Judgement Law Rep. 58 Ind. App. 392 ( 1930- 1931) H. V. Low and C ompany, Limited V. Jyoti Prasad Singh Deo 185 Appeal (No. 8 of 1930) from a decree of the High Court in its appellate jurisdiction (December 13, 1929) reversing a decree of the Court in its original jurisdiction (February 12, 1929). The appellants sued the respondent to recover a salami or premium paid by them in connection with a contract for the grant to them by the respondent of a lease of the underground coal rights in two mauzas within the respondents zamindari. The appellants contended that there was a “want of the lessors title," which under the contract entitled them to refuse the lease and recover the salami. The facts are stated in the judgment of the Judicial Committee. The trial judge (Page J.) decreed the suit. An appeal was allowed by a judgment delivered by Rankin C. J. and concurred in by Buckland J. The appeal is reported at I. L. R. 57 C. 1189. 1931. June 22, 23, 25. E. B. Raikes K.C., M. B. Jardine and Harry Johnson for the appellants. A suit by the respondent for specific performance would have been dismissed under s. 25 (6) of the Specific Relief Act, 1877, upon it appearing that he could not give a title free from reasonable doubt, and thereupon the appellants would have recovered the salami under s. 18 (d) of that Act. Under the clause in the contract the right of the appellants to recover the salami is at least as wide as under the general law. Although under the authorities the brahmottar grants did not convey the subsoil rights unless there were express words, the grants may have been in language similar to that in Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1924) L. R. 52 I. A. 109.), which the Board held was sufficient to carry the minerals. In the absence therefore of production of copies of the grants or information as to their terms there was a reasonable doubt as to the respondents right to deal with the subsoil rights. The respondent was bound to supply the appellants with information upon the matter. It should not be accepted that he could not do so ; his refusal to give an indemnity shows that he was not acting bona fide. Sect. The respondent was bound to supply the appellants with information upon the matter. It should not be accepted that he could not do so ; his refusal to give an indemnity shows that he was not acting bona fide. Sect. 108 of the Transfer of Property Act, 1882, is not exhaustive of the obligations between a lessor and lessee. The Board has held that the Contract Act is not exhaustive as to the matters with which it deals Jwaladutt Pillani v. Bansilal Motilal. (( 1929) L. R. 56 I. A. 174.) The relations of landlord and tenant in India are regulated by English law as it was before the Vendor and Purchasers Act, 1874, save so far as the Indian Legislature has provided otherwise Tarachand Biswas v. Ram Gobind Chowdhry. (( 1879) I. L. R. 4 C. 778, 781.) Under the law in England before the Vendor and Purchasers Act, 1874, there was in a contract to grant a lease an implied term that the lessor would make out his title to grant the lease Souter v. Drake ((1834) 5 B. & Ad. 992.) ; see also Jones v. Watts. (( 1890) 43 Ch. D. 574.) Further, the mining right contracted for was not a " lease " within s. 105 or s. 108 of the Act of 1882 ; it was really a sale of property out and out Gowan v. Christie (( 1873) L. R. 2 H. L. (Sc.) 273, 284.) ; Campbell v. Wardlaw. (( 1883) 8 App. Cas. 641, 649.) The respondent was therefore under the obligations laid down in s. 55 of the Transfer of Property Act, 1882 ; the appellants rely on s. 55, sub-s. 1 (a) (6), and sub-s. 2. Upjohn K.C. and Parikh for the respondent. Under the clause in the contract the appellants could recover the salami only upon proof by them of a " want of title " in the respond ent, a cloud upon the title was insufficient. The Board has held in Raja of Pittapur v. Secretary of State for India (( 1929) L. R. 56 I. A. 223.) that the fact that persons are in possession of the surface rights of zamindari lands shows no want of title in the zamindar of the subsoil rights. The Board has held in Raja of Pittapur v. Secretary of State for India (( 1929) L. R. 56 I. A. 223.) that the fact that persons are in possession of the surface rights of zamindari lands shows no want of title in the zamindar of the subsoil rights. Even if the suit was one by the respondent for specific performance, so that the tests of " reasonable doubt " and " imperfect title " in ss. 25 (6) and 18 of the Specific Relief Act, 1877, applied, the appellants would not be entitled to succeed. There is no ground for suggesting that the respondent did not make a bona fide Law Rep. 58 Ind. App. 392 ( 1930- 1931) H. V. Low and C ompany, Limited V. Jyoti Prasad Singh Deo 186 search for the grants; no grants were produced by the grantees at the settlement. They have never asserted any right to the subsoil