# SAHEBZADA MOHAMMAD KAM GAR SHAH v. JAGDISH CHANDRA DEO DHABAL DEO AND OTHERS

- **Citation:** [1960] 3 S.C.R. 604
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 81 of 1956
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sahebzada-mohammad-kam-gar-shah-v-jagdish-chandra-deo-dhabal-deo-and-others-1884
- **Pages:** 17

## Headnote

Document-Construction of-Discrepancy between earlier and
later parts-"Duly authorised"~
meaning of-Indian
Limitation
Act, 1908 (IX of 1908), Explanation II, s. 19.
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 aod 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 st:itements 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 ~n favour of the grantee.
Under Exp. II 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)
Born. L.R. 221 (F.B.),
Rashbehari v. Anand Ram, 43 Cal. 211, Ramcharan Das v. Gaya
Prasad, 30 All.
422, Lakshmanan v. Sadayappa, A.LR. 1919
Mad 816 and Thankamma v. Kunhamma, A.I.R. 1919 Mad. 370,
approved.
-
r-
(
-
3 S.C.R.
SUPREME COURT REPORTS
605
Currimbhai v. Ahmedali, 58
Born. 505 and
Lakshmanan
Chetty v. Sadayappa Chetty, 35 M.L.J. 571, considered.

## Text

1960
April21.
604
f)
SUPREME COURT REPORTS
[1960]
SAHEBZADA MOHAMMAD KAM GAR SHAH
v.
JAGDISH CHANDRA DEO DHABAL DEO
AND OTHERS.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. C. DAS GUPTA, JJ.)
Document-Construction of-Discrepancy between earlier and
later parts-"Duly authorised"~
meaning of-Indian
Limitation
Act, 1908 (IX of 1908), Explanation II, s. 19.
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 aod 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 st:itements 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 ~n favour of the grantee.
Under Exp. II 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)
Born. L.R. 221 (F.B.),
Rashbehari v. Anand Ram, 43 Cal. 211, Ramcharan Das v. Gaya
Prasad, 30 All.
422, Lakshmanan v. Sadayappa, A.LR. 1919
Mad 816 and Thankamma v. Kunhamma, A.I.R. 1919 Mad. 370,
approved.
-
r-
(
-
3 S.C.R.
SUPREME COURT REPORTS
605
Currimbhai v. Ahmedali, 58
Born. 505 and
Lakshmanan
Chetty v. Sadayappa Chetty, 35 M.L.J. 571, considered.
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 decr'ee dated August 31, 1946,
of the Special Subordinate Judge, Chaibassa, in Money
Suit No. 3 of 1941.
L. K. ]ha, B. K. Saran, S. T. Husain, S. K. ]ha
and K. L. Mehta, for the appellant.
H. N. Sanyal, Additional Solicitor-General of India
]. C. Das Gupta and R. C. Prasad, for
respondent
No. I.
1960. April 21.
The Judgment of the Court was
delivered by
DAs GUPTA. T .- Dhalbhum estate which covers an
area of more than 1,000 sq. miles and Iles 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
Sa"trughan
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
comm~nced by the first respondent with ii view to recover rents and royalties on the basis of the second lease
. from the heirs and representatives of the es,tate 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
15-6 SCI/ND/82
1960
Saheb.zada
Mohammad
Kamgar ShDh
.
v . .
Jagdish Chandr11
Deo Dhabal D•o
Das Gup111 J.
1960
Saheb;:ada
Mohammad
Kamgar Shah
v.
:Jagdish Chandra
Deo Dhabal Deo
Das Gupta J.
606
SUPR~ME COURT REPORTS
[1960]
share of the receipts on account of 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 I, 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
acknowledgement of liability and that in any case the
alleged acknowledgements 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 frorn
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 concerned 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
-
•
' '
-
) i
3 S.C.R.
SUPREME COURT REPORTS
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.
vVith 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 fo make
accounts and ascertain the amount due to the
plain.tiff, 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.
1960
.Sahebzada
Mohammad
Kamgar .Shah
v.
Jagdish Chandra
Deo Dhabal Deo
Das Gupta].
1960
Sahebzada
Mohammad
_ Kamgar Shah
v.
Jagdish Chandra
D10 Dhabal D~o
Das Gupta J.
608
SUPREME COURT REPORTS
[1960)
On both these points, the ·learned judges of the
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.
withholding 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 contesting 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 ~espect 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 : -
·' -
, '
-
I
)
<.
3 S.C.R.
SUPREME COURT REPORTS
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 the 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, lime-stones, 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 earlier grant also things which
1960
Sahebzada
Mohammad
Kamgar Shah .
v.
Jagdish Chandra
Deo D habal Deo
Das Gupta J.
1960
Sahebzada
Mohammad
Kamgar Shah
v.
Jagdish Chandra
/J4o D habal Deo
Dos Gupta].
610
SUPREME COURT REPORTS
[1960]
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 spe- ·
cifically comprised in and· granted by the principal
lease ............................. .
.. .. .. .. .. .. for such purposes to have all and every
the 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
4
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
...
-·
I
'\
(i
3 S.C.R.
SUPREME COURT REPORTS
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 h<_ive 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 cut down by a later
1960
Sahebzada
Mohammad
Kamgar Shah
v.
Jagdish Chandra
Deo Dhabal Dto
Das Gupta J.
1960
Sahebz:ada
Mohamm'ad
Kamgar Shah
v.
Jagdish Chanrka
Deo Dhabal Deo
Das Gupta J.
