TaxTMI 
TaxTMI 
1995 (9) TMI 317
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.... the deed by which the grantor reserves something to himself out of that which he grants. It may even be a clause reserving rent in a lease, whereby the lessor reserves something for himself out of that which he grants. But "What is in a name? A rose by any other name would smell as sweet". So said Shakespeare. 3. We will now get on to the merit of the matter. 4. The appellants are the plaintiffs. They are the heirs of one Sardar Pishora Singh Sial. By deed Ex. D-2 dated 19- 11-1938, Pishora Singh obtained a mining lease from the erstwhile Government of Central Provinces for extraction of coal in 420.27 acres of land in village Dighawani, District Chhindwara. He also obtained in the same village a prospecting licence vide deed Ex. D-3 dated 22-11-1938 to prospect of coal in an area measuring 242.29 acres. Beforehand, on 16-11-1938 in anticipation of obtaining the lease and the licence he entered into a contract with Karam Chand Thaper and Brothers Ltd. to assign his rights in the lease and prospecting licence when maturing. On obtaining, he sought and received permission from the Government on 7- 3-1939 vide Document Ex.D-4 for transferring those two rights to Karam Chand Tha....
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....ishora Singh Sial filed a suit against the three assignees for recovery of the sums of royalty then fallen due, together with interest; total claim then being for Rs. 2,32,627.18 upto a certain period and on quantities of coal despatched. 6. The defendants-respondents contested the suit. The execution of the documents inter se, reference of which has been made earlier, was not denied. The main thrust of the defendants was that deed Ex.D-5 postulated payment of royalty, descriptively well known to the mining world, which is representative of the State's share in the mineral for such rights conferred, but not by a prerogative exercised by an individual. It was further pleaded that the situation of law at that point of time, when the suit was being contested, was that demand of any payment as royalty by an individual was prohibited. Past payments of almost 20 years were termed by the defendants as having been made mistakenly. The Trial Court then on interpreting the terms of document Ex.D-5 held that the obligation of the defendants-respondents to pay the so called royalty to the plaintiffe-appellants was merely a periodic payment, as in the deed stipulated, and was thus not ro....
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....yment of a part of the consideration." 8. The other Hon'ble Judge agreed with the view so expressed by his colleague. Yet he went on to hold that the term in the deed Ex.D-5 directing payment of royalty or rent would be offensive to the enjoyment of absolute rights and thus hit by the provisions of Section 11 of the Transfer of Property Act. The appeal of the defendants-respondents was thus allowed and the suit was dismissed. This gave birth to this appeal. 9. Leave was sought from the High Court by the appellants, to appeal to this Court inter alia on the basis that when the Hon'ble Judges on applying Section 11 of the Transfer of Property Act had voided an important element of consideration of payment of royalty fixed in the assignment deed, it raised an important question of law of public importance. The Hon'ble Judges hearing the matter met the claim of the appellants by observing that the point regarding the applicability of Section 11 was not the basis of decision and was only incidently mentioned by one of the Hon'ble Judges. Further it was viewed that in the circumstances, it could not be said that the case involved a question relating to the interpret....
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....clared that the VENDEE shall pay to the VENDOR Rs. 1500/- (one thousand and five hundred) as minimum guaranteed Royalty or rent every half year from the second year reckoned from the date of the execution of these presents, that is to say, after the one year stated in clause (d) (ii) above and thereafter that is to say from the THIRD YEAR reckoned as above Rs. 3600/- (Three Thousand and six hundred only), every half year at Chhindwara during the whole of the unexpired term of the herein cited mining lease and the prospecting license or mining lease granted to the VENDEE over all or any portion of the lands covered by the aforesaid prospecting license d/- 19-11-1938 as well as during the entire term of fresh leases of the said concessions if and when granted or renewed by the Government to or in favour of the VENDEE. (iv) The aforesaid half yearly Royalty or rent as per clause (d)(iii) above shall be paid to THE VENDOR by the VENDEE irrespective of whether any coal be raised and despatched from the mines or not. If in any half year no coal is won or despatched or sufficient coal is not won and despatched to produce for that half year at the rates mentioned in clause (d)(i) ....
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....ed to identify who had the sovereign prerogative or the State part to play. The word "royalty" thus, in the deed was used in a loose sense so as to convey liability to make periodic payments to the assignor for the period during which the lease would subsist; payments dependent on the coal gotten and extracted in quantities or on despatch. We have therefore to construe document Ex.D-5 on its own terms and not barely on the label or description given to the stipulated payments. Conceivably this arrangement could well have been given a shape by using another word. The word "royalty" was perhaps more handy for the authors to be employed for an arrangement like this, so as to ensure periodic payments. In no event could the parties be put to blame for using the word "royalty" as if arrogating to themselves the royal or sovereign right of the State and then make redundant the rights and obligations created by the deed. 13. The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a King. The document is weighed by its content, not the title. One needs to go to t....