{"id":263670,"date":"1960-04-21T00:00:00","date_gmt":"1960-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sahebzada-mohammad-kamgar-shah-vs-jagdish-chandra-deo-dhabal-deoand-on-21-april-1960-2"},"modified":"2016-07-26T01:35:29","modified_gmt":"2016-07-25T20:05:29","slug":"sahebzada-mohammad-kamgar-shah-vs-jagdish-chandra-deo-dhabal-deoand-on-21-april-1960-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sahebzada-mohammad-kamgar-shah-vs-jagdish-chandra-deo-dhabal-deoand-on-21-april-1960-2","title":{"rendered":"Sahebzada Mohammad Kamgar Shah vs Jagdish Chandra Deo Dhabal Deoand … on 21 April, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sahebzada Mohammad Kamgar Shah vs Jagdish Chandra Deo Dhabal Deoand … on 21 April, 1960<\/div>\n
Equivalent citations: 1960 AIR 953, 1960 SCR (3) 604<\/div>\n
Author: K D Gupta<\/div>\n
Bench: Gupta, K.C. Das<\/div>\n
           PETITIONER:\nSAHEBZADA MOHAMMAD KAMGAR SHAH\n\n\tVs.\n\nRESPONDENT:\nJAGDISH CHANDRA DEO DHABAL DEOAND OTHERS.\n\nDATE OF JUDGMENT:\n21\/04\/1960\n\nBENCH:\nGUPTA, K.C. DAS\nBENCH:\nGUPTA, K.C. DAS\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\n\nCITATION:\n 1960 AIR  953\t\t  1960 SCR  (3) 604\n CITATOR INFO :\n RF\t    1963 SC 890\t (12)\n F\t    1967 SC 135\t (13)\n R\t    1973 SC2609\t (22,26)\n\n\nACT:\n       Document-Construction  of-Discrepancy  between  earlier\tand\n       later   parts-\"\t Duly  authorised  \",\tmeaning\t  of-Indian\n       Limitation Act<\/a>, 1908 (IX of 1908), Explanation 11, s. 19<\/a>.\n\n\n\nHEADNOTE:\nIn  1900 the then proprietor of the Dhalbhum estate who\t was\nthe predecessor-in-interest of the first respondent  granted\na  permanent lease of the mining rights for  certain  metals\nand  minerals in the estate to one Prince Mohammad  Bakhtyar\nShah.\tDuring\tthe  lifetime of  the  said  proprietor\t the\nmanagement  of\tthe  estate was taken  over  by\t the  Deputy\nCommission  of\tSinghbhum under the  Chotanagpur  Encumbered\nEstates Act and after the former's death the manager of\t the\nEstate\tgranted\t to the Official Receiver to the  estate  of\nPrince\tMohammad Bakhtyar Shah another lease in\t respect  of\nmining\trights\tin  the\t same  area  in\t 1919.\t The   first\nrespondent commenced the present litigation for the  purpose\nof recovering rents and royalties on the basis of the second\nlease  from the heirs and representatives of the  estate  of\nPrince Mohammad Bakhtyar Shah and also from the appellant as\nthe  Receiver  to  that Estate.\t The decision  of  the\tcase\ndepended upon the construction of the two leases of 1900 and\n1919 and the Trial Court and the High Court decided the case\nin  favour of the plaintiff respondents.  On appeal  by\t the\ncontesting  defendant appellant on a certificate granted  by\nthe High Court :\nHeld,  that  the intention of the parties to  a\t dispositive\ndocument must be gathered from the words used by the parties\nthemselves and they must be presumed to have used the  words\nin  their strict grammatical sense.  If the statements\tmade\nin the earlier part of the document were irreconcilable with\nthose made in the later part, the earlier part must prevail.\nIn cases of ambiguity the court should look at all the parts\nof  the document to ascertain the intention of the  parties.\nIf  ambiguity still remains, the Court should interpret\t the\ndocument  strictly against the grantor and in favour of\t the\ngrantee.\nUnder Exp. 11 of s. 19<\/a> of the Limitation Act the words\tduly\nauthorised  \"  would include duly authorised either  by\t the\naction of the party indebted or by force of law or order  of\nthe court.\nAnnapagonda  v. Sangadiappa, (1901) Bom.  L.R.\t221  (F.B.),\nRashbehari v. Anand Ram, 43 Cal. 211, Ramcharan Das v.\tGaya\nPrasad,\t 30 All. 422, Lakshumanan v. Sadayappa<\/a>, A.I.R.\t1919\nMad.  816 and Thankamma v. Kunhamma, A.I.R. 1919  Mad.\t370,\napproved.\n605\nCurrimbhai v. Ahmedali<\/a>, 58 Bom. 505 and Lakshmanan Chetty v.\nSadayappa Chetty<\/a>, 35 M.L.J. 571, considered.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of 1956.
\n       Appeal from the judgment and decree dated September 24,1952,
\n       of the Patna High Court in First Appeal from Original Decree
\n       No. 2 of 1947, arising out of the judgment and decree  dated
\n       August,31,   1946,   of\tthe  Special   Subordinate   Judge,
\n       Chaibassa, in Money Suit No. 3 of 1941.\n<\/p>\n
       L.K. Jha, B. K. Saran, S. T. Hussain, S. K. Jha and K. L.
\n       Mehta, for the appellant.\n<\/p>\n
       H.   N. Sanyal, Additional Solicitor-General of India,
\n       J.   C. Das Gupta and R. C. Prasad, for respondent No. 1.
