Megh Lal Pandey v. Raj Kumar Thakur Giridhari Singh

Rampini, J.:— This appeal arises out of a suit brought by the Plaintiff-Respondent to obtain a declaration that the Defendants have no underground or mineral rights in certain land leased to them by a mokurari lease, to have a perpetual injunction issued against them forbidding them to raise coal in this land and for damages. The facts are, that in July 1865 the Plaintiff granted to the Defendants a mokurari lease of the whole of the village of Baramasia, excepting some preserved jungle, at an annual rent of Rs. 59, 2 seers of ghee and one goat and on payment of a bonus of Rs. 59. Coal has recently been discovered in this land and the Defendants have opened out coal pits in it and have been raising coal from them. Hence the suit. The Subordinate Judge has decreed the suit in favour of the Plaintiff granting him all the reliefs prayed for.

The Defendants appeal and urge that the learned Subordinate Judge's decree is wrong and that he has misconstrued the terms of the lease. Reliance is placed by the Appellants on two cases recently decided by this Court, viz., Sriram Chakravarti v. Hari Narain Singh Deo and Shama Charan Nandi v. Abhiram Goswami.

It would certainly seem to me that the learned Subordinate Judge has misconstrued the terms of the Defendant's lease. It must be mentioned that there is an omission in the translation of the lease, as printed at p. 6 of the paper-book. This translation of the lease omits to render the vernacular words “mai huh hukuk” which occur in the original. Hence, the terms of the lease should run,— “I settle in mokurari the whole of the Mouzah Baramasia with all rights” &c. Now the lease, including these words, would seem to convey to the lessees all the lessor's rights and interests in the land demised including subsoil rights and, in short, to be a permanent lease. The learned Subordinate Judge has placed much reliance on a clause in the lease to the effect, “If you do not pay the rent according to the different instalments every year, the mokurari will be cancelled at the end of the year.” The learned Subordinate Judge observes: “the above terms clearly show that the mokurari may cease at any time and that the Plaintiff has a right of re-entry.” The Subordinate Judge then goes on to say that in his opinion “the Defendants' mokurari is of a temporary and qualified character and that it did not pass the underground and mineral rights.”

I cannot, however, agree with him on this point. It would seem to me that the clause referred to merely provides for the forfeiture of the mokurari tenure, if the annual jama, is not paid, but that it does not affect the permanency of the tenure as long as the annual rent is paid.

Hence, in accordance with the two recent rulings of this Court above referred to the tenure in dispute being of a permanent nature, the lessees are entitled to the subsoil rights. The subject of the passing of subsoil rights on the granting of a permanent lease is fully discussed, in the decision in the former of these cases, and I have nothing to add to what has there been said.

On the other hand, the Respondent relies on the following decisions, viz., In re Purmanandas Jeewandas, Prince Mahomed Buktyar Shah v. Rani Dhojamani, Tituram Mukerjee v. Cohen and Grish Chandra Coondoo v. Shrish Chandra Das. In the first of these cases, the lease was one for a term of years and was not of a permanent nature. In the cases of Mahomed Buktyar Shah v. Dliojamani and Tituram Mukerjee v. Cohen, the leases relied on were only life-grants and the lessees life-tenants. In the latter case, moreover, the lease was a jungle buri or agricultural lease. In the last-mentioned case, the lessee was the holder of a small area of 5 kanis of land, and it was decided that though he had a right to make excavations in the land had he had no right to cause substantial injury to it, so as to destroy it. It is not said or shown in this case that the Defendants are doing anything which is likely to cause the total destruction of the subject of their lease.

The Respondent's pleader further relies on the provisions of sec. 108, cl. (o) of the Transfer of Property Act, which lay down that, subject to contract or local usage, a lessee may not work mines or quarries not open when the lease was granted. The Appellant's pleader, on the other hand, points out that the lease in this case was executed long before the passing of the Transfer of Property Act and that in any case, the words in the lease “mai huh hakuk” (“with all rights”) constitute a contract giving to the lessees all the lessor's rights of any kind.

