Case: Sahebzada Mohammad Kamgar Shah Vs. Jagdish Chandra Deo Dhabal Deoand Others

1. Dhalbhum estate which covers an area of more than 1,000 sq. miles and lies partly in the District of Midnapur and partly in the District of Singhbhum is rich in minerals. In 1900 the then Proprietor of this estate Raja Satrughan Deo Dhabal Deo the predecessor-in-interest of the first respondent Jagdish Deo Dhabal Deo granted permanent lease of the mining rights for certain metals and minerals in this estate to Prince Mohammad Bakhtyar Shah of Tollygunge in the District of 24-Parganas. Raja Satrughan Deo Dhabal Deo died in 1916. Before his death however the management of the estate had been taken over by the Deputy Commissioner of Singhbhum under the Chotanagpur Encumbered Estates Act. In the course of such management the Manager of the Estate granted on September 1, 1919, to the Official Receiver to the estate of Prince Mohammad Bakhtyar Shah another lease in respect of mining rights in the same area. The present litigation was commenced by the first respondent with a view to recover rent and royalties on the basis of the second lease from the heirs and representatives of the estate of Prince Mohammad Bakhtyar Shah and also from the present appellant as Receiver to that estate. As under the terms of the lease the lessor is entitled to the half share of the receipts on account of rents and royalties and other incomes in respect of the minerals demised and the exact income could not be known until accounts were furnished by the lessee, the defendant prayed for a decree for accounts from January 1, 1926, and for a decree for the sum found due on such accounts. As the suit was brought on August 12, 1941, the period prior to August 12, 1935, would prima facie be barred by limitation. According to the plaintiff limitation was saved by the acknowledgments that had been made from time to time by the then Receiver of the estate. Two defence were raised by the Receiver who was the only contesting defendant. The first was that the lessor had dispossessed him from part of the leasehold property and so there ought to be total suspension of rents and royalties. The second defence was as regards the claim for the period prior to August 12, 1935. It was pleaded that the letters which are claimed to have acknowledged the liability did not in law amount to acknowledgment of liability and that in any case the alleged acknowledgments 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.2. Though the written-statement itself did not in terms mention the nature of the lessees dispossession from the leasehold property the definite case at the trial was that this dispossession was in respect of minerals which had been specifically excluded from the earlier lease of 1900 but according to the defendant included in the later lease. One of the main questions in the appeal is whether the minerals specifically excluded in cl. 16 of the earlier lease were demised to the lessee by the later lease of 1919. Of the several issues that have been framed we are therefore 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 plaintiffs 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 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 plaintiffs liability within the meaning of S.19 of the Limitation Act. With regard to the period from 1935 to 1941, regarding which no question of limitation arose the Subordinate Judge gave a decree of rendition of accounts and for payment of such amounts a 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 termsdefendant is hereby directed to assess and state the amount due under the lease in suit out of the aid sum of Rs. 67,459-3-3 on the basis of the accounts of his office ............. in respect of the plaintiffs dues within two months from this date, failing which a Commissioner will be appointed to take accounts and ascertain the amount due to the plaintiff, and the defendant shall be liable for the costs of the same.Against this decree the contesting defendant, the Receiver appealed to the High Court of Judicature at Patna. Before the appeal court two points were raised. The first was that on a proper construction of the 1919 lease it should be found that the minerals specifically excluded in clause 16 of the earlier lease were included in the 1919 lease and consequently, the lessee having granted certain leases to other parties in respect of these minerals in the areas 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, 1935.4. 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, tortuous and that these condition had not been established in the present case. On the second question, the learned judges a 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.5. 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.

Reasoning: 12. 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 this 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 it if 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.13. The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be cut down by a later clause. Where there is ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantors document it has to be interpreted strictly against him and in favour of theis in our opinion unthinkable that such a clause as this fourth clause would be included in respect of sub-lessees unless it was also the intention of the parties that the lessee himself would be bound by the provisions of cl. 16 of the principal lease. The view that this must have been the intention is strengthened by the concluding words of this lease which provide in substance that notwithstanding anything in the later lease the principal lease would be valid and subsisting. Here also there would be no point in saying that the principal lease would be valid and subsisting as regard 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 arguments to what would prevail. But for some apprehension in the mind of the grantor perhaps on account of cl. 6 that there might be some scope of difference as regards the metals and minerals mentioned an 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.15. 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.The second contention urged by the learned counsel is that in any case acknowledgment by the Receiver of an estate is not an acknowledgment by an agent of the owners of the estate "duly authorised in this behalf" within the meaning of Explanation II of S. 19 of the Limitation Act, and so is not an acknowledgment within the meaning of S. 19(1) of the Limitation Act.The above is a brief indication of the arguments on either side on Mr. Jhas contention that the Receiver has no authority to acknowledge the 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.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 derive his liability to pay the debts. 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 plaintiff to the second part of Explanation II.This position was indeed fairly conceded by Mr. Jha who agreed that in view of this it was not necessary for us to decide whether the Receiver of an Estate is by that fact itself an agent of the owners of the estate duly authorised to make acknowledgments under S. 19 of the Limitation Act.29. 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, 1953. The Courts below were therefore right in rejecting the defendants plea of limitation.