The plaintiffs had to establish that the defendant's title was infected with doubt in a reasonable sense, and that the defendant was not ready and willing to give them a secure and valid lease.

JUDGMENT

Rankin, C.J. - The plaintiffs are a limited company called H.V. Low & Co., Ltd., and they sue the defendant for the return of the deposit paid by them upon an agreement between the parties that the defendant would grant to the plaintiffs a mining lease for a term of 999 years of the underground coal rights in two mouzahs belonging to the defendant and called Raidi and Methadi. It appears from certain correspondence between the parties that an agreement for a mining lease of these two mouzahs had been made in 1923 and the deposit of Rs. 34,440 was paid at that time. On 2nd January 1924, the plaintiffs asked for one month's further time in which to complete the lease but in March, April and May of 1924 they were pressing for completion and intimating a claim for damages on account of the defendant's failure to execute the lease. Ultimately, on 22nd January 1925 the parties with the advice of their solicitors, entered into a formal agreement which provided that the plaintiffs would within two months from the date of the submission of a draft lease by the defendant take a mining lease from him or his lessees upon certain terms therein mentioned which are, in substance, the terms previously arranged. The agreement provided that the plaintiffs would not claim any damages from the respondent for the delay already incurred in obtaining the lease. It further provided, and this is for our present purpose, the important clause:

If they neglect or fail to take such lease within the aforesaid time except for the reason of the want of the lessor's title to the said mouzahs, the sum of Rs. 34,410 deposited as aforesaid will be forfeited unto the Raja, Bahadur.

2. Now the plaintiffs have refused to accept the lease and they are suing for the return of the deposit upon the ground that they were justified in so doing by reason of the want of the defendant's title to the said mouzahs within the meaning of this exception.

3. The facts are that the draft lease was sent to the plaintiff's on 29fch May 1925. Nothing in this case turns upon the terms of the draft which has not been laid before us. The plaintiff's attorneys, finding that in the draft the defendant's two sons were the proposed lessors, asked for and obtained copies of the patta granted by the defendant to them. They also made enquiry as to their ages and were informed upon this point. On 30th June 1925, they returned the'draft approved with certain alterations but stated:

our approval is subject to the title of the Maharaja 'being satisfactory.' Before the lease is finally completed we must be satisfied that the Maharaja has the right to deal "with the underground.

4. On 11th July 1925 the defendant's manager returned the draft, with a copy of the settlement records, and explained that under the defendant Raidi was held as a rent-free debuttar tenure and Methadi as a rent-paying brahmottar tenure; that in the circumstances it was quite clear that the defendant was the landlord "and as such the right in the underground minerals is vested in him." On 17th July the plaintiffs' solicitors say that it is not clear whether the mineral rights have not been parted with by the ancestors of the defendant to the debuttardars and brahmottardars and ask for copies of debuttar and brahmottar grants, failing which they say an indemnity by the defendant will be necessary. On 23rd July 1925, they pressed for a reply saying that they cannot possibly complete unless satisfied that the Raja has a good title to the underground rights. On 24th the defendant's manager writes to say that he is looking up the whole records to find out copies of the debuttar and brahmottar grants. On 5th August he writes that the brahmottar and debuttar grants were made by the ancestors of the defendant in days long gone by and no trace of the origin of the grants can be found out:

Prima facie the mining rights in the villages belong to the Raja Bahadur who is admittedly the proprietor thereof and, if anybody questions his