The Respondent's pleader endeavours to meet the first of these arguments by contending that the lessor's right to the minerals only arose under a Despatch from the Secretary of State, No. 35 of the 25th March 1880, in which it is said that the Secretary of State will make no claim to the rights to minerals in permanently settled estates. This Despatch, therefore, does not purport to confer on the zemindars any right to minerals which they did not possess before. In the second place, the Despatch has not been produced as an exhibit in this case. The Respondent's pleader has read its terms to us from the paper-book in Regular Appeal No. 490 of 1904, but from the Government of India letters printed in that paper-book, it would seem that this Despatch has never been published in any official Gazette, but that a copy of it was only privately supplied to one of the litigants in that case. We are, therefore, not entitled in this appeal to refer to the terms of this Despatch, even if it in any way supported the Respondent's pleader's argument, which it does not. But the contention that whether the terms of sec. 108, cl. (o) of the Transfer of Property Act are applicable or not, it must be held that the words “mai huh hakuh” convey to the Defendants in this case all the lessor's rights in the lands, including the right to work minerals, must in my opinion prevail. They show that the lessor made no reservation of any right when he granted the lease, but on the contrary, conveyed all his rights permanently to the Defendants. It is true that at the time of the execution of the lease neither lessor nor lessee had any idea that there was coal underneath the land and therefore executed the lease without any intention of granting or accepting the right to raise the minerals, but the terms of the contract are so wide as to cover the right to work minerals, and so the Plaintiff is not now entitled to prohibit the Defendants from using the land as they have been doing.

I would therefore decree this appeal with costs.

Mookeejee, J.:— On the 10th July 1865, the Plaintiff-Respondent executed in favour of the predecessor of the Appellants a mokurari pottah of Mouzah Baramasia. On the 7th December 1904, he commenced the action out of which this appeal arises, for declaration that the lease in question is a settlement of the surface rights of the property, that the Defendants have no right to the coal and other minerals underneath the surface and that the Plaintiff is entitled to possession of the minerals. The Plaintiff also asked for damages and for a perpetual injunction to restrain the Defendants from raising the coal. The Defendants resisted the claim on the ground, amongst others, that under the lease they have acquired a right to the minerals. The Subordinate Judge held upon the oral evidence, that at the time of the grant of the lease the existence of the coal was not known to either party, that it was not the intention of the lessor to grant the mineral rights to the lessee, and that the Defendants had not acquired any right therein. In this view of the matter, he made a decree in favour of the Plaintiff. The Defendants have appealed to this Court and on their behalf the decision of the Subordinate Judge has been assailed on the grounds, that upon a true construction of the lease, it ought to have been held that the mineral rights passed under the deed to the grantee, and as there is no ambiguity in the deed, it was not open to the Court below to limit the plain meaning of its terms by oral evidence. In my opinion these contentions are well-founded and must prevail.