\n       1960.  April 21.\t The Judgment of the Court was delivered by
\n       DAS GUPTA, J.–Dhalbhum estate which covers an area of  more
\n       than  1,000  sq. miles and lies partly in  the  District\t of
\n       Midnapur and partly in the District of Singhbhum is rich\t in
\n       minerals.   In 1900 the then Proprietor of this estate  Raja
\n       Satrughan Deo Dhabal Deo the predecessor-in-interest of\tthe
\n       first  respondent Jagdish Deo Dhabal Deo\t granted  permanent
\n       lease  of the mining rights for certain metals and  minerals
\n       in   this  estate  to  Prince  Mohammad\tBakhtyar  Shah\t of
\n       Tollygunge  in the District of 24-Parganas.  Raja  Satrughan
\n       Deo Dhabal Deo died in 1916.  Before his death, however, the
\n       management of the estate had been taken over by ‘the  Deputy
\n       Commissioner  of Singhbhum under the Chotanagpur\t Encumbered
\n       Estates\tAct.  In the course of such management the  Manager
\n       of the Estate granted on September 1, 1919, to the  Official
\n       Receiver\t to  the estate of Prince  Mohammad  Bakhtyar  Shah
\n       another lease in respect of mining rights in the same  area.
\n       The present litigation was commenced by the first respondent
\n       with  a view to recover rents and royalties on the basis\t of
\n       the  second lease from the heirs and representatives of\tthe
\n       estate  of Prince Mohammad Bakhtyar Shah and also  from\tthe
\n       present appellant as Receiver to that estate.  As under\tthe
\n       terms of the lease the lessor is entitled to the half  share
\n       of the receipts on account of
\n       79<\/span>
\n       606<\/span>
\n       rents  and  royalties and other incomes in  respect  of\tthe
\n       minerals\t demised  and the exact income could not  be  known
\n       until  accounts were furnished by the lessee, the  defendant
\n       prayed  for a decree for accounts from January 1, 1926,\tand
\n       for a decree for the sum found due on such accounts.  As the
\n       suit  was  brought on August 12, 1941, the period  prior\t to
\n       August  12,1935, would prima facie be barred by\tlimitation.
\n       According  to  the plaintiff, limitation was  saved  by\tthe
\n       acknowledgments that had been made from time to time by\tthe
\n       then  Receiver of the estate.  Two defences were\t raised\t by
\n       the  Receiver  who was the only contesting  defendant.\tThe
\n       first was that the lessor had dispossessed him from part\t of
\n       the  leasehold  property\t and so there  ought  to  be  total
\n       suspension  of rents and royalties.  The second defence\twas
\n       as  regards  the claim for the period prior  to\tAugust\t12,
\n       1935.  It was pleaded that the letters which are claimed\t to
\n       have  acknowledged  the liability did not in law\t amount\t to
\n       acknowledgment of liability and that in any case the alleged
\n       ackowledgments being by the Receiver who was an agent of the
\n       court  and not an agent of the parties  the  acknowledgments
\n       would be of no avail in saving limitation.\n<\/p>\n
       Though the written statement itself did not in terms mention
\n       the nature of the lessee’s dispossession from the  leasehold
\n       property\t the  definite\tcase at the  trial  was\t that  this
\n       dispossession  was  in respect of minerals  which  had  been
\n       specifically  excluded  from the earlier lease of  1900\tbut
\n       according to the defendant included in the later lease.\tOne
\n       of the main questions in the appeal is whether the  minerals
\n       specifically  excluded in cl. 16 of the earlier\tlease  were
\n       demised\tto the lessee by the later lease of 1919.   of\tthe
\n       several\tissues that have been framed we are therefore  con-
\n       cerned now only with the two issues in respect of these\ttwo
\n       defences.   The\tfirst  of  these is:  ”\t Is  the  defendant
\n       entitled to suspension of rents and royalties as claimed ” ;
\n       the  second  is: ” Is any portion of the\t plaintiff’s  claim
\n       barred  by  limitation?\t” The Subordinate Judge held  on  a
\n       construction  of the lease of 1919 that it did  not  include
\n       minerals\t specifically  excluded by cl. 16  of  the  earlier
\n       lease and as the only
\n       607<\/span>
\n       case  of dispossession from leasehold property was  made\t in
\n       respect\tof  these minerals the plea of suspension  of  rent
\n       must fail.  He also negatived the plea of limitation,  being
\n       of opinion that the Official Receiver was competent to  make
\n       such   acknowledgments\tand  that  in\tfact   there   were
\n       acknowledgments\tof  the plaintiff’s  liability\twithin\tthe
\n       meaning of s. 19<\/a> of the Limitation Act.\tWith regard to\tthe
\n       period  from 1935 to 1941., regarding which no  question\t of
\n       limitation  arose,  the Subordinate Judge gave a\t decree\t of
\n       rendition  of  accounts and for payment of such\tamounts\t as
\n       would  be found on accounting by the Commissioner.   On\tthe
\n       basis  of  his finding that there was an\t acknowledgment\t of
\n       liability  to the extent of Rs. 67,459-3-3 as due under\tthe
\n       terms  of the two leases up to the year 1935 but that  there
\n       was no material on the record to find out as to what was the
\n       amount  due  up\tto that year on the basis  of  that  second
\n       lease,, he made an order -in the following terms:
\n       ”  The defendant is hereby directed to assess and state\tthe
\n       amount  due under the lease in suit out of the said  sum\t of
\n       Rs.  67,459-3-3\ton  the\t basis,\t of  the  accounts  of\this
\n       office….  in  respect of the plaintiff’s dues\twithin\ttwo
\n       months from this date, failing which a commissioner will\t be
\n       appointed  to take accounts and ascertain the amount due\t to
\n       the  plaintiff,\tand the defendant shall be liable  for\tthe
\n       costs of the same.”\n<\/p>\n
       Against\tthis decree the contesting defendant, the  Receiver
\n       appealed\t to the High Court of Judicature at Patna.   Before
\n       the appeal court two points were raised.\t The first was that
\n       on  a  proper construction of the 1919 lease  it\t should\t be
\n       found  that the minerals specifically excluded in clause\t 16
