in India. In -- '1938 MLR 61 (A)' the part payment of the principal was recited at the back of the bond in the handwriting of an other person and the endorsement was signed by the debtor. It was observed,
'According to the provisions of Section 20 Marwar Limitation Act, part payment of the principal of a debt must appear in the handwriting of a person making the same, The rigour of this rule, however, can obviously be enforced only against a person who is literate and cannot be extended to one who is unable to write.'
On facts it was held that the defendant in that ease could only sign his name and would be deemed to be an illiterate person and his signatures under the endorsement were considered sufficient. Learned counsel for the respondents however, urges that the Hindi version of the Marwar Act which was published simultaneously with the English version has translated the word 'handwriting' as 'Dastkhat' and the said Hindi word may mean both 'signatures' or 'handwriting' though in colloquial language it means only signatures and, therefore, the public at large which was only acquainted with Hindi could very well understand that the intention of the legislature was that the signature of the person under the endorsement of payment would be sufficient. We have seen the original English and Hindi versions of the Act which have been published simultaneously in the Government Gazette and nothing having been shown for holding that the English version was more authoritative, there is considerable force in the argument of the learned counsel for the respondents. It seems that this discrepancy in the English and Hindi versions was not noticed in the Marwar case cited before us. It is a rule of construction in respect of the law of Limitation that where the language is not precise or is doubtful, a construction in favour of the right to proceed rather than one barring such rights should be made. --'Latifunnessa v. Dhankunwar', 24 Cal 382 (H). --'Balkrishna v. Baijnath', AIR 1939 Nag 150 (I).
12. We therefore hold that the signatures of the debtor who made the payment in this case would be sufficient provided that the payment was towards the principal of the debt.
13. It was next contended that it was a general payment and could not be held to have been paid towards interest as such or as part of the principal of the debt. Learned counsel for the respondents contended that where money was paid by the debtor without specification but was accompanied by a document in the 'handwriting of the defendant from which the fact of payment appeared, as in this case, the payment must be taken to be on account of principal. Reliance was placed on --'Hemchandra Biswas v. Purna Chandra', A.I.R. 1918 Cal S91 (J). The head-note of the case in that journal no doubt supports the plaintiffs-respondents but the actual decision, however, turned on a different point. In 44 Cal 567 (J) where this case appears in the official reports the head note correctly states the actual point decided in that ease viz., where payments were made towards a debt, but there was nothing to show whether they had been made in respect of principal or interest, the Court was entitled to find out on the evidence for what purpose the payments had been made. The last part of the judgment of Fletcher J. indicates that the Court declined to go into the matter as the finding of the lower Court, that the payment was towards part of the principal, was considered to be one of fact. His observations are,
'When the final Court of Appeal on facts says that the payment will be considered that way, it must be considered that way and considered so for all purposes.'
The question was directly considered in -- 'Ram Prasad v. Binaek Shukul', A. I. R. 1933 All 453 (2) (K). It was argued by learned counsel for the plaintiff appellant in that case that if the defendant did not pay towards interest, he must be taken to have paid it towards principal and as the fact of payment appears in his handwriting, Section 28 was fully applicable. Their Lordships observed:
'In our opinion this argument is based on a fallacy and proceeds on the assumption that where interest is not paid as such, that is, the debtor does not clearly mention that the payment made by him was to be appropriated towards interest, it should be considered to have been paid by him towards principal. To our mind, this is wholly erroneous assumption. A debtor may pay a certain amount in part satisfaction of what is due from him without caring to specify that the sum is to be appropriated towards interest or principal. The payment will not be considered to be the payment of interest as such and will not save limitation on that footing. The creditor may, however, appropriate such payment towards interest as he is entitled to do under Section 61 of the Contract Act. The position then is that though interest was not paid as such payment made by the debtor was lawfully appropriated towards interest. It cannot be considered to be payment in part satisfaction of the principal. Therefore, if the fact of payment appears in writing, limitation cannot be saved on the supposition that a part of principal was paid and the fact of payment appears in the handwriting of the debtor.'