The solution of the question raised before us depends upon the construction of the lease of 1865. It was pointed out that the translation given in the paper-book was not quite correct and the following translation was adopted by both the parties as an accurate version of the vernacular original: “I settle in mokurari the whole of Mouzah Baramasia with all rights, as per boundaries given below, appertaining to my zemindari, the third kismat, Pargana Nawagurh, which is in my possession, together with beel, jheel, orchards, tanks, cultivated lands, with dangas, bheeta (homestead) and jhari jungle standing on the same, with the exception of the rakh (preserved) jungle lying to the south of the road of jugia bheeta, and extending up to the Koruru doba jure, which I keep in my khas possession, at an annual jama of Rs. 59 and 2 seers of ghee and one goat and by accepting Rs. 59 as the bonus proportionate to the fixed rent of Rs. 59. You shall enjoy and hold possession of the aforesaid village with your sons and grandsons at your full bliss on payment of the said amount of rent to me every year according to the following instalments. If you do not pay the rent according to the different instalments every year, the mohurari will be cancelled at the end of the year. You shall not get abatement of rent on the plea of inundation, drought and the land remaining waste. You shall be entitled to the extra collections which will be realized in the village and you shall take the prices of the trees of the same by cutting and selling them to which I shall not have any right. There will never be any increase in this rent. If I or my heirs raise any objection, the same will be disallowed. To this effect I execute this mohurari pottah on receiving Rs. 59 in cash. Dated the 27th Ashar, 1272.” It will be observed, first, that the lease was of the whole village Baramasia except a specified portion, namely, the preserved jungle; secondly, that the grant was expressly of all rights of the grantor in the village; thirdly, that the grant was in perpetuity inasmuch as the property was to be held by the grantee, his sons and grandsons; fourthly, that the rent was fixed in perpetuity and fifthly, that the grantor had the right to cancel the lease for non-payment of rent. The grantor, therefore, clearly parted with all his rights in favour of the grantee for all time to come for a fixed rent, subject to a possibility of re-entry in the event of forfeiture for non-payment of rent. Under these circumstances, I think it must be held, that the grant was not merely of the surface rights, but also passed the right of the grantor in the underground minerals. It is well established that a contract to sell or grant a lease of land will generally include the entire solum from the surface down to the centre of the earth, and will, therefore, include the mines, quarries and minerals beneath or within it. [See the observations of Sir John Romilly, M.R, in Kerr v. Pawson(7), and those of Sir Richard Kindersely, V.C, in Williamson v. Wootton(8)]. Similarly, a conveyance of land is, primâ facie, a conveyance of the entire solum from the surface down to the centre. [See the observations in Harris v. Ryding(9), Spoor v. Green(10) and Earl of Jersey v. Guardians of the Poor of Neath Poor Law Union(11)]. In the case last-mentioned, Lord Esher observed, that if the conveyance was of all the lands, if there was no reservation, that would carry all the minerals within the ambit. Indeed, so strong is the presumption that a conveyance of land carries with it the minerals, that it has been held that a purchaser need not disclose the existence of a mine, unknown to the vendor which increases the value of the property itself. [See Fox v. Mackreth(12)]. The principle upon which this presumption is raised appears to be that minerals in place or undisturbed in the position where they have been deposited by the agencies of nature; are a part of the land, and belong to the owner of the soil; although, therefore, minerals in the ground are capable of severance or separation of ownership from the soil, and when so severed are independently and separately inheritable and capable of transfer, yet when there has not been such separation, and a reservation, they will pass, if all the rights of the owner are transferred. [See Adam v. Briggs Iron Co.(13), in which it was held that primâ facie the owner of freehold lands is entitled to all the minerals and strata of coal, clay, or ore, time, marble, and the like, not as a separate estate, but as a part of the fee and inheritance, and they will pass by descent or conveyance without special designation.] The general rule may, therefore, be taken to be that when mines or minerals form a part of the whole unsevered inheritance, an owner in fee-simple possesses in all freehold lands, an unrestricted right to work the mines in his estate, and his conveyance, in the absence of an indication to the contrary, grants all mines and minerals therein. In other words a conveyance of land, in the absence of an express limitation, passes the entire estate, if the grantor is seized of the entire estate, and carries with it all the grantor's right and title to and interest in the minerals, unless they are expressly reserved by the terms of the instrument or have been previously granted. To ascertain, however, the rights of the grantee, the language of the instrument and the intent of the parties as well as the estate held by the grantor are to be taken into consideration. Are there then any indications in the deed before us to show that the minerals were intended to be excluded from the operation of the grant. I cannot find any such indication within the four corners of the document. It was argued, however, by the learned vakil for the Respondent, that as the oral evidence establishes that neither party was aware of the existence of minerals at the time of the grant, the lessor could not have intended to convey any title to minerals, and the lessee could not have intended to acquire any title in them. To my mind, there is a threefold answer to this contention. In the first place, the minerals would pass by the virtue of the general words used in the deed, unless it was proved that the lessor had reserved his rights in them. In the second place, as observed by Sir John Romilly, M.R, in Attorney-General v. Ewelme Hospital(14), it cannot be denied that unascertained and undefined advantages will pass by the general words of the grant although not in the contemplation of either party at the time, and minerals Would pass although the existence of them was not known or suspected by any one of the parties to the contract. In the third place, as the terms of the grant are unambiguous, oral evidence is not admissible to restrict its scope and operation. The question we have to decide is, not what was the intention of the parties but what is the meaning of the words they have used; or, in the language of Lord Wensleydale in Monypenny v. Monypenny(15), “the question is, not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.” If, therefore, we construe this instrument as it stands, if we do not speculate as to the possible intention of the parties, apart from the words they have used, we must hold, that the minerals passed to the grantee, as the grantor gave a permanent lease of all his rights, without any reservation of the minerals. This view is supported by the decisions of this Court in Sriram Chukravarti v. Sari Narain Singh and Shama Charan Nandi v. Abhiram Goswami. It was argued, however, on behalf of the Respondents, that inasmuch as there is a forfeiture clause in the lease before us, it is not in reality a permanent lease at a rent fixed in perpetuity. In my opinion there is no force in this contention. The interest in the land which the grantor intended to transfer to the lessee was heritable, transferable and perpetual. To use the language of Mr. Justice Markby in Bejoy Chunder v. Kally Prosonno(16), there is in substance no reversion; the ownership of the land is intended to pass entirely to the Plaintiff. No rights are reserved except the right to receive the rent. It is in fact what has been called a tenancy in fee, in which although there is in the strict sense no reversion in the lessor, still the relation of landlord and tenant is created between the parties. That a lease of this description does not cease to be a lease in perpetuity, because there is a forfeiture clause, is clear from the observations of Mr. Justice Jenkins in Kally Dass Ahiri v. Manmohini Dassee(17). Furthermore, if we remember for a moment the character of the forfeiture clause in the lease before us, it would be obvious that it has not the effect, either in form or in substance, of destroying the permanent character of the lease. The clause in question provides, that if the lessees do not pay the rent according to the different instalments every year, the mokurari will be cancelled at the end of the year. If, however, forfeiture was incurred under this clause, it would be competent to the Court to grant relief. It cannot be disputed that where a lease contains a condition that the lessor may re-enter and put an end to the lessee's estate, or even that the lease shall be void upon the lessee's failure to pay the rent at the time specified, a Court of Equity will relieve the lessee and set aside a forfeiture incurred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the theory, that provisions for the forfeiture of leases for non-payment of rent are intended merely as a security for the payment of the rent; Sloman v. Waller(18). [See Pomeroy on Equity Jurisprudence, Vol. I., sec. 453]. This jurisdiction has always been exercised by Courts in this country; see, for instance, the judgment of Couch, J., in Timmarscb v. Badiya(19), which was the case of the forfeiture for non-payment of rent of an estate held in perpetuity. The same principle has subsequently been recognised by the Legislature in sec. 114 of the Transfer of Property Act. It must be held consequently that in spite of the forfeiture clause the lease before us is in its essence a permanent lease held at a rent fixed in perpetuity.

