JUDGMENT : - This is a suit filed by the plaintiff, who admittedly was one of the joint managing directors and a director of the first defendant company, against the first defendant company and. his co-directors for a declaration that the resolution dated 23rd September, 1957 passed by the Board of directors of the first defendant company is inoperative and that the plaintiff continues to be the joint managing director and is entitled to act as such managing director and to exercise all rights and powers to carry out all duties assigned to him as such managing director. (2) The facts relevant to the decision of the disputes herein are not in dispute, with the result that no oral evidence whatever has been led. The only evidence led is documentary evidence, the same being relevant and necessary for the purpose of the decision herein. It is therefore not necessary to set out the contentions as contained in the pleadings of the parties. It will suffice to set out the facts which give rise to the disputes herein. (3) The first defendant company is a private limited company. At all relevant times the plaintiff and the defendants Nos. 2 to 8 have been directors of the first defendant company. The first defendant company are the managing agents of two public limited companies, being The Kamani Metals and Alloys Ltd. and the Kamani Engineering Corporation Ltd. The plaintiff and the 8th defendant are directors of another private limited company called the Shanta Brothers Private Ltd., the plaintiff being also the chairman of the Board of directors, thereof. A finance agreement which is recorded in a writing dated 14th May, 1954 was arrived at between the said Shanta Brothers Private Ltd. and the first defendant company, whereby the former agreed to lend to the latter a sum of Rs. 28 lacs on the terms and conditions recorded in that writing. That agreement in writing is Ex. F before me. (4) Under the finance agreement the first defendant company agreed inter alia to pledge in favour of the said Shanta Brothers Private Ltd. 4500 ordinary shares of the first defendant company along with the pledge of certain other shares and an equitable mortgage of certain immoveable properties. Clauses 7 (b), (c) and (e) of the said finance agreement run as follows : - . Clauses 7 (b), (c) and (e) of the said finance agreement run as follows : - . So long as moneys advanced by the Lenders to the Borrowers under these presents or any interest thereon shall remain unpaid the Borrowers shall a)........ b) have subject to the approval of the Central Government if required one representative nominated by the Lenders and approved by the Board of Directors of the Borrowers appointed as a Director on their Board of Directors with a monthly remuneration of rupees one thousand and five hundred and all such allowances as are allowed by the Borrowers to their other Directors in the same manner and to the same extent and such remuneration and allowances shall be paid to him so long as he takes active interest as a Director in the management of the affairs of the Borrowers and of the said Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. of which the Borrowers are the Managing Agents and such appointment shall be made immediately after the first advance is made by the Lenders under these presents and such remuneration shall commence from the date of the first advance Provided However that if any such representative shall be a brother of Major General Shamsher Jung Bahadur Rana, the Chairman of the Lenders or any relative or member of his family then and in such cases he will not be required to be approved by the Board of Directors of the Borrowers; (c) get subject to the approval of the Central Government if required Major General Shanta Shamsher Jung Bahadur Rana the chairman of the Lenders or any other person nominated by the Lenders appointed as a Director on the Boards of Kamani Bros. Ltd., Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. Provided that no person nominated by the Lenders and not being a relative or a member of the family of the said Major General Shanta Shamsher Jung Bahadur Rana shall be appointed as such Director unless he is approved of by the respective Board of the said Kamani Bros. Ltd., Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. on whose respective Boards he is to be appointed a Director; (e) see that the respective holders of the said shares shall cast their votes at any meeting of the said Kamani Bros. Ltd., Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. on whose respective Boards he is to be appointed a Director; (e) see that the respective holders of the said shares shall cast their votes at any meeting of the said Kamani Bros. Ltd., Kamani Metals and Alloys Ltd. and Kamani Engineering Corporation Ltd. in accordance with the directions of the Lenders and not otherwise and give their proxies to such person or persons as they the Lenders may nominate and procure to the Lenders an undertaking in that behalf from the respective holders of the said shares." (5) In pursuance of the said finance agree-merit the said Shanta Brothers Private Ltd. lent and advanced to the first defendant company the aggregate sum of Rs. 28 lacs and created the stipulated pledge and equitable mortgage. Towards the end of February, 1956 the said Shanta Brothers Private Ltd. nominated and the first defendant company accepted the plaintiff as a director of the first defendant company under the provisions of Cl. 7 (b) of the said finance agreement and similarly the said Shanta Brothers Private Ltd. nominated and the first defendant accepted the 8th defendant as a director under the provisions of Cl. 7 (c) of the said finance agreement. The said respective appointments of the plaintiff and of the 8th defendant became effective as from 1st March, 1956. On the 2nd of March, 1956 the Board of Directors of the first defendant company passed a resolution (Ex. 2) which provides as follows : - "Resolution No. 372 : Resolved that Maj. Gen. Shanta Shamsher Jung Bahadur Rana be and is hereby appointed in the whole-time services of the Company on a monthly remuneration of Rs. 2,000/- from 1-3-1956 in the grade of Rs. 2,000-10-2500 plus rent free house." (6) On the 1st of April, 1956 the Indian Companies Act, 1956 came into operation. As the plaintiff held an office of profit and as S. 314 of 1959 Shanta Shamsher v. Kamani Bros. (Pri) Ltd. (Mody J.) [Prs. 6-11] Bombay 