H V LOW AND COMPANY, LIMITED Vs. RAJA BAHADUR JYOTI PROSAD SINGH DEO

JUDGEMENT

(1.) The appellant company seeks in this action to recover from the respondent a sum of Rs. 34,440 which, on 13 October 1923, it paid to him as salami or premium in respect of a contemplated 999 years lease of the underground coal rights in two mauzas known as Raidi and Methadi comprised in the respondent's zamindari. Subsequent to the payment of this premium the parties entered into a formal agreement dated 22nd January 1925, whereby the appellant company agreed that within two months from the date of the submission of the draft lease by the respondent it would take the proposed mining lease from the respondent or his lessees "on a salami of Rs. 34,440 already deposited," and cm certain specified royalty terms. The agreement contained the following clause: "If they (i. e., the appellant company) neglect or fail to take such lease within the aforesaid time except for the reason of the want of the lessor's title to the said mauzas the sum of thirty-four thousand four hundred and forty rupees, deposited as aforesaid, will be forfeited unto the Raja Bahadur."

(2.) There was considerable delay in proceeding with the transaction, but at length on 29 May 1925, a draft lease was sent to the appellant company. On 30 June 1925, the company's solicitors returned the draft approved, with certain alterations adding in their covering letter, that "our approval is subject to the title of the Maharaja being satisfactory." The letter proceeded as follows: "We may mention that we do not yet know what right the Maharaja has to properties in question. We are however informed that Mauza Methadi is held under a putness lease under the Maharaja by the Mohtas. If this be so, we shall be glad to know how the Maharaja claims to deal with the underground rights. Mauza Raidi, we understand, is held by Gopal Kaviraj and others. We do not know what the nature of their title is and whether the Maharaja has the underground rights, or these Kavirajas have the underground rights. Before the lease is finally completed we must be satisfied that the Maharaja has the right to deal with the underground."

(3.) This was the first occasion on which any question was raised by the appellant company as to the respondent's title. On 11 July 1925 the respondent's manager wrote in reply: "As regards the Maharaja's title in the said mauzas I have to inform you that Maharaja Bahadur is the landlord of both the mauzas under whom the surface right in Mauza Raidi is held as a rent free debuttar tenure paying cess to his estate by Radhasyam Roy and others as shebaits of Dadhipaban Thakur, and the surface right in Mauza, Metbadi is held as a, rent paying (kheraji) brahmottar tenure by Ajodhyaram Chatterjee and others. For your information I am sending herewith a copy of the last survey settlement records of these mauzas, from which it will be quite clear that Maharaja Bahadur is the landlord, and as such the right in the underground minerals is vested in him."