Judgement

PUNCHHI, J.:- We are required in this appeal to ascribe a meaning to the word "royalty" figuring in a deed of assignment of mining rights between two beings, both devoid of regalia.

2. In its primary and natural sense "royalty", in the legal world, is known as the equivalent or translation of jura regalia or jura regia. Royal rights and prerogatives of a sovereign are covered thereuner. In its secondary sense the word "royalty" would signify, as in mining lease, that part of the reddendum, variable though, payable in cash or kind, for rights and privileges obtained. It is found in the clause of the deed which the grantor reserves something to himself out of that which he grants. It may even be a clause reserving rent in a lease, whereby the lessor reserves something for himself out of that which he grants. But "What is in a name ? a rose by any other name would smell as sweet". So said Shakespeare.

3. We will now get on to the merit of the matter.

4. The appellants are the plaintiffs. They are the heirs of one Sardar Pishora Singh Sial. By deed Ex. D-2 dated 19-11-1938, Pishora Singh obtained a mining lease from the erstwhile Government of Central Provinces for extraction of coal in 420.27 acres of land in village Dighawani, District Chhindwara. He also obtaining in the same village a prospecting licence vide deed Ex.D-3 dated 22-11-1938 to prospect of coal in an area measuring 242.29 acres. Before hand, on 16-11-1938 in anticipation of obtaining the lease and the licence he entered into a contract with Karam Chand Thapar and Brothers Ltd. to assign his rights in the lease and prospecting licence when maturing. On obtaining, he sought and received permission from the Government on 7-3-1939 vide Document Ex.D-4 for transferring those two rights to Karam Chand Thapar and Brothers Ltd. The Government however secured thereunder for itself payment of due royalty from Pishora Singh uptil a particular date and thereafter from the said company. On such permission being granted, a sale deed was executed by Pishora Singh Sial in favour of Karam Chand Thapar and Bros. Ltd. on 13th June, 1939/30th June, 1939 vide document Ex.D-5. This first assignee later assigned its rights, interests and obligations in favour of the second assignee M/s. Rawanawara Collieries 248 vide document Ex.D-8 dated 5-7-1940 and in the same pattern, the second assignee sold its rights, interests and obligations to the third assignee M/s. Oriental Coal Company Ltd. The lease and licence was for a period of thirty years starting from particular dated as embodies in the initial deeds.

5. In the assignment deed Ex.D-5, the consideration settled has been detailedly mentioned. We would advert to the same later. At this juncture, we need only to highlight that there are distinct two royalties which are playing their part. First is the royalty which Pishora Singh, legally bound, had undertaken to pay to the State Government on obtaining mining and prospecting rights. The State Government while sanctioning subsequent transfers had to and specifically kept preserved that right against all the subsequent transferees. That royalty undeniably was in assertion of the States right to the minerals gotten or to be gotten, and for the rights and privileges conferred in regard thereto. That the State had such right in such venture as known to law, in the primary or secondary sense, is beyond dispute. The second "royalty" figuring is embodied in the assignment deed Ex.D-5 wherein royalty has been undertaken to be paid by Karam Chand Thapar and Bros.Ltd. to Pishora Singh to the extent and manner stipulated therein as part of the consideration for assignment, over and above the royalty payable to the State. The liability to pay such stipulated royalty to Pishora Singh ultimately rested on the three aforementioned assignees, jointly as well as severally. And in the discharge of that liability undisputably periodic payments had been made to Pishora Singh (including his heirs) for ab