JUDGMENT
Wort, Ag. C.J.
1. This is an action for an injunction to restrain the defendants from interfering with the common management of the property known as the Banaili Raj. The case was commenced in the Court of the Subordinate Judge of Bhagalpur and by an order of this Court transferred to this Court, the parties agreeing to waive the formal proof of all documents and to confine their arguments to questions of law.
2. The plaintiff is Raja Kirtyanand Sinha Bahadur who was the second son of the. late Raja Leelanand Sinha. Defendant No. 1 is Kumar Ramanand Sinha, who was the son of the brother of the plaintiff, and defendant No. 2 is Kumar Krish-nanand Sinha who was the second son of the brother of the plaintiff. They are described as defendants first party. The. other defendant is Rani Chandrabati, widow of Kumar Chandranand Sinha who was the son of Raja Padmanand Sinha and was a brother of the plaintiff, is described as defendant second party. This defendant is no longer in the case. She died during the course of the action and the plaintiff has taken no steps to obtain substitution. For a very long time (it is certainly since the year 1880) the members of this family have been separate, and for an almost equally long time their property the Banaili Raj has been managed by a common manager appointed by them all. Their shares originally were as between the plaintiff and the defendants first party 9 annas and Raja Padmanand Sinha Bahadur 7 annas.
3. The present state of the shares in the Raj now enjoyed by the parties is that the plaintiff and the defendant first party are proprietors of 6 annas each and lessees of another 2 annas each were brought about by the following circumstances. In an action of 1888 a compromise was entered into between the parties under which the share of Raja Leelanand Sinha, father of the plaintiff and the defendant first party was defined as 9 annas and of Raja Padmanand Sinha Bahadur father-in-law of the defendant second party as 7 annas. Another action was compromised in 1903 in which Padmanad Sinha’s share was defined as 3 1/2 annas and his son’s as the same. Under these compromises it was agreed to continue the joint collection of the shares. In 1904 a further agreement was reached the important items of which were joint management, and a lease of the 7 annas interest to Leelanand Sinha. During this lease Padmanand Sinha sold his 3 1/2 annas share to his son under an indenture of September 26, 1905. The son declared himself a disqualified proprietor and the 7 annas was placed under the management of the Court of Wards. The son then died and the widow who is defendant second party succeeded. Her estate of 7 annas was managed by the Court of Wards. The Court of Wards granted a fresh lease on expiry of the earlier one of the 7 annas to the father of the plaintiff and defendant first party, and during this lease, of 1916 the father of the plaintiff and defendant first party died. The sons came into the share of the father and then separated in estate being the proprietors of 4 1/2 annas each. By the indenture of sale by which the defendant second party sold 3 annas interest to the plaintiff and the defendant first party their respective shares are 6 annas, 6 -annas and 4 annas. During all this time by agreement there was joint management of the 16 annas interest.
4. We now come to the material date of September 1928 when the agreement, which is the basis of this action, was entered into. It is an agreement between the plaintiff, the defendant first party and the defendant second party. It was recited as follows:
That although the estate is not divided and partitioned by metes and bounds, the said three (sic) shares are all holding and enjoying their respective shares in severally. And whereas in view of the fact the joint debts of the estate have not been fully liquidated and that as separate management of their respective interests would cause an additional burden and expenditure on their respective shares and a joint management would be to the benefit of the estate in every respect and in every way and would remove all difficulties in the administration of the estate and in view of the further fact that the parties hereto have agreed to refer all disputes and differences that may arise between any two of them or among all three of them to the Commissioner of the Bhagalpur Division for the time being in a manner hereinafter appearing and whereas the parties aforesaid consider it desirable and advantageous to themselves that the integrity of the estate should be maintained and that the management of their estate should be carried on by a joint manager so that the benefits of common management be secured, now this Indenture witnesseth, &c.
5. The first covenant is
that there shall be no partition of the estate jointly owned by the parties hereto for the period commencing from 1st Assin 1336 to 30th Bhado 1317, except that with the approval of the Commissioner of the Bhagalpur Division for the time being.
