Judgement Appeal from a judgment and decree of the High Court (July 11, 1911) reversing a judgment and decree of the Subordinate Judge of Burdwan (May 16, 1906). The suit was instituted by the Raja of Pachete, the first respondent, against the appellants and persons (joined as respondents to the appeal) who were the appellants lessees of lands in mauza Panchgachia, a village within the ambit of the zamindari of Pachete. The plaintiff alleged by his plaint that the mauza was an ordinary mal village of his zamindari, that the appellants had no rights in the subsoil, and that the defendants, their lessees, had been wrong fully working the coal under the mauza. The Raja claimed a declaration that he was entitled to the mineral rights in the village, an injunction, and damages. The appellants by their written statements pleaded, so far as is material, that the mauza was held by them and their predecessors under talabi brahmottar rights from a date before the permanent settlement. They claimed that their rights were those of proprietors, subject to the payment of a fixed rent, and that they had full rights in the subsoil. The grant relied on was stated to have been lost, and no copy of it or evidence as to its terms was given at the trial. There was, however, in evidence a copy of a statement made by a predecessor of the plaintiff to the Revenue authorities in 1790. This document was produced from the Collectorate of Mandbun, and referred to mauza Panchgachia as talabi brahmottar, its jamma being stated to be sicca Rs.25. Evidence was also given of a judgment in Persian in a suit brought in 1808 in which the appellants predecessors claimed the return of rent paid in excess. This judgment referred to the mauza as held on talabi or mogli brahmottar rights. A body of evidence was called as to the rents paid and as to transfers having taken place. The Subordinate Judge found that the mauza was held since before the permanent settlement in talabi brahmottar rights by the three classes of Brahmans—Upadhyas, Mukerjis, and Misra— in Panchgachia in distinct shares of three, six, and seven annas; that the appellants predecessors had been paying fixed rents certainly since 1808, and had exercised transferable and heritable rights. The Subordinate Judge found that the mauza was held since before the permanent settlement in talabi brahmottar rights by the three classes of Brahmans—Upadhyas, Mukerjis, and Misra— in Panchgachia in distinct shares of three, six, and seven annas; that the appellants predecessors had been paying fixed rents certainly since 1808, and had exercised transferable and heritable rights. He said "The term brahmottar is quite familiar in Bengal; it undoubtedly means land granted rent free to Brahmans for their support and that of their descendants, probably as a reward for their sanctity and learning, or to enable them to devote themselves to religious duties and education, as we find in Wilsons Glossary. If the word brahmottar conveys this meaning, the prefixing of the word talabi, kheraji or mogli imports the modification only that the grant is made subject to the condition that a fixed rent should be paid by the grantee to the grantor." Upon a consideration of Regulation I. of 1793 he rejected a contention on the part of the plaintiff that previously to the permanent settlement the zamindars were not owners of the land and consequently could not demise the minerals. He thought, on this point, that, though the authorities differed in their opinion as to the actual status of the zamindars immediately before the settlement, the Government at the time classed the zamindars among actual proprietors of the soil. It was, he thought, the surface only which was in the contemplation of the parties to the grant, but, the grant being a permanent one without any reservation, the inference, on the authority of Sriram Chakravarti v. Hari Narain Singh Deo (( 1905) I. L. R. 33 Calc 54.), was that the minerals passed under the talabi brahmottar grant. He accordingly dismissed the suit. Upon appeal the High Court (Coxe and Teunion JJ.), by a judgment reported at I. L. R. 38 Calc. 985, reversed the decision. Upon the facts the learned judges found that the appellants predecessors had held since before the permanent settlement under a talabi brahmottar grant at a fixed rent and with transferable rights, and that without doubt the present appellants were at least permanent tenure holders. 985, reversed the decision. Upon the facts the learned judges found that the appellants predecessors had held since before the permanent settlement under a talabi brahmottar grant at a fixed rent and with transferable rights, and that without doubt the present appellants were at least permanent tenure holders. After a consideration of the authorities, and pointing out that the decision relied on by the Subordinate Judge had since been reversed by the Privy Council, they found that the mineral rights must be regarded as the property of the Raja. They accordingly made the declaration prayed for and granted an injunction. The lessees did not appeal to the Privy Council, but were joined as respondents in the appeal by the brahmottidars. 