rights; the appellants could have called them at the trial. No written grant since 1866 could affect the title in the absence of registration ; if made after 1883 they must have been in writing by Act IV. of 1882. It is almost inconceivable that there could be any successful claim adverse to the appellants. Decisions of the Board show that in the absence of evidence of the terms of a grant by a zamindar, he is to be presumed to own the subsoil rights in his zamindari lands Hari Narayan Singh v. Sriram Chakravarti (( 1910) L. R. 37 I. A. 136.) ; Durga Prasad Singh v. Braja Nath Bose (( 1912) L. R. 391. A. 133,142.) ; Sashi Bhushan Misra v. Jyoti Prasad Singh (( 1916) L. R. 44 I. A. 46.) (relating to this particular zamindari) ; Raghunath Roy Marwari v. Raja of Jheria (( 1919) L. R. 46 I. A. 158.) ; Raja of Pittapur v. Secretary of State for India (6) ; Gobinda Narayan Singh v. Sham Lal Singh. (( 1931) L. R. 581. A. 125,132,133.) The above cases were between grantor and grantee, but they establish principles applying between vendor and purchaser. There is always a remote possibility that there may be a defect in a title, even though it is one which in law has to be accepted. (( 1931) L. R. 581. A. 125,132,133.) The above cases were between grantor and grantee, but they establish principles applying between vendor and purchaser. There is always a remote possibility that there may be a defect in a title, even though it is one which in law has to be accepted. The right to compensation under the provisions of s. 108 A (( 1929) L. R. 56 I. A. 223, 231.) and (c) of the Act of 1882 cover that. The respondent made the disclosure required of him by s. 108 A (a). There is no ground for the suggestion that s. 55 and not s. 108 applied. The cases cited for the view that the contract was for a sale, not a lease, related to the law in Scotland. Even a mukarrari pottah is not to be regarded as a conveyance of the fee simple Abhiram Goswami v. Shyama Charan Nandi. (( 1909) L. R. 36 I. A. 157.) [Reference was made also to Alexander v. Mills (( 1870) L. R. 6 Ch. 124, 131.); Johnson v. Clarke ([ 1928] Ch. 847.), and Dart on Vendor and Purchaser, 7th ed., p. 266.] E. B. Raikes K.C. in reply. It is not permissible to make any presumption as to the contents of the grants Secretary of State for India v. Laxmibai (( 1922) L. R. 50 I. A. 49.) and cases there followed ; Secretary of State for India v. Girjabai (( 1927) L. R, 54 I. A. 359.), and Indian Evidence Act, 1872, s. 114. July 24. The judgment of their Lordships was delivered by LORD MACMILLAN. The appellant company seeks in this action to recover from the respondent a sum of Rs.34,440 whic on October 13, 1923, it paid to him as salami or premium in respect of a contemplated 999 years lease of the underground coal rights in two mauzas known as Raidi and Methadi comprised in the respondents zamindari. Subsequent to the payment of this premium the parties entered into a formal agreement dated January 22, 1925, whereby the appellant company agreed that within two months from the date of the submission of the draft lease by the respondent it would take the proposed mining lease from the respondent or his lessees " on a salami of Rs.34,440 already deposited," and on certain specified royalty terms. The agreement contained the following clause "If they (i.e., the appellant company) neglect or fail to take such lease within the aforesaid time except for the reason of the want of the lessors title to the said mauzas the sum of Rs.34,440, deposited as aforesaid, will be forfeited unto the Raja Bahadur." There was considerable delay in proceeding with the transaction, but at length on May 29, 1925, a draft lease was sent to the appellant company. On June 30, 1925, the companys solicitors returned the draft approved, with certain alterations, adding in their covering letter, that " our approval is subject to the title of the Maharaja being satisfactory." The letter proceeded as follows " We may mention that we do not yet know what right the Maharaja has to the properties in question. We are, however, informed that mauza Methadi is held under a patni lease under the Maharaja by the Mohtas. If this be so, we shall be glad to know how the Maharaja claims to deal with the underground rights. Mauza Raidi, we understand, is held by Gopal Kaviraj and others. We do not know what the nature of their title is and whether the Maharaja has the underground rights Law Rep. 58 Ind. App. 392 ( 1930- 1931) H. V. Low and C ompany, Limited V. Jyoti Prasad Singh Deo 187 or these Kaviraj as have the underground rights. Before the lease is finally completed we must be satisfied that the Maharaja has the right to deal with the underground." This was the first occasion on which any question was raised by the appellant company as to the respondents title. On July 11, 1925, the respondents manager wrote in reply " As regards the Maharajas title in