6. There is then a covenant not to transfer in any manner their respective shares in the property to any person or persons. The third covenant is that Mr. Godbole, a member of the Indian Civil Service should be the common manager for a period of 12 years or for such portion of that time for which his services may be available, and then the 9th covenant is to the effect that differences of opinion between any two of the parties with regard to any matter concerning the management of the estate or expenditure from the joint common funds or the several budget or in any way affecting their interests in the estate shall be referred to the Commissioner of the Bhagalpur Division.
7. One of the recitals was to the effect that the Court of Wards had agreed to convey and transfer 3 annas out of the 7 annas of the estate of defendant second party, and this lease was entered into on October 12 of the same year, just about one month after the agreement of September the covenants of which I have just read. It is obvious, and it is in fact the case of the parties, that one of the reasons for taking the lease of October 12, 1928, was for carrying out the purposes of the agreement, namely paying off these joint debts. Under the said lease one of the covenants between the lessees on the one hand, that is to say, the plaintiff and defendant 1st party (by defendant 1st party I mean of course Kumar Ramanand Sinha and Kumar Krishnanand Sinha) of the first part and the lessor who was the Court of Wards of the second part, was that the estate should, remain under common management. Apart from that covenant, it is perhaps unnecessary to make any mention of the provisions of that lease. The covenant to which I have referred runs in this way:
That during the term of the lease the lessees shall keep intact the common management of the 16 annas collection of the Banaili Raj.
8. It will be seen from what I have stated that the lease was the final transaction under which the plaintiff and the defendants 1st party came in possession of the whole 16 annas of the Banaili Raj. Now the next transaction was an agreement dated March 23, 1930, but this does not appear to have been acted upon and is not a part of the case of either party. I have already stated that under the agreement of September 1928, the parties agreed to appoint Mr. Godbole as common manager for a period of 12 years or for such term as he should be available. Government withdrew his services after a period of two or three years and on November 15, 1933, the plaintiff and the defendant 1st party entered into an agreement employing Mr. E. W. Daunt the common manager for a period of three years. In. pursuance of that agreement and on the same day a power-of-attorney was executed in favour of Mr. Daunt. I now come to the events which have given rise to this action. There is stated in the plaintiff’s plaint in para. 18 that for some time past the defendants 1st party wanted separate management to be made with respect to their proprietary and leasehold interest from that of the plaintiff and that with that end in view they, one after another, dispensed with the services of Mr. E. W. Daunt (After referring to several letters, the judgment continued). It will be seen from these letters of April 1935, that there was an attempt on the part of the defendants 1st party, that is, Kumar Ramanand Sinha and Kumar Krishnanand Sinha, to dissolve the common management.
9. In those circumstances the plaintiff brought this action, claiming as his cause of action the attempt on the part of the defendants 1st party to which I have just referred. In answer to that the defendant Kumar Ramanand Sinha pleads that the allegations contained in para. 18 of the plaint are substantially correct and that this defendant had dispensed with the services of the said Mr. Daunt as he found him a very undesirable person and deserving of no confidence whatsoever. I read that paragraph merely to show that on the one hand it is alleged that an attempt was made and on the other it is not denied but admitted. No question arises as to the conduct of Mr. Daunt and as Mr. Das on behalf of the, defendant Kumar Ramanand says and agrees, he, Ramanand, makes no allegation as regards the conduct of Mr. Daunt whatsoever. The question, therefore, is purely a legal one and in answer to the plaintiff’s case, three points are raised on behalf of the defendants, one of which is partly a question of mixed fact and law. The first point is that no agreement to have the properties managed by a common manager was entered into between the plaintiff and the defendants 1st party. A subsidiary point is that if such an agreement between them was entered into, it is not a binding contract as there was no consideration.
