{"id":166151,"date":"1961-03-01T00:00:00","date_gmt":"1961-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/khan-bahadur-shapoor-fredoom-vs-durga-prosad-chamaria-and-others-on-1-march-1961"},"modified":"2016-05-03T22:10:12","modified_gmt":"2016-05-03T16:40:12","slug":"khan-bahadur-shapoor-fredoom-vs-durga-prosad-chamaria-and-others-on-1-march-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/khan-bahadur-shapoor-fredoom-vs-durga-prosad-chamaria-and-others-on-1-march-1961","title":{"rendered":"Khan Bahadur Shapoor Fredoom … vs Durga Prosad Chamaria And Others on 1 March, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Khan Bahadur Shapoor Fredoom … vs Durga Prosad Chamaria And Others on 1 March, 1961<\/div>\n
Equivalent citations: 1961 AIR 1236<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nKHAN BAHADUR SHAPOOR FREDOOM MAZDA\n\n\tVs.\n\nRESPONDENT:\nDURGA PROSAD CHAMARIA AND OTHERS\n\nDATE OF JUDGMENT:\n01\/03\/1961\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\n\nCITATION:\n 1961 AIR 1236\n CITATOR INFO :\n R\t    1964 SC 227\t (15)\n F\t    1967 SC 935\t (9,12)\n R\t    1971 SC1482\t (11)\n\n\nACT:\nLimitation-Computation of fresh Period of  limitation-Letter\nwritten\t by  mortgagor\tto  mortagee-If\t acknowledgment\t  of\nliability Indian Limitation Act, 1908 (9 of 1908), s. 19.\n\n\n\nHEADNOTE:\nIn  a  mortgage suit brought by him, the respondent  1,\t the\nmortgagee,  pleaded  that limitation was saved by  a  letter\nwritten\t to  him by the mortgagor, the respondent  2,  which\namounted  to  acknowledgment  under  s.\t 19  of\t the  Indian\nLimitation  Act.   There  was a prior  mortgage\t and  before\nwriting\t the  letter in question the mortgagor\thad  written\nanother\t letter\t appealing  to\trespondent  1  to  save\t the\nproperty  from\tbeing  sold at the  instance  of  the  prior\nmortgagee.  Thereupon the respondent No. 1 paid the required\namount\tand the threatened sale was averted.   The  property\nwas again advertised for sale and that was why the letter in\nquestion was written; it ran as follows,-\n\"Chandni  Bazar is again advertised for sale on\t Friday\t the\n11th  instant.\tI am afraid it will go very cheap.  I had  a\nprivate offer of Rs. 2,75,000 a few days ago but as soon  as\nthey heard it was advertised by the Registrar they withdrew.\nAs  you\t are interested why do not you take  up\t the  whole.\nThere is only about 70,000 due to the mortgagee a payment of\nRs. 10,000 will stop the sale\".\nThe question was whether this letter amounted to an  acknow-\nledgment  of the respondent 1's right as mortgagee under  s.\n19 of the Indian Limitation Act.  The trial judge held\tthat\nit did not, but the Court of appeal took the contrary  view.\nThe auction purchaser appealed to this Court.\nHeld, that it was obvious that the interest mentioned in the\nletter\tin  the context of the previous one was\t none  other\nthan  that  of respondent 1 as a puisne\t mortgagee  and\t the\nappeal\tto  take  up the whole meant  the  entirety  of\t the\nmortgagee's interest including that of the prior mortgagee.\nSince  admittedly the only subsisting relation\tbetween\t the\nparties at the date of the letter was that of mortgagee\t and\nmortgagor and the letter acknowledged the existence of\tthat\njural relationship, it clearly amounted to an acknowledgment\nunder s.  19 of the Act.\nHeld, further, that the essential requirement for sustaining\na plea of acknowledgment under s. 19 of the Act is that\t the\nstatement on which it is sought to be founded must relate to\na\n141\nsubsisting  liability, indicate the existence of  the  jural\nrelationship  between  the  parties and\t must  be  intended,\neither\t expressly  or\timpliedly,  to\tadmit\tthat   jural\nrelationship.\nThe  words used in a particular statement must be  construed\nin  the light of its own tenor and according to the  context\nand unless the words used are identical and the interest  is\nsimilar,  previous decisions interpreting  somewhat  similar\ndocuments are not of much help.\nGreen v. Humphreys,, (1884) 26 Ch.  D. 474, referred to.\nBeti  Maharani v. Gollector of Etawah, (1894) L.R.  22\tI.A.\n3,,  Sukkamoni Choudhrani v. Ishan Chunder Roy, (1897)\tL.R.\n25 I.A. 95, Munshi Lal v. Hira Lal, I.L.R. 1947 All.  II and\nSwaminatha Odayar v. Subbarama Ayyar, (1927) I.L.R. 5O\tMad.\n548, considered.\nDharma Vithal v.  Govind Sadvalkar, (1881) I.L.R. 8 Bom. 99,\nheld inapplicable.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 77 of 1957.
