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TMI Blog1936 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter 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, thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Parties 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 ₹ 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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 countermandable 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 cov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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