PETITIONER:
SAHEBZADA MOHAMMAD KAMGAR SHAH
Vs.
RESPONDENT:
JAGDISH CHANDRA DEO DHABAL DEOAND OTHERS.
DATE OF JUDGMENT:
21/04/1960
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION:
1960 AIR 953 1960 SCR (3) 604
CITATOR INFO :
RF 1963 SC 890 (12)
F 1967 SC 135 (13)
R 1973 SC2609 (22,26)
ACT:
Document-Construction of-Discrepancy between earlier and
later parts-" Duly authorised ", meaning of-Indian
Limitation Act, 1908 (IX of 1908), Explanation 11, s. 19.
HEADNOTE:
In 1900 the then proprietor of the Dhalbhum estate who was
the predecessor-in-interest of the first respondent granted
a permanent lease of the mining rights for certain metals
and minerals in the estate to one Prince Mohammad Bakhtyar
Shah. During the lifetime of the said proprietor the
management of the estate was taken over by the Deputy
Commission of Singhbhum under the Chotanagpur Encumbered
Estates Act and after the former's death the manager of the
Estate granted to the Official Receiver to the estate of
Prince Mohammad Bakhtyar Shah another lease in respect of
mining rights in the same area in 1919. The first
respondent commenced the present litigation for the purpose
of recovering rents and royalties on the basis of the second
lease from the heirs and representatives of the estate of
Prince Mohammad Bakhtyar Shah and also from the appellant as
the Receiver to that Estate. The decision of the case
depended upon the construction of the two leases of 1900 and
1919 and the Trial Court and the High Court decided the case
in favour of the plaintiff respondents. On appeal by the
contesting defendant appellant on a certificate granted by
the High Court :
Held, that the intention of the parties to a dispositive
document must be gathered from the words used by the parties
themselves and they must be presumed to have used the words
in their strict grammatical sense. If the statements made
in the earlier part of the document were irreconcilable with
those made in the later part, the earlier part must prevail.
In cases of ambiguity the court should look at all the parts
of the document to ascertain the intention of the parties.
If ambiguity still remains, the Court should interpret the
document strictly against the grantor and in favour of the
grantee.
Under Exp. 11 of s. 19 of the Limitation Act the words duly
authorised " would include duly authorised either by the
action of the party indebted or by force of law or order of
the court.
Annapagonda v. Sangadiappa, (1901) Bom. L.R. 221 (F.B.),
Rashbehari v. Anand Ram, 43 Cal. 211, Ramcharan Das v. Gaya
Prasad, 30 All. 422, Lakshumanan v. Sadayappa, A.I.R. 1919
Mad. 816 and Thankamma v. Kunhamma, A.I.R. 1919 Mad. 370,
approved.
605
Currimbhai v. Ahmedali, 58 Bom. 505 and Lakshmanan Chetty v.
Sadayappa Chetty, 35 M.L.J. 571, considered.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of 1956.
Appeal from the judgment and decree dated September 24,1952,
of the Patna High Court in First Appeal from Original Decree
No. 2 of 1947, arising out of the judgment and decree dated
August,31, 1946, of the Special Subordinate Judge,
Chaibassa, in Money Suit No. 3 of 1941.
L.K. Jha, B. K. Saran, S. T. Hussain, S. K. Jha and K. L.
Mehta, for the appellant.
H. N. Sanyal, Additional Solicitor-General of India,
J. C. Das Gupta and R. C. Prasad, for respondent No. 1.
1960. April 21. The Judgment of the Court was delivered by
DAS GUPTA, J.–Dhalbhum estate which covers an area of more
than 1,000 sq. miles and lies partly in the District of
Midnapur and partly in the District of Singhbhum is rich in
minerals. In 1900 the then Proprietor of this estate Raja
Satrughan Deo Dhabal Deo the predecessor-in-interest of the
first respondent Jagdish Deo Dhabal Deo granted permanent
lease of the mining rights for certain metals and minerals
in this estate to Prince Mohammad Bakhtyar Shah of
Tollygunge in the District of 24-Parganas. Raja Satrughan
Deo Dhabal Deo died in 1916. Before his death, however, the
management of the estate had been taken over by ‘the Deputy
Commissioner of Singhbhum under the Chotanagpur Encumbered
Estates Act. In the course of such management the Manager
of the Estate granted on September 1, 1919, to the Official
Receiver to the estate of Prince Mohammad Bakhtyar Shah
another lease in respect of mining rights in the same area.