The learned vakil for the Respondent placed great reliance upon the cases of In re Purmanamdas, Prince Mahomed Buhtywr Shah v. Rani Dhojamani and Tituram Muherjee v. Cohen. In my opinion the cases relied upon are completely distinguishable and do not lend any support to the contention of the Respondents. In the first case, In re Purmanandas the Court was called upon to determine the rights of a lessee for a term, and Mr. Justice Latham held that the terms of the lease were not wide enough to include minerals, and if they were, they could not entitle the tenants for a term of years to work any mines other than those already open. In the second case, Prince Mahomed Buhtyar Shah v. Rani Dhojayiani, the Court was called upon to consider the rights of a life-tenant who held under a maintenance grant, and it was held that mines cannot be worked by the life-tenant so as to take away that to which the remainderman is ultimately entitled. In my judgment in that case, the authorities upon the point, and the principle upon which they are based, were fully examined and it appears to me that the principles explained at page 41 of the Report negative the contention of the Respondents that the general property in the subsoil and in the mines did not pass to the tenants in this case. There can be no doubt that the possession of the mine is in the tenants and as they are tenants in perpetuity the property in the mines is also in them, subject, of course, to the payment of the rent reserved. As regards the third case, Tituram Muherjee v. Cohen, which was decided by their Lordships of the Judicial Committee, it has no analogy to the case before us. In that case it was held upon the terms of the grant which are fully set out in the Report, that the grant was merely of the surface rights, and not of the entire rights of the grantor in the property. The lease was of the kind well known as a jungle buri lease. It was granted to enable the lessee to cut the jungle and to prepare the lands for jote and cultivation, and it provided that the rent was to be assessed upon the area reclaimed. This was done after the jungle had been cleared and the land brought under cultivation. Under these circumstances their Lordships affirmed the view taken by this Court, that the leases related to the surface and did not carry the subjacent minerals, so that while the lessees became by the grant entitled to the exclusive possession and use of the whole surface the mineral right remained in the grantor. The learned vakil for the Respondents invited our attention to a passage in the judgment of the High Court [Tituram v. Cohen(20)], in which Mr. Justice Hill had observed, that there was good reason to suppose that the tenure granted to the lessees was of a permanent nature. That may be so, but it is of no assistance to the Respondent, for if the lease was of the surface rights merely, it could not affect the subjacent minerals, simply because it was a permanent lease. No authority has been shown in support of the suggestion, that even if the terms of a lease indicate plainly that it relates to the surface right only, it conveys the minerals as well because it happens to be a permanent lease at a fixed rent. The case before the Judicial Committee, therefore, does not support the contention of the. Respondents that the lease in the present case, although it purports to transfer all the rights of the lessor in the land demised in prepetuity and for a fixed rent, does not transfer the mineral rights to the lessees.

