BUTTO KRISTO ROY Vs. GOBINDARAM MARWARI

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of Rs. 24,941-11-3 for minimum royalty with interest from the principal defendants 1 to 3 (who will be hereinafter referred to as defendants). The royalty is payable under a registered lease dated 28 March 1907, executed by Thakur Giridhari Singha, deceased father of pro forma defendant 4, in favour of Prasanna Kumar Rai, deceased father of defendants 1 and 2 and grandfather of defendant 3, in respect of 220 bighas of coal land in Mauza Kenduadih. The annual minimum royalty reserved by the lease was Rs. 2200 payable in six instalments subject to the payment of interest at Rs. 3-2-0 per cent, per month in case of default of payment of any kist. It is alleged in the plaint that out of this annual royalty of Rs. 2200 Giridhari Singh had assigned Rs. 275 to another person and the remaining Rs. 1925 was being paid annually by Prasanna and, after him, by the defendants, to Giridhari Singh and, after him, to the pro forma defendant. On 29 November 1922, the pro forma defendant borrowed from the plaintiffs Rs. 15,000 carrying compound interest at 2per cent, per month with yearly rests under a registered mortgage bond, hypothecating thereby the aforesaid 220 bighas of coal land with another property, namely the entire mauza Nautandih. This lastmentioned mauza which was mainly comprised of coal lands was also in lease with one Damodar Lai Lala at an annual jama of Rs. 4720. By the mortgage bond the plaintiffs were given the right to realise the annual minimum royalty of Rs. 1925 from the defendants and Rs. 4720 from Damodar Lala.

(2.) The plaintiffs after the mortgage sent notices to the defendants and also to Damodar Lala and thereupon the defendants used to pay the annual royalty of Rs. 1925 to them but Damodar Lala sent a reply stating that he was not liable to pay royalty until the railway siding in mauza Nautandih was constructed. The defendants paid to the plaintiffs the royalty up to Aswin kist 1333 B.S. but since then have not paid anything in spite of repeated demands. The plaintiffs, therefore, instituted the present suit on 29 November 1934, claiming the royalty for six years from Agrahayan kist 1335 (November-December, 1928) to Aswin kist 1341 B.S. (September-October, 1934) with interest at Rs. 3-2.0 per cent, per month from the date of default of each kist.

(3.) This suit was contested by the defendants mainly on the following allegations: The plaintiffs under their mortgage which was a simple mortgage had no right to realize the rent of the mortgaged properties but were merely consitituted agents for collection of the same. The defendants paid rents to the plaintiffs from Agrahayan 1329 to Aswin 1333 under the direction of their landlord, defendant 4. The said agency was terminated in 1926 by defendant 4 who directed the defendants not to pay the rent to the plaintiffs any more as their mortgage had been fully satisfied but to pay to his managing agent Biseswar Chakrabarty. In pursuance of this direction the defendants paid rent to Biseswar till Maga kist 1333; and in order to avoid trouble, they duly informed the plaintiffs of the matter who remained quiet.