RAM KINKAR BANERJEE Vs. SATYA CHARAN SRIMANI

JUDGEMENT

(1.) In this case the original plaintiff has died since the institution of the suit and his interests are now represented by one Sreemati Saibalini Devi and others. Hereafter they will be referred to as the appellants. There were originally a large number of defendants, but three only are made respondents to this appeal and their interests alone remain to be considered. The others have either accepted the judgments given against them or have been dismissed from the case. The three remaining are Kripa Sankar Worah and Jatha Shankar Dosa, numbered 2 and 3 in the cases presented by the parties and Satya Charan Srimani, respondent 1, in those cases. The facts may be briefly stated. The appellants are the successors in title to the grantees of a patta or lease for 999 years dated 26 May 1908 in respect of certain underground rights in the District of Burdwan. This lease contained provisions (inter alia) for (a) the payment by the grantees to the grantors of all cesses levied by the Government on account of the income of the colliery, (b) the payment of a minimum royalty, (c) the provision of certain quantities of coal. The lease contained a clause giving the grantees liberty to alienate the property by making gifts, sales, sub-leases or any other kind of transfer to any respectable persons or company.

(2.) The grantees took advantage of this provision and on 3 June 1908 transferred the property to one J. C. Martin. The terms of the document were similar to those of the lease of 28 May except for certain increases in the burdens imposed on the lessees. In form, this grant which is described as a "settlement"transfers the whole and indeed more than the whole of the original grantees' term to the sub-grantee and would under English law amount to an assignment of the head lease, but it is well-established by Indian law and is common ground to both parties in the present case that such a transfer operates by way of sub-demise and not of assignment : see Hansraj V/s. Bejoy Lal, (1930) 17 AIR PC 59.

(3.) After various mesne assignments Martin's leasehold interest became vested in Ardhesir K. Patel who is respondent 7 in the present appeal. On 18 May 1923 Patel executed two mortgages of his leasehold interest, (1) of an undivided moiety of the underground rights or colliery, (2) of the whole colliery but subject to the previous mortgage of the undivided moiety. Both are in the form which a mortgage in England by assignment of the sub-term would take in that they contain (1) promises by the mortgagor to repay, (2) conveyances of the mortgaged property, (3) provisos for reconveyance by the mortgagees to the mortgagor upon repayment of the mortgage money. The consideration for the first mortgage is expressed to be a debt of Rs. 49,500 and the mortgagor promises to pay this sum as to Rs. 15,000 in the course of nine calendar months from the date of the mortgage and the balance by four equal yearly instalments of Rupees 8625 commencing from 1 April 1925, the last instalment falling due on 1 April 1928. The consideration for the second mortgage is expressed to be Rupees 50,500 repayable on 18 May 1928 with interest.