\n       of  the\tearlier lease were included in the 1919\t lease\tand
\n       consequently,  the lessor having granted certain\t leases\t to
\n       other  parties in respect of these minerals in the area\tthe
\n       lessee was entitled to suspension of rents.  The other point
\n       raised.\twas that in law there was no acknowledgment  which,
\n       could  save  limitation in respect of the  claim\t prior\tto,
\n       August 12, 1935.\n<\/p>\n
       608<\/span><\/p>\n
       Patna  High  Court  who heard the  appeal  agreed  with\tthe
\n       conclusions  of\tthe Trial Judge.  On the first\tpoint  they
\n       held  that  the minerals excluded by clause 16 of  the  1900
\n       lease were not included in the Second lease and so there was
\n       no question of any suspension of rents.\tThey also held that
\n       quite  apart  from  the\tquestion  of  construction  of\tthe
\n       document, the lessee was not entitled to suspension of rents
\n       as  in order to justify witholding of the rents, the act\t of
\n       the landlord must be forcible or, at any rate, tortious\tand
\n       that  these  conditions\thad not\t been  established  in\tthe
\n       present\tcase.  On the second question, the  learned  judges
\n       held that the letters on which the plaintiff relied to  show
\n       acknowledgments\tby  the\t Receiver  did\tin  law\t amount\t to
\n       acknowledgments\t and  the  acknowledgments  being  by\tthe
\n       Receiver\t who was himself bound to pay the rent due  to\tthe
\n       superior\t landlord  were\t good  acknowledgments\twithin\tthe
\n       meaning\tof s. 19<\/a> of the Limitation Act.\t  Accordingly  they
\n       dismissed the appeal.\n<\/p>\n
       The  present  appeal has been brought by\t the  con.  testing
\n       defendant  the Receiver on a certificate given by  the  High
\n       Court under Art. 133<\/a> of the Constitution.\n<\/p>\n
       Both  the defences raised in the court of appeal\t have  been
\n       pressed\tbefore us.  The alleged dispossession on the  basis
\n       of which the first defence of a right to suspension of  rent
\n       is   urged  is  only  in\t respect  of   minerals\t  mentioned
\n       specifically in clause 16 of the earlier lease of 1900.\t It
\n       is necessary therefore to decide in the first place  whether
\n       these  minerals mentioned in clause 16 of the earlier  lease
\n       have been included in the second lease.\tIf as found by\tthe
\n       courts  below they have not been so included no question\t of
\n       suspension  will\t arise.\t If they have been  included,  some
\n       other questions of law and fact may have to be considered in
\n       deciding whether the defendant’s plea of suspension of  rent
\n       can  succeed.  While primarily we have to construe the  1919
\n       lease to find an answer to the question indicated above,\t it
\n       will be necessary for that very purpose to refer to  several
\n       portions\t of  the  earlier lease of 1900.   The\tvery  first
\n       clause  in  the operative portion of the 1900  lease  is\t in
\n       these words:-\n<\/p>\n
       609<\/span><\/p>\n
       ”  That\tyou shall prospect, raise, purify,  melt  and  sell
\n       gold,  silver,  copper, lead, zinc,  iron,  mercury,,  mica,
\n       sulphur, copper sulphate, coal, chalk, redearth, etc.,  mati
\n       slate  stone  and  all  kinds of\t precious  stones  such\t as
\n       diamond, ruby, emerald, topaz, crystals, etc., lying on\tthe
\n       surface\tand  subsoil of Ghatsila otherwise  called  pargana
\n       Dhalbhum,  mentioned  in\t Schedule excluding  the  2  mouzas
\n       Narsinghgarh  and  Ghatsila and the  Dibkulis  mentioned\t in
\n       Schedule below.”\n<\/p>\n
       It will be noticed that this clause does not mention stones,
\n       lime-stones,  ghuting  or ballasts.  Clause 6 of\t the  lease
\n       however\tprovided  that the lessee shall be ”  competent\t to
\n       take  stones, lime-stones, ghuting and ballast which may\t be
\n       required for constructing buildings, bungalows and pathways,
\n       etc.,  necessary for the aforesaid mining work free of  cost
\n       and  rent.”  Clause 16 of the lease  contains  some  further
\n       provisions as regards these and is in these words :-
\n       ”  That by virtue of the aforesaid patta, you shall  not\t be
\n       competent to offer any obstruction either to me or to my any
\n       authorised  person  to raise stones (used) for  utensils\t or
\n       stones,\tlime-stone and ghuting, etc., for  buildings  which
\n       are not covered by this patta and sell the same to me or\t to
\n       tenants, etc., under me to dig bandh, tank, canal and wells,
\n       etc.,  but  the terms of the said patta shall hold  good\t in
\n       respect\tof the underground minerals, etc., lying under\tthe
\n       said wells, etc.”\n<\/p>\n
       Two  things  that are abundantly clear  from  this  document
\n       are:-(1) that the mining rights were specifically granted in
\n       respect\tof gold, silver, copper lead, zinc, iron,  mercury,
\n       mica  sulphur, copper sulphate, coal, chalk,  red-earth\tand
\n       certain\tprecious  stones such as  diamond,  ruby,  emerald,
\n       topaz,  crystals, etc., and (2) that stones for utensils\t or
\n       stones, limestones, ghuting, etc., and ballast for buildings
\n       were  specifically  excluded from the lease.  By\t the  later
\n       lease of 1919 the lessor gave and the lessee obtained mining
\n       rights  in  respect of certain minerals not granted  by\tthe
\n       earlier lease.  The question is whether what was granted\t by
\n       the later lease included in addition to things which had not
\n       been specifically named in the
\n       610<\/span>
\n       earlier\tgrant  also  things  which  had\t been  specifically
\n       excluded\t there.\t  The important portion\t of  the  operative
\n       clause of the later lease is in these words:-
\n       ”  In consideration of the rent hereby reserved and  of\tthe
\n       covenants  and conditions hereinafter contained the  Manager
\n       hereby grants demised unto the Receiver all and singular all
\n       metals and minerals of whatsoever kind or description  other
\n       than  those  specifically comprised in and  granted  by\tthe
\n       principal lease……………………………….
