F.F. Christian v. Tekaitni Narbada Koeri

This is an appeal by the Plaintiff in a suit for declaration that the first four Defendants have no right to open new mines and to raise minerals therefrom on the disputed property, for a perpetual injunction to restrain them from further working three new mines which they have opened and from opening and working new mines, and for incidental reliefs. The case for the Plaintiff may be briefly stated. One Paresh Nath Singh, proprietor of Taluk Gadi Domchanch in the District of Hazaribagh, left two sons, Churaman Singh and Maharaj Singh. After the death of Paresh Nath Singh, Churaman Singh succeeded to the property; after his death, it passed to his son Tehal Narain Singh, on whose death it vested in his brother Maharaj Singh. On the 6th December 1894, Maharaj Singh executed a deed of maintenance grant in favour of Narbada Kumari, junior widow of his brother Churaman Singh. The controversy in this litigation turns upon the true construction of this deed; the Plaintiff maintains that the grantor did not part with his right to the minerals by this document, while the Defendants contend that, as there was no express reservation of subsoil rights, the generality of the terms of the instrument shows that the mineral rights vested in the grantee. The Plaintiff has acquired the right, title and interest of the proprietor of the estate, first, by a conditional mortgage from him, dated the 7th June 1901, and, secondly, by purchase at a sale in execution of a decree against him, held on the 1st March 1904 and confirmed on the 22nd July following. The Plaintiff also purchased on the 28th July 1907 one-fourth share of the interest of certain mortgagees who were in possession of the property. The Plaintiff may, consequently, be treated as proprietor in partial possession of the property. Of the nine Defendants to the suit, the first is Narbada Kumari, the widow of Churaman Singh. The next three Defendants are a family of Mahatos, who obtained a mining lease from the two widows of Churaman Singh on the 25th November 1906. The remaining Defendants are the mortgagees, a fraction of whose interest has been purchased by the Plaintiff. The gist of the claim of the Plaintiff is that although Narbada Kumari had no authority, under the terms of the maintenance grant, to give a lease of mining rights, she did so on the 25th November 1906, and that the lessee Defendants have wrongfully opened three new mines in village Raidih and have carried away mica worth Rs. 25,000. On the 3rd February 1908 the Plaintiff commenced this action for declaration of title, for injunction and for damages. The first four Defendants resisted the claim substantially on two grounds; namely, first, that the grantee under the maintenance grant was vested with sub-soil rights and was competent to grant mining leases; and, secondly, that the three mines, to which exception is specifically taken, were not new mines, but had been opened and worked before the maintenance grant was made. The Subordinate Judge has, upon the second ground of defence, overruled the contention of the Defendants but, upon the first ground he has decided in their favour, with the result that he has dismissed the suit. The Plaintiff has appealed to this Court and has contended that the Subordinate Judge has taken an erroneous view of the legal effect of the maintenance grant of the 6th December 1894. This has been controverted on behalf of the Defendants, who have, in their turn, attacked the conclusion of the Court below that the three mines mentioned in the plaint were new mines opened by them after they had taken the mining lease of the 25th November 1906. Two questions, consequently, emerge for consideration, namely, first, did the mineral rights continue in the proprietor notwithstanding the maintenance grant of the 6th December 1894, and, secondly, were the three disputed mines in village Raidih opened before the maintenance grant was made on the 6th December 1894?

