Judgement

Appeal from a judgment and decree of the High Court (May 29, 1912) affirming, with a modification, a decree of the Subordinate Judge of Burdwan.

By a registered lease dated May 24, 1901, the appellants father, Cooverji Bhoja, acquired certain mining rights from the then she-baits of an idol on the terms that the lessee should pay certain commission or royalties for all coal raised by him, and that if no coal was cut he should pay a minimum royalty of Rs.4000 per annum in quarterly instalments, with interest in case of default.

A sum of Rs.5000 was paid upon execution of the lease, this sum to be repaid by setting off Rs. 1000 yearly against the royalties for the first five years. The material part of the lease is set out in the judgment of their Lordships.

On March 5, 1908, the lessee not having cut any coal, three of the then four shebaits instituted a suit against the lessee to recover the minimum royalties provided by the lease, with interest, after crediting the Rs.5000 above referred to. The fourth shebait, Debanand, being unwilling to sue, was joined as a defendant.

The principal defendant (represented in the appeal by the appellant) by his written statement alleged