\n       rights,\tprivileges and powers comprised in and\tgranted\t to
\n       the said Prince Mohammad Bakhtyar Shah by the said principal
\n       lease  in  all  respects as though the  same  were  repeated
\n       herein  so  far\tas  they  do  not  contradict  any  of\tthe
\n       provisions  herein  contained  and are  still  existing\tand
\n       capable of taking effect.”\n<\/p>\n
       The covenant runs thus:-\n<\/p>\n
       Receiver covenants with the Manager that he will at the time
\n       and  in the manner provided for in the said principal  lease
\n       pay  the rent or royalty reserved hereby and will carry\tout
\n       and comply with all the provisions and conditions  comprised
\n       in the said principal lease so far as they are applicable to
\n       these  presents in the same manner as though they  had  been
\n       inserted herein.”\n<\/p>\n
       The  document contains next an agreement that  the  Receiver
\n       shall be at liberty to grant under-leases subject to certain
\n       conditions and provisions.  One of the conditions  mentioned
\n       is–”  That  all such underleases shall be subject  to  such
\n       special\tterms  in  regard to specific minerals\tas  may\t be
\n       prescribed  from\t time  to  time\t by  the  Government  Rules
\n       relating\t to  Mining  Leases and shall  be  subject  to\tthe
\n       provision of clause 16 of the said principal lease.”
\n       The lease concluded with the words:—-\n<\/p>\n
       “Provided always and it is hereby agreed that nothing herein
\n       contained  shall\t be deemed to show that the Pottah  of\tthe
\n       tenth  day  of January one thousand and\tnine  hundred  made
\n       between\tRaja Satrughan Deo Dhabal Deo, son of Gopinath\tDeo
\n       Dhabal Deo, deceased and the Hon’ble Prince
\n       611<\/span>
\n       Mohammad\t Bakhtyar Shah, son of Prince Mohammad Anwar  Shah,
\n       deceased is not still valid and subsisting.”
\n       In  his\tattempt to establish that by this later\t lease\tthe
\n       lessor granted a lease even of those minerals which had been
\n       excluded specifically by clause 16 of the earlier lease, Mr.
\n       Jha  has\t arrayed  in  his  aid\tseveral\t well\testablished
\n       principles of construction.  The first of these is that\tthe
\n       intention  of  the parties to a document of  grant  must\t be
\n       ascertained  first and foremost from the words used  in\tthe
\n       disposition  clause, understanding the words used  in  their
\n       strict,\t natural  grammatical  sense  and  that\t once\tthe
\n       intention  can be clearly understood from the words  in\tthe
\n       disposition clause thus interpreted it is no business of the
\n       courts  to examine what the parties may have said  in  other
\n       portions of the document.  Next it is urged that if it  does
\n       appear  that  the later clauses of the document\tpurport\t to
\n       restrict\t or cut down in any way the effect of  the  earlier
\n       clause  disposing  of  property\tthe  earlier  clause   must
\n       prevail.\t Thirdly it is said that if there be any  ambiguity
\n       in  the disposition clause taken by itself, the\tbenefit\t of
\n       that ambiguity must be given to the grantee, the rule  being
\n       that all documents of grants must be interpreted strictly as
\n       against\tthe  grantor.  Lastly it was urged that\t where\tthe
\n       operative portion of the document can be interpreted without
\n       the aid of the preamble, the preamble ought not and must not
\n       be looked into.\n<\/p>\n
       The correctness of these principles is too well\testablished
\n       by authorities to justify any detailed discussion.  The task
\n       being  to ascertain the intention of the parties, the  cases
\n       have laid down that that intention has to be gathered by the
\n       words  used  by\tthe parties themselves.\t In  doing  so\tthe
\n       parties\tmust  be presumed to have used the words  in  their
\n       strict  grammatical  sense.  If and when\t the  parties  have
\n       first expressed themselves in one way and then go on  saying
\n       something,  which  is  irreconcilable  with  what  has  gone
\n       before, the courts have evolved the principle on the  theory
\n       that  what once had been granted cannot next be taken  away,
\n       that the clear disposition by an earlier clause will not\t be
\n       allowed to be out down by later
\n       612<\/span>
\n       clause.\t Where\tthere is ambiguity it is the  duty  of\tthe
\n       Court to look at all the parts of the document to  ascertain
\n       what was really intended by the parties.\t But even here\tthe
\n       rule  has  to be borne in mind that the document\t being\tthe
\n       grantor’s document it has to be interpreted strictly against
\n       him and in favour of the grantee.\n<\/p>\n
       Bearing\tthese principles in mind we shall now  examine\tthe
\n       1919  lease  to\tperform\t this  task  of\t ascertaining\tthe
\n       intention  of  the parties as to what was being\tgranted\t by
\n       this lease.  The disposition clause as has already been\tset
\n       out  is in these words:-” The Manager hereby grants  demised
\n       unto  the Receiver all and singular all metals and  minerals
\n       of   whatsoever\tkind  or  description  other   than   those
\n       specifically  comprised\tin  and granted\t by  the  principal
\n       lease.” On behalf of the appellant it is argued that if\tthe
\n       totality\t of metals and minerals in the area is\tdenoted\t by
\n       the symbol “X” and what was granted by the earlier lease\t is
\n       denoted\tby the symbol “Y” the intention of the\tparties\t in
\n       using the words set out above was that this lease should\t be
\n       in  respect  of “X” minus “Y”.  We are afraid  however  that
\n       this is an over-simplification of the problem which we  must
\n       resist.\t While it is true that strict grammatical sense\t of