1916. Nov. 6. Dunne, for the appellants. Both Courts in India found that the brahmottar grant gave the appellants a permanent, heritable, and transferable tenure. There was no interest left in the zamindar save the right to the quit rent. Definitions of a brahmottar grant are to be found in Wilsons Glossary, p. 93 ; Fields Regulations, Introduction, p. 53 ; and in the Glossary in the Fifth Report, vol. 2. Those definitions indicate that the grant is in the nature of a gift or a " grant " in the English sense. It was held in Sonet Kooer v. Himmut (( 1875) I. L. R. 1 Calc. 391.) that in default of heirs a permanent tenure escheats to the Crown, and that decision was followed in Nil Madhab Sikdar v. Narattam Sikdar. (( 1890) I. L. R. 17 Calc 826.) There is therefore no reversionary interest in the case of a permanent tenure, and the tenure holder has a full right in the subsoil Sriram Chakravarti v. Hari Narain Singh Deo. (I. L. R. 33 Calc. 54.) The Privy Council reversed the last-l named decision (L. R. 37 Ind. Ap. 136.), but only on the ground that the Board did not consider that the tenure there in question was permanent, heritable and transferable. The village there in suit was a mal village of the zamindari and the tenure commenced after the permanent settle ment. The decision of the Board in Durga Prasad Singh v. Braja Nath Bose (L. R. 39 Ind. Ap. 133.) is also distinguishable, since the tenure there in question commenced after the permanent settlement and was a service tenure. The village there in suit was a mal village of the zamindari and the tenure commenced after the permanent settle ment. The decision of the Board in Durga Prasad Singh v. Braja Nath Bose (L. R. 39 Ind. Ap. 133.) is also distinguishable, since the tenure there in question commenced after the permanent settlement and was a service tenure. The observations in the judgment as to the effect of the decision in Hari Narayan Singh Deo v. Sriram Chakravarti (4) were obiter and proceeded upon a misinterpretation of the judgment. [Rally Dass Ahiri v. Monmohini Dassee (( 1897) I. L. R. 24 Calc. 440.) and Adhiram Goswami v. Shyama Charan Nandi (( 1909) L. R. 36 Ind. Ap. 148.) were also referred to.] Sir R. Finlay, K.C., De Gruyther, K.C., Parikh, and Erfan Ali, for the respondents. The judgments of the Board reported at L. R. 37 Ind. Ap. 136 and L. R. 39 Ind. Ap. 133 proceeded on the ground that even if tenure is permanent, heritable, and transferable, it does not include the minerals, in the absence of evidence that the zamindar parted with his right to them. Those decisions are conclusive in the respondents favour. The lands came under the Bengal Tenancy Act (VIII. of 1885) and were liable to sale on failure to pay the rent. In the appeal reported at L. R. 37 Ind. Ap. 136 the lands were debottar; this is an a fortiori case. But even if the above decisions of the Board are distinguishable the respondents are entitled to succeed. If the appellants are agricultural tenants, s. 5 of the Bengal Tenancy Act, 1885, excludes the idea of their owning the mines. If on the other hand the lands are notagricultural lands, then under the Transfer of Property Act, 1882, s. 108 (a), the tenants could not open mines. The village formed part of the estate settled on the zamindar at the permanent settlement in 1790, and under Regulation I. of 1793 he was in the position of proprietor. The appellants predecessors were rayats; in 1808, in proceedings under Regulation VIII. of 1793, they recovered excess rent in that character. Since 1885 they have been dealt with as tenants under the Bengal Tenancy Act. Dunne replied. Dec. 8. The appellants predecessors were rayats; in 1808, in proceedings under Regulation VIII. of 1793, they recovered excess rent in that character. Since 1885 they have been dealt with as tenants under the Bengal Tenancy Act. Dunne replied. Dec. 8. The judgment of their Lordships was delivered by LORD BUCKMASTER L.C. The appellants in this case are the descendants and representatives of certain Brahmans to whom at a date uncertain, but antecedent to 1790, the then Raja of Pachete made a mokurari grant of the village known as mauza Panchgachia; the question raised in this appeal is whether this grant carried with it the mineral rights in the soil. In considering the question it is important to avoid giving to words used in connection with legal transactions in India the special and technical meaning that they possess in this country. According to our law, the word "grant" is strictly applicable to the conveyance at common