BARABONI COAL CONCERN, LTD Vs. SERVITORS AND SHEBAITS OF SREE SREE GOPINATH JIU, GOKULANANDA MOHANTA THAKUR

JUDGEMENT

(1.) Respondent 1 in his plaint, describing himself as servitor and shebait to Sri Sri Iswar Gopinath Jiu idol (the respondents' family deity), sought to recover Rs. 62,382-7 annas, 15 gandas, in respect of his alleged one-fourth share, as one of the four shebaits of the said deity, of the entire royalties on the entire raisings of coal in Mouza Monoharbahal for the six years ending 13 April 1924. The suit was directed against (1) the appellant company and (2) respondents 2, 3 and 4 as defendants pro forma-they being respondent 1's co- shebaits at the time when the suit was instituted. Respondent 1's claim was based on a lease, dated 24 May 1901 granted by four lessors, viz., respondents 1 and 2 as shebaits aforesaid, the grandfather of respondent 3 and the father of respondent 4-on the one hand, in favour of one Kuverji Bhoja, the predecessor in title of the appellant company, on the other hand. The soundness of respondent 1's claim falls to be judged, in their Lordships' opinion, by the terms of the lease referred to. It may be convenient at this stage to set out the relevant part of the lease. It is as follows : "Mouza Monoharbahal in Pergana Sergarh within Police Station and Sub-Registry Asansol, Chowki Raniganj and District Burdwan is the rent free debut at property of your family deity Sri Sri Iswar Gopinath Jiu Thakur. You have parichariki right in the said property as Shebait. On my making a proposal to take a settlement of the interests of your family deity in the said Mouza for raising coal by excavating a coal mine under the ground of the said Mouza you grant unto me a settlement, on the following terms and conditions, of the whole interest that your family deity has in the said Mouza for the benefit of the said family deity and for increasing the income of the said debuttar (estate). I take the settlement on the terms following, and agree : 1. That I shall raise coal from the ground underneath the said Mouza according to the boundaries given below and shall pay a commission of 1 pice per maund of steam coal, 1? pice per maund of soft and hard coke, two annas per ton of dust coke, and ? pice per maund of rubble coal to the extent of the interest of your said family deity. I shall pay off the commission due on the raisings for one month by the seventh day of the month following. If I fail to pay, I shall be liable to interest at 1 p. c. I shall not be entitled to excavate and take away coal that is under the existing homestead lands. I shall be entitled to excavate and take away the coal from under the new settlements that may be formed in future outside the village. I shall be responsible for the loss if I cut away coal under the homesteads in the village. 4. That on no account will the raising of steam coal be less than 2,56,000 maunds any year. In case the raisings be less than 2,56,000 maunds, or if there be no raisings at all or if the raisings be suspended, or if I do not make any raisings, then I shall pay you a minimum royalty of Rs. 4,000 a year. The minimum royalty will be paid in four equal instalments to yourselves or your authorised officers on taking receipts. I shall not be entitled to plead payment of commission without receipt, and if I do so, it will not be entertained. If the money be not paid according to the Kists aforesaid, I shall be liable to pay interest at 1 p. c. per month."

(2.) The Subordinate Judge of Asansol, District Burdwan, and, on appeal, the High Court, allowed the claim of respondent 1 with a small deduction, and gave judgment in his favour. Against these judgments this appeal is taken. Two questions were argued before their Lordships' Board : (1) Whether a separate suit by one of the four shebaits of the deity for a fourth share of the royalties payable under the lease is maintainable? and (2) It being agreed that the demise in the lease was only of the interest of the respondents' deity in the Mouza, viz., an 8-annas share, whether the commission under Cl. 1 of the lease falls to be calculated at the prescribed rate upon the total quantity of coal raised, or only on the share of that coal which corresponds to the 8-annas interest of the deity.

(3.) The first question, if concluded against the respondents, is in itself sufficient to ensure the success of this appeal. It therefore merits and has received careful consideration from their Lordships' Board. A study of the lease discloses that the claim under consideration is concerned solely with the property of the family deity in the mine. The respondents were merely interested in it as shebaits. In these circumstances, it is prima facie difficult to see how one of them can competently sue for his share in the idol's interest. The terms of the lease would seem to forbid that course. They afford no warrant for splitting up the property of the family deity in the manner in which respondent 1 essayed to do. If confirmation of that view be desired, it will be found in the case of Narendra Math Kumar V/s. Atul Chandra, (1917) 41 IC 837. The claim made by the respondent would thus seem to be excluded. Apart from that however the lease discloses, in their Lordships' opinion, a joint demise or contract. That being so, in their Lordships' judgment, no one of the four lessors, with or without the consent of his co-lessors, can sue for an aliquot part of the whole. The suit must be for the whole of the interest demised, else it fails. This is not the case, which is familiar, where one joint contractor has invited his co-contractors to join with him in a suit, where they have refused to do so, and where accordingly he joins them as pro forma defendants. In that case, differing from this case, the claim made is for the entire amount of the joint interest.