The present litigation was commenced by the first respondent
with a view to recover rents and royalties on the basis of
the second lease from the heirs and representatives of the
estate of Prince Mohammad Bakhtyar Shah and also from the
present appellant as Receiver to that estate. As under the
terms of the lease the lessor is entitled to the half share
of the receipts on account of
79
606
rents and royalties and other incomes in respect of the
minerals demised and the exact income could not be known
until accounts were furnished by the lessee, the defendant
prayed for a decree for accounts from January 1, 1926, and
for a decree for the sum found due on such accounts. As the
suit was brought on August 12, 1941, the period prior to
August 12,1935, would prima facie be barred by limitation.
According to the plaintiff, limitation was saved by the
acknowledgments that had been made from time to time by the
then Receiver of the estate. Two defences were raised by
the Receiver who was the only contesting defendant. The
first was that the lessor had dispossessed him from part of
the leasehold property and so there ought to be total
suspension of rents and royalties. The second defence was
as regards the claim for the period prior to August 12,
1935. It was pleaded that the letters which are claimed to
have acknowledged the liability did not in law amount to
acknowledgment of liability and that in any case the alleged
ackowledgments being by the Receiver who was an agent of the
court and not an agent of the parties the acknowledgments
would be of no avail in saving limitation.
Though the written statement itself did not in terms mention
the nature of the lessee’s dispossession from the leasehold
property the definite case at the trial was that this
dispossession was in respect of minerals which had been
specifically excluded from the earlier lease of 1900 but
according to the defendant included in the later lease. One
of the main questions in the appeal is whether the minerals
specifically excluded in cl. 16 of the earlier lease were
demised to the lessee by the later lease of 1919. of the
several issues that have been framed we are therefore con-
cerned now only with the two issues in respect of these two
defences. The first of these is: ” Is the defendant
entitled to suspension of rents and royalties as claimed ” ;
the second is: ” Is any portion of the plaintiff’s claim
barred by limitation? ” The Subordinate Judge held on a
construction of the lease of 1919 that it did not include
minerals specifically excluded by cl. 16 of the earlier
lease and as the only
607
case of dispossession from leasehold property was made in
respect of these minerals the plea of suspension of rent
must fail. He also negatived the plea of limitation, being
of opinion that the Official Receiver was competent to make
such acknowledgments and that in fact there were
acknowledgments of the plaintiff’s liability within the
meaning of s. 19 of the Limitation Act. With regard to the
period from 1935 to 1941., regarding which no question of
limitation arose, the Subordinate Judge gave a decree of
rendition of accounts and for payment of such amounts as
would be found on accounting by the Commissioner. On the
basis of his finding that there was an acknowledgment of
liability to the extent of Rs. 67,459-3-3 as due under the
terms of the two leases up to the year 1935 but that there
was no material on the record to find out as to what was the
amount due up to that year on the basis of that second
lease,, he made an order -in the following terms:
” The defendant is hereby directed to assess and state the
amount due under the lease in suit out of the said sum of
Rs. 67,459-3-3 on the basis, of the accounts of his
office…. in respect of the plaintiff’s dues within two
months from this date, failing which a commissioner will be
appointed to take accounts and ascertain the amount due to
the plaintiff, and the defendant shall be liable for the
costs of the same.”
Against this decree the contesting defendant, the Receiver
appealed to the High Court of Judicature at Patna. Before
the appeal court two points were raised. The first was that
on a proper construction of the 1919 lease it should be
found that the minerals specifically excluded in clause 16
of the earlier lease were included in the 1919 lease and
consequently, the lessor having granted certain leases to
other parties in respect of these minerals in the area the
lessee was entitled to suspension of rents. The other point
raised. was that in law there was no acknowledgment which,
could save limitation in respect of the claim prior to,
August 12, 1935.
608
Patna High Court who heard the appeal agreed with the
conclusions of the Trial Judge. On the first point they
held that the minerals excluded by clause 16 of the 1900
lease were not included in the Second lease and so there was
no question of any suspension of rents. They also held that
quite apart from the question of construction of the
document, the lessee was not entitled to suspension of rents
as in order to justify witholding of the rents, the act of
the landlord must be forcible or, at any rate, tortious and
that these conditions had not been established in the
present case. On the second question, the learned judges
held that the letters on which the plaintiff relied to show
acknowledgments by the Receiver did in law amount to
acknowledgments and the acknowledgments being by the
Receiver who was himself bound to pay the rent due to the
superior landlord were good acknowledgments within the
meaning of s. 19 of the Limitation Act. Accordingly they
dismissed the appeal.