The learned vakil for the Respondents further contended that the principle which underlies sec. 108, cl. (o) of the Transfer of Property Act, should be applied to the case before us. In my opinion, there is a twofold answer to this contention. In the first place, the contract in this case was entered into in 1865 long before the Transfer of Property Act was passed, and consequently under sec. 2, cl. (c) of the Act, nothing in the Act could affect the rights of the parties under the contract. In the second place, the rule embodied in cl. (o), namely, that the lessee must not work mines and quarries not open when the lease was granted applies, as is obvious from the opening words of sec. 108, itself,—only in the absence of a contract to the contrary. In the case before us there is a contract to the contrary, by which the rights of the parties are regulated.

As a last resource the learned vakil for the Respondents contended that the right to the minerals was not in the grantor at the time of the execution of the lease and could not, therefore, have been possibly granted to the lessee. This argument is based upon a Despatch of the Secretary of State for India dated the 25th March 1880. This Despatch, as has been pointed out by my learned brother, is not on the record of this case. Nor is it a public document to which reference may be made. Assuming, however, that reference may be made to it, it is manifest that it is of no assistance to the Respondents. It does not purport to confer mineral rights upon zemindars in permanently settled estates. All that it recites is, that even if it be assumed, that the legal rights to minerals in permanently settled estates could be established oil behalf of the Crown, it would not be desirable to enforce it. The Despatch accordingly left matters where they were, and did not confer any new rights upon the zemindars. If, therefore, the legal right to minerals is in the Crown the Plaintiff is out of Court, as the proper party to sue the Defendants would be the Secretary of State. If, on the other hand, the legal right to minerals was in the Plaintiff, as the zemindar of a permanently settled estate, such right has been transferred by him to the Defendants under the lease of 1865. In either view of the matter, therefore, his claim cannot be sustained.

On these grounds I agree with my learned brother that this appeal must be allowed, the decree of the Subordinate Judge reversed and the suit dismissed with costs in all the Courts.

B.C

Appeal allowed.