\nAppeal\tfrom  the judgment and decree dated  the  August  6,
\n1954,  of  the Calcutta High Court in Appeal  from  Original
\nDecree No. 73 of 1952.\n<\/p>\n
M….C.\t  Setalvad,  Attorney-General  for  India,   W.\t  S.
\nBarlingay and A. 0. Ratnaparkhi, for the appellant.
\nA.V. Viswanatha Sastri and P. K. Chatterjee, for  respondent
\nNo. 1.\n<\/p>\n
1961.  March 1. The Judgment of the Court was delivered by
\nGAJENDRAGADKAR., J.-This appeal arises from a suit filed  by
\nrespondent 1 Durga Prosad Chamaria against respondent 2\t the
\nheirs  of  John\t Carapiet Galstaun and others  in  which  he
\nsought\tto  recover Rs. 4 p 64,213-5-3 on  the\tmortgaes  in
\nsuit.\tHe  had\t prayed for a  preliminary  mortgage  decree
\naccording  to 0. XXXIV, r. 4 of the Code of Civil  Procedure
\nand  had  asked for the appointment of a  receiver  in\tthat
\nbehalf.\t  ‘The\tsaid mortgages were created by\tdelivery  of
\ndocuments of title to immovable properties by the  mortgagor
\nJohn  Carapiet\tGalstaun  who died pending  the\t suit.\t The
\nproperties  mortgaged consisted of three items all of  which
\nare  situated  in Calcutta.  These items are  24,  Amratolla
\nLane, 96, Karaya Road
\n142<\/span>
\nand  premises 167\/1 and 167\/5 Dhurrumtolla  Street  (Chandni
\nBazar).\t  In  the  present  appeal  we\tare  concerned\twith
\npremises  167\/1.   Respondent  1’s  case  was  that  he\t had
\nadvanced several amounts on seven different occasions to the
\nmortgagor  between  August 2, 1926, and November  27,  1931.
\nAccording  to the terms of the transaction no specific\ttime
\nfor payment of the mortgage dues had been fixed, and it\t was
\nagreed\tthat   the monies advanced would become due  and  be
\nrepaid on demand being actually made by the mortgagee.\tWith
\nthis  plea we are not concerned in the present\tappeal.\t  It
\nwas further pleaded by the mortgagee that the mortgagor\t had
\nacknowledged  his  liability- of the  mortgagee’s  claim  by
\nletters of March 5, 1932, and February 17, 1943, which\twere
\nsigned\t by   him.   It\t is  on\t the   strength\t  of   these
\nacknowledgments\t that the mortgagee purported to  bring\t his
\nclaim  within  time the suit having been filed\ton  May\t 18,
\n1944.\n<\/p>\n
Pending\t the  suit  the\t appellant  was\t added\tas  a  party
\ndefendant  on August 23, 1944.\tBy his application  made  by
\nrespondent  1  in  that\t behalf\t it  was  alleged  that\t the
\nappellant had become the auction purchaser of premises 167\/1
\nat a sale held by the Sheriff of Calcutta on May 3, 1944, in
\nexecution of a decree passed in Suit No. 2356 of 1931 by the
\nCalcutta  High\tCourt with notice of mortgage in  favour  of
\nrespondent 1. Since the said sale had been confirmed on July
\n6,  1944, the appellant bad become a necessary party to\t the
\nsuit.\tThat  is  how the appellant became a  party  to\t the
\nproceedings  and  was  interested  like\t the  mortgagor\t  in
\ndisputing the validity of the claim made by respondent1.