The present appeal has been brought by the con. testing
defendant the Receiver on a certificate given by the High
Court under Art. 133 of the Constitution.
Both the defences raised in the court of appeal have been
pressed before us. The alleged dispossession on the basis
of which the first defence of a right to suspension of rent
is urged is only in respect of minerals mentioned
specifically in clause 16 of the earlier lease of 1900. It
is necessary therefore to decide in the first place whether
these minerals mentioned in clause 16 of the earlier lease
have been included in the second lease. If as found by the
courts below they have not been so included no question of
suspension will arise. If they have been included, some
other questions of law and fact may have to be considered in
deciding whether the defendant’s plea of suspension of rent
can succeed. While primarily we have to construe the 1919
lease to find an answer to the question indicated above, it
will be necessary for that very purpose to refer to several
portions of the earlier lease of 1900. The very first
clause in the operative portion of the 1900 lease is in
these words:-
609
” That you shall prospect, raise, purify, melt and sell
gold, silver, copper, lead, zinc, iron, mercury,, mica,
sulphur, copper sulphate, coal, chalk, redearth, etc., mati
slate stone and all kinds of precious stones such as
diamond, ruby, emerald, topaz, crystals, etc., lying on the
surface and subsoil of Ghatsila otherwise called pargana
Dhalbhum, mentioned in Schedule excluding the 2 mouzas
Narsinghgarh and Ghatsila and the Dibkulis mentioned in
Schedule below.”
It will be noticed that this clause does not mention stones,
lime-stones, ghuting or ballasts. Clause 6 of the lease
however provided that the lessee shall be ” competent to
take stones, lime-stones, ghuting and ballast which may be
required for constructing buildings, bungalows and pathways,
etc., necessary for the aforesaid mining work free of cost
and rent.” Clause 16 of the lease contains some further
provisions as regards these and is in these words :-
” That by virtue of the aforesaid patta, you shall not be
competent to offer any obstruction either to me or to my any
authorised person to raise stones (used) for utensils or
stones, lime-stone and ghuting, etc., for buildings which
are not covered by this patta and sell the same to me or to
tenants, etc., under me to dig bandh, tank, canal and wells,
etc., but the terms of the said patta shall hold good in
respect of the underground minerals, etc., lying under the
said wells, etc.”
Two things that are abundantly clear from this document
are:-(1) that the mining rights were specifically granted in
respect of gold, silver, copper lead, zinc, iron, mercury,
mica sulphur, copper sulphate, coal, chalk, red-earth and
certain precious stones such as diamond, ruby, emerald,
topaz, crystals, etc., and (2) that stones for utensils or
stones, limestones, ghuting, etc., and ballast for buildings
were specifically excluded from the lease. By the later
lease of 1919 the lessor gave and the lessee obtained mining
rights in respect of certain minerals not granted by the
earlier lease. The question is whether what was granted by
the later lease included in addition to things which had not
been specifically named in the
610
earlier grant also things which had been specifically
excluded there. The important portion of the operative
clause of the later lease is in these words:-
” In consideration of the rent hereby reserved and of the
covenants and conditions hereinafter contained the Manager
hereby grants demised unto the Receiver all and singular all
metals and minerals of whatsoever kind or description other
than those specifically comprised in and granted by the
principal lease……………………………….
rights, privileges and powers comprised in and granted to
the said Prince Mohammad Bakhtyar Shah by the said principal
lease in all respects as though the same were repeated
herein so far as they do not contradict any of the
provisions herein contained and are still existing and
capable of taking effect.”
The covenant runs thus:-
Receiver covenants with the Manager that he will at the time
and in the manner provided for in the said principal lease
pay the rent or royalty reserved hereby and will carry out
and comply with all the provisions and conditions comprised
in the said principal lease so far as they are applicable to
these presents in the same manner as though they had been
inserted herein.”
The document contains next an agreement that the Receiver
shall be at liberty to grant under-leases subject to certain
conditions and provisions. One of the conditions mentioned
is–” That all such underleases shall be subject to such
special terms in regard to specific minerals as may be
prescribed from time to time by the Government Rules
relating to Mining Leases and shall be subject to the
provision of clause 16 of the said principal lease.”
