(Delivered by The Chief Justice.)

The appellants were the plaintiffs in the Court below. They sued for a declaration of title to the mines and minerals in the lands comprising the village of Kalichedu, Nellore District, and for a decree for Rs. 22,992-6-6, the amount which they claimed had been unlawfully collected by Government from the 2nd defendant, their lessee, by way of royalty. The learned trial Judge found against the appellants on all the issues and dismissed the suit with costs.

The 1st plaintiff acquired the lands described in the plaint in parcels from 1879 to 1884. Having become the owner of the lands he created a trust of them for the benefit of the Poor House at Venkatagiri and appointed himself and his son, the second appellant, the trustees thereof. According to the plaint the original grant of these lands was issued in 1758. This has not actually been proved, but it is common ground that the grant was issued in the 18th century and that it was a shrotriem grant. The question which arises in this appeal is whether the right to take minerals was included in the grant. The appellants maintain that the right to the minerals was conveyed to the original grantee and in the first instance rely on what they claim to be a certified copy of a true copy of the original grant, but, as the learned trial Judge found that this document (Ex. Q) had been fabricated, they also say that the admitted documents and admitted facts are sufficient to prove their case. For reasons which I shall in due course state, we are of opinion that the learned trial Judge was right in holding Ex. Q to be a false document. We also consider that the other evidence does not support the appellants' case.

In order to appreciate the position I think it will be better if I set out first the events of recent years. The second respondent was granted a lease of the lands in suit by the appellants on the 14th May 1923. Having obtained this lease he formed the Kalichedu Mining Company in order to extract mica. Until the year 1900 the lands were used merely for agricultural purposes, but mica having been discovered on the property, extraction was then commenced, and continued without question until the month of February 1924. The Mica Inspector of the Government of Madras then raised the question of the right of the grantee to take minerals and referred the matter to the Collector. As the result, on the 19th September 1924, the Collector wrote to the Kalichedu Mining Company stating that it had been brought to his knowledge that the Company was carrying on Mica Mining Operations and giving notice that this should not be done without previous payment of royalty to the Government. On the 30th September 1924 the Company replied stating that there was no custom to pay royalty and asserting that the Company was not liable to pay. On the 4th October 1924 the Collector wrote reasserting the Government's claims to the mineral rights in the lands. This was followed by a further letter of protest from the Company dated 24th October 1924. On the 1st November 1924 the Collector wrote stating that royalty must be paid and intimating that the matter could not be kept pending indefinitely. On the 12th November 1924 the second respondent filed an application in the Collector's office for copies of certain documents. The copies asked for included copies of Kyfiets submitted by the shrotriemdars of Kalichedu in 1842-43, gudicat accounts, the sannad granted by Richard Dighton, who was the Collector of the Nellore District in 1790-92 and the register containing “the grant of the said shrotriem by Mr. Travers”, who was the Collector from 1802 to 1806. These documents were supposed to be on the Collector's file. On the 21st November 1924, Ex. Q was received by 2nd respondent, apparently in response to the application which he had filed on the 12th November 1924. On the 29th November 1924 the Company wrote to the Collector enclosing Ex. Q and described it as being a certified copy of the original grant of the shrotriem dated 1758. It will be convenient at this stage to give the terms of this document:—

“Amulam Hal Istukabal (greetings to) the Desamukhaniva Desapandyani, Pastala Karaniyani, Va, Rayani and Kulkarniyani (karnam)—In Rapur Pargana Sarwepalli Sirkar of Karnatakam Taluk, the village of Kalichedu pertaining to (illegible) Hyderabad Chidananda Mutte in the said Amale and Pergana has been granted with the tanks, forests, gardens and water sources, as shrotriem to Gulam Imam, Abdur Ghani, Aminuddin and Muniuddin for a beriz of 130 (One hundred and thirty) pagodas, from fasli 1168. It is ordered that the said beriz should be paid in the sirkar treasury and that they should enjoy the hidden treasures therein and all kinds of incomes (therefrom) from son to grandson and so on in succession—Jalahat 23”.

