Kamakshya Narain Singh vs Arjun Lal Agarwala and Another

Manohar Lall, J.—This appeal by the plaintiff--the present proprietor of the Ramgarh Raj--arises out of an action for reimbursement for the amounts of cess, Income Tax and interest paid by the appellant and which he claims in accordance with the stipulations in a coal mining lease from his lessees and their transferees. The principal question for determination is whether upon a true construction of the relevant terms of the lease the defendants are liable to pay cess on the royalties received by the lessors. The defendants also challenged the correctness and legality of the assessment of cess made by the assessing authorities which they say was in violation of the provisions of the Cess Act and the amended Bihar Act, and, therefore, suggest that the payments made by the plaintiff were voluntary. There is also a cross appeal by the defendants. On 28th July 1908, the grandfather of the plaintiff granted a coal mining lease with respect to 1000 bighas of land in village Sijuwa to Bokaro Jharia Coal Fields Limited for a period of 999 years. This company transferred their right, title and interest in 384 bighas out of these lands in favour of defendant 1 on 24th January 1921. This transfer was recognised by the Manager of the Ramgarh Raj, which was then under the Court of Wards. The transferee agreed to pay to the Ramgarh Raj royalty for all coals despatched from this area and also to be bound by the terms and conditions of the indenture of 1908. Defendant 1 sold his right, title and interest to defendant 2, Gunendra Nath Rai, on 22nd August 1928, and defendant 2 in his turn sold his purchased rights to defendants 8 and 4 on 6th January 1931.

The plaintiff''s case was that after the death of his grandfather the Ramgarh estate was taken charge of by the Court of Wards and was released on 10th August 1987, upon his attaining majority. For some reason or another, the Court of Wards did not realise from the defendants any cess and Income Tax which were assessed and imposed upon or in respect of the above 884 bighas of land and which the Court of Wards had to pay. The plaintiff, therefore, instituted the suit on 8th December 1989, to be reimbursed on account of the cess and Income Tax which had been paid by the Court of Wards and by the plaintiff since 1937, and which the defendants were liable to pay. He also claimed interest on these sums. In a tabular statement printed at page 5 an account of the cess Income Tax and interest for a number of years is shown as due from the defendants. The plaintiff compromised the suit with defendants land 2. As defendants 3 and i came on the scene on 6th January 1931, they would have been liable from that date were it not that these defendants had admitted in their written statement that they took possession from 80th June 1930, that is, just over six months before the date of the assignment in their favour. The claim of the plaintiff, therefore, from the year 1922-23 right up to 1929-80 was no longer in subject of controversy after the compromise. The controversy is confined only to the years 1930-81 up to 1987-88.

The defence of the contesting defendant was that upon a proper construction of this indenture of 1908 the claim of the plaintiff for road cess and Income Tax was not-maintainable. They denied that the plaintiff or the Court of Wards ever paid any cess or imposition in respect of the disputed property, and further, that if the plaintiff was assessed with assessment it had nothing to do with toe coal land in question upon which no assessment was ever made. The further material defence was that the Court of Wards have granted receipts to these defendants for all the dues of the estate from time to time; with the result that the payment to the Court of Wards which had full statutory power to act for and represent the estate of the plaintiff operated as full discharge and acquittance of the defendants'' liability, and that if the Court of Wards, upon a mistaken view of the law, namely, of their rights to demand cess from the defendants, failed to do so, the plaintiff now cannot recover those sums. The same objection was taken with, regard to the period when the plaintiff came in possession after the release of the estate from the Court of Wards.

