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Raja Maharaj Kumar Satya Niranjan Chakravarti And Others v. Ram Lal Kaviraj And Others

Privy Council

Nov 25, 1924

Judgment

Subsequent
References

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Structured Summary of the Legal Opinion (as provided)

Factual and Procedural Background

The action concerns the right to minerals in the Mauza of Sultanpur. The plaintiffs are the Zamindars of a Zamindari that includes the Mauza; the defendants are the putnidars and darputnidars of that Mauza. The defendants have been working the mines on a large scale since 1894 and to the knowledge of the plaintiffs since 1898. The suit was instituted in 1915.

Defendants relied on three defences: (1) as putnidars they possess all zamindari rights appertaining to the territory unless exceptions were expressed and no exception for minerals was expressed; (2) the putni lease expressly gives them the right to the minerals; and (3) the suit is time-barred under article 120 or article 144 of the schedule to the Limitation Act. The Subordinate Judge decided against the defendants on all three points and gave decree for the plaintiffs. On appeal the High Court of Patna affirmed the Subordinate Judge on the first point, reversed on the second (holding the lease did give rights to the minerals), and — because they were in favour of defendants on the second — dismissed the suit. The matter was then taken on appeal to this Board.

Legal Issues Presented

Whether, as putnidars in possession under the putni lease, the defendants are in possession of all the zamindari rights appertaining to the territory embraced in the putni lease unless exceptions have been expressed (i.e., does a putni tenure, without more, transfer all zamindari rights including minerals?).
Whether the putni lease (the Deed of Patni Settlement) expressly grants to the putnidar the right to the minerals (including whether the grant's words such as "below and above (the surfaces)" and terms like "adha" and "urdha" are effective to convey minerals and the right to work them).
Whether the suit is barred by limitation under article 120 or article 144 of the schedule to the Limitation Act (i.e., whether the plaintiffs' possessory and/or declaratory reliefs are time-barred given the defendants' long adverse working of the mines).

Arguments of the Parties

Defendants' (as presented in the opinion) — stated defences

The putnidars, being in possession under a putni lease, possess all zamindari rights appertaining to the territory unless exceptions are expressed; no exception of minerals was expressed.
The putni lease in express terms gives them the right to the minerals.
The plaintiffs' suit is barred by limitation under article 120 or article 144 of the Limitation Act.

Appellants' (counsel) contentions (as the opinion records)

S. 108(o) of the Transfer of Property Act resolves the question in favour of the appellants (the opinion characterises this contention as advanced by appellants' counsel and rejects it as impossible).
A right to the minerals does not necessarily infer a right to work (i.e., the grant of mineral ownership does not ipso facto include the right to work and thereby injure the surface); the appellants relied on the general rule "quando aliquid conceditur id etiam conceditur sine quo res ipsa non esse poterit" but contended that a grant of the mineral need not include an ancillary right to work in all circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For (as stated in the opinion)	Application by the Court (how the opinion used or treated the precedent)
Tituram Mukerji v. Cohen (1906) 33 Cal 203; 32 IA 185	One of a series of decisions holding that to pass minerals to a lessee in certain tenures, express words are required; specifically identified here as a case of a maintenance grant which did not include minerals.	The Board listed it among cases supporting the proposition that express words are needed to pass minerals. Later the Board observed it concerned a maintenance grant, not a putni tenure, and therefore is not directly determinative of the putni question.
Hari Narayan Singh v. Sriram Chakravarti (1910) 37 Cal 723; 37 IA 136	Part of the line of cases said to show minerals are not transferred without express words; identified as a debottar tenure case.	Cited as part of the series; the Board noted it concerned a debottar tenure and therefore is not a direct decision on putni tenures.
Durga Prasad Singh v. Braja Nath Bose (1912) 39 Cal 696; 39 IA 133	Included among the authorities said to require express words to pass minerals; identified as a lease held as the appanage to the office of Digwar.	Listed by the Board among relevant precedents but identified as not being a putni-tenure decision; the Board treated these authorities as not directly resolving the putni question.
Sashi Bhushan Misra v. Jyoti Prasad Singh Deo AIR 1916 PC 191; 44 Cal 585; 44 IA 46	Part of the series; identified as a Brahmottar tenure case (grant to Brahmins for their support) and included in the proposition requiring express words for minerals.	Included in the list; the Board observed it concerned Brahmottar tenure and therefore did not decide the specific question of putni tenures.
Giridhari Singh v. Megh Lal Pandey AIR 1917 PC 163; 45 Cal 87; 44 IA 246	One of the Mokurari/lease decisions cited for the express words principle; identified specifically as an ordinary Mokurari lease.	Listed among the precedents. The Board later noted Lord Shaw's dicta in this case were quoted, but that they did not determine the putni-tenure question; the Board considered that Lord Shaw's statements did not resolve whether a putni lease carries all zamindari rights.
Raghunath Roy Marwari v. Raja of Jheria AIR 1919 PC 17; 47 Cal 95; 46 IA 158	Included in the group of authorities supporting the need for express words; identified as a Brahmottar tenure case.	Listed by the Board; again observed to concern Brahmottar tenure and thus not dispositive of the putni-tenure issue.
Nawab Sir Ali Quader Syed Hussein Ally Mirza Bahadur v. Rai Jagendra Narain Roy (1912) 16 C LJ 7; 16 IC 441	Earlier decision (by other Courts) concerning putni-tenure issues; the High Court had relied upon it, but the Board notes it conflicts with the series of Privy Council decisions cited above.	The Board stated that this decision is in conflict with other Courts' decisions and that whether it or those other decisions are right must remain for settlement on another occasion; the Board did not treat it as overruling the Privy Council cases and did not accept that the Privy Council decisions overruled Nawab Sir Ali.