\n       the words must be given effect to, words and phrases are not
\n       used by people always and invariably in the same sense.\t As
\n       has often been emphasised by eminent judges the intention of
\n       persons\t using\tcertain\t words\tcannot\tbe  discovered\t by
\n       considering  the words in the abstract.\tWhen in this  lease
\n       the  grantor  used certain words, what we cannot\t ignore\t is
\n       that when words set out above were used in the present lease
\n       both the parties had present in their minds the fact of\tthe
\n       principal lease.\t They were not only well aware of the  fact
\n       of  the\tearlier lease but actually referred to\tit  as\tthe
\n       principal lease and repeatedly emphasised the fact that\tthe
\n       terms and conditions of the principal lease in so far as not
\n       contradicted  by\t the present lease would remain\t valid\tand
\n       effective.  One of the principal facts of that earlier lease
\n       is  that\t while some metals and minerals\t were  specifically
\n       granted\t thereby  some\twere  specifically   excluded,\t In
\n       interpreting the words of
\n       613<\/span>
\n       the  disposition clause we have to take notice of  the  fact
\n       that  no\t reference is being made to that fact  of  specific
\n       exclusion.   The question that arises for  determination\t is
\n       whether by this omission to make a specific reference to the
\n       exclusion clause of the previous lease the parties  intended
\n       that  the  exclusion  clause  will  have\t no  effect.\tThe
\n       appellant’s  argument  is that the necessary result  of\tthe
\n       words  ” grants demised unto the Receiver all  and  singular
\n       all  metals and minerals of whatsoever kind  or\tdescription
\n       other  than  specifically comprised in and  granted  by\tthe
\n       principal lease” is that the exclusion clause of the earlier
\n       lease was itself being excluded.\t While there is some  scope
\n       for  that interpretation, if we do not look further, we\tare
\n       unable  to agree with the learned Advocate that it is  clear
\n       and  unambiguous\t that  by this reference  to  the  granting
\n       clause  of the earlier lease and the words used\tin  respect
\n       thereof, the exclusion clause of the earlier lease was being
\n       necessarily excluded.  There is in our opinion as much scope
\n       for  arguing  that the exclusion clause not being  in  terms
\n       referred\t to would remain valid and active as there  is\tfor
\n       the  appellant’s\t argument  that\t the  words  used  show\t an
\n       intention to exclude the exclusion clause itself.  In  cases
\n       of ambiguity it is necessary and proper that the court whose
\n       task is to construe the document should examine the  several
\n       parts of the document in order to ascertain what was  really
\n       intended\t by  the parties.  In this much assistance  can\t be
\n       derived\tfrom the fourth condition of the  conditions  which
\n       were  imposed  by  the lease as regards the  grant  of  sub-
\n       leases.\t This condition provided inter alia that  all  such
\n       under-leases to be granted by the lessee shall be subject to
\n       the  provisions\tof clause 16 of the  principal\tlease.\t In
\n       other words, the sub-lessees shall not be competent to offer
\n       any  obstruction to the head lessor or to any  other  person
\n       authorised  by him to raise stone for utensils or stones\t or
\n       lime-stone  and ghuting, etc., for buildings and in  selling
\n       the same.  Nor will he be competent to offer any obstruction
\n       to  any\tperson authorised by the lessor in  digging  bandh,
\n       tank, canal and wells, etc.  In terms this is a provision as
\n       regards\tunder-leases only.  But the question which  springs
\n       to the mind is: What could be the sense of 80
\n       614<\/span>
\n       such a term being imposed in respect of under-lessees if\t so
\n       long  as\t under-leases were not given,  the  lessee  himself
\n       would  not  be bound by the provisions of clause 16  of\tthe
\n       principal lease and would be competent to obstruct the  head
\n       lessor in the several matier is mentioned in clause 16 ?\t It
\n       is  in  our opinion unthinkable that such a clause  as  this
\n       fourth  clause would be included in respect  of\tsub-lessees
\n       unless  it  was also the intention of the parties  that\tthe
\n       lessee himself would be bound by the provisions of cl. 16 of
\n       the principal lease.  The view that this must have been\tthe
\n       intention  is strengthened by the concluding words  of  this
\n       lease  which  provide  in  substance  that   notwithstanding
\n       anything\t in  the later lease the principal lease  would\t be
\n       valid and subsisting.  Here also there would be no point\t in
\n       saying\tthat  the  principal  lease  would  be\tvalid\tand
\n       subsisting  as  regards merely the minerals which  had  been
\n       specifically  ‘granted by the principal lease.\tAs  regards
\n       the  principal  lease  being binding  in\t respect  of  those
\n       minerals,  there\t could\tbe  no\tdoubt  whatsoever  and\tthe
\n       concluding clause of the 1919 lease would be unnecessary and
\n       meaningless.   As regards the metals and minerals which\tare
\n       excluded\t by  cl. 16 there might however be some\t scope\tfor
\n       argument\t as  to what would prevail.  But  for  some  appre-
\n       hension\tin  the mind of the grantor perhaps on\taccount\t of
\n       clause  6  that there might be some scope of  difference\t as
\n       regards\tthe metals and minerals mentioned in el. 16 of\tthe
\n       earlier\tclause,\t the  inclusion\t of  this  clause  in\tthe
\n       principal lease itself would perhaps be unnecessary.  It was
\n       as a safeguard against that uncertainty that the\t concluding
\n       sentence of the later lease uses the words that we find.
