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1924 Supreme(SC) 65
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD ATKINSON, MR. AMEER ALI, AND LORD SALVESEN.
SATYA NIRANJAN CHAKRAVARTI - Appellant
Versus
RAM LAL KAVIRAJ DEFENDANTS - Respondents
On Appeal from the High Court at Patna.
Decided On : Nov. 25. 1924.
Solicitor for appellants: H. S. L. Polak.
Solicitors for respondents Nos. 1 to 10: Pugh & Co.
Express words in a deed conveying rights "above and below" the surface transfer mineral rights, including the right to work them if the surface is also granted. Such claims are subject to statutory limitation periods for possession or declaration.
Headnote:(A) Limitation Act, 1908 - Schedule I, Articles 120 and 144 - Transfer of Property Act, 1882 - Section 108(o) - Conveyance of mineral rights - Interpretation of deed - Words "above and below" - Whether such words convey underground rights and the right to work mines - Suit for declaration and possession filed after long period of mining activity - Suit barred by limitation - Express grant of minerals to the holder of the surface includes the right to work the minerals - Section 108(o) of Transfer of Property Act not applicable to express grants of mineral fields.
(B) Interpretation of Deeds - Words of style - Where a deed uses terms like "above and below" in a comprehensive list of conveyed interests, such words are not mere surplusage but indicate an intention to convey underground rights.
(C) Right to Work Minerals - Principle of "quando aliquid conceditur id etiam conceditur sine quo res ipsa non esse potest" - Where the grantee of minerals is also the grantee of the surface, the grant of minerals includes the right to work them.
Facts of the case:
A zamindar granted a patni settlement deed in 1852. The deed included the phrase "within the four boundaries and above and below (the surfaces)". The grantees worked coal mines on the land since 1894, with the grantor's knowledge since 1898. In 1915, the grantor filed a suit for a declaration of underground rights and an injunction, claiming the defendants had no right to the sub-soil.
Findings of Court:
The suit was barred by limitation as it was filed more than twelve years after the adverse possession began (if treated as a possessory suit under Article 144) or more than six years after the right to sue emerged (if treated as a declaratory suit under Article 120). The deed's language "above and below" clearly conveyed the underground rights. The grant of minerals to the surface holder includes the right to work those minerals.
Issues: Whether the words "above and below" in a patni settlement deed convey mineral rights; whether the right to minerals includes the right to work them; whether the suit was barred by limitation; and whether Section 108(o) of the Transfer of Property Act limits express grants of minerals.
Ratio Decidendi: The court held that specific words in a deed conveying rights "above and below" the surface are effective in transferring mineral rights. Furthermore, when the surface and minerals are granted to the same party, the right to work the minerals is implied. The suit was time-barred under the Limitation Act as the mining had been conducted openly for over twelve years. The court also clarified that Section 108(o) of the Transfer of Property Act deals with ordinary leases and does not cut down the right to work a mineral field expressly conveyed.
Result: Appeal dismissed with costs.
Appeal (No. 64 of 1923) from a decree of the High Court (June 16, 1920) reversing a decree of the Subordinate Judge of Jamtara.
In 1852 the zamindars granted a deed of patni settlement in respect of mauza Sultanpur, which was within their zamindari. The material portions of the deed as translated from Bengali appear from the judgment of the Judicial Committee. It appeared from the judgment of Jwala Prasad J. that .the Bengali words translated "within the four boundaries and above and below "were" adha urdha hadud mahdud," after which occurred the words " hak hakuk."
In 1915 the appellants, who with certain pro-forma defendants were holders of the zamindari, instituted a suit against the patnidars and darpatnidars of the mauza (the present respondents Nos. 1 to 10), alleging that the defendants were raising and appropriating large quantities of coal from the mauza. The plaintiffs prayed for a declaration "that the plaintiffs are entitled to and are in possession of the underground rights of the said mauza, and that the defendants had no right or interest in the sub-soil of the said mauza"; they also claimed damages and an injunction.
The principal defendants, who were in possession by purchase, pleaded among other things that their predecessors in interest were entitled to the minerals underlying the mauza by the terms of the patni grant; they also relied upon the long period during which they had worked the minerals to the knowledge of the plaintiffs and their predecessors in title, and they pleaded that the suit was barred by limitation.
The Subordinate Judge held that the patni deed did not convey to the grantees any right in the minerals; also that the suit was not barred by limitation or any estoppel. He accordingly made a decree for the plaintiffs.
Upon appeal to the High Court the decree was reversed and the suit dismissed.
Jwala Prasad J., with whose judgment Adami J. concurred, was of opinion that, as the effect of the inclusion of the words " adha " and " urdha " in the deed, there was a conveyance of the underground rights, including a right to work the mines; though in his view, having regard to the decision of the Board in Giridhari Singh v. Megh Lal Pandey (( 1917) L. R. 44 1. A. 246.), the minerals would not have been conveyed had the words "hak hakuk" stood alone. Upon the evidence it was found that the defendants and their lessee had worked the mines continuously since 1894, and that they had done so with the knowledge of the zamindars since 1898 or earlier. No decision was given upon the question of limitation, but the view was expressed that the delay in bringing the suit showed that the plaintiffs understood that the minerals were included in the grant.
1924. Oct. 23, 24, 27. Upjohn K.C., Dunne K.C. and Dube for the appellants. A series of decisions of the Board establish that the grant of 1852 did not include the subjacent minerals in the absence of express words. [Reference was made to the six decisions mentioned in the judgment of their Lordships.] The grant contained the words showing a clear intention to convey the underground rights. [Reference was made to Wilsons Glossary, s.v. "adha," "adhi."] The grantor of 1852, not knowing that there were any underlying minerals, could not have intended to grant them. In any case there was no right to open new mines and work see Transfer of Property Act, 1882, ss. 105, 108 (o). That right could not be acquired by prescription Lord-Advocate v. Wemyss ([ 1900] A. C. 68.); Glyn v. Howell . ([ 1908] 1 Ch. 666.)
De Gruyther K.C. and Kenworthy Brown for the respondents Nos. 1 to 10. The decisions of the Board relied on by the appellants do not apply to a patni grant. A patni is a taluq and a patnidar holds, as by substitution, all the zamindari rights there is no reversion in the zamindar Tarini Churn Gangolly
v. Watson & Co. (( 1869) 12 Suth. W. R. 413, 416.); Joykishen Mookerjee v. Collector of East Burdwan (( 1864) 10 Moo. I. A. 16.); Ali Quader Hossein