Court's Reasoning and Analysis

The Board outlined the three principal questions raised on the appeal but proceeded to dispose of the case on the second and third questions.

Analysis on the Third Question (Limitation)

The Board examined the nature of the relief claimed by the plaintiffs, which was both possessory and declaratory. The plaintiffs asked "that it should be declared that the plaintiffs are entitled to and are in possession of the underground rights of the said Mauza." The Board explained the limitation dilemma:

If the suit is possessory (i.e., asserting possession against adverse possession), it is barred under article 144 of Schedule I to the Limitation Act because the defendants had worked the mines on a large scale for more than 12 years and the plaintiffs' suit was instituted more than 12 years after such adverse possession began.
If the suit is purely declaratory, it is barred under article 120 because more than six years had elapsed since the plaintiffs' right to sue for a declaration had emerged.

Accordingly, on limitation grounds alone the plaintiffs' claim failed.

Analysis on the Second Question (Construction of the Deed / Whether minerals were granted)

The court analysed the Deed of Patni Settlement, which granted the Mauza to the putnidar and included a long catalogue of the things to be held "from a very long time" and concluded by saying the grantee would hold "all rights and interests appertaining to all such things lying within the four boundaries and above and below (the surfaces)." The Subordinate Judge had regarded words like "adha" and "urdha" as mere stylistic surplusage and refused to give them effect.

The Board found that approach mistaken: words that are not surplusage must be given their proper effect. Looking at the "anxious expression of the generality of the grant" evidenced by the long list of things conveyed, the Board agreed with the High Court that the terms (including "adha" and "urdha") plainly indicated an intention to convey rights "below the surface" as well as above it. On that basis the Board agreed that the deed conveyed the underground rights.

On the Relevance of Authorities and the Putni-tenure Question

The Board acknowledged a line of Privy Council decisions and other authorities which have held that, for many tenures (Mokurari, Brahmottar, debottar, maintenance grants, etc.), minerals are not deemed to pass unless expressly conveyed. The Board recited the series of cases that held express words were required to transfer minerals.

However, the Board also analysed the specific nature of those precedents and noted they each concerned particular tenures (maintenance grant, debottar, appanage to an office, Brahmottar, Mokurari lease) rather than a putni tenure. The Board concluded that, so far as direct decisions of the Board are concerned, the question whether a putni tenure, without more, transfers all zamindari rights (including minerals) remains open. The Judges of the High Court had treated the earlier series as applicable to putni tenures; the Board said that view could not be accepted as a settled principle for putni tenures.

On the Transfer of the Right to Work and on S.108(o) of the Transfer of Property Act

The appellants argued that S. 108(o) of the Transfer of Property Act settled the question; the Board rejected this contention as impossible in context. The Board explained that S.108(o) deals with ordinary lessee rights but that it would be absurd to construe the section so as to cut down express terms of a private grant conveying minerals. The Board emphasised that an Act of the legislature must prevail over private action only within its proper sphere; it would be absurd to hold that S.108(o) nullified an express grant of mineral rights.

