JUDGMENT V.K. Mehrotra, J.
1. This is a defendant's Second Appeal who is aggrieved by a decree for recovery of a sum of Rs. 8,400/- with pendente lite and future interest at the rate of 6% per annum on Rs. 4,000/- borrowed by him from the plaintiff. The lower appellate Court confirmed the decree passed by the trial Court.
2. The finding which has been arrived at by the courts below concurrently is that after borrowing a sum of Rs. 4,000/- on Feb. 5, 1967 from the plaintiff, the defendant acknowledged his liability for re-payment of the amount by paying to the plaintiff a sum of Rs. 300/- on Jan. 1, 1970. There was an endorsement about this payment made at the back of the promissory note and the receipt through which the defendant acknowledged his liability. The defendant affixed his thumb mark below it. Both the courts disbelieved the plea of the defendant that he had not borrowed any money or that the promissory note and the receipt had been fabricated by the plaintiff.
3. The courts below did not accept the defendant's plea that the suit was barred by limitation. According to them, the suit was well within limitation as acknowledgment of his liability had been made by the defendant by the payment and endorsement dated Jan 1, 1970.
4. Appearing for the defendant-appellant Sri S. A. Khan, his learned counsel, has urged that even on the finding recorded by the courts below, the suit could not be said to be within limitation. His submission is that the endorsement, which was treated to be an acknowledgment extending the period of limitation in the filing of the suit, was not an acknowledgment in the eye of law. The precise submission is that even according to the court below the defendant had made his signatures also on the promissory note and the receipt.
The endorsement at the back of the promissory note, acknowledging the liability for the amount of loan, did not contain the defendant's signature, It only had his thumb mark affixed below it. Since the defendant could make his Signatures, affixation of his thumb mark, below the endorsement could not be treated in law to be signing by him of the endorsement acknowledging his liability having regard to the meaning of the word 'sign' contained in Section 3(56) of the General Clauses Act.
5. In Santlal v. Kamla Prasad. (AIR 1951 SC 477), it was observed by the Supreme Court fin Paragraphs 9 and 10 of the judgment) as follows :
"9. It would be clear, we think, from the language of Section 20 Limitation Act, that to attract its operation two conditions are essentials first the payment must be made within the prescribed period of limitation and secondly it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the subordinate Judge that it is the payment which really extends the period of limitation under Section 20. Limitation Act, but the payment has got to be proved in a particular way and for reasons of policy the legislature insists, on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail.
10. But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment whether made before or after the period of limitation must be in existence prior to the institution of the suit.......To claim exemption under Section 20, Limitation Act, the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element and unless both these elements are proved to exist at the date of the filing of the plaint, the suit would be held to be time barred."
6. It may be noticed that the Supreme Court was dealing in the aforesaid case with Section 20 of the Limitation Act 1908 which is in pari materia with Section 19 of the Indian Limitation Act, 1963 which governs the present cases.
7. Section 19 of the Indian Limitation Act, 1963, in so far as it is material, is in the following terms.
"19 Effect of payment on account of debt or of interest on legacy -- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy 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, save in the case of payment of interest made before the 1st day of Jan., 1928, an acknowledgment of the payment appears in the handwriting of, or in writing singed by the person making the payment.
Explanation-- .........."
In view of the Supreme Court decision in the case of Santlal, (AIR 1951 SC 477) (supra) it is clear that before the period of limitation could be said to have been extended on account of acknowledgment of liability made by the defendant, it had to be established that some amount was paid by him before the expiry of the period of limitation and an acknowledgment about it was made by the defendant in his hand-writing or in a writing signed by him. The finding that the court below has recorded in the instant case, as noticed earlier, is that the defendant paid a sum of Rs. 300/- to the plaintiff before the expiry of the period of limitation for recovery of the amount taken on loan by him.
8. The Courts below have taken the view that an acknowledgment of his liability was made by the defendant in a writing signed by him. The question is whether this view is sound in law. The defendant was found to have made his signatures on the pronote and the receipt in his handwriting. Obviously, he was capable of writing his name. Below the endorsement, which has been treated to be acknowledgment by the defendant of his liability, is a thumb impression said to have been made by the defendant. The defendant denies having made that impression and the tower appellate court found it difficult to say whether it was a thumb impression made by him on account of its blurred nature. It is clear that even on the assumption that the thumb impression was that of the defendant, the endorsement acknowledge liability cannot be treated to be one signed by the defendant.