It will be observed that this document purports to convey to the grantees an absolute right to the minerals in the land and if it were a genuine document there would be no doubt that the appellants would be entitled to the declaration which they seek.

On receipt of this document the Collector caused an inquiry to be made into its origin and the document itself was submitted to Mr. Prewester who was then the Government Examiner of questioned documents. After Prewester's opinion had been obtained the Collector intimated to the Company that the claim for exemption from royalty could not be accepted and that the royalty must be paid before any mica was removed. This decision led to the institution of the present suit.

In considering the question of the genuineness of Ex. Q and in order to decide whether the appellants are entitled to the minerals apart from this document, it is necessary to refer to Exs. B, C, C-i, J, K and G, the genuineness of which is admitted. Ex. B is a letter dated 29th November 1790 written by the Collector (Richard Dighton) to Gulam Imam, the then shrotriemdar of Kalichedu and is in the following terms:—

“As stated in the shrotriem list in the sirkar, you should pay the beriz of 130 (One hundred and thirty pagodas) as per instalments into the treasury at Nellore in respect of the village of Kalichedu which is of our shrotriem in Rapur Pargana, obtain a receipt and happily enjoy the income derived from that village. The kapus should be paid as per mamul and kept happy”.

The original of this document is in Telugu and the word ‘income’ is a translation of the Sanskrit word ‘phalam’ which means ‘fruit’ ‘crop’ or ‘produce’. The next document in order of date is Ex. C-i. The date is the 29th October 1835 and the document comprises answers to a questionaire prepared by the acting Tahsildar at the time and submitted to the shrotriemdar. I will quote from it the following questions and answers:—

Q.:—How many years ago was this shrotriem granted?

A.:—About 100 years ago.

Q.:—To whom was this shrotriem granted?

A.:—In the Company's administration it was granted to Gulam Imam Sahib Aminuddin Sahib, Muniuddin Sahib and (illegible) others.

Ex. C. is a statement, dated 5th November, 1843, submitted by the shrotriemdar and others to the Tahsildar. They had been called upon to produce the title deeds and they explained that they had been sent to the Collector (J.B Travers) in 1801 and had not been received back. Ex. J. comprises extracts from the list of sannads relating to various shrotriemdars prepared in the time of Richard Dighton. These extracts refer to three grants in the Parsi (Persian) language made in Fasli 1170, which corresponds to 1760, one grant in 1179 (1769) and another 1187 (1777). The two last mentioned grants were also in Persian. Ex. K is the shrotriem register of 1802, and according to the entries therein the original grant of the Kalichedu village was made on the 28th August, 1758. There is, however, no evidence showing the source of this information. Ex. G is an extract from the Register of Sannads, prepared at the time of the Inam Commission (1861) and in this register the date of the original grant is also given as 28th August, 1758. In the last column of Ex. G it is also mentioned that the grants were in Persian.

I now come to the most important of the admitted exhibits, Ex. E. which is the Inam Register itself. We have here a full description of the lands granted to the appellants' predecessors-in-title. They are described as consisting of 1,647·4 acres of dry land, 112·50 acres of wet land, 9·37 acres of garden land and 636·77 acres of Poromboke land. Column 11 of the Register was for entries showing by whom the land was granted and in what year, and Column 12 for further particulars with regard to the claim and the documents held in support of it. In this case separate entries have not been made, but under these two columns we find a statement beginning “Account of fasli 1211 (1801). Five Persian Parwanas herewith forwarded” and concluding with the assertion that the Deputy Collector proposed to adopt the figure of Rs. 946 as the value of the shrotriem. Column 21 contains the Deputy Collector's recommendation and the entry here is of such importance that I will quote it in full;

“The shrotriem being of an older date than 50 years can be confirmed. The shrotriemdars are willing to enfranchise. Quit rent 1/8. Rs. 597 inclusive of jodi. In Mr. Traver's account of fasli 1211, this shrotriem is entered as a grant only for the lives of the persons in column 14. All of them died about 30 years ago and the shrotriem continues to be uninterruptedly enjoyed by the persons in Column 16. Mr. Travers seems to have entered so, because the word “hereditary” is not mentioned in the Parwanas. Under the present rules the title is perfectly valid as 50 years' undisturbed possession is proved.”