\nThe  principal issue which arose between the parties in\t the
\nsuit  was one of limitation.  It was not seriously  disputed
\nthat  the  letter written by the mortgagor on  February\t 17,
\n1943,  amounted to an acknowledgment and it helped to  bring
\nwithin\ttime  respondent 1’s claim in respect  of  the\tlast
\nadvance of Rs. 2,500 made on November 27, 1931.\t  Respondent
\n1’s case that the earlier letter of March’ 5, 1932, amounted
\nto an acknowledgment was, however, seriously disputed by the
\nappellant.  If this letter is held to amount to a
\n143<\/span>
\nvalid  acknowledgment two items of consideration pleaded  by
\nrespondent  I would be within time; they are Rs. 20,000\t and
\nRs.  35,000 advanced on the same day , September  10,  1926.
\nMr.  Justice  Banerjee, who tried the suit on  the  Original
\nSide  of  the Calcutta High Court, held that the  letter  in
\nquestion  did  not amount to an acknowledgment,\t and  so  he
\nfound that only the last item of Rs. 2,500 was in time.\t  In
\nthe  result he passed a decree for Rs. 5,000 only in  favour
\nof respondent 1.\n<\/p>\n
Then  respondent  1  took the dispute before  the  Court  of
\nAppeal in the Calcutta High Court.  The Court of Appeal\t has
\nupheld\tthe case made out by respondent I in regard  to\t the
\nacknowledgment based on the letter of March 5, 1932, and  in
\nconsequence it has been held that the principal amounts\t due
\nto  respondent\t1 are Rs. 55,000 and Rs. 2,500, and  at\t the
\nrate  of  interest payable thereon at 8% simple,  the  total
\namount payable being subject to the maximum allowable  under
\nthe Money-lenders’ Act.\t In accordance with these findings a
\npreliminary decree has been drawn.  It is this decree  which
\nis challenged before us by the appellant who has brought his
\nappeal\tto  this  court with a\tcertificate  issued  by\t the
\nCalcutta High Court; and the only point which is raised\t for
\nour decision is whether the letter in question amounts to  a
\nvalid acknowledgment under s. 19 of the Limitation Act.\t The
\ndecision  of this question would naturally depend  upon\t the
\nconstruction of the letter on which respondent 1 relies; but
\nbefore\treading\t the  said letter it would  be\trelevant  to
\nconsider the essential requirements of s. 19 which  provides
\nfor the effect of acknowledgment in writing.
\nSection\t 19(1)\tsays,  inter alia,  that  where\t before\t the
\nexpiration of the period prescribed for a suit in respect of
\nany right, an acknowledgment of liability in respect of such
\nright  has been made in writing signed by the party  against
\nwhom  such  right is claimed, a fresh period  of  limitation
\nshall be computed from the time when the acknowledgment\t was
\nso  signed.  It would be noticed that some of  the  relevant
\nessential requirements of a valid acknowledgment are that it
\nmust be made before the relevant-period of limitation has
\n144<\/span>
\nexpired, it must be in regard to the liability in respect of
\nthe  right  in question and it must be made in\twriting\t and
\nmust  be  signed  by the party against whom  such  right  is
\nclaimed.   Section  19(2) provides that\t where\tthe  writing
\ncontaining  the acknowledgment is undated oral evidence\t may
\nbe given about the time when it was signed but it prescribes
\nthat  subject to the provisions of the Indian Evidence\tAct,
\n1872,  oral evidence of its contents shall not be  received;
\nin other words, though oral evidence may be given about\t the
\ndate  oral  evidence about the contents of the\tdocument  is
\nexcluded.   Explanation\t 1 is also relevant.   It  provides,
\ninter alia, that for the purpose of s. 19 an  acknowledgment
\nmay  be\t sufficient  though it omits to\t specify  the  exact
\nnature\tof the right or avers that the time for payment\t has
\nnot  yet come, or is accompanied by a refusal to pay, or  is
\ncoupled\t with  &.,claim to a set off, or is addressed  to  a
\nperson other than the person entitled to the right.
\nIt is thus clear that acknowledgment as prescribed by s.  19
\nmerely\trenews\tdebt;  it does not create  a  new  right  of
\naction.\t  It  is a mere acknowledgment of the  liability  in
\nrespect of the right in question; it need not be accompanied
\nby a promise to pay either expressly or even by implication.