612
SUPREME COURT REPORTS
[1960]
clause.
·where there is ambiguity it is the duty of
the Court to look at all the parts of the documents 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 alreadv been set out is in these words:-"The
Manag-er her~by 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 g-rammatical 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 th is 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 grantee\ thereby some were
specifically excluded.
In interpreting the words of
r
(
-
-
. )
~
3 S.C.R,
SUPREME COURT REPORTS
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
t.he Receiver all and singular all metals and minerals
of whatsoever kind or description other than specifically comprised in and g-ranted 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 u~ambiguous 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
lase 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 : w·hat could be the sense of
16-6 SCI/ND/82
1960
Sahebzada
Mohammad
Kamgar Shah
v.
Jagdish Chandra
Deo Dhabal Deo
Das Gupta J.
1960
Sahebzada
Mohammad
Kamgar Shah
v.
Jagdish Chadra
Deo Dhabal Deo
Das Gupta J.
614
SUPREME COURT REPORTS
[1960]
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 matters
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-leases 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 apprehension 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 cl. 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
-
3 S.C.R.
SUPREME COURT REPORTS
615
consent of the High Court as regards this later lease.
The passage runs thus:-
"Whereas recently certain disputes have arisen
betwen 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 had 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
1960
Sahebzaha
Mohammed
Kamgar Mah
v.
Jagdish Chandr~
Deo Dhabal Deo
Das Gupta J.
1960
Sahebzada
Mohammed
Kamgar Shah
V.
Jagdish Chandra
Dto Dhabal Deo
Das Gupta J.
616
SUPREME COURT REPORTS
[1960]
the preamble therefore further strengthens the conclusion that this later lease did not grant any mineral
rights in respect of what bad 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 constructed 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 cl. 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 suspen-
.sion of rent can succeed.
There remains for consideration the question of
limitation as regards the period of the claim prior to
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>
3 S.C.R.
SUPREME COURT REPORTS
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 acknowldegments in the
other letters relied on by the plaintiff. This letter addressed by the Official Receiver to Raja J agdish Dea
Dhabal Dea 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 3 lst December,
1930. On your accepting the statements as correct a
cheque for the saicl sum of Rs. 4,993-6-1 will be sent
to you.
Besides the above, there is lying to 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 clues 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. :n ,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
1960
Sahebzada
Mohammad
Kamgar Shuh
v.
Jagdish Chandra
Deo Dhabal Deo
Das Gupta J.
1960
Saheb;:ada
Mohammad
Kamgar Shah
v.
Jagdish Chandra
Deo DhabalDeo
Das Gupta J.
618
SUPREME COURT REPORTS
[1960]
in the enclosure to the docnment 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 acknowledg·
ment 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 \) that "duly authorised" would include
(1) [1901] Born. S.R. 221 (F.B.).
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r '
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3 S.C.R.
SUPREME COURT REPORTS
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 (Viele :
Reshbehary v. Anand Ram ('); Ramcharan Das v. Caya
Prasad ('); Lakshumanan v. Sadayappa (') and Thankamma v. Kunhamma (') 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 (').
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 contention.
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 ('). 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.
(3) A.I.R. 1919 Mad. 816.
(5) 58 Born. 505.
(2) 30 All. 422.
(4) A.I.R. 1919 Mad 370.
(6) 35 M.L.J. 571.
1960
Sahebzada
Mohammad
Kamgar Miah
v.
Jagdish Chandra
Deo Dhabal Dto
Das Gupta J.
1960
Sahetzi!da
Mohammad
Kamgar _Shah
v.
Jagdish Chandra
Deo Dhabal Deo
Das Gupta J.
1960
April 21.
620
SUPREME COURT REPORTS
[1960]
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
acknowledgments have been signed
personally by those previous Receivers, and no recourse
is needed by the p!Jintiff to the second part of Explanation II.
This position was indeed fairly concluded
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. l 935.
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.
THE COMMISSIONER OF INCOME-TAX,
BOMBAY CITY, HOMBAY
v.
NANDLAL GANDALAL.
(S. K. DAS, J. L. KAPUR and M. HIDAYATULLAH, .JJ.)
Income-fax-Assessment-Hindu undivided family carrying on
business outside British India-Partnership entered into by coparceners with strangers in British India financed by remittances received
from undivided family funds-Hindu undivided family, if resident
m taxable territories-Indian Income-tax Act, 1922 (XI of 1922),
ss. 4A(b).
.
N, a coparcener of the Hindu undivided family of G, carrying on business in Kathiwar, then outside British India, entered
into a partnership with strangers in Bombay in 1944.
A total
sum of Rs. 1,50,000 was remitted to N from the undivided family
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l