On the related point whether the right to minerals infers a right to work them, the Board accepted the general principle that a grant implies such ancillary rights as are necessary for enjoying the thing granted when the grantor and grantee are the parties. The Board observed that difficulties could arise as between grantee and third parties where a grantee of minerals does not also hold the surface. In this case, however, the grantee of the mineral was also the grantee of the surface, and the Board concluded that the grant of the minerals to the grantee (who also held the surface) included the right to work the minerals.

Disposition of the Remaining First / General Question

Because the Board's conclusions on the second (deed construction) and third (limitation) questions disposed of the appeal, they refrained from deciding the broader, first question categorically (whether putni tenure without more transfers all zamindari rights). They expressly left that larger question open for future resolution, noting conflicting authorities and indicating that it was unnecessary to decide it for the present appeal.

Holding and Implications

Holding: The Board advised that His Majesty should dismiss the appeal with costs. APPEAL DISMISSED.

Direct implications (as stated in the opinion):

The Board affirmed the High Court's judgment on the second question (construction of the deed) and on the limitation issue in the sense that the appeal was dismissed on those grounds; the pleadings and deed were construed so as to include underground rights under the deed's language and the plaintiffs' remedy was time-barred.
The appeal was dismissed with costs.

Broader implications and precedent:

The Board did not lay down any new, definitive rule resolving whether a putni tenure, without express additional words, transfers all zamindari rights (including minerals). The court expressly left that question open.
The Board declined to accept that the series of Privy Council decisions cited had been applied or extended to settle the putni-tenure question; it treated those cases as concerning different tenures and therefore not necessarily determinative of the putni issue.

Note: This summary is confined strictly to the content and reasoning contained in the provided opinion. No additional facts or external inferences have been added.

Show all summary ...

Lord Dunedin:-

The present action is as to the right to the minerals in a Mauza at Sultanpur. The plaintiffs are the Zamindars of a Zamindari within the bounds of which the said Mauza lies. The defendants are the putnidars and darputnidars of the said Mauza. The defendants are working, and, as the High Court have found - as to which finding no dispute has been raised before this Board - have worked the mines on a large scale since 1894 and to the knowledge of the plaintiffs since 1898.

The present suit was raised in 1915. The defendants rely upon three sepa rate defences. First, they say that being putnidars they are in possession of all the zamindari rights appertaining to the territory embraced in the putni lease unless exception has been expressed, and that no exception of minerals was express ed. Secondly, they say that the putni lease gives them the right to the minerals in express terms. Thirdly, they say that the suit is barred either under article 120 or article 144 of the schedule to the Limi tation Act.

The learned Subordinate Judge decided all three questions against the defendants and gave decree. On appeal the High Court of Patna affirmed the view of the Subordinate Judge on the first question, but reversed it on the second. It is some what difficult to say whether they affirmed or reversed on the third, but, as they were in favour of the defendants on the second, they dismissed the suit.

On appeal to this Board all these ques tions have been argued at great length, and it has been urged that the first ques tion is one of very general importance. Their Lordships, however, think that the case may be disposed of on the second and third questions. To take the third question first, the relief asked by the plaintiff's was at once possessory and declaratory, for they ask

"that it should be declared that the plaintiffs are entitled to and are in possession of the underground rights of the said Mauza."

Their Lordships think that they are placed in this dilemma.

The suit is admittedly raised more than 12 years after the working of the minerals on a large scale, that is to say a proper working of the field. It must be assumed for the purposes of this plea that the plain tiffs are right on the first and second points. The working by the defendants was, therefore, working not under a lease, but by a mere trespasser. If, therefore, the suit is possessory, then it is barred under article 144 of schedule 1, for more than 12 years have elapsed since the possession became adverse.

If, on the other hand, the suit is decla ratory, it is barred under article 120, for more than 6 years have elapsed since the right to sue for the declaration emerged.

Further, their Lordships agree with the High Court on the second question. This depends on the document of title. It runs as follows :

DEED OF PATNI SETTLEMENT.

" We let out to you in Mofussail Putni settlement the Mauza Sultanpur, as per boundaries given in the Thakbasta papers, appertaining to Taraf Afzalpur and com prised in our Zamindari share, amounting to 4 annas in Tappa Kuntahit Karaya, excluding the Chakran Jagir, Debotar, Brahmotar and other extra lands, etc., and the Katai Jungles included in Tikish (?) at an annual rental of Rs. 25 in Company's coin and a premium of Rs. 45 in Company's coin. You will hold possession of all the lands appertaining thereto from a very long time, such as Mal, Khamar, Hasil, Patir, Bil, Jhil, Khal, Kandar, Pahar and Parbat, Jalkar, Falkar, the fruit-bearing and non-fruit-bearing trees and the Jungles and all rights and interests appertaining to all such things lying within the four bounda ries and above and below (the surfaces). You will not be ousted from the Zamindari."