\nThe  statement\ton which a plea of acknowledgment  is  based
\nmust  relate  to a present subsisting liability\t though\t the
\nexact nature or the specific character of the said liability
\nmay   not  be  indicated  in  words.   Words  used  in\t the
\nacknowledge  judgment must, however, indicate the  existence
\nof  jural relationship between the parties such as  that  of
\ndebtor\tand creditor, and it must appear that the  statement
\nis made with the intention to admit such jural relationship.
\nSuch  intention\t can  be inferred by  implication  from\t the
\nnature of the admission, and need not be expressed in words.
\nIf the statement is fairly clear then the intention to admit
\njural relationship may be implied from it.  The admission in
\nquestion   need\t not  be  express  but\tmust  be   made\t  in
\ncircumstances  and  in\twords  from  which  the\t court\t can
\nreasonably  infer  that\t the  person  making  the  admission
\nintended to refer to a subsisting liability as at the date
\n145<\/span>
\nof the statement. In construing words used in the statements
\nmade in writing on which a plea of acknowledgment rests oral
\nevidence  has  been expressly s.  excluded  but\t surrounding
\ncircumstances  can always be considered.   Stated  generally
\ncourts\tlean  in favour of a liberal  construction  of\tsuch
\nstatements  though it does not mean that where no  admission
\nis  made  one should be inferred, or where a  statement\t was
\nmade clearly G. without intending to admit the existence  of
\njural relationship such intention could’ be fastened on\t the
\nmaker of the statement by an involved or far-fetched process
\nof  reasoning.\t Broadly stated that is the  effect  of\t the
\nrelevant provisions contained in s. 19, and there is  really
\nno substantial difference between the parties as to the true
\nlegal position in this matter.\n<\/p>\n
It is often said that in deciding the question as to whether
\nany  particular writing amounts to an acknowledgment  as  in
\nconstruing  wills,  for instance, it is not very  useful  to
\nrefer to judicial decisions on the point.  The effect of the
\nwords  used in a particular document must inevitably  depend
\nupon  the  context  in which the words are  used  and  would
\nalways be conditioned by the tenor of the said document, and
\nso unless words used in a given document are identical\twith
\nwords used in a document judicially considered it would\t not
\n,serve any useful purpose to refer to judicial precedents in
\nthe matter.  However, since decisions have been cited before
\nus  both by the learned Attorney-General and Mr.  Viswanatha
\nSastri\twe  propose  to refer to them  very  briefly  before
\nturning to the document in question.\n<\/p>\n
The  question  as  to what is  an  acknowledgment  has\tbeen
\nanswered by Fry, L., J., as early as 1884 A. D. in Green  v.
\nHumphreys  (1).\t This answer is often quoted with  approval.
\n“What  if;  an\tacknowledgment”, asked\tFry,  L.J.,  and  he
\nproceeded, “in my view an acknowledgment is an admission  by
\nthe writer that there is a debt owing by him, either to\t the
\nreceiver  of  the letter or to some other  person  on  whose
\nbehalf\tthe letter is received but it is not enough that  he
\nrefers to a debt
\n(1) (1884) 26 Ch.  D- 474, 481
\n146<\/span>
\nas  being due from somebody.  In order to take the case\t out
\nof the statute there must upon the fair construction of\t the
\nletter, read by the light of the surrounding  circumstances,
\nbe  an\tadmission  that the writer  owes  the  debt”.\tWith
\nrespect, it may be added, that this statement succinctly and
\ntersely\t gives the substance of the provisions contained  in
\ns. 19 of the Limitation Act.\n<\/p>\n
Mr.  Sastri has relied on the decision of the Privy  Council
\nin  Beti  Maharani v. Collector of Etawah (1) in  which\t the
\nPrivy Council has recognised that it would be legitimate for
\nthe  purpose  of  construing  a\t document  to  look  at\t the
\nsurrounding  circumstances and that oral evidence about\t the
\nintention  of the maker of the statement cannot be  admitted
\nfor  the purpose of construing the said\t statement.   “Their
\nLordships”, observed Lord Hobhouse, who spoke for the Board,
\n“cannot\t follow\t the  learned judges of the  High  Court  in
\nadmitting  the\tCollector  to  give  oral  evidence  of\t his
\nintentions  for the purpose of construing the  notice.\t But
\nthey may for that purpose properly, look at the\t surrounding
\ncircumstances”.\t  In Sukhamoni Chowdhrani v.  Ishan  Chunder
\nRoy  (2) the statements on which reliance was placed by\t the
\ncreditor was contained in the directions given by the debtor
\nto apply surplus income “to the payment of the ijmali  debts
\nof  us three co-owners of which a list is given below”.\t  It
\nwas held that by this statement the defendant acknowledged a
\njoint debt and “from that follow the legal incidents of\t her
\nposition as a joint debtor with the plaintiff, one of  which
\nis  that he may sue her for contribution”.  In other  words,
\nadmission  about a joint debt amounted to an  acknowledgment
\nthough the liability to be sued for contribution is a matter
\nof  legal inference from the said admission and it  had\t not
\nbeen specifically included in the statement in question.