As regards the first question, it is to be observed that the deed recites that, as according to the usage of the family and the country, the grantor has taken possession of the estate of the last full owner, provision had to be made for his mothers so that they might spend their lives respectably, comfortably and with dignity in the accustomed manner. The grantor then states, by way of apology as it were, that he wished to give the widows more properties than he actually did, but as the estate was encumbered, he could not do so. Then follows this clause, “I give the under-mentioned properties only to the said Tekaitni Narbada Kumari, for her maintenance, so that she may hold possession and occupation thereof and appropriate the produce thereof independently until her death; she shall have full right and power to hold possession and make collection in the under-mentioned properties during her life-time as the pro-prietrix thereof. After her death, the aforesaid properties shall, without any dispute therein, revert to me or my heirs”. A provision is added to the effect that the grantee shall pay to the grantor Rs. 19 annually for revenue and such cesses as might be assessed according to law. The deed concludes with the statement that the grantor had, of his free will and accord, granted the khorposh sanad as patta at a fixed annual rent that it might be of use when required. There can be no room for controversy that the terms in the body of this document, as set out above, do not vest the mineral rights in the grantee. But it is argued that the specification of the properties given in the Schedule is conclusive in favour of the Defendants. The specification is in these terms:—

“Entire sixteen annas of each of the Mauzas Raidih and Kushana together with all then limits and boundaries, and all sources of income of every kind appertaining to the said mauzas, for the realisation, and appropriation and settlement of which the said proprietor has and can have the power, without the exception of anything and any right, together with the khudkast land called Dakkingarah below the Sumadrahar, situate in khas Gadi Domchanch, the boundaries whereof are given below, and half the income from forest collections from bankar (forest right), price of wood, Gadi Domchanch, Pargana Kharagdhia, Thana Kodarma, Sub-Registry Giridih, District-Registry and Collectorate Hazaribagh.” Then the boundaries of the khudkast lands mentioned are described. Finally the nature of the deed is stated to be “patta of khorposh grant for life by way of sanad, amount of the annual rent which the grantee has agreed to pay to the grantor is Rs. 19.” Stress is laid on behalf of the Defendants on the words of the Schedule which describe the property granted as all sources of income of every kind appertaining to the villages for the realisation, appropriation and settlement of which the proprietor has and can have the power, without the exception of anything and any right. It is contended with reference to these words that they are of the widest possible, generality, sufficient to divest the proprietor of sub-soil rights in the property. We are not prepared to accept this contention as well-founded. Sec. 108 of the Transfer of Property Act, which defines the rights and liabilities of lessor and lessee, provides in cl. (o) that the lessee must not work mines or quarries not open when the lease was granted. This is, no doubt, qualified by the introductory words of the section, namely, “in the absence of a contract or local usage to the contrary.” No question of local usage arises in the case before us. The only point is, whether there is a contract to the contrary, that is, a contract that the lessee may work mines or quarries not open when the lease was granted. No such contract is plainly contained in the body of the instrument, and we are not prepared to hold that such a contract is embodied by implication in the specification of the properties in the Schedule, which would, if the contention of the Defendants are accepted, enlarge the scope of the grant as made in the body of the deed itself. The position, consequently, is that there is no express provision in the instrument by which the lessee is authorised to work mines or quarries not open when the lease was granted. There are, on the other hand, weighty reasons against the adoption of the view that the grantor intended to vest the grantee with authority to open and work new mines. The grant was only for life of the grantee for the purposes of her maintenance. It is improbable that the grantor would authorise the grantee to enjoy a right, the value and extent of which could not possibly be ascertained at the time. The deed further stated that, on the death of the grantee, the property would revert to the grantor or his heirs; the grantor could not have intended that the grantee might open out mines and take away the minerals, possibly with the result that when the property would revert to the grantor, it might have become wholly valueless. It must also be remembered that if it be held that the grantor intended to vest grantee with authority to open and work new mines, it would imply that the grantee had authority to open mines, whatever the kind of mineral might be, whether it was mica, coal, iron, or any of the precious metals. We feel no doubt that the grantor did not intend to vest in the grantee the right to open and work new mines, and that the general words, which occur in the description of the villages named in the Schedule, apply only to surface rights or right in mines or quarries already open, to which the grantee would have a right under the terms contained in the body of the deed as also under the provisions of the Transfer of Property Act. Reference however has been made on behalf of the Defendants to judicial decisions which it is said support their contention; but an examination of the cases confirms the view we propose to take.

