JUDGMENT
Das, J.
1. I think this appeal must succeed. The plaintiff company claims the mineral rights in Perganna Barabhum under a permanent mokarrari lease granted by Raja Braja Kishore Singh Deo, the then proprietor of the perganna, to one Kenny on the 12th November 1881; and the suit out of which this appeal arises was for a declaration of its title to those rights, for damages, and for a permanent injunction restraining the defendants from carrying on mining-operations in the perganna.
2. The present proprietor (whose estate is under attachment under the provisions of the Encumbered Estates Act) has been cited as defendant No. 1 in the action–defendant No. 2 is the manager of the estate appointed under the Act. On the 5th September 1911 the present proprietor granted a mining lease of the perganna for 999 years to Herambo Nath Banerji, cited as defendant’ No. 3 in the action. Herambo in his turn granted a prospecting license to Guzder, the 5th defendant, on the 11th February 1920. It is admitted that Guzder is actually carrying on underground operations through his agent, Chandan Singh, named as defendant No. 4. The suit was originally instituted against defendants Nos. 1 to 4, the plaintiff not being aware that Chandan Singh was the agent of Guzder. The plaint was subsequently amended and Guzder was added as a party to the suit on the 23rd November 1920.
3. The defendants contested the suit on grounds which are common to them. The Subordinate Judge has given effect to most of these objections and has dismissed the plaintiff’s suit on the following grounds: first, on the ground that the plaintiff Company has not established its title to the minerals; secondly, on the ground that the plaintiff Company, not being in possession of the thing demised, is incompetent to maintain an action for trespass and, therefore, for injunction; thirdly, on the ground that there was, by operation of law, an abandonment by Kenny of his interest under the lease of 1881, entitling the proprietor to enter into a fresh arrangement with Herambo; fourthly, on the ground that the suit is barred by limitation; and lastly, on the ground that the plaintiff. Company is estopped from disputing the title of Herambo under the lease of the 5th September 1911.
4. I will first consider the question of title. As I have said, the then proprietor of Barabhum executed a permanent mokarrari lease in favour of Kenny on the 12th November 1881. The validity of the lease was unsuccessfully challenged by the defendants in the Court below, and it was not in controversy before us. We start then with this, that Kenny acquired a permanent, transferable and heritable interest in the minerals in Perganna Barabhum under the lease of the 12th November 1881. Now it appears that though the lease was taken by Kenny in his own name he was in fact acting on behalf of himself and eleven other persons. On the 24th February 1882 Kenny executed what is called a deed of declaration of trust in which he declared that “he, his heirs, executors, administrators, representatives shall and will henceforth stand and be possessed of the said mines and minerals and all mining rights granted by the said patta…in trust for the said several persons whose names are set forth in the first column of the1 Second Schedule hereto according to the shares and interests set opposite to their respective names in the second column of the Second Schedule hereto.” It is not necessary to give the names of the persons interested in the patta of the 25th November 1881; it is sufficient to say that Kenny had three shares out of 32 and that eleven other persons whose names appear in the Second Schedule had the remaining shares.
5. On the 28th January 1891, a Company was formed called the Barabhum Co. Ltd., with a view “to acquire lands for the mining purposes and mining rights of all kinds in Manbhum, Singhbhum, and Chota Nagpur and elsewhere in British India and in particular the mining rights in Perganna Barabhum acquired by one Nathaniel Kenny under a perpetual lease from Maharaja Braja Kishore Singh dated the 12th November 1881, and now vested in the said Nathaniel, Kenny as trustee in terms of an1 indenture; dated the 24th February 1882”. On the 5th February 1891, an agreement for sale of the property which was the subject-matter of the mokarrari patta of the 25th November 1881,was entered into between Barabhum Co., Ltd., and a number of persons called the vendors including all the persons who according to the deed of declaration of trust were interested in the patta of the 25th November 1881. By this agreement the vendors agreed to sell to Barabhum Co., Ltd., the underground rights of Perganna Barabhum for the sum of Rs. 32,000 which was agreed to be paid and satisfied by the allotment to them of 320 shares in the capital of the Company. It appears that these shares were allotted to the vendors in the proportion in which they were interested in the lease of the 25th November 1881. It will be noticed that various persons are mentioned as vendors whose names did not appear in the deed of declaration of trust as being interested in the demised property; but the explanation is that these persons came to acquire an interest by subsequent transfers. Meanwhile Kenny died in England before the legal estate could be conveyed. He left a Will of which Probate was taken in England Mr. Foley, acting under instructions from the English executors and as their constituted attorney, obtained Letters of Administration to the estate of Kenny from the Calcutta High Court on the 21st November 1905, “with effect within the province of Bengal.” On the 29th January 1908, Foley as the administrator of the estate and effects of Kenny conveyed the property to the Company. On the 14th July 1916, the Company transferred its interest to Billinghurst and on the 14th July 1917, Billinghurst conveyed it to the plaintiff Company.