The learned Subordinate Judge in a careful judgment has decided the questions thus agitated between the parties partly infavour of the plaintiff arid partly in favour of the defendants and after examining the various provisions of the Cess Act disallowed the claim of the plaintiff with regard to the years 1930-31, 1931-32 and 1932-33 upon the ground that there were no materials to find out the actual amount of cess which was, upon assessment in accordance with law, paid on behalf of the plaintiff in those years. But he allowed the claim of the plaintiff for the years 1933-34, 1934-35 and 1935-36 because there were materials available for finding out the proper assessment for those years, and the office was directed to work but the rate of cess which should by treated as imposed upon the plaintiff for 1935-36. The learned Subordinate Judge also disallowed the claim for, 1936-37; and 1937-38 because, in his view the assessment for cess for these years was not in accordance with law, and therefore, the payment by the plaintiff was a voluntary payment. The learned Subordinate Judge disallowed the claim for Income Tax and also for interest. He overruled the defence contention that payment to the Court of Wards amounts to a full discharge of the claim of the plaintiff. Hence the appeal by, the plaintiff with, regard to the items of he Income Tax and interest and also with regard to the claim for cess for the years 1930-31, 1931-32, 1932-33, 1936-37 and 1937-38 disallowed by the Subordinate Judge. The defendants, on the other hand, have preferred a cross-appeal with regard to the claim allowed in part for the years 1933-34, 1934-35 and 1935-36.

We have heard elaborate, interesting and able arguments by Mr. L.K. Jha on behalf of the appellant and by Mr. S.N. Basu on behalf of the respondents. But in my view the principal question is easy of solution. It Nis covered by a well-known decision of the Calcutta High Court in Manindra Chandra v. Secretary of State (07) 34 Cal 257 which was affirmed by the Privy Council in Manidra Chandra v. Secy. of state (11) 38 Cal 372 , and by the recent decision of the Privy Council in AIR 1938 243 (Privy Council) . The relevant terms of the indenture dated 8th July 1908 must be reproduced here:

The lessees will during the continuance of this lease duly pay to the Rajah the royalties hereby reserved or made payable at the time and in the manner aforesaid clear of all deductions whatsoever and shall take receipts for the same signed by the Rajah or his agent duly authorised in that behalf and such receipts shall alone be accepted as evidence of such payment and will also pay all Government and other cesses, taxes and other impositions which now are or may at any time, hereafter during the continuance of this lease be assessed or imposed on the said coal fields....

Similar terms have been interpreted in a number of decisions of the Calcutta High Court and this Court. They are quite familiar in coal mining leases in this and the neighbouring Province. In accordance with these decisions I must hold that defendants 8 and 4 are bound to pay road cess upon the royalties received by the plaintiff from them. Mr. S.N. Basu presented an elaborate argument in order to show that upon a proper construction of the terms of this lease it should be held that the cess which is taxed upon the plaintiff with regard to the royalties received is not a tax upon mines, and, therefore, the defendants are not liable to pay it, but the decisions already referred to negative this contention. The very language of the charging Sections in the Cess Act, where the words "net annual profits" occur, has reference to the property and not to the individual: see Manidra Chandra v. Secy. of state (11) 38 Cal 372.

The argument advanced by Mr. Basu was advanced before their Lordships of the Judicial Committee in AIR 1938 243 (Privy Council) by Mr. Radcliffe, but the argument, though sought to be supported by a reference to the decision in Allum v. Dickinson (1882) 9 Q.B.D. 632 was negatived by their Lordships at page 863. Mr. Basu also argued that the terms of the particular lease in question should be construed with reference to its own terms and not with reference to the construction put by other Courts upon other, though similar, terms, and he relied upon the remarks of Jessel, Master of the Rolls, in Aspden v. Seddon (1875) 10 Ch. 394 at the foot of pages 396 and 897 onwards. It is sufficient to say that I am construing the very document itself unaided by any extraneous consideration. I do not see any special terms in this document which would require a different construction from that which has been placed by their Lordships on similar documents. Mr. Bose''s argument with regard to the assessment after the Cess Act was amended has to be examined as it is contended that the amended provisions--which were not before their Lordships of the Judicial Committee in the cases referred to above -- point to a different conclusion.