the said mauzas I have to inform you that Maharaja Bahadur is the landlord of both the mauzas under whom the surface right in Mauza Raidi is held as a rent free debuttar tenure paying cess to this estate by Radhasyam Roy and others as Sebaits of Dadhipaban Thakur, and the surface right in Mauza Methadi is held as a rent paying (kheraji) brahmottar tenure by Ajodhyaram Chatterjee and others. For your information I am sending herewith a copy of the last Survey Settlement records of these mauzas, from which it will be quite clear that Maharaja Bahadur is the landlord, and as such the right in the underground minerals is vested in him." The companys solicitors, on July 17, 1925, wrote in reply " It is not clear whether the mineral rights of the above mauzas have not been parted with by the ancestors of the Raja Bahadur to the debuttardars and brahmottardars, and we think you will admit that copies of the debuttar and brahmottar grants are necessary to arrive at a decision. We shall, therefore, thank you to send copies of the above documents, failing which, we are afraid, an indemnity by the Raja Bahadur will be necessary to safeguard the interests of our clients." On August 5, 1925, the respondents manager replied as follows " I have to inform you that the brahmottar and debuttar grants were made by the ancestors of the Raja Bahadur in days long gone by, and no trace of the origin of the grants can be found out. Prima facie, the mining rights in the villages belong to the Raja Bahadur, who is admittedly the proprietor thereof, and if anybody questions his rights it will evidently be for him to show the same. Under the circumstances the Raja Bahadur is not in a position to execute any indemnity bond." The solicitors of the appellant company on August 18, 1925, intimated that their clients were not prepared to take the lease " as the Maharaja has failed to produce any title to the underground mining rights," and requested repayment of the salami already paid, with interest and expenses, at the same time claiming a sum in name of damages. The respondent denied all liability, and the appellant company thereupon brought the present suit against him in the High Court of Calcutta on June 7, 1926. On February 12, 1929, the judge of first instance (Page J.) gave judgment in favour of the plaintiff for the return of the salami with interest. This judgment was reversed and the suit dismissed by the Appellate Court (Rankin C.J. and Buckland J.) on December 13, 1929. The matter is now before their Lordships on the original plaintiffs appeal. On February 12, 1929, the judge of first instance (Page J.) gave judgment in favour of the plaintiff for the return of the salami with interest. This judgment was reversed and the suit dismissed by the Appellate Court (Rankin C.J. and Buckland J.) on December 13, 1929. The matter is now before their Lordships on the original plaintiffs appeal. The parties having, in the clause above quoted from the agreement of January 22, 1925, made their own bargain as to the circumstances in which the salami should be forfeited to the respondent, the first question which arises is as to the true meaning and intent of that clause. The appellant company has failed to take the lease tendered to it; it has, therefore, forfeited its deposit unless the reason for its failure to accept the lease has been " the want of the lessors title." The burden is upon the appellant company to establish this justification of its rejection of the lease. In their Lordships view the appellant company is not required to prove that the respondent has no title to the subjects he professed to lease. The expression " want of title " in the clause must be read as covering deficiency of title as well as absence of title. If the appellant company can show that, owing to the state of the respondents title, the lease tendered is not such as it can be required to accept, then forfeiture of the salami has not been incurred. The action is not one by an intending lessor for specific performance, but, in their Lordships opinion, the test of the appellant Law Rep. 58 Ind. App. 392 ( 1930- 1931) H. V. Low and C ompany, Limited V. Jyoti Prasad Singh Deo 188 companys right to recover the salami is whether an action for specific performance at the instance of the respondent could have been successfully resisted by the appellant company on the ground that the respondents title was defective. The Specific Relief Act (I. of 1877) formulates the test. The Specific Relief Act (I. of 1877) formulates the test. By s. 25 of that statute it is enacted that a contract for the letting of property cannot be specifically enforced in favour of a lessor who cannot give the lessee " a title free from reasonable doubt." Reference may also be made to s. 18, which enacts that where the lessor sues for specific performance of the contract, and the suit is dismissed " on the ground of his