In Tituram v. Cohen(1), it was ruled by this Court that it is inconsistent with the ordinary conception of a grant for maintenance, whether limited to the lifetime of the grantor or to that of the grantee, that it should confer, either on the grantee or on his transferee, the right to open new mines within the grant and raise and appropriate to his own use the product of them. This view was affirmed, when the case was taken on appeal to the Judicial Committee [Tituram v. Cohen(2)]. Sir Arthur Wilson stated that a khorposh grant would be assumed to be only for the life of the grantee, and that such a grant, regarded as one for the life of the grantee, could not be presumed to be more than a grant of rents and profits and could not be presumed to carry with it a right to open new mines and remove minerals which are a portion of the soil. The same view had been adopted by this Court, before the decisions of the Judicial Committee, upon a full examination of the authorities on the subject in Prince Mahomed Bukhtyar Shah v. Rani Dhajamoni(3). In the case of Hari Narain v. Sreeram(4) which reversed the decision in Sreeram v. Hari Narain(5) and in Durga Prosad v. Brojonath(6) which reversed the decision in Brojonath v. Durga Prosad(7), the Judicial Committee held that mineral rights were vested in the zamindar and must be presumed to have remained in him, in the absence of proof that he had parted with them. In each of these two cases, underground rights were claimed by persons who asserted that they were permanent tenure-holders, though in the first case the Judicial Committee do not appear to have recognised the permanent tenure. This Court held that the zamindar must be presumed to have parted with all his rights except the right to receive the fixed rent, and that the tenure-holders had, consequently, acquired a right to the minerals. But the Judicial Committee took precisely the opposite view, which had meanwhile been adopted in Jyoti Prosad Singh v. Lachipore Coal Co.(8). It may be noted, that in the earlier cases of Ali Quader v. Jogendra(9) and Meghlal Pandey v. Raj Kumar Thakur(10), which were decided before the decision of the Judicial Committee in Hari Narain v. Sreeram and Durga Prosad v. Brojonath, the view had been maintained that in the case of a grant of permanent tenure without reservation of mineral rights in the proprietor, they must be presumed to have been transferred to the grantee. It is needless to consider whether this view can any longer be maintained in the face of the pronouncement by the Judicial Committee; but in any event, it cannot be of any assistance to the Defendants, whose title is based on a mining lease by the holder of a maintenance grant for life. This conclusion is in accordance with that adopted as well-settled in the law of England, where the rights of limited owners in mines and minerals are governed by the doctrine of waste. Working new or unopened mines or quarries is waste, but working open mines is not waste; it is enjoyment of profits of the estate: Campbell v. Wardlaw(11), Dashwood v. Magnias(12). The right to commit waste is not incident to the estate of a tenant for life: Whitfield v. Bewit(13) and Viner v. Vaughan(14). Consequently, a tenant for life may work opened mines but may not dig in new mines: Clavering v. Clevering(15), Campbell v. Leech(16), Viner v. Vaughan, Bagot v. Bagot(17), Camp-Bell v. Wardlaw and Dashwood v. Magniac. No doubt, in the instrument under which the estate of the tenant for life arises, there may be an express provision which authorises him to open new mines, or which gives him an estate without impeachment of waste and thereby enable him to open new mines: Campbell v. Wardlaw and Re Redge(18). In the case before us, the deed is one for maintenance for the life of the grantee, and it does not contain any express provision which authorises the grantee to open new mines and to appropriate the minerals therefrom. We must hold accordingly that under the maintenance grant of the 6th December 1894, the grantee had no right to grant a mining lease for the purpose of opening and working new mines.

