- (1.) THIS is an appeal against a judgment of S. P. Mitra, J. decreeing certain claims of royalty with interest. According to the plaintiff, Raja bishumbar Nath Sahi was the sole proprietor of 663 acres of land, in the district of Sahabad, in the State of Bihar, known as "chunahatta Lime Stone quarries". The estate of the Raja, of which the quarries formed a part, was otherwise known as Sonepur Estate. By an indenture of lease, dated July 31, 1927, the Raja demised the said quarries to karuna Ranj an Dutta and Jugal chandra Dutta, for the purpose of undertaking mining operation of lime stone for a period of 40 years from august 1, 1927, with option to continue for a further period of 25 years. This lease provided inter alia that : (a) Royalty at the rate of -|10|-par 100 Cubic feet would be paid for the first 15 years, that is to say, up to July 31, 1942. (b) Thereafter, royalty at the rate of -/15/- per 100 Cubic feet shall be paid from August 1, 1942 for the next 25 years i. e. up to 1967. The royalties were payable quarterly.
(2.) ON October 12, 1928, Karuna ranjan and Jugal Kishore Dutt executed a sub-lease in favour of the defendant, Sone Valley Portland Cement Co. Limited, for the residue of the period of lease in their favour. The sub-lease inter alia provided : "to hold unto the Company and its assigns on the terms thereof for the residue of the period of the said Indenture of Lease being forty years from the first day of August one thousand nine hundred and twenty seven (renewable as therein provided) except the last day thereof subject to the performance and observance by the Company of the Lessee's covenants under the said Indenture of Lease (other than the covenants for payment of royalties and rents thereunder) paying therefor unto the Lessors during the period of the said Indenture of Lease the same royalties and rent as were made payable thereunder in respect of the said premises such royalties and rents to be paid at the times and in manner thereby provided and also paying unto the lessors during the period hereof in respect of limestone quarried (except for ballast or building purposes) during the residue of the first fifteen years of the said period as from the date here of for every hundred cubic feet of solid limetone quarried raised got used or' taken out from the demised premises a royalty of annas sixteen and during the remaining twenty-five years thereafter of the said period for each such quantity a royalty of annas eleven such royalty to be paid at the times when royalty has to be paid under the said indenture of Lease provided that until the thirty first day of July one thousand nine hundred and thirty-two such royalty to the Lessors shall be paid on the actual quantity of limestone quarried (except as aforesaid) and thereafter such minimum royalty shall be paid on a fixed quantity of four lakhs cubic feet in each calender year subject to the terms hereof but irrespective of the quantity actually quarried in each such year being less than the said minimum quantity or whether any limestone has actually been quarried or not".
(3.) WE need concern ourselves with a further provision in the said sublease which was couched in the follow language:- "4 (a) That the Lessors will during the period hereof pay all royalties and rents under the said Indenture of Lease and all cesses and money payable by by the Lessors as Lessees thereunder with power for the Company if the Lessors shall at any time refuse or neglect to make such payments or to produce to the Company on demand the receipts therefor to make such payments at the Lessors expense for and in the name of the Lessors or otherwise with further power for the Company at its option at any time whether the Lessors shall have made such default or not or make such payments to the persons entitled thereto direct. ";