1. This appeal arises out of a suit filed by the first respondent in the Court of the Subordinate Judge of Tinnevelly to recover a sum of Rs. 16,350-14-8 in respect of two promissory notes for Rs. 18,000 (Ex P-1) and Rs. 3,400 (Ex. P-3) respectively executed on 30th October, 1922 and 18th August 1927, by the father of the first defendant (the appellant before us) in favour of the second defendant. The plaintiff is the younger brother of the second defendant and the moneys due under the promissory notes belonged to the joint family of which they were members. There was a partition in 1929 and thereafter the plaintiff and the second defendant became each entitled to a moiety of the amounts due under the two promissory notes. On 28th June, 1943, the second defendant made an endorsement in favour of the plaintiff for half of the amount due in respect of each of the promissory notes. The plaintiff instituted the present suit on the 1st July, 1943.
2. In the trial Court there were two main defences : (1) discharge ; and (2) limitation. The first defendant pleaded certain payments of which endorsements were not to be found on the promissory notes but such payments were not proved in the Court below. Mr. Sitarama Rao, the learned Counsel for the appellant first defendant, has not challenged the correctness of the finding of the lower Court rejecting those payments.
3. He however pressed before us the plea of limitation. Though the promissory notes were of the years 1922 and 1927 respectively the plaintiff relied upon payments of interest and endorsements in acknowledgment of such payments made on the respective promissory notes. The last of such endorsements is dated 1st July, 1940, and the acknowledgment is in the handwriting of the zamin clerk of the first defendant's estate. It appears from a perusal of the two endorsements in question, namely, Ex. P-1(o) on the promissory note for Rs. 18,000 and Ex. P-3(n) on the promissory note for Rs. 3,400 that an obvious mistake had been committed in entering up the endorsements on the respective documents. The recitals show that the endorsement Ex. P-1(o) must have been made with reference to the promissory note, Ex. P-3 and the endorsement Ex. P-3(n) made in respect of the promissory note Ex. P-1. This is not seriously disputed by the learned Counsel for the first defendant but he contended that as each of the endorsements is expressed to have been made in respect of the particular promissory note on which the endorsement was made, there would not be a sufficient acknowledgment in writing within the meaning of the proviso to Section 20(1) of the Indian Limitation Act.
4. Another contention of the learned Counsel for the first defendant was confined to the promissory note, Ex. P-3. Assuming that the proper endorsement in respect of this promissory note is Ex. P-1(o) nevertheless, so the argument ran, the endorsement is not proper because the interest acknowledged by that endorsement is stated to be the interest due from 2nd April, 1937, to the end of 1st May, 1937, whereas it is clear from the prior endorsement dated 30th October, 1937,that interest in respect of that promissory note had been paid till the end of October, 1937. It was contended that as the endorsement mentioned that the interest paid was for a particular period and actually no interest was due in respect of that period the payment cannot save limitation under Section 20 of the Act. In our opinion, there is no substance in either of the contentions and they are answered by the plain language of Section 20 as it stood before the amendment of 1942. All that is required under Section 20 is that there should be a payment and that payment should be towards interest as such. The payment must be by a person liable to pay the debt or by his agent duty authorised, and the acknowledgment of the payment should be in the writing of or signed by the person making the payment. In our opinion it is not permissible to read into the section other conditions such as that the interest should be for any particular period or that the acknowledgment of the payment should itself mention that the payment is for interest for any particular period. It has been held that evidence can be given apart from the endorsement itself to show that a particular payment was towards the interest due on a debt vide Kandaswami Mudaliar v. Thevammal (1937) 2 M.L.J. 54. The two things essential therefore are the payment of interest as such and an acknowledgment of the payment in the handwriting of or in writing signed by the person making the payment. If evidence aliunde is admissible to prove that a particular payment was for interest on a particular debt it follows that evidence is equally admissible to show that in this case the endorsement made on Ex. P-1 was an acknowledgment of the payment of interest due in respect of Ex. P-3, and likewise in respect of the other endorsement. As regards the contention that no interest was payable for the period expressly mentioned in the endorsement we consider that as undoubtedly the interest which was due and payable in respect of the promissory note, Ex. P-3 on the date of the payment in question was considerably more than the amount actually paid it would not really matter that a mistake was committed in mentioning the period for which the interest was paid. If actually the interest for that period had already been paid the debtor would get a credit for his payment towards the balance of interest still due and payable by him. This, however, would not prevent the payment and the acknowledgment from being relied upon to save the claim from being barred by limitation.
5. It was also contended on behalf of the appellant that though the endorsement expressly mentions that the payment was on 1st July, 1940, the payment was made on 29th June, 1940 and therefore the suit is barred by limitation. It may be stated that the main plea of the first defendant was that no payments were ever made in respect of either promissory note at or about the time of the endorsement. The case now put forward is evidently based upon the fact that in the plaintiff's accounts the entry of payment is made under the date 29th June, 1940. The explanation of the plaintiff and the clerk who wrote the account is that there was a mistake due to inadvertence and the correct date was not entered in the margin of the accounts. The Court below found on a consideration of the evidence that the payment was on 1st July, 1940. We agree with that conclusion and it is only necessary to mention that the date to be found in the second defendant's account is 1st July, 1940 and it must be remembered that it was the second defendant who was the payee under the promissory notes. It was not suggested that the endorsement was procured by the plaintiff in collusion with the zamin manager Veeraswami Aiyar who wrote the endorsement. Nor is it suggested that the endorsement was made at a later date for the purpose of this suit. The case of the first defendant that no payment was made rests entirely on the oral testimony of her old mother who is obviously interested in her daughter. Conclusive evidence has not been placed before the Court in the shape of accounts which must have been kept on behalf of the first defendant. In the absence of these accounts it is impossible to rely on the bare oral statement of the first defendant's mother. We have no hesitation in rejecting this part of the appellant's case.
