B.B. Ghose, J.
1. This is an appeal by defendants 4 and 5 against the judgment and decree of the Additional District Judge of the 24-Parganas, partly decreeing the plaintiff's suit for the recovery of a sum of money under the following circumstances. The plaintiff created a mourashi mokarari tenure in favour of defendants 1, 2 and 3 in January 1906. Defendants 4 and 5 purchased that tenure from the other defendants for a sum of Rs. 8,675 on 13fch December 1923. A dispute arose with reference to a provision in the patta granted by the plaintiff to his tenants which runs thus:
If it be necessary to sell any portion of the potta land or the trees, one-fourth share of the proper value shall be deposited in my sherista as chauth selami; otherwise I shall not be bound by the said sale or purchase and the said sale shall not be valid. If you do not conform to the terms of this patta and by your negligence I suffer any loss, you will be liable to compensate the said loss. Observing all the aforesaid terms you do enjoy the pottai land with great felicity down to sons, grandsons and successors-in-interest being entitled to make a gift and sale of the pottai land on payment of rent etc., to me or my sons, grandsons etc and successors-in-interest.
2. The present suit was brought against all the defendants by the plaintiff for recovery of one-fourth of what he considered to be the proper value of the tenure at the time of the sale. His case was that the proper value was Rs. 12,000, and he claimed Rs. 3,000 plus interest making up Rs. 3,385. The learned Subordinate Judge made a decree in favour of the plaintiff only against defendants 1, 2, and 3 for one-fourth of the purchase money paid by defendants 4 and 5 (the appellants here) to the other defendants, with interest at the rate of 12 per cent from 13th December 1923 up to the date of the suit. The suit was dismissed against the appellants. There was a prayer for declaration of a charge on the property for the money due to the plaintiff. This declaration was disallowed by the trial Judge. Defendants 1, 2 and 3 did not appear in the trial Court, nor do they appear in this Court. The plaintiff appealed against the decree of the Subordinate Judge dismissing his suit against the appellants here. The learned District Judge has made a decree also against them for one-fourth of the purchase money with interest. He has also made a declaration that this money was a charge on the tenure. Against that decree defendants 4 and 5 have appealed, and their contention is that according to the terms of the lease the covenant contained in it was not enforceable against the appellants. The learned District Judge relied upon a case decided by the Allahabad High Court; Parlhu Narain Singh v. Bamzan  41 All. 417. There the agreement between the owner of the land and the lessee amongst other stipulations, was that if at any time the lessee were to vacate any land and to sell any house or houses which she had built thereon, she would, according to the custom of the locality pay to the plaintiff one-fourth of the purchase money. The heirs of the lessee sold two houses built by the original lessee to one of the defendants in the case. The plaintiff brought a suit against the surviving heir of the original lessee and the purchaser for recovery of one-fourth of the purchase money. In that case the trial Court gave a decree to the plaintiff jointly and severally against both the defendants. The purchaser appealed against the decree to the District Judge and the District Judge dismissed the suit as against him holding that under the agreement only the heir of the original lessee was liable for the plaintiff's claim. From that decree, the plaintiff appealed. One of the learned Judges, Piggot, J., decided the case, against the purchaser mainly basing his judgment on the pleadings. Walsh, J., while agreeing with that decision made the following observations in his judgment:
There is an undertaking in the sarkhat under which the tenant enjoyed her holding binding her in the most absolute form (and alleging further that it was in accordance with a custom prevailing in that locality) not to part with her interest by transfer without the zamindar receiving his right of one-fourth of the purchase money, and it cannot be contended that there is any legal or equitable ground which would justify a purchaser who had read that document, in paying the tenant the purchase money without seeing that the zamindar received his one-fourth share; or in other words, that the restriction which the tenant had imposed upon herself was not broken, when the transfer took place. To my mind, if that is a correct view of the legal position, it is no more than the expression applied to this case of the old English rule in Tulk v. Moxhay  2 phillip 774.