It will be useful to recall the scheme of taxation enjoined by the provisions of the old Cess Act for imposing a tax or cess from mines. By Section 6 local cess was directed to be assessed on the annual net profits from mines and quarries at the rate of one anna per rupee--this was the rate adopted in practice. By Section 72 the Collector of the district was directed to cause a notice to be served upon the owner, chief agents, manager or occupier of every mine or quarry in the form prescribed in Schedule B requiring such person to lodge in his office the return of the net annual profits of the mine or quarry on the average of the annual net profits thereof for the last three years for which the accounts have been made up. Provisions were made in the other Sections in chapter V for determining the value of the property and the annual net profits of the property (see Sections 76 and 79). Section 84 dealt with the case where the occupier of mine was a different person from the owner and had paid in excess of half the sum due as local cess. In that case the occupier was declared entitled to deduct the amount of the excess from the subsequent instalments of rent payable to his lessor.

Similarly, where the owner had paid in excess over half such sum he was entitled to recover the amount of the excess from the occupier.

The form of the notice u/s 72, especially column 4, indicates that it is only the person in actual possession of mines who'' was required to submit the return, as obviously he is the person who can properly supply the details of the annual net profit on the average of the last three years. It was there, fore, suggested in many cases decided under the old Act, and it was strenuously argued before us by Mr. S.N. Basu, that the only person who can be assessed to pay cess with regard to the profits of the mine is the occupier, the person who is in direct possession of the mine and works there, and in case the occupier is different from the owner, the owner cannot be assessed in law upon the royalties which he receives from the occupier. But in practice the Collector and the assessees both find it convenient and practicable to submit returns of the annual net profits from the mines so far as they reached to the occupier and the owner as the case may be. The annual net profits from a mine is obviously the difference between the cost of raising the coal and the price realised by its sale. The amount of royalty which is payable by the occupier to the owner is thus nothing more than a distribution of the profits.

To take an illustration, let us suppose the annual net profits of a mine are Rs. 50,000 and the occupier has to pay Rs. 10,000 as royalty to the owner. If the provisions of the Cess Act are strictly complied with, the assessment on the mines in this year--assuming Rs. 50,000 to be the annual net profits as calculated form the average of the last three years--should be on the annual net profits of Rs. 50,000. But nobody suffers, neither the Collector, nor the owner, nor the assesse, if the assessment is made on Rs. 40,000 so far as the occupier is concerned and on Rs. 10,000 so far as the owner is concerned. It is true that the Act does not strictly enjoin an assessment in this form, but it is a mere irregularity adopted for the sake of convenience of everybody resulting in no loss to or excess assessment on any. This was forcibly pointed out in the elaborate judgment of Mookerjee J. in Manindra Chandra v. Secretary of State (07) 34 Cal 257. It was observed at page 276 that:

It must be conceded that the procedure followed by the Collector has been erroneous and in contravention of the provisions of the Cess Act. The Collector ought to have realised the cesses upon the annual net profits of the mine inclusive of the royalty, from the lessees of the plaintiff; and the lessees would then have been entitled to claim contribution as against the plaintiff on the basis of the principle enunciated in Section 80. Instead of this, the Collector has realised from the plaintiff direct, cesses, proportionate in amount to the royalties received by him, and the Collector has further realised from the lessees of the plaintiff, cesses proportionate to the balance of net profits left in their hands after payment of the royalties to the plaintiff. There must, therefore, be an adjustment of accounts between the plaintiff and his lessees u/s 81, unless it so happens that the royalty is precisely half of the annual net profits. The result, consequently, has been that the Collector has received just what he was entitled to levy under the Act, but instead of levying the whole from the lessees in the first instance, he has levied the amount partly from the plaintiff and partly from his lessees. It is not suggested that the plaintiff has been prejudiced in any manner by this irregular mode of recovery on the part of the Collector.

This view was upheld by their Lordships of the Judicial Committee in Manidra Chandra v. Secy. of state (11) 38 Cal 372. Mr. Ameer Ali, who delivered the judgment of their Lordships observed at page 35:

The inference is clear that the return required under the Section is not with regard to the mine owner''s profits but has reference to the general net profits of the property. The obligation to make the return is laid on the person most cognizant of the circumstances under which the mine is worked and of the profits derived from it. But that does not alter, in their Lordships'' view, the character of the royalty received by the proprietor for his share of the profits of the mine. This conclusion is enforced by an examination of the provisions of Sections 76, 80 and 81.... This again clearly shows that although the cess is assessed on the basis of the net annual profits, it is paid in respect of the property and not in respect of any part of the profits.