The lease concluded with the words:—-
“Provided always and it is hereby agreed that nothing herein
contained shall be deemed to show that the Pottah of the
tenth day of January one thousand and nine hundred made
between Raja Satrughan Deo Dhabal Deo, son of Gopinath Deo
Dhabal Deo, deceased and the Hon’ble Prince
611
Mohammad Bakhtyar Shah, son of Prince Mohammad Anwar Shah,
deceased is not still valid and subsisting.”
In his attempt to establish that by this later lease the
lessor granted a lease even of those minerals which had been
excluded specifically by clause 16 of the earlier lease, Mr.
Jha has arrayed in his aid several well established
principles of construction. The first of these is that the
intention of the parties to a document of grant must be
ascertained first and foremost from the words used in the
disposition clause, understanding the words used in their
strict, natural grammatical sense and that once the
intention can be clearly understood from the words in the
disposition clause thus interpreted it is no business of the
courts to examine what the parties may have said in other
portions of the document. Next it is urged that if it does
appear that the later clauses of the document purport to
restrict or cut down in any way the effect of the earlier
clause disposing of property the earlier clause must
prevail. Thirdly it is said that if there be any ambiguity
in the disposition clause taken by itself, the benefit of
that ambiguity must be given to the grantee, the rule being
that all documents of grants must be interpreted strictly as
against the grantor. Lastly it was urged that where the
operative portion of the document can be interpreted without
the aid of the preamble, the preamble ought not and must not
be looked into.
The correctness of these principles is too well established
by authorities to justify any detailed discussion. The task
being to ascertain the intention of the parties, the cases
have laid down that that intention has to be gathered by the
words used by the parties themselves. In doing so the
parties must be presumed to have used the words in their
strict grammatical sense. If and when the parties have
first expressed themselves in one way and then go on saying
something, which is irreconcilable with what has gone
before, the courts have evolved the principle on the theory
that what once had been granted cannot next be taken away,
that the clear disposition by an earlier clause will not be
allowed to be out down by later
612
clause. Where there is ambiguity it is the duty of the
Court to look at all the parts of the document to ascertain
what was really intended by the parties. But even here the
rule has to be borne in mind that the document being the
grantor’s document it has to be interpreted strictly against
him and in favour of the grantee.
Bearing these principles in mind we shall now examine the
1919 lease to perform this task of ascertaining the
intention of the parties as to what was being granted by
this lease. The disposition clause as has already been set
out is in these words:-” The Manager hereby grants demised
unto the Receiver all and singular all metals and minerals
of whatsoever kind or description other than those
specifically comprised in and granted by the principal
lease.” On behalf of the appellant it is argued that if the
totality of metals and minerals in the area is denoted by
the symbol “X” and what was granted by the earlier lease is
denoted by the symbol “Y” the intention of the parties in
using the words set out above was that this lease should be
in respect of “X” minus “Y”. We are afraid however that
this is an over-simplification of the problem which we must
resist. While it is true that strict grammatical sense of
the words must be given effect to, words and phrases are not
used by people always and invariably in the same sense. As
has often been emphasised by eminent judges the intention of
persons using certain words cannot be discovered by
considering the words in the abstract. When in this lease
the grantor used certain words, what we cannot ignore is
that when words set out above were used in the present lease
both the parties had present in their minds the fact of the
principal lease. They were not only well aware of the fact
of the earlier lease but actually referred to it as the
principal lease and repeatedly emphasised the fact that the
terms and conditions of the principal lease in so far as not
contradicted by the present lease would remain valid and
effective. One of the principal facts of that earlier lease
is that while some metals and minerals were specifically
granted thereby some were specifically excluded, In
interpreting the words of
613
the disposition clause we have to take notice of the fact
that no reference is being made to that fact of specific
exclusion. The question that arises for determination is
whether by this omission to make a specific reference to the
exclusion clause of the previous lease the parties intended
that the exclusion clause will have no effect. The
appellant’s argument is that the necessary result of the
words ” grants demised unto the Receiver all and singular
all metals and minerals of whatsoever kind or description
other than specifically comprised in and granted by the
principal lease” is that the exclusion clause of the earlier
lease was itself being excluded. While there is some scope