In the Court below, reliance was placed on behalf of the Defendants on the conduct of the parties to ascertain the intention of the grantor. This course could not be properly adopted except in the case of ancient grants where the terms are ambiguous: Attorney-General v. Drummond(19) and Drummond v. Attorney-General(20). But as Cranworth, L., said in Sadlier v. Biggs(21), if are is a deed which says, according its true construction, one thing, on cannot say that the deed means something else, merely because the parties have gone on for a long time so understanding it; or, as Halsbury, L.C, observed in N.E Railway v. Hastings(22), the words of a written instrument trust be construed according to their natural meaning, and no amount of acting by the parties can alter or qualify words which are plain and unambiguous. The conduct of the parties, however, is really of no assistance in this case. Reference is made to a mortgage deed executed by Churaman Singh on the 2nd December 1889, which makes express mention of mica and excludes other minerals. This, it is contended, shows that the grantor Maharaj Singh was aware of the existence of the mica mines when he made the maintenance grant in 1894. Let such knowledge on his part be assumed for purposes of argument; the fact is really inconclusive. The view may well be maintained that if he intended to vest all the sub-soil rights in the grantee, he would have explicitly stated so, as he did in the mortgage instrument of the 2nd December 1889. Reference has also been made to the fact that the grantor, on the 16th March 1896, granted a usufructuary mortgage to Jadu Nath Mukerjee in respect of open and unopened ??? to the exclusion of lands in the ocupation of persons holding under public or private sales, gifts, khorposh, ???, Brahmottar, Shivottar, Durga and jaigir grants. It is suggested that this id reference to the khorposh lands granted ??? the first Defendant; but there is no boundation for this view. The object of he proprietor was plainly to exclude from the usufructuary mortgage all such lands as were in the possession of persons who held under a valid title derived from him. Reference has finally been made to the circumstance that the first Defendant, on the 25th July 1896, granted a mining lease to Jahar Mal and Bahadur Mal and that there was no protest by the proprietor of the estate. To this there are two obvious answers. In the first place, the lease of the 25th July 1896 is open to the construction that it related only to mines already opened; in the second place, even if the document be interpreted as of wider scope, there is nothing to show that it was ever brought to the knowledge of the proprietor or that the lessees themselves ever opened and worked new mines, at best it would only show what the lessee considered to be his right. Reference has also been made, to the recitals in the same document to the effect that mining leases had been granted by the first Defendant to several persons from time to time. These recitals, by themselves, are not admissible against the Plaintiff, and in favour of the Defendants. But, even if they are used against the Plaintiff, they are valueless, as there is nothing to show that the leases mentioned were granted with a view to open new mines, and that the lessees did actually open and work such mines. Reliance has not been placed, it may be added, on the mining lease granted by the first Defendant to Gopal Mahato on the 2nd January 1907 for the obvious reason that it bears a date subsequent to the grant of the lease on which the title of the Defendants is founded. We are, accordingly, of opinion that the conduct of the parties, even if reliance can be placed upon it, does not support the contention of the Defendants. The inference follows that the first Defendant did not acquire the right to open and work new mines under the life grant for maintenance in her favour.

As regards the second question, namely, whether the three mines, to which exception is specifically taken in the plaint, were open, as the Defendants allege, before the maintenance grant was made on the 6th December 1894, or were opened, as the Plaintiff alleges, by the lessees Defendants after they had obtained the mining lease of the 25th November 1906, the Subordinate Judge has found in favour of the Plaintiff. Upon an examination of the evidence, we are satisfied that the Court below has come to the correct conclusion on this point. The most important witness on the side of the Plaintiff on this matter is Bhairo Dosadh. He has pledged his oath that these three mines or pits stand on the land of his holding, and were excavated by the Defendants about four years before the time when he gave his deposition in 1910, and he adds that before that time the area which covers about 7 cottahs was under his cultivation. This statement, which is corroborated by a number of witnesses on the side of the Plaintiff, has been accepted as true by the Subordinate Judge, and we see no reason to differ from him in his estimate of the evidence. The evidence adduced by the Defendants, to rebut this case, is of the vaguest description. An attempt is made to make out that the proprietor had, before the maintenance lease was granted, let out the village, from time to