Bhaishankar Liladhar v. Bai Parvati Alias Bapai

Crowe, J:-

The only point arising in this appeal is whether the part payments made by the 1st defendant are sufficient to take the case out of the Statute of Limitation under the provisions of section 20 of the Limitation Act. The Court of first instance relying on the Pull Bench decision in Mukhi Baji RahmirftitUa v. Coverji Bhuja (1) has held that the payment does not save limitation. The lower appellate Court found it as a fact that defendant No. 1 made the payment, but being temporarily incapacitated from writing, directed defendant 2 to make the entry and that having adopted the entry as hs own the payment and entry were sufficient to keep the claim alive. The question is concluded by the authority of the Calcutta Full Bench case. Mr. Jhaveri tried to distinguish the present case from the Calcutta case, but so far as the ratio decidendi is concerned we are unable to see any distinction between them, in both cases the fact of the payment appears in the handwriting of a person other than the person making the same. It was there held that the words used in the section are so imperative as to negative the supposition that the handwriting of another person, however authorised by him who makes the payment, could be contemplated by the proviso to section 20. In the course of the argument it was contended that the Courts have enlarged the words of the Act by allowing a person to adopt the entry of another person by directing that other person to make it and that is the view taken by the lower appellate Court as it remarks that both the counsel in the Calcutta case acquiesced in the proposition that such an entry would bind the debtor and that the Full Bench accepted that statement of the law without demur.

No case was cited for such a proposition nor has any authority been shown to as here. Our attention has been drawn to the two Madras cases: Madahhmhl v. Slngara (2) and

Sllappa v. Anaamalai (3), where it was decided that a signature by a mark would be a sufficient compliance with the provisions of section 20 of Act XV of 18TT. It is sufficient to say that the facts of those cases differ from those of the present case, and that we are strongly of opinion that the principle affirmed by the Calcutta Full Bench is the correct one that the hand-writing must be the hand-writing of the person making the payment. For these reasons we reverse the decree of the lower appellate Court and restore that of the Subordinate Judge. Costs on plaintiff throughout

ChaNdavarkar, J.-I have only a few remarks to add in entirely concurring in the judgment of my learned colleague. The difficulty I felt in the course of the argument in adopting the construction which Mr. Gokuldas asked us to put on the last words of the proviso to section 20 of the Limitation Act was created by the general principle of law that it is the right of every person to do that by an agent which he can do himself and that when a Statute empowers a person to act it must be taken as empowering him to act either by himself or his agent. For instance in Queen v. Assessment Committee of St. Mary Abbots (4) where a Statute provided that a person should be heard on his objections and the person concerned in that case Bent an agent to explain his objections to the Committee and the Committee declined to hear the agent on the ground that the Statute did not permit of that, it was held that the Committee was bound to hear the agent. The ratio of the decision was that it was the right of every person to act by an agent and that such right could be taken away by a Statute only by express words. In Beavan v. Webb (5) it was held that "the permission to a man to do an act, which he cannot do effectually without the help of an agent, carries with it the right to employ an agent." But further consideration has removed the doubt 1 had in my mind during the argument, for what I gather from these and other decisions is that the general principle I have above mentioned has no application where a Statute gives a certain effect to the act of specified person and excludes the act of his agent either expressly or by sufficient implication. As an instance of this I may refer to the con­struction put upon section 6 of what is called Lord Tenterdens Act in England in the case of Swift v. Jewstury (6). That section provides that no person can he held liable for a fraudulent representation unless such representation or assurance be made in writing signed by the party to be charged therewith". The Court held that a representation made in writing and also signed by an agent was not within the meaning of the section. The remarks of Bramwell, B. in that case seem to me to apply to the point which we are now deciding. He said that the effect of the section was that the party whom it sought to hold liable for a fraudulent misrepresentation was "neither to have the words proved by word of mouth, nor the authority given to an agent for whose act it is sought to make him responsible proved by word of mouth". So here, according to section 20 of the Limitation Act, a debtor is not bound by the fact of part payment of a debt unless that fact appears in the handwriting of the person making it. In other words, he is not to have the part payment proved against him for the purposes of limitation by word of mouth or by the mere writing of his agent but only by writing in the hand of the perswi making that payment whether he is the debtor himself or his agent. You cannot separate the act of payment from the act of writing which is the mode of proof prescribed for the payment-the two must go together and be by the same hand. The proviso is clear and is outside the principle of law that what a person can do himself can be done with his consent by his agent. But it was said that this construction was calculated to create hardship in cases where from disease or other cause a debtor was unable to write. The answer to that is that it is within the power of the party on whom it works hard-i.e., the creditor to prevent the hardship arising by insisting upon the debtor getting an agent to make the part-payment on his behalf as well as the entry of that payment, where the debtor is incapacitated by disease or

other cause from writing. section 20 of the Limitation Act prolongs the period of a debtors liability beyond that ordinarily prescribed by the Statute, and in prolonging it and thereby giving in favour of the creditor a fresh starting point of limitation the Legislature has studiously protected the -debtor by imposing certain conditions. It does not matter whether the part payment is made by the debtor or his duly authorised agent provided the person making the payment is also the person who makes an entry of it in his own handwriting. The reason which led the Legislature to prescribe that special mode of proof is easy to conceive. Where an agent merely writes that his principal has made a part payment of his debt, there is no act done by the agent, which, being prima facie to his detriment is a guarantee of the bona fide& of the writing. On the other hand, where the agent makes the payment and the entry also, there is that guarantee, for there is then a payment of money by the agent and the presumption arising from such payment is that the agent was not likely to pay money out of his own pockets and suffer loss merely to prolong the period of limitation against his principal and that therefore the money came to him from the latter.

Decree reversed.