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1931 Supreme(SC) 57
Privy Council At Patna
Sir George Lowndes, Lancelot Sanderson , Justice Lord Russell of Killowen, JJ.
Jagat Mohan Nath Sah Deo -Appellant
Versus
Pratap Udai Nath Sah Deo and others -Resopndent
Privy Council Appeals Nos. 19 and 20 of 1929: Patna Appeals Nos. 32 and 34 of 1927
Decided On : 11-06-1931
M.R. Jardine, T.B.W. Ramsey , H.Du Parcq, A.M. Dunne, S. Hyam, W. Wallach , L.De Gruyther
A claimant to subsoil rights holding under a zamindar must prove the express inclusion of such rights in the grant, regardless of whether the tenure is permanent, heritable, or transferable.
Headnote:(A) Subsoil Rights - Grants under Zamindar - If a claimant to subsoil rights holds under a zamindar, or by a grant emanating from him, even though the tenure may be permanent, heritable and transferable, the claimant must prove the express inclusion of the subsoil rights.
(B) Custom - To establish a right to mines and minerals by virtue of a custom, evidence worthy of the name must be produced to establish the existence of such custom.
(C) Title by Relinquishment - An agreement or transaction that asserts title does not amount to the abandonment or relinquishment of that title, nor does it create a title in another party.
(D) Limitation Act - A suit for declaration of rights is not barred by limitation if a right to sue arose and the suit was brought within the prescribed statutory period, independent of any earlier right to sue that may have existed.
Facts of the case:
A dispute arose between two brothers regarding the ownership of mines and minerals. The younger brother claimed ownership based on a grant, an alleged custom, and a subsequent agreement where the elder brother purportedly relinquished his claim. The elder brother filed a suit for a declaration of his rights, which led to the present appeal.
Findings of Court:
The court found that the grant was incompetent to pass the mines and minerals as it lacked express inclusion of subsoil rights. There was no evidence to establish the alleged custom. The agreement referred to did not create title in the younger brother but instead evidenced an assertion of title by the elder brother. The suit was filed in August 1922 after a right to sue arose in 1921, making it within the limitation period.
Issues: Whether the claimant acquired rights to mines and minerals via a specific grant, through custom, or by the relinquishment of title by the other party; and whether the suit was barred by the Limitation Act.
Ratio Decidendi: The court held that express inclusion of subsoil rights is mandatory for a claimant holding under a zamindar to establish ownership of minerals. Furthermore, a claim of custom must be supported by substantial evidence, and a suit is timely if filed within the limitation period from the date the right to sue accrued.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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land law
- subsoil rights
- land grants
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land law
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practice and procedure
- limitation
Lord Russell of Killowen.-
This is a consolidated appeal which involves the decision of a dispute which has arisen between the Maharaja of Chota Nagpur on the one hand and the Kumar, his younger brother, on the other hand; and it relates to the ownership of the mines and minerals under the Parganna Tori. The parties before their Lordships are, on the one hand as appellants, the Kumar and lessees of minerals claiming under him, and on the other, as respondents, the Maharaja and lessees of minerals claiming under him.
The questions for determination which have been argued before their Lordships are four in number : first, whether the Kumar acquired the rights in the mines and minerals under the Parganna Tori by virtue of a certain grant of 11th February 1867; secondly, whether assuming the grant did not include the minerals, he has got the minerals by virtue of an alleged custom; thirdly, whether the Maharaja, assuming both of those points failed, did not, by abandoning and relinquishing his claim to the mines and minerals in the year 1898. then create a title in the appellant, the Kumar; fourthly and finally, whether the suit, which was a suit brought by the Maharaja for a declaration of his rights, is or is not barred by the Limitation Act.
These questions will be dealt with in that order. As regards the construction of the deed in question which has been closely argued before their Lordships, their Lordships think it sufficient to say two things; first that the position, from the point of view of previous decisions by their Lordships, is summed up in the case of Gobinda Narayan Singh v. Sham Lal Singh , AIR 1931 PC 89=181 I0 758=58 IA 125 (PC) (at p. 132 of 58 IA) in these words:
"A long series of recent decisions by the Board has established that if a claimant to subsoil rights holds under the zamindar, or by a grant emanating from him even though his tenure may be permanent, heritable and transferable, he must still prove the express inclusion of the subsoil rights. [The word "tenure" is put in the place of the word which occurs in the report, "powers," which appears to be a mistake.] "This is laid down in a passage from the judgment of Lord Buckmaster in Sashi Bhushan Misra v. Jyoti Prashad Singh , AIR 1916 PC 191=40 IC 188=44 Ca. 585=44 IA 46 (PC), (at p. 63 of 44 IA) " which has been so often quoted in subsequent judgments of the Board that it is unnecessary to repeat it here.
The second observation which their Lordships think it necessary to make is this : As regards the construction of this particular grant, they find themselves completely in agreement with the views expressed in the High Court, which held that the deed is incompetent upon its construction to pass the mines and minerals.
Passing to the second question which was argued, namely, that the Kumar had a right to the mines and minerals by virtue of a custom, all that need be said is this : that there is no evidence in this case, worthy of the name, establishing any such custom at all.
The third point, namely, as regards the claim that by virtue of a certain transaction which took place in the year 1893 the Maharaja then vested the minerals in the Kumar, the document which is relied upon is one which contains a recital of an agreement entered into between the Maharaja and the younger brother in the year 1898. Their Lordship's have carefully considered the terms of that recital, and in their opinion the agreement therein referred to and the transactions which then occurred, clearly did not amount to any creation of title in the Kumar. On the contrary the agreement and the transactions which then occurred, are evidence of an assertion by the Maharaja of his title at that date. Accordingly that point equally fails.
As regards the plea of the Limitation Act, Mr. De Gruyther, who appeared for the principal appellant, the Kumar, quite properly, in their Lordships' view, gave up the point and did not argue it. Mr. Hyam however appearing for the lessees claiming under the K