time, to persons, who made surface excavations which yielded no profit, and consequently discontinued the work sooner or later. It is not shown, however, that the pits excavated and successfully worked by the Defendants had any connection with the surface work undertaken by previous proprietors. In this Court, it is sought to be argued that as some shafts had been sunk in the village previously, the three pits now in dispute are open mines. This contention is clearly fallacious. A mine is said to be open when it has been devoted, by a person lawfully entitled to do so, to the purpose of making a profit by the working and sale of the minerals therein: Elias v. Griffith(23). Whether a mine is open or not, is a question of intention, and the intention may be evidenced in various ways: Chaytor v. Trotter(24). If the mine has been worked and the produce sold, it is clear that it is open, even if no profits have been made: Elias v. Snowdon State Quarries(25). If a lease has been granted and the lessee has actually worked the mine, it is equally open. It has also been held that although the lessee has never actually worked, the mine is open, if he has paid or become liable to pay a dead rent [Re Kemeys Tynte(26)] though the contrary view was maintained by Lord Cairns in Elias v. Snowdon. An actual working is in any view, not essential; if a shaft has been sunk or other development made, the mine intended to be worked by such development is treated as open: Ghaytor v. Trotter. On the other hand, it is not every working which will render a mine open, for instance, if the working be wrongful or purely experimental, the mine is not open: Chaytor v. Trotter and Ecclesiastical Commissioners v. Wodehouse(27). When a mine is open, the sinking of a new pit, if it is on the same vein or seam, or, breaking of ground in a new place, if it is on the same rock, is not necessarily opening a new mine, but, as a rule, the existence of an open mine on one part of an estate does not make the other mines open mines: Campbell v. Wardlaw, Elias v. Snowdon, Clavering v. Clavering, Spencer v. Scurr(28), Cowley v. Wellesby(29), Bagot v. Bagot, Greville Nugent v. Mackenzie,(30), Re Maynard's Settled Estate(31) and Re Chaytor's Estate(32). Tested in the light of these principles the case for the Defendants proves wholly unsubstantial. Even Floyd, the most reliable witness on their side and manager of Ditgopal, who carried on mining operations from 1890 to 1893, is not able to give any definite evidence as to the nature and extent of the operations in Raidih in his time; on the other hand, his evidence indicates that there was nothing beyond prospecting work at Raidih, and it is fairly clear that whatever work was attempted, was not at the place where the disputed pits have been sunk, but at Araria, nearly one-third of a mile from the place where the houses of the tenants stood. Nor is there any reason to think that the old workings, such as they were, were on the same vein or seam as the pits in dispute. On a careful scrutiny of the whole evidence, we are of opinion that the evidence as to mining or prospecting operations before 1894 is so indefinite in respect of their nature, locality and extent, that it is impossible for the Court to hold that the disputed pits or mines were open mines as alleged by the Defendants; on the other hand, their allegation that these pits were not new, made in 1906, but were in existence before 1894, has been conclusively proved to be untrue.

The result is that this appeal is allowed, the decree of the Subordinate Judge reversed, and the suit decreed. The Plaintiff will have a declaration that the first four Defendants have no right to open and work new mines in village Raidih. A permanent injunction will also issue, to restrain these Defendants from further working the three mines mentioned in the plaint, and from opening and working new mines in Raidih. The decree will also direct that Defendants Nos. 2, 3 and 4 do render an account of the mica abstracted by them from the three mines mentioned, from the 25th November 1906 (the date of their lease) to the 3rd February 1908 (the date of institution of the suit). No order is made as to the mica, if any abstracted pendente lite, as the claim is limited in the plaint to damages for mica taken up to the date of the institution of the suit. As regards the measure of damages, the value of the minerals wrongfully abstracted must be calculated as at the date of the abstraction, and the Defendants will be allowed both the expense of converting them into chattel and of carrying them to the pit's mouth: Trotter v. Maclean(33), Prince Mahomed Bukhtyar Shah v. Rani Dhajamoni, Livingstone v. Ranyards Co.(34), Laws of England, Ed.: Halsbury, Vol. 20, Article 1372. The Plaintiff will have his costs both here and in the Court below, assessed upon the value of the claim for injunction. We assess the hearing fee in this Court at Rs. 300. The cost of Court-fees in respect of the claim for damages, paid on the plaint and on the memorandum of appeal to this Court, will abide the result, and the Plaintiff will have such cost only on the sum ultimately decreed in his favour. The costs of the enquiry in the Court below will be in the discretion of that Court.

Appeal allowed.