BARABONI COAL CONCERN, LIMITED Vs. SHREE GOPINATH JIU

JUDGEMENT

(1.) The first respondent, 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, annas 7, 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 April 13, 1924. The suit was directed against (1) the appellant company and (2) the second, third and fourth respondents as defendants pro forma-they being the first respondent's co- shebaits at the time when the suit was instituted.

(2.) The first respondent's claim was based on a lease, dated May 24, 1901, granted by four lessors, viz., the first and second respondents, as shebaits aforesaid, the grandfather of the third respondent, and the father of the fourth respondent-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 the first respondent's claim falls to be judged, in their Lordships opinion, by the terms of the lease referred to.

(3.) 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 debuttar property of 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.