6. Now there is no dispute as to the validity or sufficiency of the transactions by which the Barabhum Co., Ltd., conveyed the property to Billinghurst and Billinghurst conveyed it to the plaintiff Company. The only question is as to the conveyance of the property to Barabhum Co., Ltd. Now Kenny’s interest in the thing demised being admitted, what infirmity is there in the title of the plaintiff Company? The learned Subordinate Judge attacks both the declaration of trust of the 24th February 1882, and the conveyance by Foley to Barabhum Co., Ltd., on the 29th January 1908. He attacks the declaration of trust on the ground that Kenny had no authority to declare himself a trustee for his co-sharers. The view of the learned Sub-ordinate v. Judge on this point may be stated in his own words: “Under, this deed Mr. Kenny constituted himself to be the trustee of the eleven other co-sharers. I do not think that he could constitute himself to be a trustee on behalf of the eleven. He could create a trust and make himself a trustee only in respect of his own property and not in respect of the property of others. He was, therefore, in my opinion not a trustee, but only a farzidar of those eleven persons in respect of the shares in the lease-hold property.” It is not necessary for me to say anything more than, this that the view of the learned Subordinate Judge cannot be supported for a single moment. The legal title was in Kenny; but as between him and his co sharers he was entitled to a small share in the demised property. The deed itself states that the eleven persons, who had, a beneficial interest in the demised property, had requested Kenny to execute a declaration of trust in respect of the property. It was but right and proper that Kenny should make an open declaration to the effect that though the legal title was in him, he was holding the property on behalf of himself and eleven other persons. The learned Subordinate Judge has entirely misunderstood the position. It is not that Kenny constituted himself a trustee on behalf of his co-sharers, but that he was, by construction of law, a trustee bound to convey the legal title to his co-sharers, whenever called upon to do so. This is all that the declaration of Kenny amounts to.
7. The learned Subordinate Judge next turned his attention to the agreement of the 5th February 1891 and found that it was not proved in accordance with law. The learned Subordinate Judge is entirely right when he says that it was, for the plaintiff to prove that the twelve persons who were interested in the demised property or their representatives in-interest actually executed this agreement. Now it appears that eight of these persons representing 11-annas share in the subject-matter of the lease, executed this document through their constituted attorneys and it is quite true that there is no evidence in this case that these attorneys had any authority to execute the agreement on behalf of the 11-annas share-holders. The objection as to the sufficiency of proof was taken in the Court below and the learned Subordinate Judge decided, in my opinion, rightly, that no presumption arises under Section 90 of the Evidence Act as to an agent’s authority which must be proved in the usual way. I agree that the plaintiff Company has not established that this agreement was executed by all the persons interested in the subject-matter of the lease of the 25th November 1881; but, in my opinion, the question as to the proof of this particular document does not fall to be considered. The learned Subordinate Judge made unnecessary difficulty for himself. We know that the legal title in the thing demised was in Kenny although there were various other persons beneficially entitled to specific shares in it. We may put out of our mind the agreement of the 5th February 1891. Kenny died and on his death Probate was obtained of his will in England. As I have said, Foley obtained Letters of Administration to the estate of Kenny “with effect within the province of Bengal.” Now what is the position? Upon the grant of Letters of Administration to Foley, the demised land (which was then within the province of Bengal) vested in Foley as such administrator; and Foley was competent to deal with the property in due course of administration. As will be remembered, Foley conveyed the demised property to Barabhum Co., Ltd., on the 29th January 1908. The learned Subordinate Judge objects to this transaction. He remembered that the declaration of trust showed that Kenny was a beneficial owner of only a small share in the property and that in regard to the remaining shares he was a trustee of eleven other persons; and he thought that as Kenny’s Will did not purport to deal with the legal title in the demised property, that title did not vest in Foley so as to enable him to convey it to Barabhum Co., Ltd.
8. Now it is quite true that Kenny did not deal with the demised property in his Will and the learned Subordinate Judge is right in saying that “so far as this property is concerned, he died intestate.” But even the estate of an intestate has to be administered in due course of law; and Article 179 of the Indian Succession Act says that the “executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.” Now what is the meaning of the words “all the property of the deceased”? There is high authority for the view that the words “all the property of the deceased” must be construed as meaning the actual property of the deceased, whether held by him for his own benefit or for the benefit of others: see De Souza v. Secretary of State for India 12 B.L.R. 423. There is no reason to doubt, therefore, that the demised, property vested in Foley as such administrator under Section 179 of the Indian Succession Act.