This case dealt with a payment made on 7-2-1918, in relation to the law of Limitation as it stood prior to the amendment in 1927. In -- 'Kirpa Ram v. Balak Ram'; AIR 1935 All 47 (L), Niamatullah J. took the same view as in the case of -- 'Ram Prasad v. Binaek', (K) and did not approve the reasoning in the case of -- 'Hem Chandra v. Pooran Chandra', (J). In -- 'Udaipal Singh v. Lakhmi Chand', AIR 1935 All 946 (M), it was observed by Sulaiman, C. J. after examining Section 20, Limitation Act before and after the amendment that the substantive Section 20 had remained unaltered ever since 1877 and approved of the decision in-- 'AIR 1933 All 453 (2) (K)'. Rachhpal Singh J. while discussing the case of 'Hem Chandra Biswas, (J)', observed that with utmost respect he was unable to agree with the view expressed in that case. In-- 'Rama Shah v. Lal Chand', A. I. R. 1940 PC 63 (N), their Lordships of the Privy Council approved of the decision in -- 'AIR 1935 All 946 (M)' and the following observations are relevant:
'What then in the case of an 'open' payment is required in order that it may be said in the words of Section 20 that before the expiration of the prescribed period part of the principal of; the debt has been paid by the debtor? .............While not of opinion that it need be shown that the creditor's appropriation has within the time limit been communicated to the debtor, they are unable to regard the language of the section as satisfied unless within the prescribed period the creditor has in exercise of his right done something which treats the payment as made on account of principal. To evidence a definite appropriation to the principal debt made by the creditor within the period prescribed the manner in which the payment has been dealt with by the creditor in his own books of account will ordinarily be sufficient. But if it be true that until after the expiry of the prescribed period, the creditor has treated the sum as paid on account of interest or has not done anything to treat it as paid on account of principal, then under the amended Section 20 part payment of the principal has not been established.'
It may be pointed out that by the amendment in 1927 in the Indian Limitation Act, no change was affected as regards the case of part payment of the principal but the requirement of the endorsement in the handwriting of or in a writing signed by a person making the payment was laid down in the case of payment of interest, as such, as well.
14. It remains to be considered now what happened in the present case. According to the account-book of the plaintiff's, the principal amount of Rs. 1183 / 11/9 wasdue on Asad Sudi 13, S. 1988 Rs. 144/-/6 were debited by way of interest on Asad Sudi 13, S. 1990 & a further amount of Rs. 78/3/3 was debited by way of interest on Asad Sudi 13, Section 1991. Towards the credit side were credited two items of repayment of Rs. 5/- and Rs. 191/-; the last being on Asad Sudi 13, Section 1992. In the plaint, the amount of Rs. 191/- was not stated to have been so received towards principal but was deducted out of total of the debit amount of Rs. 1403/12/6, which included Rs. 220/-/6 on account of interest. Obviously, the plaintiff had deducted the amount of payment from the interest and kept his principal intact against the debtor. The. case is thus exactly on fours with -- 'Udaipal Singh v. Lakhmi Chand', (M) and the following observations in that case are fully applicable:
'Where money is paid by a debtor without specifying whether the payment is towards interest or towards principal, leaving it to the option of the creditor to appropriate it as he likes, and the creditor appropriates it wholly towards interest due, there is neither a payment of interest as such nor a part payment of the principal within the meaning of Section 20, Limitation Act.'
15. It was contended by learned counsel for the respondents that the defendants did not clearly take a plea that the suit was barred by limitation on the ground that it was neither a payment of interest as such nor a payment of the part of the principal. The respondents, however, forget that under Section 3, Limitation Act, it is the duty of the Court to dismiss the claim as time barred if it is brought beyond the period prescribed in the schedule, but limitation may be saved if the plaintiff can bring himself within one of the exceptions. The burden, therefore, lies on the plaintiff to show that his case falls strictly within the scope of any such exception. -- 'AIR 1935 All 946 at p 954 (M). In the plaint there was no mention as required by Order 7 Rule 6, that exemption from limitation was claimed on account of payment having been made towards principal or towards interest as such. In the lower Court extension of limitation was claimed under Section 19, Limitation Act and it is only in this Court that extension is claimed under Section 20. It is, therefore, the plaintiffs who have failed specifically to state their ground of extension of limitation in the plaint and cannot object to the defendants trying to meet the argument of the plaintiffs as now put forth in this Court.
16. It was next argued by learned counsel for the respondents that the Khata of Section 1983 was an account stated. Even if this were so, the suit would not be in time unless they were given the benefit of Section 20, Limitation Act.
17. The learned counsel for the appellants had made an application in this Court that the Khata of Section 1988 was only an acknowledgment and the suit which was based thereon was not maintainable and that he may be allowed to take this ground in addition to those mentioned in his memorandum of appeal. Learned counsel for the respondents opposed this petition. It is unnecessary, however, to go into this question as the suit fails on the ground of limitation. The appeal is, therefore, allowed, the judgment and decree of the lower Court are set aside and the suit is dismissed with costs throughout. The cross-objections automatically fail and are dismissed with costs.