There have bean a series of cases before this Board in which their Lord ships have held, in the case of leases of Mokurari and other tenures, that, in order to pass minerals to the lessee, ex press words must be used. They are :

Tituram Mukerji v. Cohen (1906) 33 Cal 203 : 32 IA 185 : 2 CLJ 408 : 9 CWN 1703 : 15 MLJ 379 : 7 Bom LR 920 : 3 ALJ 59 : 8 Sar 908 (PC). Hari Narayan Singh v. Sriram Chakravarti (1910) 37 Cal 723 : 37 IA 136 : 14 CWN 746 : 11 CLJ 653 : 7 ALJ 633 : 20 MLJ 569 : 12 Bom LR 495 : 8 MLT 51 : 6 IC 785 : (1910) MWN 309 (PC). Durga Prasad Singh v. Braja Nath Bose (1912) 39 Cal 696 : 39 IA 133 : 16 CWN 482 : (1912) MWN 425 : 11 MLT 337 : 9 ALJ 462 : 15 C LJ 461 : 14 Bom LR 445 : 15 IC 219 : 23 MLJ 26 (PC). Sashi Bhushan Misra v. Jyoti Prasad Singh Deo AIR 1916 PC 191: 44 Cal 585 : 44 IA 46 : 1 Pat LW 361 : 21 CW IN 377 : 15 A LJ 203 : 32 M LJ 245 : (1017) MWN 226 : 25 C LJ 255 : 21 M LT 305-19 Bom LR 416 : 6 LW 2 (PC). Giridhari Singh v. Megh Lal Pandey. AIR 1917 PC 163: 45 Cal 87 : 44 IA 246 : 7 LW 90 : 3 Pat LW 169 : 26 C LJ 584 : 22 CWN 201-22 MLT 358 : 33 MLJ 687 : 15 ALJ 851 (PC). Raghunath Roy Marwari v. Raja of Jherix AIR 1919 PC 17: 47 Cal 95 : 46 IA 158 : 17 ALJ 597 : 36 MLJ 660 : 23 CWN 914 : 26 M LT 76 : 30 C LJ 160 : 21 Bom LR 895 : 10 LW 347 (PC). Both the Subordinate Judge and the Judges of the High Court have decided that these cases equally apply to putni tenures. With out so deciding, this must be assumed for the purpose of deciding the second ques tion.

The Subordinate Judge thought that such words as " adha " " urdha " " Hadud Mahdud" were mere words of style commonly used by writers of deeds with out a proper understanding of their meaning, and therefore, refused to give any effect to them.

This seems a mistaken view. Common words of style used in conveyances of any sort may be, and often are, words of surplusage, but when they are not words of surplusage, they must be given the proper effect of their own meaning. This view was taken by the High Court. They thought that, looking to the anxious expression of the generality of the grant as evidenced by the long category of things conveyed, the words " adha " and urdha " made it plain that there was every intention to convey all below the surface as well as all on it or above it. With this view their Lordships agree.

Two more contentions of the appellants must, however, be stated in order to be set aside. Their counsel argued that S. 108 (o) of the Transfer of Property Act settled the question. Their Lord ships consider this an impossible conten tion. The meaning of the section is clear enough. It is obviously dealing with the ordinary rights of a lessee, in an ordinary lease but it would be nothing less than an absurdity to hold that its terms cut down the right to work a mineral field expressly conveyed. Even if the words " with leave to work " were added, the words of the section, if taken literally and as of uni versal application would prevail, because an Act of the legislature must prevail against private action.

They further argued that a right to the minerals does not infer a right to work. It is a general principle of all grants quando aliquid conseditur id etiam conseditur sine quo res ipsa non esse potesti. This is always true as between grantor and grantee, but it does not necessarily apply as against third parties.

If the grantor has granted the surface to A and the minerals to B, it may well be that the mere grant of the mineral will not include a right to bring down on otherwise injure the surface in the process of winning the mineral. But her there is no question of that sort. This grantee of the mineral is also the grantee of the surface.

Their Lordships have, therefore, no hesitation in saying that this grant of the minerals, is a question with the grantor, which is the only question here, included the right to work. Such being their Lordship's views, which directly lead to an affirmance of the judgment of the High Court, they would, in ordinary circums tances, have said no more as to the first and general question of whether a putni tenure, without more said, transfers, as has been contended by the respondents, all the rights of the Zamindari, including the right to the minerals.