9. The next question is whether Foley was entitled to convey the property to Barabhum Co., Ltd. Now before dealing with this question let me examine what Foley purported to do. The deed of conveyance of the 29th January 1908, recites the following transactions:
First, the mokarrari patta of the 12th November 1881 granted by Raja Braja Kishore Singh to Kenny,
Second, the deed of declaration of trust by Kenny by which he declared that he, his heirs, executors and administrators and, representatives should and would stand and be possessed of the subject-matter of the lease of 1881 in trust for the several persons whose names appeared in the Second Schedule of the deed,
Third, the agreement of the 5th February 1891 by which the persons then entitled to the subject-matter of the lease of the 25th November 1881 agreed to sell the mining rights conferred by that lease to Barabhum Co., Ltd., for Rs. 32,000 which sum should be paid and satisfied by the allotment to the vendors of 320 shares in the capital of the Company.
10. It then recites that the said shares have long since been allotted to the said parties and that ever since the completion of the agreement of the 5th February 1891, the Company has been in possession of the mining rights conferred by the said patta, but that the legal estate was still outstanding in Kenny. In these circumstances Foley as the administrator of the estate of Kenny transferred the mining rights conferred by the patta of the 25th November 1881 to Barabhum Co., Ltd.
11. Now what is there, to object to in the transaction? In point of form, the property stood in the name of Kenny and Foley as the administrator of the estate of Kenny was competent to convey the property to Barabhum Co., Ltd., in due course of administration. If substance is to be regarded, then, there is no doubt that though the legal title was in Kenny the persons who were beneficially entitled to the property had already conveyed their interests to the Barabhum Co., Ltd., for valuable consideration, and were entitled to call upon Kenny or on the administrator after his death to convey the legal estate to Barabhum Co., Ltd. Now it may be said that Foley had no business to convey the property to Barabhum Co., Ltd., without the permission of the Court. The general rule established under Section 269 of the Indian Succession Act is that ordinarily an administrator ought to obtain the previous permission of the Court before conveying the property to a third party. But then that section provides that a disposal of the property by the administrator in contravention of the rule stated in para. 3 of Section 269 is voidable at the instance of any other person interested in the property. In other words, if any objection was to be made to the conveyance of the 29th January 1908 that objection could proceed either from the heirs of Kenny or the heirs of the beneficiaries recognised as such in the deed of declaration of trust. The objection could neither proceed from the landlord nor from any other party claiming through the landlord. In my opinion the conveyance in favour of Barabhum Co., Ltd., is not open to attack. That being so, the plaintiff Company has clearly established its title to the demised property, for it is not disputed that the Barabhum Co., Ltd., validly transferred the property to Billinghurst on the 14th July 1916 and that Billinghurst validly transferred it to the plaintiff Company on the 14th January 1917.
12. The next point is whether the present suit by the plaintiff Company is maintainable. The learned Subordinate Judge has shown some research into the intricacies of the English Common Law. He says that neither the plaintiff Company nor its predecessors ever got possession of the demised property; and that, that being so, the demise only gave the lessee a right of entry in the property or, which is the same thing, an interesse termini which is not sufficient as a foundation for an action for trespass or a suit for injunction and damages. Now, so far as I know, this doctrine has been applied in England only to leases for years; it has, for instance, never been applied to what are known as freehold leases. Now the lease with which we are concerned is a perpetual lease, a lease creating a permanent, transferable and heritable interest in the thing demised, in which the landlord has no right of reversion: Sonet Kooer v. Himmut Bahadoor 1 C. 391 : 25 W.R. 239 : 3 I.A. 92 : 3 Sar. P.C.J. 808 : 3 Suth. P.C.J. 257 : 1 Ind. Dec. (N.S.) 245 (P.C.). A lease of this nature is, so far as I am aware, unknown to the English Common Law and I do not think that it is quite necessary to apply a doctrine applicable to English leases to a lease which is unknown to English Law. In the next place, it is as well to look to the definition of a lease in the Transfer of Property Act, a Statute with which we should be acquainted. At Common Law, possession under the instrument is necessary to complete a lease, so that after a lease has been granted, and before actual entry has been made by the lessee, he is for many purposes not a tenant. Under the Transfer of Property Act a lease of immoveable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. It will be noticed that delivery of possession is essential to the completion of a lease under the Transfer of Property Act only where it has been made by oral agreement, and a lease by oral agreement cannot be made where it is from year to year or for any term exceeding one year or reserving a yearly rent. Now if, as I hold, delivery of possession is not necessary for the completion of a permanent lease under the Transfer of Property Act, I do not see why we