It may be observed that there is not a word in this register about minerals and the assessment of land revenue was based entirely on the value as agricultural land.

We are of the opinion that the entries in Ex. B and the entries in the Inam Register prove that there was no grant of minerals. The wording in Ex. B is inconsistent with such a grant, and it is to be remembered that Ex. B was written by Richard Dighton, the Collector of the District in the year 1790. The entries in Column 21 of Ex. E show that in the opinion of J.B Travers, the Collector in 1801, the original grant was one of life interest only, and this opinion was based on the wording of the original shrotriem documents which were placed before him. This is to be gathered from Ex. C. The Government agreed to treat the grant as being a hereditary grant because the land had been occupied by the grantees and their successors for over 50 years, but this action on the part of the Government could not in any way alter the nature of the original grant. That a document like Ex. Q could not have been in existence at the time when the Inam Register was prepared, is shown from the fact that the entries in the Register are entirely inconsistent with Ex. Q and this document is supposed to come from the Collector's file. This is enough in itself to demonstrate the fraudulent nature of Ex. Q; but the matter does not rest there. As I have already pointed out, the original grants were in Persian, while Ex. Q is in Telugu. The person who was responsible for the fabrication of Ex. Q must either have overlooked this fact or have thought that it would not be detected. It would, of course, be a far more difficult matter to forge a document in Persian in this province than in Telugu. Then the document of which Ex. Q is said to be a copy could not have been on the file of the Collector when he wrote to the lessee on the 19th September, 1924 calling for the payment of royalty. This action was taken as the result of the question being raised by the Mica Inspector and the Collector having inquired into the matter. Therefore the conclusion that this document was introduced on the Collector's file sometime between the 19th September, 1924 and the 12th November, 1924 is irresistible. Mr. Scott, the present Government Examiner of Questioned Documents has given it as his opinion that the signature on Ex. Q had been traced from Ex. L and we have no doubt that Mr. Scott's conclusion is correct. In addition to the reasons which he himself has given the evidence shows that a document of this nature could not have been in existence before 1924. We have, therefore, no hesitation in holding that the learned trial Judge came to the correct conclusion when he held that Ex. Q had been fabricated and fraudulently placed on the Collector's file.

I will now turn to the argument of the learned Advocate-General that even if Ex. Q is eliminated the other evidence shows that the judgment of the lower Court is erroneous. Here it must be borne in mind that the burden of proving that the original grant did pass the right to the minerals is upon the appellants: The Secretary of State for India in Council v. Srinivasachariar and others(1) and Gobinda Narayan Singh v. Shyamlal Singh(2). The learned Advocate-General has placed great reliance on the decision in The Secretary of State for India in Council v. Shantaram Narayan Dabholkar. In that case there was a grant to two Parsi ship builders of land within the City of Bombay. The grant was confirmed by a document dated the 11th September 1798, which stated

“we hereby ratify and confirm the said grant with a due proportion of foras and perteneas to their family and descendants.”

The Court held that this was sufficient to give to the grantees a right to the minerals, because in the grant no kind of right was reserved to the Government. Under these circumstances the Court thought that even in the absence of the words expressly referring to the right to the minerals all the rights of the Crown were conveyed. In the present case, however, we have not the original grant before us and later documents indicate that the grant was merely of surface rights.

In this connection I will refer to the decision of the Privy Council in The Secretary of State for India in Council v. Srinivasachariar. There the grant which was dated 1750, stated that its purpose was that the grantee having appropriated to his own use the produce of the seasons each year, might pray for the prosperity of the Empire and should pay a fixed yearly sum to the sirkar. It was held that this did not operate to pass to the grantee the right to the quarries and minerals on the land. The Government had in fact recognised this land as being freehold at the time of the inam settlement but their Lordships held that this fact did not in any way add to the terms of the grant, which determined the question. At page 429 of the report Sir Lawrence Jenkins who delivered the judgment observes:

“Can then the plaintiffs successfully claim that under these terms the full right to the quarries and minerals passed to them?