Then towards the conclusion of the judgment at page 36:

It has been found by the Courts in India that the plaintiff has not been prejudiced by any irregularity on the part of the Collector in the mode of assessment. Their Lordships do not feel called upon to express any opinion on the question of the procedure he should have adopted.

This procedure which, as I have stated above, is the most convenient for all concerned, has been followed consistently by Collectors and has been upheld when the question came to be discussed in later cases. For the years 1930-31 right up to 1935-36 the assessment demands were made in accordance with this procedure, and, in my opinion, it must be held that the respondents cannot make any grievance upon this mode of assessment.

The Cess Act was amended in 1936 with effect from January 1937. By Section 5A the local Government is authorised by a notification to declare that any coal mine or coal quarry shall be a notified mine for the purposes of the Act--the coal mine in the present case is a notified mine and is not situated in Manbhum. By Section 6A the local cess shall be assessed on the annual despatches of coal and on the annual net profits of notified mines in accordance with the provisions of Section 6B. Section 6B provides for the determination of the rate of cess on notified mines, and in the proviso it is declared that the rates at which the local cess should be levied on the annual despatches of coal and on the annual despatches of notified mines in the district of Hazaribagh shall be such rates as are calculated to produce in each year as, nearly as possible on Rs. 1,75,000; the mine in this case is situated in the district of Hazaribagh. By Section 72, Sub-clause (1), the Collector of the district is directed to cause a notice to be served upon the owner, chief agent, manager or occupier of a notified mine in the form in Schedule EE. The form of the notice in Schedule EE is exactly the same as was the form of the notice under old Section 72. In the present case, for the years 1936-87 and 1937.38 the assessment has been made in the same manner as was the practice adopted by the Collector and submitted to by the assessees when the Act was not amended. It must, therefore, be conceded that there is an irregularity, in these assessments also. But I am unable to hold that the amendment of the Cess Act has made any difference whatsoever to the application of the principles enunciated in Manidra Chandra Nandi''s case Manidra Chandra v. Secy. of state (11) 38 Cal 372.

Mr. S.N. Basu vehemently argued that the assessment under the amended Act can only be made on the mines and not on the royalty which was paid by the lessees to the plaintiff. I do not agree with this contention. Of course, it would have been open to the defendants to show that in this case the assessment on the lessees was made on the entire annual profits including the sums which they had to pay as royalties to the plaintiff, but no evidence has been produced in support of that aspect of the case.

On the other hand, the plaintiff has shown that he was assessed in respect of the royalties which he received. The proviso to Section 6B which fixes the figure at Rs. 1,75,000 is only intended to enable the Collector to fix the rate of cess. No evidence has been adduced in this case that the imposition of the cess upon the plaintiff for these years was illegal inasmuch as cess had already been realised amounting to Rs. 1,75,000, if the assessable figure of the royalties received by the plain, tiff are excluded from consideration. For these reasons, I am unable to agree with the contention advanced by Mr. Basu that any change has been made by the amendment of the Cess Act so as to disentitle the plaintiff to be re-imbursed for the cess which has been imposed upon him for these two years. This disposes of the cross appeal of the respondents which must be dismissed with costs.

The learned Subordinate Judge has held that the payment made by the plaintiff for these two years was voluntary, and therefore, he has disallowed the claim for these two years. The reason given by the learned Subordinate Judge is that in respect of 1936-87 and 1937-38 no assessment was made upon the plaintiff u/s 72, Sub-section (2), Cess Act, and the assessment, which was actually made was illegal and ultra vires as all coal mines in this district are notified and no cess could be assessed u/s 72, Sub-section (1) of the Act on royalties received in respect of them. In my opinion, this view of the learned Subordinate Judge is erroneous in law. The imposition of cess on the plaintiff for these two years is probably irregular, but I cannot hold that it was illegal and ultra vires. The evidence of P.W. 3 Jagdish Prasad, which has been relied upon by the learned Subordinate Judge is, in my opinion, wholly irrelevant in this case and inadmissible. The provisions of the Cess Act have to be examined and not any oral evidence of such a witness. The witness is a record-keeper on the revenue side in the Collectorate of the Hazaribagh estates.