10. The second point is that if there was such an agreement at any time for a common management, that common management has been brought to an end by the action of the defendants. The third point is that, even assuming that there was an agreement, the relief which the plaintiff claims is not relief to which in law he is entitled: if he is entitled to any form of relief at all, it is by way of damages which in this case is not claimed. It will be seen that the second and the third points are substantially one. The first question is whether any agreement was entered into as between the plaintiff and the defendant for the common management of their interests in the Banaili Raj, I find it quite impossible to come to any conclusion other than that there was such an agreement between the parties. It would be impossible in my judgment to read the indenture of September 1, 1928, otherwise. The’ first recital which has any reference to this matter is this:
Whereas the parties aforesaid consider it desirable and advantageous to themselves that the integrity of the estate should be maintained and that the management of their estate should be carried on by joint manager so that the benefits of common management be secured;
and then the first clause is
that there shall be no partition of the- estate jointly owned by the parties hereto for the period commencing from 1st Assin 1336 to Bhado 30 1317 F.
11. This covenant not to partition might not be inconsistent with the collection of the shares separately. They were already separate in interest and estate although their shares have not been partitioned be metes and bounds. That a recital may be construed as an agreement between the parties is, I think, clear and that the agreement must be collected from the entire instrument is equally clear. That being so I have little hesitation, taking the instrument as a whole and particularly the clauses just referred to, in holding that the parties to this indenture of 1928 agreed to have the property managed by a manager common to them all for the period up to Bhado 1347, that is, up to 1940.
12. There is the subsidiary point as to consideration. In the ordinary course of events the parties would be entitled to manage their estate or their respective interests in severally. By this agreement they gave up that right and that in itself, in my opinion, would be sufficient consideration. There was forbearance on the part of the plaintiff to insist upon his rights of managing his own interests and there was forbearance on the part of the defendants also to manage their interest separately; but there was this further fact: it was recited that the parties agreed and that agreement was carried out, that the parlies should take a lease from defendant No. 3 of her 4 annas interest. Under that lease the plaintiff and defendant 1st party jointly became liable for a rental of Rs. 2,30,000. The lease may have been advantageous to the parties but that is immaterial. It is clear that they entered into obligations to which I have already referred and that this agreement of October 12, 1928, was part of the consideration of the agreement of September of the same year.
13. The second question is whether the common management was brought to an end. The agreement, as I understood it, was very largely based on the assumption (a wrong assumption) that the question depended upon the rights as between the owners of the Banaili Raj on the one hand and Mr. Daunt, the common manager, on the other; but that was not the question. The parties as a body may or may not have had a right to dispense -with the services of Mr. Daunt but whether they had such a right or not is besides the question. I should in this connection mention one of the covenants of the agreement of September 1928 as it has some bearing on this matter. That covenant is the third covenant by which Mr. Godbole should be the common manager for a period of 12 years or for such portion of that term for which his services may be available; and it was one of the branches of Mr. Das’s argument, and an argument which was not strenuously put forward, that when Mr. Godbole ceased to be the common manager by reason of his services being withdrawn by Government, the common management came to an end; in other words the covenant was simply this that the common management would continue so long as Mr. Godbole should be the common manager. That again, in my opinion, is an impossible contraction if we take the document as a whole. It is also falsified by the acts of the parties who, when Mr. Godbole ceased to be the common manager, forthwith proceeded to appoint another manager in his place.
14. I now go back to the substantial part of the second point as to whether in these circumstances the common management was brought to an end by the defendants dispensing with the services of Mr. Daunt Mr. Das has relied upon the English Law on this point and has contended on the authority of the case in Bristow and Porter v. Taylor (1817) 2 Stark 47, that either of the joint proprietors who had jointly entered into this agreement with Mr. Daunt might at any time discharge him. That was the case in which after the dissolution of partnership the partners had agreed that a certain person should collect the debts of the partnership. Having collected the debts one of the employers countermanded his authority and demanded payment from the agent. It was held there that in the circumstances the authority of Bristow (that was the agent) was revocable. Lord Ellen borough expressed himself in these words:
If Bristow had, in consequence of the authority given him, done any act, it might not have been revocable; but the authority to him was counter-mandable and had in fact been counter-manded; each partner had a right to counter-mand before any act intervened which in point of law would preclude a revocation.
