Lord Parmoor:-

The only question raised in this appeal is whether, under the terms of a Kabuliyat, the respondent is entitled to an enhanced rate of royalty from the appellant. The respondent is the Raja of Jherria, and the village of Ekra is a portion of his estate. His predecessor-in-title, on the 20th October, 1898, granted the underground and coal-mining rights in the village, of Ekra to the appellant. At that date the only railway communication with the district was afforded by the line of the East Indian Railway Company, but a new route to Calcutta to be constructed by the Bengal-Nagpur- Railway Company, was under consideration.

The first clause of the said Kabuliyat, which fixed the royalty to be paid, was translated by the Subordinate Judge as follows :-

"The royalty payable would be 3 annas per ton of steam coal, steam rubble, hard and soft coke and 1 anna 6 pies per ton of brick burning rubble and dust raised and despatched or sold by me: Be it understood that in respect of all coals despatched by the East Indian Railway Company royalty would be paid at the present fixed rates, but if, in future, the Bengal-Nagpur Railway being constructed the freight on coal is reduced by 2 annas or more per ton, then on all coals despatched in the aforesaid manner (ukta rupey) at reduced (kom) rates royalty would be paid at 5 annas per ton of steam coal, steam rubble, hard and soft coke, and 2 annas 6 pies per ton of brick-burning rubble and dust, but if the aforesaid railway freight be reduced by less than 2 annas per ton, then the royalty for steam coal, steam rubble, hard and soft coke would be increased by the amount by which the freight on coal is reduced and that for brick-burning rubble and dust by one-half of that amount."

The translation was followed by Mr. Justice Beachcroft, and it was claimed on behalf of the appellant that it was more accurate than the official translation attached to the papers. It is not necessary, in their Lordships' opinion, to go further into this question. Accepting the translation which the appellant claims to be more accurate their Lordships are of opinion that the judgment and decree of the High Court are correct, and that the case for the appellant fails.

The royalty clause fixes a royalty of 3 annas per ton of steam coal, steam rubble, hard and soft coke, and of 1 anna 6 pies per ton of brickburning rubble and dust, raised and despatched or sold by the lessee. These latter words are important in construing the clause. A contrast is drawn between coal or rubble despatched and coal or rubble sold at the pit's mouth, and the claim for an enhanced royalty on coal is made in respect of coal despatched by rail. It does not appear, and it is not material, whether at the date of the lease any coal was despatched in any other way than by rail. The only railway which served the coal-field at the date of the lease was that of the East Indian Company. The clause provides that royalties at the present fixed rate should be paid on all coal despatched by the East Indian Company, subject, however, to a future contingency :-

"But if, in future, the Bengal Nagpur Railway being constructed the freight on coal is reduced by 2 annas or more per ton, then on all coals despatched in the aforesaid manner (ukta rupey) at reduced (Kom) rates royalty would be paid at 5 annas per ton of steam coal, steam rubble, hard and soft coke, and 2 annas 6 pies per ton of brickburning rubble and dust."

The Bengal Nagpur-Railway has been constructed, and it has been correctly held in both Courts that, as a consequence of this construction, a readjustment was made in the freight on coal. It was further assumed throughout the hearing, both before the Subordinate Judge and in the High Court, that in the re-adjustment, the freight on coal had been reduced by more than 2 annas per ton as compared with the freight in operation on East Indian Company's line at the date of the lease. On this finding and assumption, the contingency on which an en