imperfect title," the defendant is entitled to the return of any deposit he has made. The real question at issue, therefore, is whether the appellant company has shown that the respondents title to grant a lease of the mineral rights in the two villages is not free from reasonable doubt, or may be fairly described as imperfect. It is obvious that the question is one of degree. The doubt suggested must be a reasonable doubt; the imperfection must be material. The appellant company has led no evidence, and maintains that the infirmity of the respondents title is sufficiently demonstrated by his admission that his ancestors have at some unknown date in the past made a debuttar grant of mauza Raidi and a brahmottar grant of mauza Methadi in virtue of which the successors of the original grantees are at the present day in possession, there being no evidence as to the terms of these grants and, in particular, whether they included the underground rights. The respondent called one witness, a servant, who described his duties as being " to look after suits and to carry out all directions of the manager." This witness stated that he had made a search in the respondents sherista for any debuttar and brahmottar grants relating to the two villages, but had failed to find any such grants or any copies thereof ; that at the survey settlement the holders of the grants attended, but did not produce any grants ; that after the institution of the present suit he had seen the two holders of the largest shares of the grants, upon whom subpoenas had been served, but that neither could produce any grant. The evidence of this witness was criticized on the ground that he was not the regular keeper of the respondents records, and that his search was inadequate. The evidence of this witness was criticized on the ground that he was not the regular keeper of the respondents records, and that his search was inadequate. Their Lordships are satisfied that sufficient diligence was shown in the prosecution of the respondents investigation. The result is that the appellant company is unable to do more than conjecture that the grants made by the respondents predecessors may have comprised the underground rights. On the other hand, there is no evidence that the grantees have ever asserted any right to the minerals under the villages or that they have ever been worked by them or their predecessors. It is, moreover, sufficiently established that there are no written grants in existence, and it must, in any event, be borne in mind that since 1866 no document, unless registered, can affect the title to immovable property in Calcutta. Now, " a long series of recent decisions by the Board has established that if a claimant to subsoil rights holds under the zamindar or by a grant emanating from him, even though his powers may be permanent, heritable and transferable, he must still prove the express inclusion of the subsoil rights " (Gobinda Narayan Singh v. Sham Lal Singh (L. R. 58 I. A. 125, 133.), and see cases there cited). In the present case the grants not being in writing, must, to be effectual, be earlier in date than 1883, for since then such grants have required to be by written instrument. Consequently the grantees in order to establish the inclusion of the subsoil rights in their grants would have to prove that the terms of oral grants made half a century ago expressly included these rights. Where, as here, there is no evidence that the grantees ; have ever claimed or worked the minerals, the possibility of the grantees being now able to prove that the mineral rights were expressly granted to their predecessors is reduced to a contingency so remote as to be practically negligible. The rights and liabilities of lessor and lessee are defined in the Transfer of Property Act (IV. of 1882), s. 108. These contrast markedly with the rights and liabilities of buyer and seller as defined in s. 55, Law Rep. 58 Ind. App. The rights and liabilities of lessor and lessee are defined in the Transfer of Property Act (IV. of 1882), s. 108. These contrast markedly with the rights and liabilities of buyer and seller as defined in s. 55, Law Rep. 58 Ind. App. 392 ( 1930- 1931) H. V. Low and C ompany, Limited V. Jyoti Prasad Singh Deo 189 particularly in the matter of the requirements as to title which the seller must satisfy. The appellant company has not shown that the respondent has failed, or is not in a position, to perform any of the duties incumbent on a lessor under s. 108. Their Lordships, for the reasons indicated, are of opinion that the appellant company has not justified its refusal to take the lease offered to it, inasmuch as it has not shown any such " want of title " on the lessors part as would create a reasonable doubt. This is sufficient for the disposal of the case, and their Lordships will accordingly humbly advise His Majesty that the appeal should be dismissed with costs.