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. 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. Even if the suit was one by the respondent for specific performance, so that the tests of " reasonable