law of remainders, reversions, and incorporeal hereditaments, which do not lie in livery, or of which livery could not be given. But in connection with the present dispute the word has no such meaning, and it is important at the outset to bear this in mind. The grant under which the appellants claim cannot be found, nor is there any copy in existence, nor any record of its literal contents. It is, however, admitted that the grant was a talabi brahmottar grant. Such a grant is defined in Wilsons Glossary as "land granted rent free to Brahmins for their support and that of their descendants, probably as a reward for their sanctity of living or to enable them to devote themselves to religious duties and education." If after the words "rent free n be added the words" or at a fixed rent," this statement may be accepted as an accurate description of the origin of the grant, but in itself it contains no definition of the characteristics of the tenure. It has, however, been found in the present case that the tenure of the lands in dispute-is permanent and heritable, and confers upon the holder for the time being full rights of alienation ; but even these findings, though they invest the tenure with attributes of absolute ownership, afford little assistance in determining what it was that the grant passed. It has, however, been found in the present case that the tenure of the lands in dispute-is permanent and heritable, and confers upon the holder for the time being full rights of alienation ; but even these findings, though they invest the tenure with attributes of absolute ownership, afford little assistance in determining what it was that the grant passed. Now by the permanent settlement of 1793 all the mineral rights were confirmed to the zamindars, and the first respondent to this appeal represents their interest in the estate. If such rights were already possessed and recognized at the date of the settlement this confirmation would hardly have been needed, and this suggests that up to that date the rights enjoyed and granted in the lands were not considered as including the minerals; if this were so, as the grant in question could have created no rights in the property which the grantor did not possess, no right to the minerals could have been conferred. However that may be, there is certainly nothing in the permanent settlement to which the appellants can turn in support of their contention. Indeed, apart from the evidence furnished from the Sarsikal jamma, and the facts that have been stated as to the well-recognized attributes of a brahmottar grant the appellants have been unable to furnish any evidence at all in support of the view that the grant conveyed the minerals; their case really depends upon the assumption that the character of the grant itself is sufficient to establish their claim. This question has been the subject of much controversy in the Indian Courts, and the appellants can certainly point to some powerful and well-reasoned judgments in support of their view. But, in their Lordships opinion, the matter has been set at rest by the decision of the Judicial Committee. In the case of Hari Narayan Singh Deo v. Sriram Chakravarti (L. R. 37 Ind. Ap. 136.) a question arose as to the ownership of the minerals underlying a certain village called Petena which had been granted to an idol of whom the Goswamis were the priests. In the case of Hari Narayan Singh Deo v. Sriram Chakravarti (L. R. 37 Ind. Ap. 136.) a question arose as to the ownership of the minerals underlying a certain village called Petena which had been granted to an idol of whom the Goswamis were the priests. In that case, as in this, the grant was not forthcoming, but it was held in the High Court that the tenure of the Goswamis gave them permanent, heritable, and transferable rights, and upon this finding the High Court decided that the minerals had passed under the original gift. Upon appeal to the Privy Council this judgment was questioned upon two grounds first, that there was no evidence that the tenure carried with it permanent, heritable, and transferable rights ; and, secondly, that, even if this contention were wrong, in the absence of express evidence that the creation of the tenure was accompanied with the grant of the minerals, the minerals did not pass. The Judicial Committee decided in favour of the appellant contention, and the material part of the judgment is to be found on p. 145 of the report. The two points are there dealt with, and upon the first Lord Collins, in delivering the judgment of the Board, made this statement " On this meagre foundation of fact the two judges who constituted the High Court have built up the theory that the Goswamis were tenure holders having permanent, heritable, and transferable rights." He then proceeds to deal with the judgment of Pargiter J., who took the view that