\n       It  appears to us reasonable therefore to hold that  of\tthe
\n       two  meanings of which the words in the\tdisposition  clause
\n       are capable, the meaning that the parties intended that\tthe
\n       minerals\t excluded by clause 16 of the principal lease  were
\n       not covered by the present grant but would remain  excluded,
\n       should be accepted.\n<\/p>\n
       We  have\t so  long  not referred\t to  the  preamble  of\tthe
\n       document.  The relevant portion of the same which is of some
\n       assistance  in  construing the document\tbefore\tus,  occurs
\n       where the Manager mentions the
\n       615<\/span>
\n       consent of the High Court as regards this later lease.
\n       The passage runs thus:-\n<\/p>\n
       ” Whereas recently certain disputes have arisen between\tthe
\n       Manager\tas  representing  the Estate of the  said  Sri\tSri
\n       Satrughna  Deo Dhabal Deb, and the Receiver as  representing
\n       the  estate  of the said Prince Mohammad Bakhtyar  Shah\tnow
\n       deceased\t with regard to the construction of  the  principal
\n       lease  and  the minerals comprised therein, and\twhereas\t in
\n       order to put an end to all such disputes and differences\t of
\n       opinion\tand  for the purpose of preventing  litigation\tand
\n       consequent loss of both the said Estates it has been  agreed
\n       by and between the parties hereto subject to the consent and
\n       approval of the said High Court that the Manager shall grant
\n       to  the\tReceiver a lease of all minerals other\tthan  those
\n       specifically mentioned in the said principal lease.  ”
\n       In the judgment of the Trial Court there is a statement that
\n       the dispute which bad arisen as regards the construction\t of
\n       the  principal lease was whether a mineral known as  wolfram
\n       was  included in the lease of 1900 or not.  The\tcorrectness
\n       of  this\t observation in the Trial  Court’s  judgment  based
\n       apparently  on  statements  made at the\tbar  has  not  been
\n       disputed before us. If that was the dispute then the  object
\n       of  the\tsecond lease was obviously to include  therein,\t in
\n       respect of the purposes of the granting clause of the  first
\n       lease even those minerals which had not been included.  That
\n       the dispute must have been of the nature, as the Trial Court
\n       believes’ appears probable also from the use of the words  ”
\n       other  than those specifically mentioned ” in the  preamble.
\n       The dispute being on the question of what was mentioned\tand
\n       what was not mentioned in the granting clause, the object of
\n       granting the second lease was that what had not so long been
\n       mentioned  in the granting clause would also be included\t in
\n       such  grant by a supplementary lease.  The question of  what
\n       had  been  excluded  was not in\tthe  contemplation  of\tthe
\n       parties at all.\tIt is significant to note that there was no
\n       evidence\t that  before  the date of the\tsecond\tlease,\tany
\n       dispute had arisen as regards the operation of the exclusion
\n       clause, viz., Clause 16.\t A consideration of
\n       616<\/span>
\n       the  preamble therefore further strengthens  the\t conclusion
\n       that  this later lease did not grant any mineral\t rights\t in
\n       respect of what had been excluded by the principal lease\t in
\n       its 16th clause.\n<\/p>\n
       If  we interpret the disposition clause in the second  lease
\n       in  this\t way, as we think we must, there is  no\t repugnancy
\n       between\tthis clause and the later clauses and there  is\t no
\n       scope therefore for the applicability of the doctrine relied
\n       on  by  Mr. Jha that if there be two clauses or parts  of  a
\n       deed  one  repugnant to the other the first  part  shall\t be
\n       accepted and the latter rejected.  Nor is there any question
\n       in  the present case of the words being\tconstrued  strictly
\n       against\tthe  grantor.\tIt is only if the  meaning  is\tnot
\n       otherwise  clear that the courts would by recourse  to  that
\n       rule  give the grantee something which he might not  clearly
\n       have  received.\tAs however on a proper construction of\tthe
\n       document\t as  a\twhole  we reach\t the  conclusion  that\tthe
\n       intention of the parties has been clearly established to\t be
\n       that  the  minerals excluded by clause 16 of  the  principal
\n       lease will remain excluded from the later lease also,  there
\n       is no scope of any benefit accruing to the lessee by  reason
\n       of  the\trule that all deeds are to  be\tconstrued  strictly
\n       against the grantor and in favour of the grantee.