It is true that the notice issued to the plaintiff which has been filed (Ex. 19) is a notice in the form of Schedule E, whereas the notice should have been issued in the form in Schedule EE; but that does not make any substantial difference. I do not see how, after the service of notice by the Collector, the plaintiff could refuse to submit a return in respect of the coal mines in question. I disagree with this view of the learned Subordinate Judge. The claim of the plaintiff, therefore, with regard to the cess which he paid for 1936-37 and 1937-38, namely Rs. 1184 for the former year and Rs. 714 for the latter year, must be allowed. It remains to deal with the claim for the three years 1930-31, 1931-32 and 1932-33. The learned Subordinate Judge has embarked upon an elaborate investigation of the amount of royalties received by the plaintiff in a number of years beginning from 1929-30 right up to 1937-38 in order to find out what was the average of the three years for each of the three years in question. He says that the figures of income for 1929-30 and 1930-31 shown in the account produced by the assessee in the Court have not been exhibited in the suit, and therefore, it is impossible to say how far they are correct. He holds, therefore, that:

It is not possible to say what was the correct figure upon which cess could be levied in respect of the accounting years 1930-31 and 1931-32. (see page 46, line 5.)

In my opinion, the learned Judge was wrong in embarking upon this inquiry be-cause he should have been content with finding out whether the plaintiff was actually assessed for these three years and not the amounts for which he should have been assessed for these three years. In other words, the learned Subordinate Judge had no right to re-write another assessment for the royalties received by the plaintiff. That assessment can only be made by the Collector. It is true that the assessment should have been made upon the average net profits for the three years in each of these three years, but the Collector had jurisdiction to accept the actual amount of royalties returned by the plaintiff as having been received by him from the lessees as the basis of the assessment for each of the three years.

It will also be noticed that in the various returns which have been accepted for these years and assessments made by the Collector, the assessment has been made on a large number of items and the royalties received by the plaintiff from a large number of coal mines, including the coal mines in question, have been shown in a lump sum. But it is not the case of the defendants that the plaintiff has included in the return or has been assessed as the result of the return upon an amount of royalty which was in excess of the royalty which he had received from these defendants. It is a satisfaction to me to hold that the view which I take is identical with the decision arrived at in a recent judgment of this Court Kamakshya Narain Singh v. Bhuramull reported in AIR 1946 Pat. 154 infra, where Chatterji J. delivered the judgment of the Division Bench on nth January 1945. That view of the law is binding upon us, but having examined the matter at great length I have come to the same conclusion. Mr. Jha who appeared for the plaintiff submitted that although in the view of the law as it now stands he is not en-titled to claim Income Tax and interest on the cess, as was claimed by the plaintiff he does not wish to give up this point. It is sufficient to state that in view of the decisions of their Lordships of the Judicial Committee we are bound to hold that the claim of the plaintiff with regard to Income Tax and to the interest on the cess has been rightly disallowed by the learned Subordinate Judge.