should import into our system the complications of English Law where delivery of possession is necessary to complete a lease. In the third place, what foundation is there for the suggestion that the plaintiff Company is not in possession? By possession is, and must be, meant possession of that character of which the thing is capable. We are concerned in this litigation with underground rights which are not capable of possession as a house, a watch or a ring is. For many purposes the law regards the right to possession as equivalent to possession; especially when the property is not in the actual possession of any one. It is quite true that the plaintiff Company has not yet worked the mines; but, “the mere omission of the mineral owner to do anything with the subject-matter of his grant will not be a disseisin or dispossession of him in favour of the surface owner” (See Pollock and Wright on Possession, p. 87). Now obviously there is no question of a “disseisin” unless, to start with there is a seisin, and, in my opinion, the omission of the mineral owner to work the mines does not show that he is not in possession of the mines. I hold that the plaintiff Company was in constructive possession of the thing demised and that constructive possession is a sufficient foundation for an action in trespass (Clerk and Lindsell on Torts, 6th Edition, 380). In the fourth place, it is not necessary to embarrass ourselves with a discussion as to forms of action known to English Common Law. If it were necessary to do so, one might say that though a person, not in possession, is not entitled to maintain trespass, he is entitled to maintain trover and to recover the value of personal chattels wrongfully converted by another to his own use. It is necessary to see what is the substance of the plaintiff Company’s claim in this case. There is an injury to the plaintiff Company’s right both actual and threatened. It has proved its title. It shows that the defendants or some of them have carried away coal which belongs to it, and are threatening to carry away more coal or convert that coal to their personal use. Is it to be supposed that the plaintiff Company has no remedy because it is not in actual possession of the thing demised? Now even at Common Law, a tenant having a mere interesse termini could maintain an action for damages for recovering the value of coal wrongfully converted by another to his own use and he could also maintain an action for injury to his rights–Gillard v. Cheshire Lines Committee (1884) 32 W.R. 943 and these are the remedies which the plaintiff Company is seeking in this case. In regard to the question of injunction the case upon which the learned Subordinate Judge relies does not, in my opinion, establish that a plaintiff, not in possession, is not entitled under any circumstances to injunction, even if he satisfies the Court that the injury which is apprehended will be either continuous or frequently repeated or very serious. The case of Wallis v. Hands (1893) 2 Ch. 75 : 62 L.J. Ch. 586 : 3 R. 351 : 68 L.T. 428 : 41 W.R. 471. was decided on its own facts and is not an authority for the proposition that “a man having only interesse termini cannot bring a case for injunction.” In my opinion the plaintiff Company is entitled to maintain this action.
13. The next question is whether there was by operation of law an abandonment or surrender of the lease by Kenny. There is no doubt that the plaintiff Company has not worked the mines; but there is ample authority for the view that mere non-user does not amount to an abandonment. The passage which I have already cited from Pollock and Wright may be referred to in this connection. It is not necessary to cite authorities, for the principle is well recognised. The learned Subordinate Judge relies upon the following circumstances in support of his theory as to abandonment. He says that in 1901 the proprietor; treated the lease as having been surrendered or abandoned. In 1904 the manager of the proprietor granted a prospecting license, to Messrs. Mackinnon Mackenzie & Co., whose agent Robinson worked a particular kind of mineral called galena in one of the mouzas called Beldi; and the learned Subordinate Judge says that “the inference is that when the zemindar found that for a period of 20 years the lessee had not worked but had left the country, he inferred that the lessee had surrendered the lease and entered upon possession,” and he says that, since the zemindar entered upon possession, the lease was extinguished. There is, in my opinion, neither principle nor authority in favour of the startling proposition laid down by the learned Sub-ordinate Judge. A contention very much like the one which found favour with the learned Subordinate Judge was advanced before the Privy Council in Agency Co. v. Short (1888) 13 A.C. 793 : 58 L.J.P.C. 4 : 59 L.T. 677 : 37 W.R. 433 : 53 J.P. 132. Lord Macnaghten in dealing with the contention said that in the case of mines, the doctrine contended for might lead to startling results and produce great injustice. It is quite true that the proprietor treated the lease as having been surrendered in 1901; but what he understood is of no consequence unless he actually took possession of the demised land and retained possession for the statutory period. It is quite true that in 1904 he granted a lease to Messrs. Mackinnon Mackenzie & Co., and that Mackinnon Mackenzie & Co., worked the galena in one of the mouzas comprised within the Perganna. It is not suggested that any of the subsequent lessees has been in possession for the statutory period. That being so, there was no abandonment of his interest by Kenny.
