LexKHAN BAHADUR SHAPOOR FREDOOM MAZDA versus DURGA PROSAD CHAMARIA AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
Morch I. 140 SUPREME COURT REPORTS [1962] KHAN BAHADUR SHAPOOR FREDOOM MAZDA v. DURGA PROSAD CHAMARIA AND OTHERS (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.) Limitation-Computation of fresh period of limitation-Leiter written by mortgagor to mortgagee-If acknowledgment of liability- Indian Limitation Act, 1908 (9 of 1908), s. 19. In a mortgage suit brought by him, the respondent I, the mortgagee, pleaded that limitation was saved by a letter written to him by the mortgagor, the respondent 2, which amounted to acknowledgment under s. rg of the Indian Limitation Act. There was a prior mortgage and before writing the letter in question the mortgagor had written another letter appealing to respon- dent r to save the property from being sold at the instance of the prior mortgagee. Thereupon the respondent No. I paid the required amount and the threatened sale was averted. The pro- perty was again advertised for sale and that was why the letter in question was written; it ran as follows,- "Chandni Bazar is again advertised for sale on Friday the rrth instant. I am afraid it will go very cheap. I had a private offer of Rs. 2,75,000 a few days ago but as soon ·as they heard it was advertised by the Registrar they withdrew. As you are interested why do not you take up the whole. There is only about 70,000 due to the mortgagee-a payment of Rs. rn,ooo will stop the sale". The question was whether this letter amounted to an acknow- ledgment of the respondent r"s right as mortgagee under s. rg of the Indian Limitation Act. The trial Judge he.Id that it did not, but the Court of appeal took the contrary view. The auction- purchaser appealed to this Court. Held, that it was obvious that the interest mentioned in the letter in the context of the previous one was none other than that of respondent r· as a puisne mortgagee and the appeal to take up the whole meant the entirety of the mortgagee's interest including that of the prior mortgagee; Since admittedly the only subsisting relation between the parties at the date of the letter was that of mortgagee and mort- gagor and the letter acknowledged the existence of that jural relationship, it clearly amounted to an acknowledgment under s. 19 of the Act. Held, further, that the essential requirement for sustaining a plea of acknowledgment under s. rg of the Act is that the statement on which it is sought to be founded must relate to a .. I- • I S.C.R. SUPREME COURT REPORTS 141 subsisting liability, indicate the existence of the jural relation- ship between the parties and must be intended, either expressly Kh 8 h d or impliedly, to admit that i·ural relationship. Sh pan Fa ailur a oor te oom The words used in a particular statement must be construed Mazda in the light of its own tenor and according to the context and v. unless the words used are identical and the interest is similar, Durga Prosad previous decisions interpreting somewhat similar documents are Chaniaria & Ors. not of much help. Green v. Humphreys, (r884) 26 Ch. D. 474, referred to. Beti Maharani v. Collector of Etawah, (1894) LR. 22 I.A. 31, Sukhamoni Choudhrani v. lshan Chunder Roy, (1897) L.R. 25 I.A. 95, Munshi Lal v. Hira Lal, I.LR. 1947 All. rt and Swaminatha Odayar v. Subbarama Ayyar, (1927) I.LR. 50 'llad. 548, considered. Dharma Vithal v. Gov\nd Sadvallwr, (1881) I.LR. 8 Born. 99, held inapplicable. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 77 of 1957. Appeal from the judgment and decree dated the August 6, 1954, of the Calcutta High Court in Appeal from Original Decree No. 73 of 1952. M. C. Setalvad, Attorney-General for India, W. S. Barlingay and A. G. Ratnaparkhi, for the appellant. A. V. Viswanatha Sastri and P. K. Chatterjee, for respondent No. 1. 1961. March 1. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal arises from a Gajenil,.gadkar J. suit filed by respondent 1 Durga Prosad Chamaria against respondent 2 the heirs of John Carapiet Gal- staun and others in which he sought to recover Rs. 4,64,213-5-3 on the mortgages in suit. He had prayed for a preliminary mortgage decree according to 0. XXXlV, r. 4 of the Code of Civil Procedure and had asked for the appointment of a receiver in that behalf. The said mortgages were created by delivery of documents of title to immovable properties by the mortgagor John Carapiet Galstaun who died pending the suit. The properties mortgaged consisted
Excerpt shown. Read the full judgment & AI analysis in Lexace.