1. There is a preliminary objection that Section 69 of the Presidency Small Cause Courts Act (XV of 1882) does not provide for the reference made to us, but in my opinion when two or more Judges of the Small Cause Court are sitting together for the purpose of exercising the Jurisdiction conferred by Section 38, they are sitting in a suit within the meaning of those words in Section 69. The preliminary objection, therefore, fails.
2. Then, on the merits, I think that the decisions in Sesha v. Seshaya I.L.R.(1884) Mad. 55 and Ellappa v. Annamalai I.L.R.(1884) Mad. 76, may properly be confined to the case with which they dealt,-the case, that is to say in which the person making the payment is, by reason of his inability to write, unable to make an entry in his own hand of the fact of payment. No doubt in the judgment of Hutchins, J. in Ellappa v. Annamalai I.L.R.(1884) 7 Mad. 76 there is language which suggests that, in the opinion of that learned Judge, a person, whether he can write or not, might be said to make that his own handwriting which was written by somebody else if he adopts that writing and puts his signature to it. It does not appear to me that Kindersley, J., was entirely of that opinion. He expresses a doubt whether the words of the Limitation Act do not really require that the writing should be made actually by the person paying, but he points to a former decision, Sesha v. Seshaya I.L.R. (1884) Mad. 55 in which it was decided that a signature by a mark was in the circumstances of the case sufficient compliance with the twentieth section of Act XV of 1877. And he says: '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.' I think it may be open to doubt as to what exactly the learned Judge means but so far as it appears from the report, I think it would not be wrong to hold that he, at any rate, and the majority of the Judges of the Court were considering only the cases in which the signature to the entry of part-payment is made by the mark of a person unable to write. It seems, therefore, not improper to confine these two cases to the cases which I have suggested. The same view appears to have been taken in Bombay and Calcutta. In Mukhi Haji Rahmuttulla v. Coverji Bhuja I.L.R.(1896) Calc. 546, it is suggested that the Madras cases refer to cases in which it is impossible that more can be done in the way of writing an entry by the person making the payment than affixing a mark. In Joshi Bhaishankar v. Bai Parvati I.L.R.(1902) Bom. 246, the same view is, I think, indicated and we find that in Jamna v. Jaga Bhana I.L.R (1904) Bom. 262. Sir Lawrence Jenkins accepts the Madras decisions so far as they decide that in the case of a person who cannot write, a new period of limitation may start from his part-payment of principal which is recorded in the hand-writing of somebody else to which he had affixed his mark. The learned Judge accepts the Madras decisions so far and apparently considers that they are not in conflict with Joshi Bhaishankar v. Bai Parvati I.L.R.(1902) Bom.246 and consequently takes the view, which I am prepared to take, that they should be confined simply to the cases with which they actually dealt. Now that is not the present case. In the present case the question put to us is 'whether a debtor who knows how to write and makes a part-payment towards the principal of the debt and the fact of such payment appears in a writing signed by the debtor but not written by him, is there a sufficient compliance with the proviso to Section 20 of the Limitation Act and can a new period of limitation be computed from the time when such payment was made.'
3. In the case of a debtor who knows how to write I am prepared to accept the view of Section 20 which is taken by the High Courts of Bombay and Calcutta. The language of the section seems to me very clear. The distinction between Section 19 and Section 20 of the Limitation Act makes the matter still clearer-it is hardly necessary to discuss the question fully because it has been fully discussed in the judgments of the Bombay and Calcutta Courts whose decisions I accept. And it seems that, so far as I know, there have been no cases in this Court to the contrary; and we ought therefore to hold that in the case of part-payment of the principal of a debt, where the payment is made by a person who knows how to write, the section requires that the entry recording the payment should be written by the person who makes the payment.
4. That being my view of the case, I would reply to the reference in the negative. The defendants might have the costs of the reference.
Sankaran Nair, J.
5. I agree.