The main legal point established in the judgment is that a separate suit by one of the shebaits for a share of the royalties was not maintainable and that the stipulated royalty was payable only on coal raisings which corresponded with the extent of the interest of the family deity in the mauza—namely, 8 annas.

Judgement

Appeal (No. 22 of 1932) from a decree of the High Court (February 18, 1930) affirming a decree of the Subordinate Judge of Asansol (July 12, 1927).

The plaintiff, respondent No. 1, and his three brothers, were shebaits of their family idol. On May 24, 1901, they executed a mining lease of the interest of the idol in a mauza. The material terms of the lease appear from the judgment of the Judicial Committee. It was found that the interest of the idol in the mauza was an 8-annas share. The defendant company (appellants) were transferees of the lessees interest in the lease. They were also transferees of three other mining leases which together covered the other 8-annas share in the mauza, and had been raising coal from the property since 1914.

Law. Rep. 61 Ind. App. 35 ( 1933- 1934) Baraboni Coal Concern, Limited V. Gokulananda Mohanta Thakur 193

In 1924 the first respondent instituted the present suit against the appellants claiming a one-quarter share in royalties (described in the lease as commission) due under the lease executed by the four shebaits ; he joined the other shebaits as defendants. The appellants by their written statement contended (inter alia) that an individual shebait could not maintain the suit, and that in any event under the terms of the lease only an 8-annas share of the royalties was payable. It was no longer in dispute that as between the shebaits the interest of the plaintiff was a 4-annas interest.

The High Court (Mukerji and Guha JJ.) affirming the trial judge, held that the plaintiff could maintain the suit, and was entitled to a decree on the basis that the royalties mentioned in the lease were payable upon the whole of the coal raised, not on an 8-annas share.

One of the other shebaits had also brought a similar suit against the appellants. The suits were tried together ; an appeal to the High Court in that suit from the decree of the trial judge was withdrawn on a compromise.

1933. Nov. 10. Upjohn K.C. and Jardine for the appellants.

Narasimham for the respondents.

Reference was made for the appellants to Abdul Gofur Mandal v. Umakanta Pandit (( 1914) 19 C. W.

N. 200.), and Narendra Nath Kumar v. Atul Chandra Banerjee. (( 1918) 27 Cal. L. J. 605.)

Dec. 12. The judgment of their Lordships was delivered by

LORD ALNESS. The first respondent, in his plaint, describing himself as servitor and shebait to Sri Iswar Gopinath Jiu idol (the respondents family deity), sought to recover Rs.62,382, 7 annas, 15 gandas, in respect of his alleged one-fourth share, as one of the four shebaits of the said deity, of the entire royalties on the entire raisings of coal in Mauza Monoharbahal for the six years ending April 13, 1924. The suit was directed against (1.) the appellant company and (2.) the second, third and fourth respondents, as defendants pro forma—they being the first respondents co-shebaits at the time when the suit was instituted.

The first respondents claim was based on a lease, dated May 24, 1901. granted by four lessors—namely, the first and second respondents, as shebaits aforesaid, the grandfather of the third respondent, and the father of the fourth respondent—on the one hand, in favour of one Kuverji Bhoja, the predecessor in title of the appellant company, on the other hand. The soundness of the first respondents claim falls to be judged, in their Lordships opinion, by the terms of the lease referred to.

It may be convenient at this stage to set out the relevant part of the lease. It is as follows —

" Mauza Monoharbahal in Pergana Sergarh within Police Station and Sub-Registry Asansol, Chowki Raniganj and District Burdwan is the rent free debuttar property of your family deity Sri Sri Iswar Gopinath Jiu Thakur. You have parichariki right in the said property as shebait. On my making a proposal to take a settlement of the interests of your family deity in the said mauza for raising coal by excavating a coal mine under the ground of the said mauza, you grant unto me a settlement, on th