\nMr. Sastri has also relied on the decision of the Full Bench
\nof  the Allahabad High Court in Munshi Lal v. Hira  Lal\t (3)
\nwhere it has been held that a document said to constitute an
\nacknowledgment\thas to be construed in the context in  which
\nit is given and that
\n(1) (1894) 22 I.A. 31, 41
\n(2) (1897) 25 I-A- 95-\n<\/p>\n
(3)  I.L.R. [1947] All. 11.\n<\/p>\n
147<\/span><\/p>\n
where  its language is not clear in itself the context\tmust
\nbe  examined to see what it is to which the words  referred.
\nThe Court, however, added that its decision She did not mean
\nthat  any equivocation in an acknowledgment can be cured  by
\nascertaining   what   the   probable   intention-   of\t the
\nacknowledger  was.   Similarly\tin L  Swaminatha  Odayar  v.
\nSubbarama Ayyar (1) the Madras\tHigh Court has held that  an
\nacknowledgment for liability under s. 19 need not be express
\nbut may be implied from facts and circumstances under  which
\na  statement  in  a deposition was made\t but  it  cannot  be
\nimplied as a matter of law.\n<\/p>\n
On the other hand, the learned Attorney-General has strongly
\nrelied\ton an earlier decision of the Bombay High  Court  in
\nDharma Vithal v. Govind Sadvalkar (2).\tIn that case certain
\nstatements made in the receipt given for the delivery of the
\nland  to  the  officer\tof the Court  were  relied  upon  as
\namounting  to an acknowledgment.  The said receipt  referred
\nto the suit and decree and the decree to which reference was
\nthus  made had set forth in ordinary course the then  plain.
\ntiff’s\tclaim as resting on a mortgage.\t The contention\t was
\nthat  the reference to the decree made the decree a part  of
\nthe receipt and since the decree referred to the plaintiff’s
\nclaim as resting on a mortgage the receipt itself served  as
\nan  acknowledgment of a mortgage subsisting in\t1827.\tThis
\nplea  was rejected by the High Court.  The High\t Court\theld
\nthat all that the receipt admits by implication is that\t the
\nland had been awarded by the decree to the party who  passed
\nthe  receipt.  “To extend it”, observed West, J., “so as  to
\nmake  it  an admission of the reasoning\t and  legal  grounds
\nstated\tin the decree, would be to go beyond  what  probably
\nwas  present  at all to the consciousness of  the  recipient
\nwhen he acknowledged having been put into possession”.\t The
\nlearned\t judge\tthen added that “the intention\tof  the\t law
\nmanifestly is to make an admission in writing of an existing
\njural  relation\t of the kind specified\tequivalent  for\t the
\npurposes of limitation to a new contract”.  As we will\tmake
\nit  clear when we deal with the document before us it  would
\nbe realised
\n(1) (1927) I.L.R. 50 Mad. 548.\n<\/p>\n
(2) (1881) I.L.R. 8 Bom. 99.\n<\/p>\n
148<\/span><\/p>\n
that  this  case cannot assist the appellant.\tThe  receipt
\nitself\tdid  not  contain any  admission  about\t the  jural,
\nrelation  between  the parties.\t It merely referred  to\t the
\ndecree\twhich had set out the material allegations  made  in
\nthe  plaint.   Now  5 it would be  plainly  unreasonable  to
\nattribute to the party passing the receipt  an intention  to
\nmake  the  admissions  which  may  be\tinferred  from\t the
\naverments  made\t in  the  plaint  which\t were\tincidentally
\nrecited, and so the Bombay High Court naturally rejected the
\nplea  that the receipt amounted to a  valid  acknowledgment.