15. It will be seen from the words which I have read that, even if the case cited is relevant or in point, it does not bear out the proposition that under all the circumstances one of the joint proprietors would be entitled to revoke the authority of the agent. But I am assuming for the moment, however, that it does bear out the proposition advanced. There is a very considerable difference in the facts in the case relied upon and the facts of this case. The first difference is this that in the case in Bristow and Parter v. Taylor (1817) 2 Stark 47, the agreement between the sometime parties was for no definite period and, therefore, there would be no question of any breach of agreement as between themselves. In this case Mr. Daunt had been engaged by the proprietors of a period of three years. Can it be said, therefore, in those circumstances, that the common management had rightly been brought to an end ?
16. It is contended by Mr. Das that the action of the defendants effectively brought the common management to an end and that the only right which the plaintiff had in the circumstances was to claim damages for breach of his agreement. But in my judgment that does not in any way dispose of the question whether the common management was brought to an end or not. In my opinion that in no way depends upon whether one or another of these parties was entitled to dispense with the services of Mr. Daunt. I should rather lean to the opinion, if that, question had to be decided, that it would have to be decided against the defendants having regard to the fact that under the agreement all matters or any differences of opinion between any of the parties with regard to any matters concerning the management of the estate had to be referred to the Commissioner of Bhagalpur. Let, me for the moment summarise the position in this way. The parties to this action by agreement would have been entitled as between themselves to dispense with the services of Mr. Daunt. Whether Mr. Daunt would have any right of action again at either would depend upon the circumstances under which his services were dispensed with, but that is irrelevant. If there had been any disagreement as to whether Mr. Daunt’s services should be dispensed with or not, it seems to me clear that matters of that kind would have to be referred to the Commissioner of Bhagalpur. But it is quite clear that whether the defendant could rightly dispense with the services of Mr. Daunt is in no way relevant to the, question of whether he could break the agreement between himself and the plaintiff and it is that agreement with which we are concerned in this case. It seems to me that the final determination of the second point cannot be made until the disposal of the third point, namely, whether, if the agreement was made, the plaintiff was entitled to the form of relief which he has claimed in this action.
17. Now shortly the point is stated in this way. If the agreement was affirmative in form, it was an agreement to appoint a common manager and an agreement which could not be specifically enforced and that, if it could not be specifically enforced under Section 56, Special Relief Act, the plaintiff would not be entitled to an injunction. Section 56, Clause (f) provides that an injunction cannot be granted to prevent breach of a contract, the performance of which would not be specifically enforced. The parties refusing to carry out the agreement to employ a common manager is a question of some difficulty but does not strictly arise here as a manager has been appointed and has acted, and the question is, therefore, the more limited one which arises by reason of Section 57 Specific Relief Act. That section provides:
Notwithstanding Section 56, Clause (f), where a contract Comprises an affirmative agreement to (Jo a certain act coupled with a negative agreement express or implied not to do a certain act, the circumstance that the Court is unable to compel specific performance of affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement.
18. As regards one part of that section, it is substantially the English Law. In some respect it may not reproduce the English Law but we are not really concerned with that matter as, so far as this question is relevant, we are governed by the sections which I have just read. Now Mr. Das contends that first of all this is an affirmative covenant to place the Raj property Under common management and that on the proper conduction of Section 57, Specific Relief Act, the mere negative or the affirmative covenant which every affirmative naturally implies is not one which is contemplated by the expression “where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied.” In connection with this argument a number of authorities have been relied upon but I only propose to refer to one or two. In Davis v. Foreman (1894) 3 Ch. D 654 : 64 LJCh. 187 : 43 WR 168, which related to the employment of a manager, the following clause was in the agreement:
The employer hereby agrees with the manager that ho will not, except in the case of misconduct or a breach of this agreement, require the manager to leave his employ and determine this agreement during such period that he shall draw from the said business £15 each and every month.
19. As pointed out by the learned Judge in that case that covenant was negative in form but was in substance affirmative and that in those circumstances an injunction could not be granted: in other words, if an injunction could be granted, it would in effect be for specific performance of a contract of service. Now the matter in, my judgment is best staled in Metropolitan Electric Supply Co., Ltd. v. Ginder (1901) 2 Ch. D 799 : 70 LJ Ch. 862 : 84 LT 818 : 49 WR 508 : 17 TLR 435, where Buckley, J., referred to the judgment of Lord. Selborne, in Wolverhamp-ton and Walsall Ry. Co, v. London and North-Western Ry. Co. (1874) 16 Eq. 433 : 43 LJCh. 131 at page 440 Page of (1874)16 Eq.–[Ed.]. The principle to which reference was made by Lord Selborne is this:
I can only say that I should think that it was the safer and the better rule, if it should eventually be adopted by this Court, to look in all such cases to the substance and not to the form.