Their Lordships think not. The grant was of a village in inam, and the rules of English Law as to real property in England can afford no guidance as to what passed. A grant of this description may be no more than an assignment of Revenue, and even where it is or includes a grant of land, what interest in the land passed must depend on the language of the instrument and the circumstances of each case. There is nothing here to suggest that the original grant contained words sometimes employed in Indian documents, where it is the intention that the inam grant of a village should create such an interest in land as would vest the minerals in the grantee. Nor does the language suggest that any further benefit to the grantee was contemplated or intended than such as might be derived from the ordinary use of the land for the purposes of cultivation. It was not a complete transfer for value of all that was in the grantor; the interest bestowed was merely something carved out of his larger interest which still remained in him as a reversion; the grantor was the ruling power, the grantee a Brahmin whose assiduous prayers were engaged; a jodi was reserved and the purpose of the grant was to ensure the subsistence of the grantee by the appropriation to his use of the produce of the seasons each year.”

In the case now before us a jodi was reserved, the grant was a grant to pious Mohammadans by way of shrotriem, and Exs. B and E certainly point to the grant being of a limited nature.

The learned Advocate-General has pressed upon us the following passage from the judgment of Lord Wensleydale in Water Park v. Fennell.

“The construction of a deed is always for the Court; but, in order to apply its provisions, evidence is in every case admissible of all material facts existing at the time of the execution of the deed, so as to place the Court in the situation of the grantor. In deeds, as well as wills, the state of the subject at the time of the execution may always be inquired into; and as with respect to ancient deeds the state of the subject at their date can seldom, if ever, be proved by direct evidence, modern usage and enjoyment for a number of years is evidence to raise a presumption that the same course was adopted from an earlier period, and so to prove contemporaneous usage and enjoyment at the date of the deed.”

The suggestion is that because mica has been worked from this land from 1900 we should presume from this usage that the original grant permitted this. The principle referred to by Lord Wensleydale has no application to a case where for over a hundred years from the date of the grant the land was used entirely for the purpose of producing crops and mining only undertaken in recent years.

That the principle can have no application, is shown from the decision of the Judicial Committee in Gobindanarayan Singh v. Shyamlal Singh where it was said:

“If the ‘conduct’ relied upon were even approximately contemporaneous with the severance of Achra from the parent estate and so belonged to a period when it might be assumed that both parties were well acquainted with their rights, it might be of some evidentiary value; but coming as it does, after a lapse of at least a century and a half, when no one has any very certain idea of what the real rights are, or how they originated, their Lordships think that it would be most unsafe to hold, merely upon the strength of such uncertain material as this, that the respondents had proved affirmatively their title to the subsoil rights.”

In this case we have in addition definite indications from authentic documents that the original grant did not pass the rights to the minerals.

Another case relied upon by the learned Advocate-General is that of The Secretary of State for India in Council v. K. Janakiramayya(3). This case was quoted to us because at page 340 of the report Sankaran Nair, J. makes this statement:—

“In the deeds of conveyance before the days of British Rule and in conveyances executed even afterwards, at least in the early years of the century, by mirasdars and landed proprietors like Zamindars, Inamdars, etc., which have come before the Courts it is generally stated that the lands are conveyed with the eight incidents of ownership.”

One of the eight incidents of ownership is the right to minerals. The fact that at one time it was usual to convey the mineral rights when lands were granted does not shift the burden of proving that in this particular case the right to the minerals was granted to the original grantee. The learned Advocate-General did not contend that there was any presumption in favour of his clients, nor could he. The question must depend upon the terms of the original grant. Here the evidence points the other way. We consider that the case was rightly decided by the trial Court and the appeal must consequently be dismissed with costs in favour of the first respondent.

Appeal dismissed.

N.R.R