the creation of such a grant carried with it the mineral rights; and he expresses disagreement with this view of the law, stating that it appeared to ignore the distinction between the mere tenure holder and the zamindar; the judgment concludes by saying that the zamindar must be presumed to be the owner of the ground rights in the absence of evidence that he ever parted with them. The counsel for the appellants has strongly urged that the whole of this judgment depends upon their Lordships refusing to accept the view that the tenure in that case was permanent, transferable, and heritable, and that the judgment only applies to an estate lacking those qualities. The counsel for the appellants has strongly urged that the whole of this judgment depends upon their Lordships refusing to accept the view that the tenure in that case was permanent, transferable, and heritable, and that the judgment only applies to an estate lacking those qualities. Their Lordships realize that the judgment, in the absence of the argument, might be open to this construction ; but, read in the light of the then appellants contention, they think that the two passages referred to dealt with the two separate points which were raised by the appellants, and that the latter part of the judgment was really independent of the statement which expressed dissatisfaction with the conclusion drawn as to the character of the tenure. Their Lordships would have felt more uncertainty about this view had it not been for a second judgment in a subsequent case— Raja Sri Sri Durga Prasad Singh v. Braja Nath Bose. (L. R. 39 Ind. Ap. 133.) In that case also the nature of the grant was not identical with that of the grant in the present case. It was the grant to the holders of an office, the office of digwar, and it was permanent only in the sense that, so long as that office continued to be held by members of the same family, the rights created by the grant would be assured to the holders for the time being of the office. In that case the High Court followed the decision of the High Court in the former case, which had not then been reversed, and Lord Macnaghten, in giving the judgment reversing the High Court, referred to that fact in the following terms " The learned judges on appeal seem to have been misled by a decision of the High Court in the case of Kumar Hari Narayan Singh Deo Bahadur v. Sriram Chakravarti, which was afterwards reversed by this Board, and is reported in L. R. 37 Ind. Ap. 136. There certain persons, called Goswamis or Gossains, priests of a Hindu idol to which a certain village had been assigned on a permanent debottar tenure at a small annual rent, granted a lease of the underlying minerals. The High Court held that the mineral rights were vested in the Gossains. Ap. 136. There certain persons, called Goswamis or Gossains, priests of a Hindu idol to which a certain village had been assigned on a permanent debottar tenure at a small annual rent, granted a lease of the underlying minerals. The High Court held that the mineral rights were vested in the Gossains. But it was laid down by this tribunal that it must be presumed that the mineral rights remained in the zamindar in the absence of proof that he had parted with them." It is plain from this statement by Lord Macnaghten, who was one of the members of the Board in the former case, that the earlier decision was intended to apply to a permanent debottar tenure—in other words, that the doubt that was thrown in the former case as to the sufficiency of the evidence on which the tenure had been held to be permanent, heritable, and transferable did not affect the main judgment in the case, which was based upon the hypothesis that these attributes of the tenure had been established. These decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable, and transferable„ minerals will not be held to have formed part of the grant in the absence of express evidence to that effect. It is admitted in the present instance that the only evidence that can be relied on arises from the characteristics of the tenure and the statement as to the object and purpose for which the grant was made as stated in Wilsons Glossary. For reasons that have already been given, this affords no evidence necessary for the purpose, and their Lordships will therefore humbly advise His Majesty that this appeal should be dismissed with costs. In conclusion their Lordships desire once more to call attention to the tedious protraction of Indian litigation. It can only be a misfortune that a dispute such as the present, which affects a matter so important as the right of mining,—a right of great value for the development and prosperity of any country—should have been in abeyance for a period which, from the commencement of the present dispute until the day of hearing of this appeal, has exceeded twelve years.