Judgement

Appeal from a judgment and decree of the High Court (February 22, 1916) reversing a decree of the Subordinate Judge of Peerulia.

The appellant sued the respondents to recover royalties under two mining leases; the respondents pleaded that the leases had been determined.

The material terms of the leases and the relevant facts appear from the judgment of their Lordships.

The Subordinate Judge made a decree for the amount claimed; that decree was set aside by the High Court.

1918. June 21, 24. Upjohn K.C., De Gruyther K.C., and Parikh for the appellant. Upon the true construction of the leases notice could only be given under clause 9 to expire at the end of a year or half-year. In Bridges v. Pott (( 1864) 17 C. B. (N.S.) 314.), relied on in the High Court, the document was an executory agreement, and its terms materially differed from those of the leases. Further, it was a condition precedent to a surrender under the clause that the sum due should be paid on or before the expiration of the notice Grey v. Friar. (( 1854) 4 H. L. C. 565.) The operation of the notice was not merely postponed until payment. The facts do not show a waiver ; the appellants manager had no authority to waive performance of the condition.

[Their Lordships did not require to hear the respondents counsel as to the time at which a notice under clause 9 could be given.]

P. O. Lawrence K.C., Dunne K.C., and Kenworthy Brown for the respondents. The payment had not to be made when the notice was given ; at that date it was impossible to calculate the amount payable. The two months grace given by clause 3 applies to the payment required by clause 9. But even if payment was a condition precedent to the surrender, the date of payment was postponed by the request for a deed. The conduct of the manager, and of the appellant himself in entering into negotiations through his solicitors, amounted to a waiver. The respondents were led to believe that payment at the date when the notice expired was not insisted on; but for that they would have given a fresh notice. The appellants manager had implied authority in the matter Indian Contract Act, 1872, ss. 186, 229, 237.

Upjohn K.C. replied.

July 26. The judgment of their Lordships was delivered by

LORD BUCKMASTER. The appellant is the heir and legal representative of Raja Sri Sri Durga Prashad Singh, the plaintiff in the suit out of which this appeal has arisen. The proceedings were instituted to recover from the respondents the sum of Rs.26,237, being the alleged arrears of royalties due under two mining leases granted by the Raja to the respondents, and dated respectively March 4, 1908, and September 29, 1908. The defence to the claim was that the leases had been duly determined by notice, and it is this question, and this alone, which arises for consideration upon the present appeal, the High Court of Judicature in Bengal having, in reversal of the judgment of the Subordinate Judge, dismissed the action.

So far as the points to be determined are concerned, the leases may be regarded as identical, the variations in date, in the royalties payable, and the period allowed before payment begins being the only differences between the two ; as will appear in the course of this judgment, these differences are immaterial to the present dispute. Both leases appear to have been in the vernacular, and the obscurity of their terms is faithfully reflected in the translation.

The lease of March 4, 1908, is the one accepted by their Lordships for the purpose of examining the clauses that bear upon the dispute. By it a grant was made by the Raja to the respondent company of coal, land, and mining rights in certain mauzas belonging to the ancestral zamindari of the Raja of Pargana Jheria for a term of 999 years. By clause 1 certain royalties were fixed for each ton of coal, and by clause 2 it was provided that the royalties mentioned should be payable quarterly, " i.e., in four kists of Baisakh, Sraban, Kartick, and Magh."

By c