\n       We  have\t therefore come to the conclusion that\tthe  courts
\n       below  were  right  in their conclusion\tthat  the  minerals
\n       mentioned  in cl.16 of the principal lease were not  granted
\n       by the later lease also.\n<\/p>\n
       The  appellant’s plea of suspension of rents based as it\t is
\n       on the allegation that the metals and minerals mentioned\t in
\n       el.  16\tof the principal lease were covered  by\t the  later
\n       lease  must  therefore  fail.  We think\tit  unnecessary\t to
\n       consider\t in  this  appeal  the\tquestion  whether  if\tthe
\n       construction  which  the appellant wanted to  place  on\tthe
\n       document\t was correct the plea of suspension of rents  would
\n       have been available to him and we express no opinion on\tthe
\n       correctness or otherwise of the views expressed by the  High
\n       Court  as  regards  the circumstances in\t which\ta  plea\t of
\n       suspension of rent can succeed.\n<\/p>\n
       There remains for consideration the question of\t limitation
\n       as regards the period of the claim prior to
\n       617<\/span>
\n       August 12, 1935.\t On this point the learned counsel for\tthe
\n       appellant has advanced a two-fold contention before us.
\n       In  the\tfirst  place  he has  contended\t that  the  alleged
\n       acknowledgments\twere conditional, the condition\t as  stated
\n       being  that  the\t statements of account\tenclosed  with\tthe
\n       letters\twhich  are said to constitute  the  acknowledgments
\n       must be accepted as correct.  In support of his argument Mr.
\n       Jha  drew  our attention to the words used in  Exhibit  2(1)
\n       dated   March  7,  1931,\t which\ttypifies  the\tnature\t of
\n       acknowledgments\tin  the\t other letters\trelied\ton  by\tthe
\n       plaintiff.   This letter addressed by the Official  Receiver
\n       to Raja Jagdish Deo Dhabal Deo is in these words:-
\n       “Sir,
\n       I have the honour to send herewith two statements of account
\n       showing an aggregate sum of Rs. 4,993-6-1 as royalty due\t to
\n       the  Dhalbhum  Raj by the above estate from 1st\tJanuary\t to
\n       31st  December, 1930.  On your accepting the  statements\t as
\n       correct\ta cheque for the said sum of Rs. 4,993-6-1 will\t be
\n       sent to you.\n<\/p>\n
       Besides\tthe  above,  there is lying to the  credit  of\tthe
\n       Dhalbhum\t Raj  the sum of Rs. 31,944-8-3 being  the  royalty
\n       upto  the end of December, 1929.\t I shall be obliged if\tyou
\n       will  kindly let me know whether you are prepared to  accept
\n       the same and on hearing from you I shall be glad to  forward
\n       to you a cheque in payment thereof.”\n<\/p>\n
       According to Mr. Jha the first statement as regards the\tsum
\n       of Rs. 4,993-6-1 due to the Dhalbhum Raj by the above estate
\n       from 1st January to 31st December, 1930, was not a clear and
\n       independent  statement of the dues but was made\tsubject\t to
\n       the condition that this was accepted as correct.\t  Similarly
\n       he  argued that the statement in the next paragraph  of\tthe
\n       letter  as  regards  the sum of\tRs.  31,944-8-3\t being\tthe
\n       royalty\tup  to the end of December, 1929, was  also  not  a
\n       clear  and independent statement of what is due but is  made
\n       subject to the acceptance of the same.  That in our  opinion
\n       is not a proper reading of what is stated in the letter.\t In
\n       the very first sentence of the letter the Receiver is saying
\n       that a sum of Rs. 4,993-6-1 as shown
\n       618<\/span>
\n       in the enclosure to the document was according to him due to
\n       the Dhalbhum Raj for the year 1930 on account of royalty; to
\n       this  he was adding a statement in the second sentence  that
\n       as soon as this statement of dues was accepted as correct  a
\n       cheque  in  payment  thereof would be  sent.   To  say  that
\n       however was not to say that the earlier statement of what is
\n       due is subject to the acceptance of the accounts.  The  idea
\n       in  the\tsecond\tsentence  clearly  was\tthat  in  case\tthe
\n       statement  of what was due was not accepted as  correct\tthe
\n       matter will have to be decided by further discussion  before
\n       payment\twill be made.  This second sentence cannot  by\tany
\n       stretch\tof  imagination\t be  read as  a\t condition  to\tthe
\n       statement  made in the first sentence.  Similarly the  first
\n       sentence\t in the second paragraph of the letter\tas  regards
\n       the  sum\t of Rs. 31,944-8-3 being royalty up to the  end\t of
\n       December, 1929, is, as we read the letter, made\tindependent
\n       of  what\t was stated in the following sentence and  was\tnot
\n       subject\tthereto.  The argument that  these  acknowledgments
\n       were conditional acknowledgments has therefore been  rightly
\n       rejected by the High Court.\n<\/p>\n
       The  second contention urged by the learned counsel is  that
\n       in  any case an acknowledgment by the Receiver of an  estate
\n       is  not an acknowledgment by an agent of the owners  of\tthe
\n       estate ” duly authorised in this behalf ” within the meaning
\n       of Explanation II of s. 19<\/a> of the Limitation Act, and so\t is
\n       not an acknowledgment within the meaning of s. 19(1)<\/a> of\tthe
\n       Limitation Act.\n<\/p>\n
       According  to the learned counsel ” duly authorised in  this
\n       behalf ” in Explanation II of s. 19<\/a> means ” duly\t authorised
\n       by the debtor ” and does not include duly authorised by\tlaw
\n       or  by an order of the Court.  For this proposition  we\tcan
\n       find   no   support  either  in\tauthority   or\t principle.
\n       Explanation  II to s. 19<\/a> of the Limitation Act in  saying  ”
\n       for  the\t purposes  of this section  ‘signed’  means  signed
\n       either  personally  or by an agent duly authorised  in  this
\n       behalf ” has not limited in any way the manner in which\tthe
\n       authority can be given.\tThe view taken in this matter by  a
\n       Full  Bench  of\tthe Bombay High\t Court\tin  Annapagonda\t v.