for that interpretation, if we do not look further, we are
unable to agree with the learned Advocate that it is clear
and unambiguous that by this reference to the granting
clause of the earlier lease and the words used in respect
thereof, the exclusion clause of the earlier lease was being
necessarily excluded. There is in our opinion as much scope
for arguing that the exclusion clause not being in terms
referred to would remain valid and active as there is for
the appellant’s argument that the words used show an
intention to exclude the exclusion clause itself. In cases
of ambiguity it is necessary and proper that the court whose
task is to construe the document should examine the several
parts of the document in order to ascertain what was really
intended by the parties. In this much assistance can be
derived from the fourth condition of the conditions which
were imposed by the lease as regards the grant of sub-
leases. This condition provided inter alia that all such
under-leases to be granted by the lessee shall be subject to
the provisions of clause 16 of the principal lease. In
other words, the sub-lessees shall not be competent to offer
any obstruction to the head lessor or to any other person
authorised by him to raise stone for utensils or stones or
lime-stone and ghuting, etc., for buildings and in selling
the same. Nor will he be competent to offer any obstruction
to any person authorised by the lessor in digging bandh,
tank, canal and wells, etc. In terms this is a provision as
regards under-leases only. But the question which springs
to the mind is: What could be the sense of 80
614
such a term being imposed in respect of under-lessees if so
long as under-leases were not given, the lessee himself
would not be bound by the provisions of clause 16 of the
principal lease and would be competent to obstruct the head
lessor in the several matier is mentioned in clause 16 ? It
is in our opinion unthinkable that such a clause as this
fourth clause would be included in respect of sub-lessees
unless it was also the intention of the parties that the
lessee himself would be bound by the provisions of cl. 16 of
the principal lease. The view that this must have been the
intention is strengthened by the concluding words of this
lease which provide in substance that notwithstanding
anything in the later lease the principal lease would be
valid and subsisting. Here also there would be no point in
saying that the principal lease would be valid and
subsisting as regards merely the minerals which had been
specifically ‘granted by the principal lease. As regards
the principal lease being binding in respect of those
minerals, there could be no doubt whatsoever and the
concluding clause of the 1919 lease would be unnecessary and
meaningless. As regards the metals and minerals which are
excluded by cl. 16 there might however be some scope for
argument as to what would prevail. But for some appre-
hension in the mind of the grantor perhaps on account of
clause 6 that there might be some scope of difference as
regards the metals and minerals mentioned in el. 16 of the
earlier clause, the inclusion of this clause in the
principal lease itself would perhaps be unnecessary. It was
as a safeguard against that uncertainty that the concluding
sentence of the later lease uses the words that we find.
It appears to us reasonable therefore to hold that of the
two meanings of which the words in the disposition clause
are capable, the meaning that the parties intended that the
minerals excluded by clause 16 of the principal lease were
not covered by the present grant but would remain excluded,
should be accepted.
We have so long not referred to the preamble of the
document. The relevant portion of the same which is of some
assistance in construing the document before us, occurs
where the Manager mentions the
615
consent of the High Court as regards this later lease.
The passage runs thus:-
” Whereas recently certain disputes have arisen between the
Manager as representing the Estate of the said Sri Sri
Satrughna Deo Dhabal Deb, and the Receiver as representing
the estate of the said Prince Mohammad Bakhtyar Shah now
deceased with regard to the construction of the principal
lease and the minerals comprised therein, and whereas in
order to put an end to all such disputes and differences of
opinion and for the purpose of preventing litigation and
consequent loss of both the said Estates it has been agreed
by and between the parties hereto subject to the consent and
approval of the said High Court that the Manager shall grant
to the Receiver a lease of all minerals other than those
specifically mentioned in the said principal lease. ”
In the judgment of the Trial Court there is a statement that
the dispute which bad arisen as regards the construction of
the principal lease was whether a mineral known as wolfram
was included in the lease of 1900 or not. The correctness
of this observation in the Trial Court’s judgment based
apparently on statements made at the bar has not been
disputed before us. If that was the dispute then the object
of the second lease was obviously to include therein, in
respect of the purposes of the granting clause of the first
lease even those minerals which had not been included. That
the dispute must have been of the nature, as the Trial Court
believes’ appears probable also from the use of the words ”
other than those specifically mentioned ” in the preamble.