14. I will now deal with the question of limitation. The defendants rely upon the following facts as establishing that the plaintiff’s suit is barred by limitation. On the 9th November 1909, a letter was1 written by Mathewson as putnidar of the Perganna contending that the mining, rights in the Perganna belonged either to the Government or to him as representing the zemindar. This letter throws no light on the question of possession. On the 21st October 1905, the proprietor gave a mining lease to Sullivan. Admittedly Sullivan has never worked the mines and he surrendered the lease by a registered document. No question of dispossession, therefore, arises. Between August 1904 and September 1905, Messrs. Mackinnon Mackenzie & Co., worked a particular kind of mineral called galena in village Beldi under a license from the Manager of the Encumbered Estate. The extent of that working is shown by the local inspection note of the learned Subordinate Judge and the amount of the working is to be found in Ex. R. It appears that they took Rs. 17,415 worth of galena and that they paid the Rajah Rs. 162 as balance of the royalty due. It may be admitted that there was an ouster of the plaintiff Company or its predecessors-in-title by Messrs. Mackinnon Mackenzie & Co., of village Beldi comprised within the Perganna between August 1904, and September 1905; but Messrs. Mackinnon Mackenzie & Co., entered upon possession without title, for the proprietor had no power to grant a lease to Messrs. Mackinnon Mackenzie & Co. They ceased to work in September 1905; and the rightful owner, that is to say, the plaintiff Company, or its predecessors-in-title, on Messrs. Mackinnon Mackenzie & Co., abandoning possession of the mouza was in the same position in all respects as it was before the intrusion took place, As Lord Macnaghten in Agency Co. v. (5). Says “there is no one against whom he can bring an action. He cannot make an entry upon himself.” Time undoubtedly began to run as against the plaintiff Company in August 1904 in regard to Mouza Beldi; but, in my opinion, it ceased to run in September 1905 when Messrs. Mackinnon Mackenzie & Co.” abandoned possession of the mouza. On the 15th June 1906 the Manager of the Encumbered Estate wrote a letter to Messrs. Hoare Miller & Co., the managing agents of Barabhum Co., Ltd., informing them that the Raj ignored Kenny’s lease. The Manager in his letter said “the mining rights have remained latent from the date and year the lease was granted.” Messrs. Hoare Miller & Co. replied to this letter which has not been put in by the defendants. On the 24th June 1906, there was another letter from the Manager in which he repeated that the proprietor refused to recognize Kenny’s lease. In my opinion the refusal to recognize Kenny’s leas did not amount to dispossession. What was wanted on the part of the proprietor was a positive act of dispossession so as to enable him to invoke the doctrine as to lapse of time. As I have said, the rightful owner may invoke the doctrine as to constructive possession. He may for a time be dispossessed; but when the trespasser abandons possession the rightful owner, to quote the words of Lords Macnaghten, “is in the same position in all respects as he was before the intrusion took place.” The letters Ex. G-1 and G-2 throw no light whatever on this point. On the 9th April 1907, the Raj gave a lease to Gobind Bose. It is not suggested that, Gobind Bose took possession by virtue of this lease or carried on any underground operations. One may, therefore, ignore Gobind Bose’s lease. On the 5th September H, 1911, the Raj gave a lease to Herambo who in his turn granted a prospecting license to Guzder on the 5th June 1919 and again on the 11th February 1920. It is not suggested that Herambo defendant No. 3 took possession by virtue of his lease, or that he carried on any underground operations. The plaintiff’s cause of action arose for the first time when Guzder through Chandan Singh began to act under the prospecting lease. The suit having been instituted on the 14th June 1920 is amply within time.
15. The last question is as to estoppel. It is difficult to understand the view of the learned Subordinate Judge on this point. It is contended that “as the predecessors-in-interest of the plaintiff Company by not wording the minerals in the Perganna made the defendant believe that the zemindar had the right to settle the minerals and as in that belief he paid Rs. 25,000 as salami to him for the lease of the minerals, the plaintiff Company, is estopped from claiming a leashold interest in the minerals as against him.” In my opinion it is only necessary to state the proposition to reject it. I hold that there is no question of estoppel to be tried.
16. I would accordingly allow the appeal, set aside the judgment and the decree passed by the Court below. The plaintiff Company is entitled to a declaration of title in its favour and to a permanent injunction restraining the defendants and their agents and servants from working and appropriating the minerals in Perganna Barabhum. The plaintiff Company is also entitled to its costs in this Court and in the Court below.
Adami, J.
17. I entirely agree.