20. Lord Selborne had referred to this authority: humley v. Wagner (1852) 1 DM & G 604 : 21 LJCh. 898 : 16 Jur. 871 : 19 LT (os) 264 : 91 RR 193 and made this observation:
With regard to the case in Lunley v. Wagner (1852) 1 DM & G 604 : 21 LJCh. 898 : 16 Jur. 871 : 19 LT (os) 264 : 91 RR 193, to which reference was made, really when it comes to be examined, it is not a case which tends in any way to limit the ordinary jurisdiction of this Court to do justice between parties by way of injunction. It was sought in that case to enlarge the jurisdiction on a highly artificial and technical ground, and to extend it to any ordinary case of hiring and service, which is not properly a case of specific performance; the technical distinction being made, that if you find the word ‘not’ in an agreement ‘I will not do a thing’–as well as the words ‘I will,’ even although the negative term might have been implied from the positive, yet the (Court, refusing to act on an implication of the negative, will act on the expression of it.
21. I refer to the decision in Metropolitan Electric Supply Co., Ltd. v. Ginder (1901) 2 Ch. D 799 : 70 LJ Ch. 862 : 84 LT 818 : 49 WR 508 : 17 TLR 435 in support of the principle that what is to be looked at is the substance of the agreement and not its form. If we take this agreement as a whole we find that it is an agreement to have the property of the Banaili Raj managed by a common manager and there is the definite negative covenant that there shall be no partition of the estate jointly owned for a certain period. Even taking the covenant as one under which the parties agreed that there should be a common management of the estate, although the covenant might be held to be affirmative in form, in my opinion it quite clearly is negative in substance. I have already said and repeat that ordinarily the proprietors of this estate would, as they are holding their shares in severally, be entitled to manage their respective shares separately. This would involve the collection of their respective rents and profits by an arrangement with the tenants. What is the effect of the agreement ? In my judgment the effect of the agreement is that the parties have agreed not to do that which they ordinarily have a right to’ do: in other words although affirmative in form the agreement in substance is negative.
22. A number of cases were quoted in the course of the arguments but in my opinion they give me very little assistance in coming to a conclusion with regard to this matter. After all I. have to construe the section and I have to apply the principle which I gather from that section to the facts of this case and I arrive at the conclusion with very little hesitation that this agreement entered into in September 1928, complies with Section 57, Specific Relief Act, in that the covenants if taken individually might be held to be affirmative in form (excepting perhaps that which refers to partition) yet the agreement taken as a whole is negative is substance. Having arrived at that conclusion, the only point that remains is whether the plaintiff is entitled to the relief he claims. The prayer in the plaint is that a perpetual injunction be granted to restrain the defendants from breaking up the common management till the joint debts of the estate were paid under the agreement dated September 1, 1928, Mr. P.R. Das, argues, as I understand his argument, that tie relief in the form in which it is claimed is in substance a claim against the defendants to continue the common management. From one point of view that is correct, but 1 think the substance of the prayer which the plaintiff makes is that the defendants should be restrained from committing any act in breach of this undertaking: in other words that they should be restrained from doing any act in execution of their purpose to manage their share of the properly separately. On the whole I come to the conclusion that the plaintiff is entitled to succeed; he is entitled to a declaration in the form claimed by him in para. 1 of the reliefs claimed. He is also en-titled to an injunction restraining the defendants from interfering with the common management and that he is entitled in the circumstances to the costs of his action.
23. I do not propose to make a declaration as claimed in sub-para 3 of para. 31 of the plaint as it, in the form in which it is claimed, does not strictly arise; it is only incidental to the main question, the subject-matter of the declaration given in sub-para. 1, namely, whether the defendants are entitled to break up the agreement of September 1, 1928. The action succeeds with costs. I fix the hearing fee in this case at 50 gold mohurs.