The defendants further contend that the plaintiff is not entitled to being re-imbursed for the amounts of cess which were imposed during the period the estate was under the Court of Wards upon the ground that the Court of Wards, upon a mistaken view of the law did not choose to realise these sums from the defendants. The learned Subordinate Judge has taken the view that in giving a discharge without realising all the dues the Manager of the Court of Wards acted in excess of the authority which was vested in him and that the giving of such discharge with, out realising all the dues cannot be said to be for the benefit of the minor plaintiff, or for the advantage of his estate, and therefore, the Court of Wards had no authority to release the defendants from the liability to pay cess even assuming there was any release in fact. Mr. S.N. Basu contends that this view of the learned Subordinate Judge is erroneous. The provisions of the Court of Wards Act which are apposite to this case are contained in Section 18 of the Act which provides that the Court (that is to say the Court of Wards) may sanction the giving of leases or farms of. the whole or part of any property in its charge and may direct the mortgage or sale of any part of such property, and "may direct the doing all such other acts as it may judge to be most for the benefit of the property and the advantage of the ward." I am enclosing the words relied upon in inverted commas. The question for decision is, whether the Court of Wards, in refusing to make a demand for the cess which I have held to be payable by the defendants to the plaintiffs, has done an act or direct the doing of an act after judging it to be most for the benefit of the property and the advantage of the ward. There can only be one answer to this question. It was not for the advantage of the ward or the benefit of his property that no demand was made from the lessees for the cess now found to be due from them. Nor is there any trace throughout the whole proceedings of any thought having been taken as to whether this refraining from demanding was beneficial to the ward or his estate. As I have said earlier in the course of the judgment, the Court of Wards merely omitted to make a demand. It never decided the question bona fide. The observations of Sir Ford North when delivering the judgment of their Lordships in Raja Mohammad Mumtaz Ali v. Sakhawat Ali (01) 23 All 394 quoted by the learned Subordinate Judge are quite apposite.

Mr. Basu relied upon the case in Badrinath v. Naresh Mohan AIR 1929 Pat. 369. In that case it was held that it was within the power of the Court of Wards to adjust mutual accounts between a ward''s estate and certain other estates and admit liability on the part of the ward''s estate. The position, however, is different here. Nothing was due form the ward''s estate to the lessees, and there was no mutual account to be adjusted. Here the liability was unilateral, always by the lessees to the plaintiff. This case is of no assistance to Mr. Basu.

Reliance was also placed upon Bramston v. Robins (1826) 4 Bing 11. In that case a landlord''s receiver had allowed a tenant to make a deduction in respect of a payment for land-tax every year for seventeen years, greater than the amount which the landlord was liable to pay, and the landlord knew, or had the means of knowing, all the facts. In these circumstances it was held that the landlord could not distrain for the amount erroneously allowed, although the receipt given every year showed the amount paid and the amount deducted. It was argued on the strength of this case that it should be held that the Court of Wards by giving the receipts to the defendants every year in a way made a partial reduction of the amount due from the lessees for those periods. If the decision of Best C.J. is read it will be seen that he repelled the argument that payment of part of the rent in that case should not be read as discharge of the whole, to which it was said the landlord had never renounced his claim by holding:

But this transaction amounts to a payment of the whole.... But it is an established principle, that if money be given or paid (and a settlement in account is the same thing)--see Skyring v. Greenwood (1825) 4 B & C 281--with a full knowledge of all circumstances at the time of the payment, it cannot be recovered by the payer: Brisbane v. Dacres (1813) 5 Taunt 143. For seventeen years this rent was settled in account and considered as paid, so that an action for the amount would have been answered by a plea of payment.

He then gave an illustration that if the landlord made an allowance under a mistaken idea, without the means of knowing the real state of facts, it might have been esteemed an allowance by mistake and made in ignorance, and might perhaps have been recovered. But, says the learned Chief Justice:

The landlord must have known these facts, or have had the means of knowing that it was a charge on the improved rent. If he knew, or had the means of knowing all the facts, a mistake as to legal rights would not entitle him to make this claim.

Park J. made two remarks which may be quoted here:

This was as much a payment as if the tenants had paid down the whole rent, and the landlord had returned the amount of the land tax. The receiver was his agent, and the landlord was bound by the receiver''s acts.

It will be noticed that in the present case the ward is not bound by the acts of the Court of Wards unless the provisions of Section 18 of the Act can be said to have been fully Complied with. Burrough J. observed that this was not a case of a single payment, but of a series of payments for sixteen or seventeen years, and that what the landlord had allowed in those settlements could not be claimed by him again. In his view the demand was most inconscientious. As I have said above, there is no equity in favour of the defendants, and, in my opinion, the demand was perfectly just. For these reasons this case Bramston v. Robins (1826) 4 Bing 11, cannot be of any assistance to Mr. Basu. In my view the learned Subordinate Judge took the correct view.