The dispute being on the question of what was mentioned and
what was not mentioned in the granting clause, the object of
granting the second lease was that what had not so long been
mentioned in the granting clause would also be included in
such grant by a supplementary lease. The question of what
had been excluded was not in the contemplation of the
parties at all. It is significant to note that there was no
evidence that before the date of the second lease, any
dispute had arisen as regards the operation of the exclusion
clause, viz., Clause 16. A consideration of
616
the preamble therefore further strengthens the conclusion
that this later lease did not grant any mineral rights in
respect of what had been excluded by the principal lease in
its 16th clause.
If we interpret the disposition clause in the second lease
in this way, as we think we must, there is no repugnancy
between this clause and the later clauses and there is no
scope therefore for the applicability of the doctrine relied
on by Mr. Jha that if there be two clauses or parts of a
deed one repugnant to the other the first part shall be
accepted and the latter rejected. Nor is there any question
in the present case of the words being construed strictly
against the grantor. It is only if the meaning is not
otherwise clear that the courts would by recourse to that
rule give the grantee something which he might not clearly
have received. As however on a proper construction of the
document as a whole we reach the conclusion that the
intention of the parties has been clearly established to be
that the minerals excluded by clause 16 of the principal
lease will remain excluded from the later lease also, there
is no scope of any benefit accruing to the lessee by reason
of the rule that all deeds are to be construed strictly
against the grantor and in favour of the grantee.
We have therefore come to the conclusion that the courts
below were right in their conclusion that the minerals
mentioned in cl.16 of the principal lease were not granted
by the later lease also.
The appellant’s plea of suspension of rents based as it is
on the allegation that the metals and minerals mentioned in
el. 16 of the principal lease were covered by the later
lease must therefore fail. We think it unnecessary to
consider in this appeal the question whether if the
construction which the appellant wanted to place on the
document was correct the plea of suspension of rents would
have been available to him and we express no opinion on the
correctness or otherwise of the views expressed by the High
Court as regards the circumstances in which a plea of
suspension of rent can succeed.
There remains for consideration the question of limitation
as regards the period of the claim prior to
617
August 12, 1935. On this point the learned counsel for the
appellant has advanced a two-fold contention before us.
In the first place he has contended that the alleged
acknowledgments were conditional, the condition as stated
being that the statements of account enclosed with the
letters which are said to constitute the acknowledgments
must be accepted as correct. In support of his argument Mr.
Jha drew our attention to the words used in Exhibit 2(1)
dated March 7, 1931, which typifies the nature of
acknowledgments in the other letters relied on by the
plaintiff. This letter addressed by the Official Receiver
to Raja Jagdish Deo Dhabal Deo is in these words:-
“Sir,
I have the honour to send herewith two statements of account
showing an aggregate sum of Rs. 4,993-6-1 as royalty due to
the Dhalbhum Raj by the above estate from 1st January to
31st December, 1930. On your accepting the statements as
correct a cheque for the said sum of Rs. 4,993-6-1 will be
sent to you.
Besides the above, there is lying to the credit of the
Dhalbhum Raj the sum of Rs. 31,944-8-3 being the royalty
upto the end of December, 1929. I shall be obliged if you
will kindly let me know whether you are prepared to accept
the same and on hearing from you I shall be glad to forward
to you a cheque in payment thereof.”
According to Mr. Jha the first statement as regards the sum
of Rs. 4,993-6-1 due to the Dhalbhum Raj by the above estate
from 1st January to 31st December, 1930, was not a clear and
independent statement of the dues but was made subject to
the condition that this was accepted as correct. Similarly
he argued that the statement in the next paragraph of the
letter as regards the sum of Rs. 31,944-8-3 being the
royalty up to the end of December, 1929, was also not a
clear and independent statement of what is due but is made
subject to the acceptance of the same. That in our opinion
is not a proper reading of what is stated in the letter. In
the very first sentence of the letter the Receiver is saying
that a sum of Rs. 4,993-6-1 as shown
618
in the enclosure to the document was according to him due to
the Dhalbhum Raj for the year 1930 on account of royalty; to
this he was adding a statement in the second sentence that
as soon as this statement of dues was accepted as correct a
cheque in payment thereof would be sent. To say that
however was not to say that the earlier statement of what is
due is subject to the acceptance of the accounts. The idea
in the second sentence clearly was that in case the
statement of what was due was not accepted as correct the
matter will have to be decided by further discussion before
payment will be made. This second sentence cannot by any
stretch of imagination be read as a condition to the
statement made in the first sentence. Similarly the first
sentence in the second paragraph of the letter as regards
the sum of Rs. 31,944-8-3 being royalty up to the end of
December, 1929, is, as we read the letter, made independent
of what was stated in the following sentence and was not
subject thereto. The argument that these acknowledgments
were conditional acknowledgments has therefore been rightly
rejected by the High Court.