\nIncidentally we may add that when West, J. referred to a new
\ncontract  file\thad  perhaps  in  mind\tthe  definition\t  of
\nacknowledgment under s. 4 of Act XIV of 1859 which  required
\na  promise  to pay in addition to the subsistence  of  jural
\nrelationship.\tThe  element of promise was omitted  in\t the
\nsubsequent  Act XV of 1877, and it continues to\t be  omitted
\never since.  As we have already indicated, under the present
\nlaw  acknowledgment  merely  renews the debt  and  does\t not
\ncreate a fresh cause of action.\n<\/p>\n
It  is now necessary to consider the document on  which\t the
\nplea of acknowledgment is based.  This document was  written
\non March 5, 1932.  It, however, appears that on November 26,
\n1931,  another\tletter had been written by respondent  2  to
\nrespondent  1;\tand it would be relevant  to  consider\tthis
\nletter\tbefore construing the principal document.   In\tthis
\nletter\trespondent 2 had told respondent 1 that the  Chandni
\nBazar  property\t was  being sold the  next  morning  at\t the
\nRekistrar’s  sale on behalf of the first mortgagee and\tthat
\nthe  matter  was urgent., otherwise the\t property  would  be
\nsacrificed.   It appears that the said property was  subject
\nto  the\t first prior mortgage and respondent 2\tappealed  to
\nrespondent  1  to  save\t the said  threatened  sale  at\t the
\ninstance  of the prior mortgagee.  It is common ground\tthat
\nrespondent 1 paid to respondent 2 Rs. 2,500 on November\t 27,
\n1931  and  the threatened sale was avoided.   This  fact  is
\nrelevant in construing the subsequent letter.
\nThe said property was again advertised for sale on March 11,
\n1932, and it was about this sale that the
\n149<\/span>
\nletter\tin  question came to be written by respondent  2  to
\nrespondent  1  on  March 5, 1932.  This is  how\t the  letter
\nreads:\n<\/p>\n
\t      “My dear Durgaprosad,
\n\t       Chandni Bazar is again advertised for sale on
\n\t      Friday the 11th instant.\tI am afraid it\twill
\n\t      go  very cheap.  I had a private offer of\t Rs.
\n\t      2,75,000\ta few days ago but as soon  as\tthey
\n\t      heard it was advertised by the Registrar\tthey
\n\t      withdrew.As you are interested why do not\t you
\n\t      take up the whole.  There is only about 70,000
\n\t      due to the mortgagee a payment of 10,000\twill
\n\t      stop the sale.\n<\/p><\/blockquote>\n
\t\t\t\t\t  Yours sincerely,
\n\t\t\t\t\tSd. J. C. Galstaun.”\n<\/p><\/blockquote>\n
Does  this letter amount to an acknowledgment of  respondent
\n1’s right as a mortgagee?  That is the question which  calls
\nfor our decision.  The argument in favour of respondent\t 1’s
\ncase  is-that when the document refers to respondent  1\t as’
\nbeing  interested  it  refers to his interest  as  a  puisne
\nmortgagee and when it asks respondent 1 to take up the whole
\nit invites him to acquire the whole of the mortgage interest
\nincluding  the\tinterest  of the prior\tmortgagee  at  whose
\ninstance  the  property was put up for sale.  On  the  other
\nhand, the appellant’s contention is that the word “interest”
\nis vague and indefinite and that respondent 1 may have\tbeen
\ninterested  in the property in more ways than one.  In\tthat
\nconnection  the appellant relies on the statements  made  by
\nrespondent  1  in  his\tevidence.  He  stated  that  he\t was
\ninterested in the property in many ways and he clarified  by
\nadding that in the first instance he was a mortgagee  having
\na  charge on the property so that if the mortgagor  was\t not
\nable  to pay him the money then he could have given him\t the
\nproperty  or the appellant could have got the property\tfrom
\nhim.   He  also stated that at one time he was\tthinking  of
\nbuying or taking lease of the property in order to liquidate
\nthe  debt  but he added that negotiations in regard  to\t the
\nlease had taken place in 1926 and they bad ended in failure.