Attention was also drawn in this connection to a number of documents, for instance Ex. A(1) a letter from the Manager of the Court of Wards to the defendants, dated 30th January 1937. The letter states that the estate dues amounting to Rupees 4468-1-10 being royalty on account of the coal up to 30th June 1936, has become over due. Exhibit 9 is a letter from the Manager of the Court of Wards dated 21st March 1932. In that it is stated that Rs. 2000 on account of royalty from coal has been received and demand is made for remitting of the balance. Exhibit D is a notice that a certificate for dues on account of royalty has been filed under the Public Demands Recovery Act for a sum of Rupees 7333-2-9. The details are given at page 55 showing that the royalty is being demanded for two years together with interests and costs. It is contended on the strength of these and similar documents that the Court of Wards took the view that nothing was due from the defendants except the royalty. These documents, in my opinion, merely show that the Court of Wards demanded the arrears of royalty from the defendants, but did not demand any cess from the defendants. The documents do not show why no demand was made. It may be that through an oversight the demand for cess was omitted to be made. But these documents do not bear out the contention that the Court of Wards decided that no cess was due from the defendants. It should be remembered that the cess was not payable along with the royalty received, but cess was only payable after an assessment on that royalty had been made and after the tax so assessed had been paid by the Court of Wards. If there had been a bona fide decision on a dispute between the lessor and the lessee with regard to the liability to pay cess, the matter may have been different. The utmost that can be said here is that the Court of Wards, for some reasons or another, which it is impossible to trace did not make any demand, not because they thought that they were doing anything in the interest of the minor, or for the benefit of the estate, but because in truth they never, gave the slightest consideration to the question whether cess was or was not payable by the defendants. The documents, therefore, relied upon do not help the defendants.

It was then argued that the plaintiff, after he came of age and took possession of the estate when it was released from the Court of Wards, himself took the same view of his legal rights, and attention was drawn to a number of letters. Exhibit A(3) is a letter from the Diwan dated 5fch September 1938, in which an account had been sent of the dues by way of royalty on despatch of coal. No mention is made therein of the cess. Stress was laid upon the words at page 60 that notice was being given to the lessees under the stipulation contained in Clause 1 of the general provisions of the lease and they were called upon "to clear off the dues within a fortnight."

It is argued that the word "dues" is comprehensive enough to include not only royalty but also cess, and, therefore when this notice was sent to demand the amounts stated to be due by way of royalty only, the plaintiff must be taken to have abandoned his rights to the cess as a matter of law. The letters Exhibits A(10) dated February 1939, and A(4) dated May 1939, and A(5) dated 17th April 1910, are to the same effect. Exhibit B series are receipts granted by the Diwan to the North Damodar Colliery on account of royalty and interest thereon. These documents, in my opinion, merely establish that the plaintiff claimed and on receipt of certain sums gave receipts for full satisfaction of the royalties due to him on the despatch of coals, but they do not indicate that the plaintiff abandoned his claim to the amount for which he is liable to be reimbursed under the law on account of cess paid by him. There are no equities in favour of the defendants. How can they resist the claim of the plaintiff merely because they have not paid the amount due from them upon the ground that no claim has been made? The suit is not barred by limitation, and therefore, in my opinion, this contention also has been rightly overruled.

The result is that the appeal is allowed in part. The decision of the learned Subordinate Judge with regard to the claim for the years 1930-31, 1931-32, 1982-38, 1936-37 and 1937-38 must be allowed so far as the amount of cess is concerned. The amount of cess due to the plaintiff will be taken as given in column 8 for each of these years at page 5. The cross-appeal is dismissed with costs.

As the appellant has failed with regard to the major part of the claim which he made in this appeal, the proper order for costs will be that the appellant will receive from and pay costs to defendants 2 and 8 as between himself and defendants 2 and 8 in proportion to their success or failure in this Court. The order for costs passed by the lower Court is not being disturbed.

Das, J.

I agree.