GIRIDHARI SINGH vs MEGH LAL PANDEY

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1917 Supreme(SC) 49

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD SHAW OF DUNFERMLINE, LORD SUMNER, SIR JOHN EDGE, AND MR. AMEER ALI.
GIRIDHARI SINGH - Appellant
Versus
MEGH LAL PANDEY - Respondents
On Appeal From The High Court in Bengal.
Decided On : July 19, 1917.

Important Points

A permanent, heritable lease of land at a fixed rent does not include mineral rights unless expressly granted. General phrases like "with all rights" refer to appurtenant surface rights and do not extend the grant to the underground corpus.

Subject

Property Law - Land Tenure and Mineral Rights

Headnote

(A) Land Tenure and Mineral Rights - Grant of tenure at a fixed rent - Permanent, heritable, and transferable character - Minerals are not held to form part of the grant in the absence of express evidence to that effect.

(B) Interpretation of general grants - The expression "with all rights" refers to rights appurtenant to the surface, such as rights of passage or water, and does not increase the actual corpus of the subject to include underground minerals.

(C) Specificity of grants - A provision specifically granting the right to cut and sell trees indicates that the lease is limited to the surface and does not encompass the entirety of the land below the surface.

Facts of the case:
A proprietor executed a permanent and heritable lease of land at a fixed annual rent. The lease agreement included the phrase "with all rights" and a specific clause granting the lessee the right to cut and sell trees. Following the discovery of minerals beneath the surface, the lessee claimed ownership of the mineral rights, which was contested by the proprietor.

Findings of Court:
The lease did not transfer the underground and mineral rights to the lessee. The permanent nature of the tenure and the general language used in the lease were insufficient to establish a grant of minerals.

Issues: Whether a permanent, heritable lease granted "with all rights" at a fixed rent includes the rights to minerals underlying the land.

Ratio Decidendi: A grant of tenure at a fixed rent does not carry a right to minerals, even if the tenure is permanent, heritable, and transferable, unless there is express evidence of such a grant. General terms like "with all rights" only cover appurtenant rights and do not extend the lease to the underground corpus. The inclusion of a specific clause regarding surface assets, such as trees, further supports the conclusion that the lease is limited to the surface.

Result: Appeal allowed with costs; decree of the Subordinate Judge restored.

Legal Category Hierarchy

Advocates:
Solicitors for appellant: T. L. Wilson & Co.
Solicitors for respondents: T. C. Summerhays & Son.

Judgement

Appeal from a judgment and decree of the High Court (December 19, 1906) reversing a decree of the Subordinate Judge of Manbhum.

The appellant instituted a suit claiming a declaration that the respondents had no right to the coal or other minerals under certain lands which had been leased by the appellant to the respondents predecessor in title by a mokarari pottah dated July 10, 1865. He also claimed an injunction and damages.

The material terms of the pottah were as follows " I settle in mokarari the whole of mauza Baramashya, with all rights (mai hak hakuk) as per boundaries given below appertaining to my zamindari, the third kismat, perganna Nawagarh, which is in my possession, together with bil, jhil, orchards, tanks, cultivated lands, with homestead and jungle standing on the same .... at an annual jamma of Rs.59 and two seers of ghee and one goat. You shall enjoy and hold possession of the aforesaid village with your sons and grandsons at your full bliss on payment of the said rent to me every year. If you do not pay the rent .... the mokarari will be cancelled at the end of the year.....You shall be entitled to the extra collections which will be realized in the village, and you will take the price of the tolls of the same by cutting and selling them, to which I shall not have any right. There will never be any increase in this rent."

The Subordinate Judge made a decree in favour of the appellant. On appeal the High Court (Rampini and Mookerjee JJ.) set aside the decree, relying in part upon decisions of that Court subsequently reversed by the Privy Council. The appeal is reported at I. L. R. 34 Calc. 358.

1917. June 18, 19. De Gruyther, K.C., and Dunne, for the appellant. The decision of the Board in Sashi Bhushan Misra v. Jyoti Singh (1) is conclusive in the appellants favour, unless it can be shown that the terms of the pottah amount to an express grant of the minerals. The language of the pottah shows that surface rights only were intended to be granted. The words " mai hak hakuk " mean all rights relative or appurtenant to the surface rights.

Sir Erle Richards, K.C., and Sir W. Garth, for the respondents. In Sashi Bhushans Case (Ante, p. 46.), and the decisions of the Board there followed, the actual grant was not in evidence. Those decisions establish only that a grant of the minerals is not to be inferred merely because the tenure is permanent and heritable. There must be express evidence of a grant of the minerals, not necessarily evidence of an express grant; a grant in general terms is sufficient if, according to the ordinary rules of construction, it includes the minerals. Here the grant is in evidence, and the words " mai hak hakuk " include every right in the soil. The generality of those words is not cut down by the limited words which follow. There is nothing in the pottah to limit the grant to surface rights. [ Kerr v. Pawson (( 1858) 25 Beav. 394, 406.) was also referred to.]

July 19. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. The appellant is the proprietor of the zamindari of perganna Nawagarh, being mahal No. 16 of the taujeh of the collectorate of district Manbhum. In 1865 he executed a mokarari pottah of a small portion of mauza Baramashya " with all rights" (this being the translation of the expression " mai hak hakuk ") " as per boundaries .... appertaining to my zamindari, the third kismat perganna Nawagarh, this is in my-possession." An annual jamma was fixed of Rs.59 and two seers of ghee and one goat.

It is admitted that the possession was of a permanent and heritable character, subject to the payment of rent, failing which latter the mokarari " will be cancelled at the end of the year." There is also a clause as to trees in these terms " You shall be entitled to the extra collections which will be realized in the village, and you shall take the prices of the trees of the same by cutting and selling them, to which I shall not have any right."

In 1903