Hari Govind Phadke Vs. Gangubai Balwant Patil - Court Judgment

Excerpt:
indian limitation act (ix of 1908), amended by (act i of 1927), section 20-part-payment of debt-mark of illiterate debtor.;an endorsement reciting payment of a part of principal followed by a mark of the illiterate debtor is sufficient for the purpose of section 20 of the indian limitation act 1908, and gives a fresh starting point for limitation. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - 262, where it was held that the condition prescribed by section 20 of the indian limitation act the part-payment of the principal debt should appear in the handwriting of the person making the same is satisfied if the payer affixes his mark beneath an endorsement not written by him.patkar, j.1. in this case the plaintiff applied for execution of the decree in kegular suit no. 377 of 1910 to recover the balance of rs. 134-13-2 and relied upon an endorsement of part-payment of the principal of the decretal debt by the judgment-debtor gangubai. the endorsement was as follows:-rs. 5 vasul dated february 16, 1922, by the hand of gangu mard balwanta.' below this endorsement gangu has made a thumb-impression which is described by one vithoba ramji as being the thumb-impression of gangu mard balwanta. the learned subordinate judge held that the part-payment of the decretal debt evidenced by this endorsement gave a starting point of limitation to the decree-holder. the lower appellate court disagreed with the learned subordinate judge on the ground that the description of the thumb-impreasion was made by vithoba ramji, whereas the endorsement, below which the thumb-impression was made by gangu, was not in the handwriting of vithoba ramji, that under the proviso to section 20 of the indian limitation act, in the case of part-payment of the principal of a debt, the fact of the payment must appear in the handwriting of the person making the same, and that the description of the mark written by vithoba who was the agent for writing the signature was in a different hand from the recital of the fact of payment, and therefore the fact of payment could not be said to be in the hand of the debtor gangubai.2. under section 19 of the indian limitation act, the acknowledgment must be signed by the debtor but in the case of a part-payment under the proviso to section 20 signature is not necessary. if that proviso is strictly construed, it would not be possible for an illiterate debtor to make the fact of payment appear in his or her handwriting, it was, therefore, held in the cases of sesha v. seshaya i.l.r. (1883) mad. 55 and etlappa v. annamalai i.l.r. (1883) mad. 76 that where there is a writing setting out the fact of payment and the debtor affixes his mark or signature thereto, he adopts the writing and, makes it his own, and by his signature he causes the fact of payment appear in his own handwriting. the proviso, therefore, is relaxed in favour of an illiterate debtor. the view of the madras high court was adopted by this court in the case of jamna v. jaga bhanai i.l.r. (1903) bom. 262, 5 bom. 262, where it was held that the condition prescribed by section 20 of the indian limitation act the part-payment of the principal debt should appear in the handwriting of the person making the same is satisfied if the payer affixes his mark beneath an endorsement not written by him. it is sufficient, therefore, in the case of an illiterate debtor if he or she affixes his or her mark bslow an endorsement showing the fact of payment written by somebody else. it was held, however, by the lower court that the description of the mark was made by vithoba ramji and the previous endorsement below which the mark was made by the debtor was not written by vithoba. the execution, however, of a document is completed as soon as the executant makes his mark. the description of the mark is only to authenticate the mark, that is, to vouch the execution. under section 3, clause (52), of the general clauses act, the signature includes a mark, and in the case of an illiterate executant, his mark is his signature and is independent of any writing by which the mark may be explained. see govind bhikaji v. bhau gopal i.l.r. (1916) bom. 384: 19 bom. l.r. 147. the view taken in jamna v. jaga bhana was accepted in niwajkhan nathakhan v. dadabhai i.l.r. (1916) bom. 166, section 18 bom. l.r. 973 and lodd govindoas krishnadois v. kukmani bai i.l.r. (1913) mad. 438, so far as illiterate debtors were concerned, but the law on this point is now amended by the legislature in section 2 of act i of 1927 which runs as follows :-provided that, save in the case of a payment of interest made before january 1, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.3. it is, therefore, sufficient in the case of an illiterate debtor if the endorsement reciting the fact of payment is followed by a mark of the illiterate debtor. we think, therefore, that the view of the lower court was wrong.4. we, therefore, reverse the order of the lower appellate court and restore that of the subordinate judge with costs throughout on the respondent.