\nAccording to him no such negotiations had taken place in
\n150<\/span>
\n1932.\tIt  is\turged that when the  letter  refers  to\t the
\ninterest of respondent 1 in the property in question it\t may
\nbe  interest  as an intending purchaser or as  an  intending
\nlessee.\n<\/p>\n
In  construing this letter it would be necessary to bear  in
\nmind the general tenor of the letter considered as a  whole.
\nIt is obvious that respondent 2 was  requesting respondent 1
\nto  avoid  the\tsale as he did on  an  earlier\toccasion  in
\nNovember,  1931.  The previous incident shows that when\t the
\nproperty  was  put  to\tsale  by  the  first  mortgagee\t the
\nmortgagor  rushed to the second mortgagee to stop the  sale,
\nand  this obviously was with a view to persuade\t the  second
\nmortgagee  to prevent the sale which would otherwise  affect
\nhis  own  interest as such mortgagee.  The theory  that\t the
\nletter\trefers\tto  the\t interest  of  respondent  1  as  an
\nintending  lessee  or  purchaser  is  far-fetched,  if\t not
\nabsolutely fantastic.  Negotiations in that behalf had\tbeen
\nunsuccessful  in 1926 and for nearly five  years  thereafter
\nnothing\t was heard about the said proposal.  In the  context
\nit seems to us impossible to escape the conclusion that\t the
\ninterest  mentioned  in\t the  letter  is  the  interest\t  of
\nrespondent 1 as a puisne mortgagee and when the said  letter
\nappeals\t to  him to take, up the whole it can  mean  nothing
\nother  than the whole of the mortgagee’s interest  including
\nthe   interest\tof  the\t prior\tmortgagee.   An\t appeal\t  to
\nrespondent  1 to stop the sale on payment of Rs. 10,000,  as
\nhe in fact had stopped a similar sale in November, 1931,  is
\nan  appeal to ensure his own interest in the security  which
\nshould\tbe kept intact and that can be achieved only if\t the
\nthreatened  sale is averted.  We have  carefully  considered
\nthe  arguments\turged  before us by  the  learned  Attorney-
\nGeneral\t but we see no reason to differ from the  conclusion
\nreached\t by  the  Court of Appeal  below  that\tthis  letter
\namounts to an acknowledgment.  The tenor of the letter shows
\nthat  it  is  addressed\t by respondent\t2  as  mortgagor  to
\nrespondent  1  as puisne mortgagee, it reminds\thim  of\t his
\ninterest  as such mortgagee in the property which  would  be
\nput  up for sale by the first mortgagee, and appeals to\t him
\nto assist the avoidance of sale, and thus acquire the
\n151<\/span>
\nwhole of the mortgagee’s interest.  It is common ground that
\nno  other relationship\texisted between the parties  at\t the
\ndate  of this letter, and the only  subsisting\trelationship
\nwas   that   of\t mortgagee  and\t mortgagor.    This   letter
\nacknowledges  the existence of the. said jural\trelationship
\nand  amounts  to a clear acknowledgment under a. 19  of\t the
\nLimitation Act.\t It is conceded that if this letter is\theld
\nto  be\tan acknowledgement there can be no  other  challenge
\nagainst the decree under appeal.\n<\/p>\n
In the result the appeal fails and is dismissed with costs.
\nAppeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Khan Bahadur Shapoor Fredoom … vs Durga Prosad Chamaria And Others on 1 March, 1961 Equivalent citations: 1961 AIR 1236 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. PETITIONER: KHAN BAHADUR SHAPOOR FREDOOM MAZDA Vs. RESPONDENT: DURGA PROSAD CHAMARIA AND OTHERS DATE OF JUDGMENT: 01\/03\/1961 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-166151","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKhan Bahadur Shapoor Fredoom ... vs Durga Prosad Chamaria And Others on 1 March, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/khan-bahadur-shapoor-fredoom-vs-durga-prosad-chamaria-and-others-on-1-march-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Khan Bahadur Shapoor Fredoom ... vs Durga Prosad Chamaria And Others on 1 March, 1961 - 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