RAJA SHIVA PRASAD SINGH Vs. TOM SMITH

JUDGEMENT

(1.) On 24 April 1907, Raja Durga Prasad Singh, ancestor of the plaintiff, granted to Mr. C.J. Smith a coal mining lease of land in his zamindari of Jharia for nine hundred and ninety-nine-years at a royalty of 2 annas 6 pies per ton on the quantity of coal raised every year with a minimum of Rs. 975 per annum. The tenant was to pay Government cesses. Clauses 8, 9 and 13 were as follows: Clause 8. That for the amount of royalty the leasehold land and the machineries and (here follows, an illegible word) remain wholly hypothecated. If I make default in payment of royalty, you will be competent to realize the same by selling the leasehold land. In regard to the same I or my heirs or successors-in-interest shall have no objection. Clause 9. That I shall be competent to transfer the leasehold land by gift, sale or otherwise, according to my wish. But thereby there will be no obstacle to the priority of dues, i.e. the transferee will remain wholly bound to pay the amount of royalty. Clause 13. That I as well as my heirs and successors-in-interest remain wholly bound by the aforesaid terms....

(2.) On 4 February 1920, Mr. C.J. Smith mortgaged his interest to the Jagadamba Loan Company Limited, and their assigns. After reciting that the mortgagor was seised and possessed of the lands, hereditaments; and premises subject to the payment of rents and royalties and after reciting the lease under which the mortgagor had obtained the same and after reciting that the mortgagor had requested the Company for a loan on cash credit basis of three lakhs of rupees the indenture witnessed that the mortgagor covenanted to pay on 4th February 1923, the full amount of the floating balance for the time being owing by the mortgagor to the company on the cash credit loan account together with interest and the indenture further witnessed that in further pursuance of the agreement he the mortgagor doth hereby grant, convey and transfer to the company all those, the mines, beds and seams of coal lying and under the lands hereditaments and premises described...together with all collieries open and unopened and all erections therein and thereunto belonging or appertaining therewith usually held and enjoyed or occupied and also all estate, right, title and interest, use trust property inheritance possession claim and demand whatsoever of law and in equity of him the mortgagor of into out of and upon the said premises and every part or parcel thereof including all rents and royalties payable to the mortgagor from the tenants of the same premises together with all deeds, pattas, muniments and writings and evidences of title whatsoever in anywise relating to or concerning the lands, tenements, buildings and premises or any part thereof which now are or thereafter shall or may be in possession or lawful power or control of the mortgagor or any other person or persons from whom he can procure the same without action or suit at law or in equity to have and to hold the same mines and premises hereinbefore expressed to be hereby granted, conveyed pattas or leases granted by the mortgagor as aforesaid and transferred unto the Company according to the nature and tenure thereof respectively subject nevertheless to the proviso for redemption hereinafter contained.

(3.) Then follows a proviso that upon repayment of the money lent the Company shall at any time thereafter upon the request and cost of the mortgagor reconvey the said lands, hereditaments and premises hereinbefore expressed to be hereby granted, conveyed and transferred unto the mortgagor as he shall direct. Later on followed a clause by which the mortgagor covenanted with the Company that he, the mortgagor, will during the subsistence of their security pay all rents, royalties, taxes, rates and imposition that are now payable or may hereinafter be payable in respect of the mortgaged premises and shall also perform and observe the terms and conditions contained in the several head leases or pattas under which they are respectively held thereof.