There is admittedly conflicting autho rity on the point, but the learned Sub ordinate Judge, and also the Judges of the High Court, considered that the authorities in favour of the putnidar were overruled by the decisions of the Board in the series of cases mentioned above.

Their Lordships cannot agree with that view. Tituram Mukerji v. Cohen (1906) 33 Cal 203 : 32 IA 185 : 2 CLJ 408 : 9 CWN 1703 : 15 MLJ 379 : 7 Bom LR 920 : 3 ALJ 59 : 8 Sar 908 (PC) was the case of a maintenance grant. This was held not to include minerals. Hari Narayan Singh v. Sriram Chakravarti (1910) 37 Cal 723 : 37 IA 136 : 14 CWN 746 : 11 CLJ 653 : 7 ALJ 633 : 20 MLJ 569 : 12 Bom LR 495 : 8 MLT 51 : 6 IC 785 : (1910) MWN 309 (PC) was debottar tenure. Durga Prasad Singh v. Braja Nath Bose (1912) 39 Cal 696 : 39 IA 133 : 16 CWN 482 : (1912) MWN 425 : 11 MLT 337 : 9 ALJ 462 : 15 C LJ 461 : 14 Bom LR 445 : 15 IC 219 : 23 MLJ 26 (PC) was the case of lease held as the appanage to the office of Digwar. Sashi Bhushan Misra v. Jyoti Prashad Singh AIR 1916 PC 191: 44 Cal 585 : 44 IA 46 : 1 Pat LW 361 : 21 CW IN 377 : 15 A LJ 203 : 32 M LJ 245 : (1017) MWN 226 : 25 C LJ 255 : 21 M LT 305-19 Bom LR 416 : 6 LW 2 (PC) was the case of a Brahmottar tenure, which means that was a grant to Brahmins for their support, Girdhari Singh v. Megh Lal Pandey AIR 1917 PC 163: 45 Cal 87 : 44 IA 246 : 7 LW 90 : 3 Pat LW 169 : 26 C LJ 584 : 22 CWN 201-22 MLT 358 : 33 MLJ 687 : 15 ALJ 851 (PC) was an ordinary Mokurari lease. Raghu nath Roy Marwari v. Raja of Jheria AIR 1919 PC 17: 47 Cal 95 : 46 IA 158 : 17 ALJ 597 : 36 MLJ 660 : 23 CWN 914 : 26 M LT 76 : 30 C LJ 160 : 21 Bom LR 895 : 10 LW 347 (PC) was again a case of Brahmottar tenure. Not one of these was the tenure of a putnir taluk in the hands of a putnidar. In their opinion the question, so far as direct decisions of this Board are concerned, is still open. It really turns on what is the true nature of a putni tenure. Their Lord ships think that the learned Judges have been misled by a wrong view of expres sions used by Lord Shaw in Giridhari Singh v. Megh Lal Pandey AIR 1917 PC 163: 45 Cal 87 : 44 IA 246 : 7 LW 90 : 3 Pat LW 169 : 26 C LJ 584 : 22 CWN 201-22 MLT 358 : 33 MLJ 687 : 15 ALJ 851 (PC) when quoting the judgment of Lord Buckmaster.

His Lordship says :-

"The decisions establish that when a grant is made by a Zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect."

But that only means that the mere fact of a lease being permanent, transferable, and heritable does not necessarily carry with it the result that the lessee has all Zamindari rights. His Lordship was deal ing with a contention founded on Mokurari leases. The passing of a Mokurari lease doss not, says he, have the effect that all rights of a Zamindar go with it, but his Lordship did not mean to say and did not say

"because a permanent lease does not entail that effect, therefore, inasmuch as a putni lease is a permanent lease, it does not entail that effect."

That question was not before him and was not decided. Their Lordships do not decide it now as it is not necessary for the judgment, nor do they wish to express any opinion on the matter save one, viz., that they do not agree with the dictum of the High Court which says that the judgment of Prinsep and Hill, JJ. in the case of Nawab Sir Ali Quader Syed Hussein Ally Mirza Bahadur v. Rai Jagendra Narain Roy ( 1912) 16 C LJ 7 : 16 IC 441 has been over ruled by the decisions of this Board above cited. That decision is in conflict with the decisions of other Courts in India, and whether it or those other decisions are right must remain for settlement on another occasion.

Their Lordships will humbly advise His Majesty to dismiss the appeal with costs.

Appeal dismissed.