Venkataramana Rao, J.
1. This is an appeal from the decree of the learned Subordinate Judge of the Nilgiris, Ootacamund giving a decree in favour of the plaintiff in terms of Para. 22(a) of the plaint. The property belonged to one Percy Guard.
2. On 1st March 1901 he granted the mining rights in the suit property to one Walter Morres. Subsequently he sold all the mining rights to the plaintiff by a deed dated 1st June 1914. By a release deed of even date Walter Morres surrendered all the mining rights in favour of the plaintiff. The document executed by Percy Guard in favour of the plaintiff is Ex. A in the case. Percy Guard died somewhere about 1916 and letters of administration to his estate were granted to Walter Morres in 1917. As administrator he sold the property to the East India Tea and Produce Corporation Ltd. which has since gone into liquidation and the rights of the East India Tea and Produce Corporation Ltd. are now vested in the present defendants they having purchased the same in 1923.
3. One of the terms of Ex. A is that the owner of the property for the time being should pay the assessment on the land and that in case he commits default in any year the vendee, his heirs, executors, administrators and assigns will on payment to Government of such land assessment be entitled to hold and possess with full and absolute rights the property in respect of which such payment has been made. On 10th March 1918 there was default committed in the payment of land assessment. On 11th March 1918 the plaintiff wrote to the Tahsildar to find out if the assessment had been paid and on receiving information from him that it had not been paid himself sent the amount on 13th March 1918. A week thereafter (21st March 1918) the defendants also sent the amount of assessment but the revenue authorities declined to receive the said amount on the ground that it had already been received from the plaintiff. Subsequent to this payment, an order was made transferring the patta in the name of the plaintiff but later on representation made on behalf of the administrator the order were cancelled. Again under Ex. A the vendor for himself, his heirs, executors, administrators and assigns covenanted that he would do all such acts as may be required of him which are necessary for the purpose of getting the mining license in order to enable the plaintiff to carry on mining operations. This the defendants failed to do. Misunderstandings arose in consequence thereof. The ground of the misunderstanding seems to be that the Government insisted on the defendants making an initial deposit of Rs. 500 and executing an indemnity against all losses that may result in consequence of the mining operations that will be carried on by the plaintiff. The defendants seem to have called upon the plaintiff to make the said deposit and to execute the indemnity bond but the plaintiff declined. As a result of these misunderstandings, the plaintiff filed this suit for a declaration that by reason of the default committed, by the defendants in the payment of land assessment under the terms of Ex. A he has become the absolute owner of the suit property on payment by him of the land assessment on 13th March 1918 as afore, said or in the alternative to direct the defendants to do all the necessary acts which are incumbent upon them to do to get the mining license and that he should not be called upon to pay the initial deposit or execute the indemnity bond.
4. The learned Subordinate Judge gave a declaration in favour of the plaintiff as prayed for on the ground that he had become the absolute owner by virtue of the covenant in Ex. A. It is against the said decision that the present appeal has been preferred by the defendants. It seems to us that the covenant in and by which the plaintiff should become the absolute owner of 200 acres of land by reason of any default in the payment of land assessment committed by the vendor or his executors, administrators and assigns appears to be more or less a clause in terrorem and in the nature of a penalty which is out of proportion to the possible injury which the plaintiff might suffer by reason of the non-payment. At the same time it must also be noted that the defendants were under the terms of the sale deed Ex. A bound to perform all that was required of them to get the mining license in favour of the plaintiff and that they were not justified in calling upon the plaintiff to pay the initial deposit and to execute the indemnity bond because the Government made a demand upon them. The plaintiff is really anxious that he should be allowed to carry on the mining operations and that the defendants themselves should give him all facilities in order to enable him to do so and he has before us abated that he would be content if those rights are secured in his favour by a decree in the alternative as prayed for in para. 22(b) of the plaint. It seems to us that the offer is a very reasonable one and it has been agreed to by Mr. O.T.G. Nambiar on behalf of the defendants, appellants.
5. We therefore set aside the decree of the lower Court and pass a decree in terms of prayer (b) of para. 22 of the plaint directing the defendants to make the necessary application to the revenue authorities and to do all acts required of them to secure to the plaintiff a proper mining lease to carry on mining operations on the suit lands. We also wish to make it clear that the plaintiff will not be called upon by the defendants to pay the initial deposit or execute any indemnity bond, a condition of the defendants securing the lease for the plaintiff. We direct the appellants to pay half the costs of the appeal to the respondent. The order as to costs made by the Court below will stand. The decree will also direct the appellants, defendants to pay the respondent, plaintiff Rs. 292 being the assessment paid by the plaintiff in respect of the suit property.