\n       Sangadiappa (1) that ” duly authorised ” would include
\n       (1)  (1901) Bom.\t L.R. 221. (F.B.).\n<\/p>\n
       619<\/span><\/p>\n
       duly  authorised either by the action of the party  indebted
\n       or  by force of law or order of the Court has been  followed
\n       in  other  High Courts also (Vide: Rashbehary v.\t Anand\tRam<\/a>
\n       (1);  Ramcharan\tDas V.\tGaya Prasad (2)\t ;  Lakshumanan\t v.
\n       Sadayappa<\/a>  (3  ) and Thankamma v. Kunhamma (4)  and  in\tour
\n       opinion represents the correct state of law.
\n       Mr.  Jha\t has next argued that, in any case,  law  does\tnot
\n       authorise the Receiver of an Estate to make  acknowledgments
\n       of  debt due from the estate.  For this proposition  he\thas
\n       relied on a decision of the Bombay High Court in\t Currimbhai
\n       v.  Ahmedali<\/a>  (5).   In\tthat  case  it\twas  held  that\t an
\n       acknowledgment by an official assignee will not amount to an
\n       acknowledgment by an agent of the debtor.  Though this  case
\n       does not deal strictly with the case of a Receiver, Mr.\tJha
\n       has  relied on the reasoning therein as supporting his  con-
\n       tention.\t  Our  attention has been drawn by Mr.\tSanyal,\t on
\n       behalf  of the respondent to the fact that a  contrary  view
\n       has been taken in Lakshmanan Chetty v. Sadayappa Chetty<\/a> (6).
\n       Mr. Sanyal has argued that in respect of a debt due from the
\n       estate  the  Receiver  of the estate  fully  represents\tthe
\n       owners  of the estate and that once it is held, as  it  must
\n       be,  that  the Receiver had authority to pay the\t debt,\tMr.
\n       Sanyal\targues,\t  it   must  necessarily   be\theld   that
\n       acknowledgment  of  a debt as incidental to  the\t Receiver’s
\n       duties  in  respect  of the payment of the  debts,  is  also
\n       within  his authority.  So, he argues that in every case\t an
\n       acknowledgment by a Receiver is an acknowledgment by a  duly
\n       authorised agent of the debtor.\n<\/p>\n
       The  above is a brief indication of the arguments on  either
\n       side  on\t Mr.  Jha’s contention that  the  Receiver  has\t no
\n       authority to acknowledge debts on behalf of the Estate.\t It
\n       is  unnecessary for us however to decide for the purpose\t of
\n       the  present  appeal the question whether a Receiver  is\t an
\n       agent  of  the  owners  of the estate of\t which\the  is\tthe
\n       Receiver\t for  the purposes of an acknowledgment of  a  debt
\n       under s. 19<\/a> of the
\n       Limitation Act.\n<\/p>\n
       (1)  43 Cal. 211.\n<\/p>\n
       (2)  30 All. 422
\n       (3)  A.I.R. 1919 Mad. 816.\n<\/p>\n
       (4)  A.I.R. 1919 Mad. 370.\n<\/p>\n
       (5)  58 Born. 505.\n<\/p>\n
       (6)  35 M.L.J. 571.\n<\/p>\n
       620<\/span><\/p>\n
       In the present case the suit is based on the second lease of
\n       1919 which was executed in favour of the then Receiver.\tThe
\n       acknowledgments by which limitation is claimed to have  been
\n       saved  is by a previous Receiver of the Estate through  whom
\n       the  appellant who is the present Receiver has  derived\this
\n       liability to pay the debt.  Section 19<\/a> is therefore in terms
\n       applicable   as\tthe  acknowledgements  have   been   signed
\n       personally  by those previous Receivers and no  recourse\t is
\n       needed  by the plaintiff to the second part  of\tExplanation\n<\/p>\n
       11.  This position was indeed fairly conceded by Mr. Jha who
\n       agreed  that in view of this it was not necessary for us\t to
\n       decide  whether\tthe Receiver of an Estate is by\t that  fact
\n       itself an agent of the owners of the estate duly\t authorised
\n       to make acknowledgments under s. 19<\/a> of the Limitation Act.
\n       There can be no doubt that the acknowledgments on which\tthe
\n       plaintiff  relies are acknowledgments within the meaning\t of
\n       s.  19<\/a> of the Limitation Act and save limitation in  respect
\n       of  the period prior to August 12, 1935.\t The  Courts  below
\n       were  therefore right in rejecting the defendant’s  plea\t of
\n       limitation.\n<\/p>\n
       As both the contentions raised before us fail, the appeal is
\n       dismissed with costs.\n<\/p>\n
       Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sahebzada Mohammad Kamgar Shah vs Jagdish Chandra Deo Dhabal Deoand … on 21 April, 1960 Equivalent citations: 1960 AIR 953, 1960 SCR (3) 604 Author: K D Gupta Bench: Gupta, K.C. Das PETITIONER: SAHEBZADA MOHAMMAD KAMGAR SHAH Vs. RESPONDENT: JAGDISH CHANDRA DEO DHABAL DEOAND OTHERS. DATE OF JUDGMENT: 21\/04\/1960 BENCH: GUPTA, […]<\/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-263670","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSahebzada Mohammad Kamgar Shah vs Jagdish Chandra Deo Dhabal Deoand ... on 21 April, 1960 - 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\/sahebzada-mohammad-kamgar-shah-vs-jagdish-chandra-deo-dhabal-deoand-on-21-april-1960-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sahebzada Mohammad Kamgar Shah vs Jagdish Chandra Deo Dhabal Deoand ... on 21 April, 1960 - 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