6. There remains only the contention that the payment was not made by a person duly authorised in law. To appreciate this contention it is necessary to state a few further facts. As already mentioned the promissory notes in question had been executed by the father of the first defendant. He died leaving behind him his last will and testament dated 13th December, 1929, by which he bequeathed all his properties to his only daughter, the first defendant then a minor and appointed his widow, Subbuthaiammal, who was the first defendant's step-mother as the guardian of her person and the properties bequeathed to her with the direction that as soon as his daughter attained majority his widow should deliver possession of the properties to her. The first defendant was married on 11th February, 1940. It is common ground that she was a minor on the date of the payment in question, namely, 1st July, 1940. It is contended that the endorsement made by the zamin agent on behalf of Subbuthaiammal the testamentary guardian of the minor first defendant would not save the claim from being barred because Subbuthaiammal was not a person authorised in law to make the payment on behalf of the first defendant. Under Section 21, Sub-section (1) of the Indian Limitation Act in the case of a person under disability the expression " agent duly authorised in this behalf" in Section 20 includes his lawful guardian, committee or manager, or an agent duly authorised by such guardian, committee or manager to sign the acknowledgment or make the payment. It is not and cannot be disputed that Subbuthaiammal was the lawful testamentary guardian of the first defendant. But it is contended that as the first defendant was married in February, 1940, Subbuthaiammal ceased to be her guardian thereafter and her lawful guardian would be only her husband. In support of this contention the learned advocate for the appellant relied upon decisions and passages in text books which lay down that after marriage the husband is the lawful guardian of a minor girl and not her father. If, therefore, Subbuthaiammal was no more than a de facto guardian on the date of payment in question she would have no authority to bind the first defendant by any acknowledgment. This was laid down in a Full Bench decision in Chennappa v. Onkarappa (1939) 2 M.L.J. 884 : I.L.R. 1940 Mad. 358 (F.B.).
7. It is conceded by Mr. Sitarama Rao that a Hindu father could appoint by will a guardian both for the person and the property of his minor daughter. But his argument is that this is not because the father has bequeathed by his will property to his minor daughter but because of his inherent right under the Hindu law, independent of any rights to property. According to him this right ceases the moment the minor daughter is married and the power of the father is at an end. Any guardian appointed by will by the father would therefore cease to be the guardian on the marriage of the minor daughter. No direct decision has been cited to us on this point.
8. In our opinion the correct position of law appears to be this : A testamentary guardian can be appointed by a Hindu father both as regards the person as well as the property of his minor daughter. On the marriage of the minor the husband would in law become the guardian of her person but unless there is an express provision in the will the guardian appointed by it will not cease to be the guardian so far as the property is concerned. We consider that this result follows from the provisions of the Guardians and Wards Act and in particular Section 41 of the Act. The definition of a guardian in Section 4 is in very wide terms viz.,
" ' guardian ' means a person having care of the person of a minor or of his property, or of both his person and property "
, and it has been held that according to this definition a guardian under the Act would include a natural or testamentary guardian as well as a guardian appointed by the Court. It is clear that the Act deals not only with guardians appointed by Court but also with the other classes of guardians. Section 28 for instance expressly deals with the powers of a testamentary guardian. It says, Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immoveable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.
Section 41 provides for the cessation of authority of both a guardian of the person of a minor as well as the guardian of the property of a minor. Sub-section (1) sets out when the powers of a guardian of the person cease. Section 41(1)(b) lays down that the powers of a guardian of the person cease in the case of a female ward by her marriage to a husband who is not unfit to be the guardian of her person, or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit.
From the language of this clause it is clear that the enactment applies both to guardians appointed by Court as well as natural and testamentary guardians. sub-section (2) of the same section provides that the powers of a guardian of the property shall cease by the happening of certain events but the marriage of a female ward is not one of the events which puts an end to the powers of a guardian of the property either natural, testamentary or appointed by Court. We find from the judgment of the trial Court that this position was conceded by the learned advocate who appeared on behalf of the first defendant. But we have nevertheless considered the question as it was fully argued on behalf of the first defendant before us. As admittedly the first defendant was a minor on the date of the payment in question, namely, 1st July, 1940, Subbuthaiammal, who had been appointed guardian under the will of the father of the first defendant both in respect of her person as well as in respect of her property continued to be the lawful guardian of the property of the first defendant in spite of her marriage in February, 1940. We hold, therefore, that the payments and acknowledgments were made by a person authorised in law to make them.
9. The appeal fails and is dismissed with costs of the first respondent.