3. The learned District Judge in this case relied upon those observations in decreeing the appeal as against defendants 4 and 5. The above case is said to have been followed in another case decided by a single Judge in this Court. The trial Court cited the case of Sarada Kripa Lala v. Bepin Chandra Pal A.I.R. 1923 Cal. 679 and it seems to have held on the strength of that case that the purchaser is not bound to pay the chauth in terms of the patta. In that case there was this covenant, that the tenant would, if he transferred the property, pay the landlord out of the purchase money in his hands one-fourth as nazar and would obtain registration in the name of the transferee. The covenant further provided that if this step was not taken the transfer would be invalid and the tenant would continue to be liable for the rent. The words in the present patta in question in this appeal, I have already quoted, are wider than the terms in the lease of the above case. What happened in that case was that defendant 1 had purchased the tenure in execution of his mortgage decree and then subsequently sold the property to defendant 2; the landlord brought his suit, against both the defendants for recovery of the fourth share of the purchase money. The learned Judges held that, that was a covenant running with the land and they cited some cases in support of the conclusion. Mr. Roy Chowdhury for the appellants argued that this decision is erroneous on the ground that the agreement did not directly affect the demised premises and that it was not something which was to be done on the land. He further seems to argue that the cases cited do not support the conclusion of the learned Judges. I do not think that that contention can be supported. The cases which were cited were apparently taken from the notes in Spencer's case  5 Rep. 16a in Smith's Leading Cases, and I find the cases noted at p. 76 of Smith's Leading Cases (12th Edn.) in the order in which they have been referred to in the judgment. The learned Editors gave a summary of what was the covenant in each case, that is, to repair, to renew and replace the tenant's fixtures etc; not to assign without the consent of the lessor, the assignee being named, and so forth. It is true that in order to hold that a covenant runs with the land, it must be a covenant which relates to or touches and concerns the land or to have reference to the subject matter of the lease. But as the learned Editors of Smith's Trading Cases say whether a particular express covenant sufficiently 'touches and concerns the thing demised to be capable of running with the land is not unfrequently a question of difficulty. The learned advocate for the appellants argued relying upon 18 Halsbury, para. 1122, that such a covenant as this does not run with the land; and he particularly referred to two cases in the foot note. One of them is Lambert v. Norris  2 M. & W. 333, There the landlord gave a lease of certain premises. After the lease had been executed the lessee asked the landlord to enlarge the building. The landlord consented to do so on an agreement by the lessee to pay an additional rent of 10 per cent on the outlay. The lessee became bankrupt. The question was whether the assignees were bound to pay the additional rent. It was argued on behalf of the landlord that under the circumstances it should be held that there was in fact a surrender of the old lease and the grant of a new lease on an increased rent and so the assignees should be liable. This argument was repelled. It was apparently held, relying on an older case that the new agreement was to have the effect of a lease at will. It will be noticed that the Statute of Frauds was referred to in the course of the argument. This case to my mind, has no bearing upon the facts of the present case.
4. The other case referred to in the foot-note in 18 Halsbury was Flight v. Glossop  2 Bing (n.c.) 125. There some persons borrowed money from the plaintiff promising to pay at a certain date, and stipulated that between the date of loan and the date of payment the plaintiff should have the use of two boxes at the Victoria Theatre. This was held to be a covenant not running with the land, as it was a mere personal covenant to pay the money borrowed and no interest passed under the agreement to any specific part of the theatre. The stipulation for the use of two boxes was stated by one of the learned Judges to be a sort of bonus. Under these circumstances as no interest in any part of the land was concerned, it could not be said that the covenant was one running with the land.
5. These being disposed of, there is no doubt that under the authority of the case of Sarada Kripa Lal v. Bepin Chandra Pal A.I.R. 1923 Cal. 679 which lays down that such an agreement as this is a covenant running with the land, it 'should be held that this is a covenant running with the land. At one time in the course of his argument Mr. Roy Chowdhury admitted that if it was a covenant running with the land, then the appellants would be bound to pay. But at a subsequent stage he seems to have reconsidered his argument and said that even if it was a covenant running with the land, then defendants 1, 2 and 3 were only liable to pay (which, to my mind, it is superfluous to say, because they were the original contractors), but that the appellants would not be bound to pay, as there is no term in the document which would affect these defendants ; and he relied upon the case in Sarada Kripa Lal v. Bepin Ghandra Pal A.I.R. 1923 Cal. 679 in support of his proposition. In that case, however, the learned Judges refrained from considering the question whether the conveyance by defendant 1 had created a valid title in favour of defendant 2 as against the plaintiff. In that case a decree was made in the lower Court against both the defendants; but defendant 2, that is the last purchaser, did not appeal against the decree. So it was not necessary for the learned Judges to consider whether defendant 2 in that case was liable for the money or not. That case, in my opinion, does not support the contention of the appellants.
