1. Under a pottah dated about 7th September 1900 granted by Raja Bonowarilal Sinha of Nawagarh, one Kedar Krishna Banerji, since deceased, became entitled to an undivided two-thirds share of and in the leasehold rights in respect of a colliery known as the Sonardih Coal Fields, and one Kahiti Bhusan Makherjee, since deceased, became entitled to the remaining one third share. The plaintiff is the widow of Kedar Krishna Banerji, and he left a son, an only son, Shambhu Das Banerji, since deceased. Shambhu Das Banerji inherited the two. thirds share belonging to his father but daring his lifetime he disposed of half of his inheritance by a deed in favour of the defendant Rai Jatindra Nath Mukherjee Bahadur, On Shambhu Das Banerji's death some time in 1927 his mother became the sole heiress and legatee under a will executed by him whereby he appointed her executrix. The plaintiff has thus become the owner of an undivided one-third share in the leasehold rights in respect of the said colliery. Ksbiti Bhuaan Mukherjee died in 1909 leaving a will whereby his sons, the defendants Sudanahu Bhusan Mukherjee and Sitanahu Bhusan Mrakherjae, became owners of the undivided one-third share that belonged to their father. Various subleases were granted by the original holders, and ultimately under a sublease dated 1919, the Baraboni Goal Concern Ltd. became sub-lessees in respect of the Sonardih Coal Fields.
2. By virtue of certain transactions to which I need not refer in detail, the defendants, Messrs. Chandanmull Indrakumar, became holders under that sublease. These defendants duly paid separately to the plaintiff her one- third share of the royalties reserved under the sublease up to the end of 1932, but since that date they have failed and neglected to do so on various grounds, but especially, on a plea of financial difficulties and the allegation that the colliery had become waterlogged and use-less. The plaintiff through her counsel has urged that these facts show that there was an implied agreement between the parties that the plaintiff's share should be paid to her separately from time to time when it became due, and I have allowed an amendment to be made in the plaint setting up this implied agreement. In September 1932 the plaintiff filed a suit against the firm of Chandanmull Indrakumar and others for the recovery of Rupees 1757-8.0 for her one-third share of the minimum royalty payable from January 1931 to July 1932 with interest at 12% and the defendant firm did not contest the suit but paid the full amount of the claim and also her one-third share of the minimum royalty due up to the end of December 1932. The plaintiff relies upon these facts also in proof of the implied agreement that she has alleged. On the contrary, this defendant firm in their written statement say that they have never pleaded financial difficulties as the reason for refusing to pay the plaintiff's claim, and that they had no knowledge of the decree to which I have just referred and for that reason did not take any steps to get it set aside, in the result they had to pay the claim, when, as they allege, the plaintiff maliciously executed the decree.
3. Since December 1932 the defendant firm has failed and neglected to pay the plaintiff her share of the minimum royalty, or to supply her, in each year under the covenants in the sublease for her domestic consumption, with one wagon containing not less than 18 tons of coke, and she alleges that she has had to pay road and other cesses and taxes which the defend-ant firm covenanted to pay under the sublease. She now claima a decree for a sum of Rs. 1797-7-2 for the said royalty, cesses, interest and coke. She has added the defendants, Rai Jatindra Nath Mukherjee Bahadur, Sudhansu Bhusan Mookerjee and Sitansu Bhushan Mookarjee, because they are her co-sharers in respect of the leasehold premises, but she claims no relief against them. The defendant firm's original written statement consisted mainly of a denial of many statements set out in the plaint, and of some kind of vague suggestion that it had never got possession of the coalfields in their entirety. Subsequently however, leave was given to amend the written statement by adding an allegation that there was no privity of contract between the plaintiff and the defendant company, and that the plaintiff being a joint-lessor had no right to sue alone for recovery of her one third share. In effect, the latter point has been the only issue argued by learned Counsel appearing for the defendant company. He relies mainly upon a statement made in the judgment in Baraboni Coal Concern Ltd. v. Gokularjanda . That was a case in which four shebaits of a deity had executed a mining lease of the idol's interest in a mauza, and it was held that one of them could not maintain, with or without the consent of the others, a suit against the lessee for a fourth share in the royalties reserved, and that the suit was not made regular by the plaintiff joining the other shebaits as defendants. The facts of that case are clearly distinguishable from the facts in the present case, because the property in that case belonged to the deity; the respondents were merely interested in it as shebaits, and his Lordship, Lord Alness, stated that:
It is prima facie difficult to see how one of them can competently sue for his share in the idol's interest. The terms of the lease would seem to forbid that course. They afford no warrant for splitting up the property of the family deity in the manner in which the first respondent essayed to do.