9. Section 3(56) of the General Clauses Act, 1897 lays down that unless there is anything repugnant in the subject or context, the word 'sign', with its grammatical variations and cognate expression, shall with reference to a person who is unable to write his name, include 'mark' with its grammatical variations and cognate expression. The Supreme Court had occasion to refer to this provision in Hindustan Construction Co, Ltd. v. Union of India (AIR 1967 SC 526). It observed (in paragraph 6 of the report) as follows:
"This brings us to the meaning of the word 'sign' as used in the expression, 'signed copy'. In Webster's New World Dictionary the word 'sign' means to write one's name on, as in acknowledging authorship, authorising action etc."
To write one's name is signature.
Section 3(56) of the General Caluses Act, No. 10 of 1897, has not defined the word 'sign' but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expression. This provision indicates that signing means writing one's name on some document or paper. In Mohesh Lal v. Busunt Kumaree, (1881) ILR 6 Cal 340, a question arose as to what 'signature' meant in connection with Section 20 of the Limitation Act, No. IX of 1871. It was observed that "Where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature." It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is or, in what part of it the signature occurs,"
The Supreme Court thus ruled that making of mark would amount to making of a signature by a person who is unable to write his name. Else, signing means writing one's name on some document or paper.
10. The Supreme Court thus seems to have approved the view taken by a Division Bench of the Calcutta High Court in Sadanand Pal v. Emperor (ILR (1932) Cal 550) though it did not expressly notice that decision in its judgment. In that case a person, who was able to write, was said to have made a confession before the Magistrate which was not signed by him but contained a thumb mark near the printed words "signature or mark of the accused" at the place where he was to place his signature in case he had signed it. The view taken by the Bench was that the mark so made could not be treated to be a signature within the meaning of Section 3(52) of the General Clauses Act under which it could be considered to be a signature only in the case of a person unable to write his name.
11. My attention was drawn to some decisions by the learned counsel for the plaintiff-respondent in which it was held that having regard to the context in which the mark was made, it amounted to a signature by the maker thereof even though he was able to write his name. These decisions not only were of a period prior to the Supreme Court decision in Hindustan Construction Co. Ltd.'s case (AIR 1967 SC 526) but were generally rendered on the basis that it was established before the court that customarily signature were made by the authors thereof by making the marks in question. In view of the clear pronouncement of the Supreme Court, it is not necessary to refer to them or deal with them in any detail in this judgment. No decision, subsequent to that of the Supreme Court in Hindustan Construction Co. Ltd.'s case, was cited by counsel for the parties before me.
12. The facts found in this case, as noticed earlier, are that the defendant had actually made his signature i. e. written out his name on the pronote and the receipt. Clearly, therefore, he was not a person who was unable to write his name. The extended definition of the word 'sign' contained in the General Clauses Act by making of a mark was not applicable in his case. The endorsement of acknowledment admittedly did not contain his name in his writing but only had a thumb impression below it which, according, to the plaintiff, had been made by the defendant. The defendant thus had not made any acknowledgment in writing signed by him for purpose of Section 19 of the Limitation Act. 1963.
The suit out of which arises the present appeal, was admittedly filed beyond three years the period prescribed by Article 35 of the Schedule to the Limitation Act, 1963 for such suits. It was held to be within limitation on account of the acknowledgment of his liability by the defendant by payment of Rs. 300 and on account of the endorsement made by him on the reverse of the promissory note on Jan. 1, 1970. By reason of payment alone within the period of limitation the suit could not be held to be within limitation for there was no acknowledgement by the defendant in writing signed by him which was necessary before the second condition, laid down for such acknowledgement by the Supreme Court in Santlal's case (AIR 1951 SC 477) (supra) could be said to have been satisfied. There was thus no acknowledgment within the meaning of Section 19 of the Limitation Act, 1963. The suit was clearly beyond limitation and deserved dismissal on that ground. The courts below misdirected themselves in law in decreeing it. The decree cannot be upheld.
13. In consequence, the appeal succeeds and is allowed. The decree of the courts below is set aside and the plaintiff's suit is dismissed. In the circumstances of the case, however, it appears just to direct that the appellant shall pay the plaintiff's costs throughout.