1. This Second Appeal arises out of a suit on a mortgage bond Ex. A, dated 26th September, 1898. The bond provided for compound interest at 13 1/2 per cent. per annum with annual rests. It was executed by the three brothers. One of the brothers died and the property and the liability fell to the other two brothers. On the 4th July, 1903, a portion of the property was sold and a payment of Rs. 709 was made towards the bond but this payment was not endorsed on the bond. On the 31st March, 1914, another payment of Rs. 20 was made and this was endorsed on the bond. In this the old payment of Rs. 709 was referred to. This endorsement was signed by one of the two surviving brothers, Subbarayudu. The elder brother Seshiah did not sign it. The 1st defendant is the adopted son of Seshiah. In the plaint the plaintiff relied upon this payment by Subbarayudu and endorsement as saving limitation. In the written statement all that the defendant stated was that the endorsement is not genuine.
2. Oral evidence has been adduced by the plaintiff to show that the payment by Subbarayudu was authorised by Seshiah. The Subordinate Judge believed this evidence. That is all that Section 20 requires. The District Munsif dismissed the suit but the Subordinate Judge decreed it. The Second Appeal was filed in respect of only Seshiah's half share and all the grounds raised the question whether the action of Subbarayudu was binding on Seshiah and no other point has been raised. At the time of the hearing of this Second Appeal it is sought to be argued that the whole endorsement is not in the handwriting of Subbarayudu and cannot be relied on even as that of Subbarayudu. Mr. Somasundaram appearing for the respondent contends that it was never raised in the pleadings. If it had been pleaded he would have adduced evidence that Subbarayudu was practically illiterate and his case stands on the same footing as that of a marksman, and I may observe that the handwriting of the signature of Subbarayudu supports this suggestion. The letters are very big like those of a man who has just learnt the alphabet. This being a state of the pleadings and there being no such ground taken in Second Appeal, I do not think that Mr. Lakshmanna can be allowed to take such point here. It is also argued that there is no evidence to show that Subbarayudu was authorised to make the endorsement either in his own handwriting or get the same done by another, but the evidence only shows that he was authorised to make the payment. This is true. Section 20 does not require that the agent 'in this behalf' must be more than an agent for the purpose of payment. It does not say that the agent who pays should also be authorised to make the endorsement or get the same done by another. It is enough if he was authorised to make the payment; it is not necessary that he should also be authorised in respect of endorsing the payment.
3. The Second Appeal fails and is dismissed with costs.
Venkatasubba Rao, J.
4. Two points of law have been raised. When this appeal was referred to a Bench I thought and I still think that Lodd Govindoss Krishnadoss v. Rukmani Bai ILR (1913) M 438 requires to be reconsidered. In the state of the pleadings this point cannot, however, be allowed to be raised and for the present I content myself with saying that the decision in Lodd Goinndoss Krishnadoss v. Rukmani Bai ILR (1913) M 438 is opposed to the principle in Ellappa v. Annamalai ILR (1883) M. 76 . It is impossible to regard both these decisions as correct and it seems to me that the observations of Hutchins, J., in the earlier case which deals with a mark and a signature as being on the same footing, are worthy of careful consideration. This disposes of the first point.
5. It is secondly contended that while it has been shown that Subbarayudu was authorised to make a payment towards the principal of the debt, there is no proof that he had authority to make the endorsement. The question turns on the construction of Section 20 of the Limitation Act. The authority referred to in this section is the authority to make the payment and the section does not say that special authority must also be proved to make the endorsement. The section assumes that authority to make the payment carries with it the authority to make the endorsement. In this case it has been proved that Seshayya authorised his younger brother Subbarayudu to make the payment. He not only made an endorsement but made an endorsement which contains a record of the payment. He was competent to make that endorsement without being specially empowered and the claim is therefore saved from the bar of limitation.
6. In the result, I agree that the Second Appeal fails and should be dismissed with costs.