1. The question is whether the appellant's suit was barred by the law of limitation. Both the lower Courts have found that it was barred, and Mr. Gordon only disputes their decision on the ground that the part-payment gave rise to a new period of limitation under the provisions of Section 20 of Act XV of 1879.
2. It has been found that the payment was in fact made by the second defendant at the request of the first defendant, and that the endorsement was made by the second defendant, who affixed his mark to it. At least a portion of the payment must have been towards the principal, and the appellant's case was that the whole was paid towards the principal: if there was any payment of interest, the suit would certainly not be barred. If, however, there was no payment except towards the principal, the question arises whether the endorsement, which shows the payment to have been made and is marked by the second defendant, is sufficient to satisfy the requirement of the statute that the fact of the payment must appear in the handwriting of the payer.
3. There have been contradictory decisions upon this point. In Vadlamudi Pichina v. T. Appadu Referred case 19 of 1880 decided on reference without argument, not reported at the request of the Chief Justice, published at p. 520, Vol. V, of the Indian Jurist, it was held by Kindersley and Muttusami Ayyar, JJ., that the endorsement itself, or so much of it as sets out the payment, must have been written by the payer. In a later case, however, Sesha v. Seshaya I.L.R. 7 Mad. 55 Turner, C.J., and Muttusami Ayyar, J., held that the payer's mark or signature would be sufficient.
4. These decisions are in direct conflict, and the point should, I think, be referred to a Full Bench, if Mr. Justice KINDERSLEY adheres to his former view. I admit that I was at first disposed to adopt his view, but further consideration has led me, as it had led Mr. Justice Muttusami Ayyar, to think that the other decision is correct. I went too much on the difference between the words 'made in writing and signed by the party' in Section 19 as contrasted with the term 'handwriting' in Section 20; but all that the latter section requires is that the fact of the payment shall appear in the handwriting of the debtor. It seems to me that when there is a writing setting out the fact of payment and the debtor affixes his mark or signature thereto, he adopts the writing and makes it his own, and by his signature causes the fact to appear in his own handwriting. I quite agree that, if the other construction were the only one which would give the words their full significance, considerations of convenience could not be taken into account; but, if there is any ambiguity, a construction which will give the same effect to a payment made by one of the illiterate masses as to one made by an educated person, is, in this country, very much to be preferred.
5. The original suit was brought upon a bond executed on the 7th November 1876 to secure repayment of a loan with interest. The bond bears an endorsement of Rs. 250 paid on the 12th of December 1878 by the second defendant at the request of the first defendant on account of the amount specified in the bond. It was not written by the second defendant (who could not write), but it was signed with his mark within the period of limitation for a suit upon the bond, and within three years before the suit. The payment, or at least a part of it, was made as part of the principal of the debt; and the question is whether the endorsement is sufficient to give a new period of limitation under the 20th Section of the Limitation Act, 1877. The Proviso to the Section is in these terms: 'Provided that, in 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.' Under the 19th Section, it is sufficient if the acknowledgment of liability is in writing signed by the party.' But in the 20th Section the words are: 'Provided the fact of the payment appears in the handwriting of the person making the same'; and the question is whether these terms are satisfied by a mere signature by mark or otherwise. The words, 'in the handwriting of the person,' are found in the corresponding section of Act IX of 1871, but Section 4 of Act XIV of 1859 required only a signature.
6. I am inclined to think that the change of expression in the later Acts was intentional, and that the proviso requires that the fact of payment should actually be written by the party making the payment, which would certainly be a great protection to debtors, though the creditor could not avail himself of it in the case of a debtor unable to write, in which case it would be necessary to renew the bond.
7. But in Sesha v. Seshaya I.L.R. 7 Mad. 55 the learned Chief Justice and Mr. Justice Muttusami Ayyar decided that a signature by a mark would be a sufficient compliance with the 20th Section of Act XV of 1877. Having ascertained that other Judges approve of that decision, I am content to follow it as expressing the opinion of the majority of the Judges.
8. The result is that the suit is not barred as against the first and second defendants; that the decrees of both the Lower Courts must be reversed, and the suit must be remanded to the District Munsif's Court for trial and disposal of the plea of discharge. The point in question being one upon which there had been conflicting decisions, no costs will be allowed.