The second contention urged by the learned counsel is that
in any case an acknowledgment by the Receiver of an estate
is not an acknowledgment by an agent of the owners of the
estate ” duly authorised in this behalf ” within the meaning
of Explanation II of s. 19 of the Limitation Act, and so is
not an acknowledgment within the meaning of s. 19(1) of the
Limitation Act.
According to the learned counsel ” duly authorised in this
behalf ” in Explanation II of s. 19 means ” duly authorised
by the debtor ” and does not include duly authorised by law
or by an order of the Court. For this proposition we can
find no support either in authority or principle.
Explanation II to s. 19 of the Limitation Act in saying ”
for the purposes of this section ‘signed’ means signed
either personally or by an agent duly authorised in this
behalf ” has not limited in any way the manner in which the
authority can be given. The view taken in this matter by a
Full Bench of the Bombay High Court in Annapagonda v.
Sangadiappa (1) that ” duly authorised ” would include
(1) (1901) Bom. L.R. 221. (F.B.).
619
duly authorised either by the action of the party indebted
or by force of law or order of the Court has been followed
in other High Courts also (Vide: Rashbehary v. Anand Ram
(1); Ramcharan Das V. Gaya Prasad (2) ; Lakshumanan v.
Sadayappa (3 ) and Thankamma v. Kunhamma (4) and in our
opinion represents the correct state of law.
Mr. Jha has next argued that, in any case, law does not
authorise the Receiver of an Estate to make acknowledgments
of debt due from the estate. For this proposition he has
relied on a decision of the Bombay High Court in Currimbhai
v. Ahmedali (5). In that case it was held that an
acknowledgment by an official assignee will not amount to an
acknowledgment by an agent of the debtor. Though this case
does not deal strictly with the case of a Receiver, Mr. Jha
has relied on the reasoning therein as supporting his con-
tention. Our attention has been drawn by Mr. Sanyal, on
behalf of the respondent to the fact that a contrary view
has been taken in Lakshmanan Chetty v. Sadayappa Chetty (6).
Mr. Sanyal has argued that in respect of a debt due from the
estate the Receiver of the estate fully represents the
owners of the estate and that once it is held, as it must
be, that the Receiver had authority to pay the debt, Mr.
Sanyal argues, it must necessarily be held that
acknowledgment of a debt as incidental to the Receiver’s
duties in respect of the payment of the debts, is also
within his authority. So, he argues that in every case an
acknowledgment by a Receiver is an acknowledgment by a duly
authorised agent of the debtor.
The above is a brief indication of the arguments on either
side on Mr. Jha’s contention that the Receiver has no
authority to acknowledge debts on behalf of the Estate. It
is unnecessary for us however to decide for the purpose of
the present appeal the question whether a Receiver is an
agent of the owners of the estate of which he is the
Receiver for the purposes of an acknowledgment of a debt
under s. 19 of the
Limitation Act.
(1) 43 Cal. 211.
(2) 30 All. 422
(3) A.I.R. 1919 Mad. 816.
(4) A.I.R. 1919 Mad. 370.
(5) 58 Born. 505.
(6) 35 M.L.J. 571.
620
In the present case the suit is based on the second lease of
1919 which was executed in favour of the then Receiver. The
acknowledgments by which limitation is claimed to have been
saved is by a previous Receiver of the Estate through whom
the appellant who is the present Receiver has derived his
liability to pay the debt. Section 19 is therefore in terms
applicable as the acknowledgements have been signed
personally by those previous Receivers and no recourse is
needed by the plaintiff to the second part of Explanation
11. This position was indeed fairly conceded by Mr. Jha who
agreed that in view of this it was not necessary for us to
decide whether the Receiver of an Estate is by that fact
itself an agent of the owners of the estate duly authorised
to make acknowledgments under s. 19 of the Limitation Act.
There can be no doubt that the acknowledgments on which the
plaintiff relies are acknowledgments within the meaning of
s. 19 of the Limitation Act and save limitation in respect
of the period prior to August 12, 1935. The Courts below
were therefore right in rejecting the defendant’s plea of
limitation.
As both the contentions raised before us fail, the appeal is
dismissed with costs.
Appeal dismissed.