6. The present case appears to be exactly similar to Parbhu Narain Singh v. Rarmzan  41 All. 417 Mr. Roy Choudhury attempted at first to distinguish that case from the present. But as a matter of fact it was not possible to find any distinction between the position of the purchaser in that case and in this. Finding that to be so, he next contended that the observations of Walsh J. were made in that case as there was a negative covenant for the lessee not to part with her interest except under certain conditions. The doctrine of Tulk v. Moxhay  2 phillip 774 might, therefore, be applicable in that case. In the statement of the facts of the case, however, there is no such negative word to be found. The broad principle as regards the use of the word 'not' in such cases seems to me to have been laid down in the case Wolverhamton & Waisall By. Co. v. London & North Western Railway Co.  16 Eq. 433 (at p. 440). Lord Selborne there said:
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 the implication of the negative, will act on the expression of it. I can only say, that I should think 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. If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise whether this is the Court to come to for a remedy. If it is, I cannot think that ought to depend on the use of a negative rather than an affirmative form of expression.
7. These observations were cited and followed in the case of Lord Strathcona Steamship Co. v. Dominion Coal Co.  A.C. 108: see also Burn & Co. v. McDonald (9)(at p. 363). It seems to me, therefore, that the observations of Walsh J. in the case referred to cannot he said to be inapplicable here on the ground that the negative word has not been used in the lease.
8. But although I am unable to accept the contention that Parbhu Narain's case  41 All. 417 does not apply to this on the ground of absence of a negative covenant, I do not think that the appellants can be held liable to pay the amount claimed by the application of the doctrine of Tulk v. Moxhay  2 phillip 774. That doctrine cannot be extended to other than restrictive covenants. The doctrine is, that any one coming to the land with notice actual or constructive, of a covenant entered into by a previous owner of the land restricting the use to be made of that land will be prohibited horn doing anything in breach of the covenant. In re : Nisbet and Potts Contract  1 Ch. 386. The grantees and assignees would be restrained from doing anything in breach of the restrictive covenant, if they came with notice of it and this would be regardless of the question whether the covenant runs with the land. The contemplated breach of the negative covenant would be restrained by an injunction. But the covenant to do anything (in this case to pay a sum of money on assignment) cannot, in my opinion, be enforced by applying the doctrine of Tulk v. Moxhay  2 phillip 774: see Haywood v. Brunswiak &c.; Society  8 Q.B.D. 403.
9. The appellants, however, are liablel, to pay the amount claimed by the plaintiff, as, in my opinion, the covenant is one running with the land being a benefit reserved for the landlord with reference to the land demised. It is stipulated that on breach of the covenant the grantee as well as his successors-in-interest which includes assignees would be liable to compensate the landlord. This case therefore, falls within the authority of Spencer's case  5 Rep. 16a. The covenant in the present case as I have said, is wider than the covenant in Sarada Kripa Lal v. Bepin Chandra A.I.R. 1923 Cal. 679. The compensation awarded in this case is a fourth share of the purchase money with interest as stated above.
10. The only other argument advanced was with regard to the interest awarded. It is urged that there is no stipulation for interest to be paid on the fourth share of the price and the Court below ought not to have allowed it. But where money is due to the plaintiff but has not been paid in proper time, the Court may allow interest by way of damages and that is what both the Courts below did. The rate at which such damages were allowed does not seem to be excessive being only 12 per cent, simple interest.
11. The result, therefore, is that the appeal stands dismissed with costs.
S.K. Ghose, J.
12. I agree.