4. But he went on to say that the lease disclosed a joint demise or contract:
That being so, no one of the four lessors, with or without the consent of his co-lessors, could sue for an aliquot part of the whole. The suit must be for the whole of the interest demised, else it would fail. This is not the cage, which is familiar, where one joint contractor has invited his co-contractors to join with him in a suit, where they have refused to do so, and where accordingly he joins them as pro forma defendants. In that case, differing from this case, the claim made is for the entire amount of the joint interest.
5. Similarly, in Norendra Nath v. Atul Chandra (1918) 5 AIR Cal 810, in a similar suit by shebaits, the Court agreed with the observations of the Subordinate Judge that
the shebaits were not co-sharers but co-worshippers, and that any family arrangement which they might arrive at amongst themselves would not entitle them to treat the debutter property as personal property and sue personally foe their share of the rent payable to the idol.
6. That case also is obviously distinguishable from the present case. But, in my opinion, the demise in the present case was not joint in the sense mentioned by Lord Alness. The indenture is made between the parties of the first part, collectively called the lessors. It recites the original pottah under which Kshiti Bhusan Mookerjee and Kedar Krishna Banerjee became entitled to an undivided one third and an undivided two third share respectively. Further, it recites that a sum of Rs. 9000 as salami was paid to them according to their respective shares, and finally the indenture witnesseth that the lessors do and each of them doth respectively grant, transfer and demise unto the Barboni Company their respective right, title and interest of, in and to all and singular the underground coal mining and relative surface and other rights, liberties, licenses, privileges, benefits, property and premises granted and conferred by the said pottah. It is true that the covenants refer only to the lessors, but that is because the original reference to the co-sharers is collectively as lessors. In my opinion, it does not alter the effect of the demise, which is made separately by each of the cosharers in respect of their respective shares.
7. Apart from this consideration, in my opinion, the course of dealing between the parties, namely the regular payment of a one third share by the defendant company to the plaintiff is sufficient evidence of the agreement alleged by the plaintiff in the amended paragraph of her plaint. In such circumstances, the plaintiff has a right to sue separately for her share. Any authority which is required for this opinion may be found in the judgment of Sir Arthur Wilson in Pramada Nath Roy v. Bamani Kanta Roy (1908) 35 Cal 331 where at page 344 he says:
The evidence of the alleged agreement consisted of certain decrees, which seemed to show that the shares of the rent had been from time to time separately recovered. It has long been held in Bengal that agreement, either expressly proved or implied by the conduct of the parties, may establish the right to sue separately for the shares of rent receivable by the separate shareholders; and their Lordships have no inclination to question that course of rulings.
8. Learned Counsel for the defendant company has argued against this, that the same point was dealt with by their Lordships in the Barboni Coal Concern case to which have referred, at p. 39 of the report, (61 I A) and in which they rejected such a contention made on behalf of the plain-tiff, because it sinned against the familiar principle affirmed in North Eastern Ry. Co. v. Hastings (1900) AC 260 'that where the words in a deed are clear, as they are in this case, the subsequent conduct of parties is an irrelevant consideration'. It will be noticed however that their Lordships primarily rejected the contention because the facts in that case did not support it. With regard to the other reason, the words in the deed in the present case, are not inconsistent with the implied agreement alleged by the plaintiff. For these reasons, there must be judgment for the plaintiff with costs.