205 the said Act required that the plaintiff could not hold the said office of profit except with the previous consent of the first defendant company accorded by a special resolution, a special resolution was passed at a general meeting of the first defendant company held on 29-3-1956 according such consent. (Pri) Ltd. (Mody J.) [Prs. 6-11] Bombay 205 the said Act required that the plaintiff could not hold the said office of profit except with the previous consent of the first defendant company accorded by a special resolution, a special resolution was passed at a general meeting of the first defendant company held on 29-3-1956 according such consent. The appointment of the plaintiff under the said resolution of the Board of Directors dated 2-3-1956 became effective from 2-4-1956. The second defendant was then the Managing director of the first defendant company and he, under his signature, issued a memorandum on behalf of the first defendant company dated 2-3-1956 (Ex. A) stating that it had been decided that the plaintiff would, in addition to the Secretarial and Legal Department, look after the General Department with the functions mentioned in the said memorandum. (7) On 15-6-1956 the Board of Directors of the first defendant company passed a resolution (Ex. 3) whereby the plaintiff who was then a director was appointed as executive director of the first defendant company. Thereafter on 27-6-1956 the 2nd defendant as the managing director of the first defendant company issued on behalf of the first defendant company a circular stating that the plaintiff had been designated as the executive director of the first defendant company on and from 15-6-1956 and that the functions and powers of the executive director would be circulated in due course. (8) On 26-9-1956 the eleventh ordinary general meeting of the share-holders of the first defendant company passed a special resolution whereby the then existing Arts. 99 and 100 of the Articles of Association of the first defendant company were amended. The said amended articles run as follows: "Directors may appoint Managing Directors and/or Executive Director. 99. The Directors may from time to time appoint any one or more of their body to be Managing Director or Managing Directors and/or Executive Director for such period and upon such terms as they think fit, and may vest in such Managing Director or Managing Directors and/or Executive Director such of the powers hereby vested in the Directors generally as they may think fit and such powers may be exercisable for such period or periods and upon such conditions and subject, to such restrictions, and generally upon such terms as to remuneration and otherwise as they may determine. The remuneration of a Managing Director and/or Executive Director may be by way of salary or commission or participation in profits1, or by any or all of those modes. "Special position of Managing Director and/or Executive Director. 100. A Managing Director or Managing Directors and/or Executive Director shall not while he continues to hold that office be subject to retirement by rotation and he shall not be taken into account in determining the rotation of retirement of Directors, but he shall, subject to the provisions of any contract between him and the Company be subject to the same provisions as to recognition and removal as the other Directors of the Company and if he ceases to hold the office of Director he. shall ipso facto and immediately cease to be a Managing Director". The Memorandum and Articles of Association of the first defendant company are Ex. 1 before me. Both the original and the amended Arts. 99 and 100 are to be found in Ex. 1. The original articles 99 and 100 made a provision for "a managing director or managing directors". The only amendment made in the said two Articles by the said resolution dated 26-9-1956 is the addition of the words "and/or Executive Director" wherever they appear after the words "a Managing Director or Managing Directors" in the above amended Articles. (9) On 24-6-1957 the Board of Directors of the first defendant company held a meeting and the relevant portions of the minutes of the said meeting have been put in as Ex. 4. As appearing from the said minutes, the Board passed a resolution which reads as follows: Resolved that the responsibilities of the Management be divided between the Managing Director who will look after the work of Kamani Metals and Alloys Ltd., this Company and its Associates and the Executive Director who will look after the work of Kamani Engineering Corporation Ltd., including its branches and other activities thereto. It is further resolved that the Executive Director be designated as Joint Managing Director." As a result of this resolution the second defendant was designated as a managing director and the plaintiff as a joint managing director of the first defendant company. It is further resolved that the Executive Director be designated as Joint Managing Director." As a result of this resolution the second defendant was designated as a managing director and the plaintiff as a joint managing director of the first defendant company. The responsibilities of the management were divided between them and the second defendant was to look after the said Kamani Metals and Alloys Ltd., the first defendant company and its associates and the plaintiff was to look after the. work of Kamani Engineering Corporation Ltd. By his memorandum (Ex. C) dated 28-6-1957 issued by the second defendant as the Managing Director of the first defendant company, the second defendant gave intimation of the passing of the said resolution dated 24-6-1957 and also intimated that the managing director would look after the work of the Kamani Metals and Alloys Ltd., the first defendant company and its associates and that the plaintiff as a joint managing director would look after the work of the Kamani Engineering Corporation Ltd., with immediate effect. (10) A meeting of the Board of directors of the first defendant company was scheduled to be held on 21-9-1957. An agenda for the said meeting as also a supplementary agenda for the same were circulated amongst the directors of the first defendant company. The said agenda and the supplementary agenda have been put in as Ex. D collectively. In view of the case as argued such agenda and supplementary agenda are not at all relevant. For certain reasons which are not relevant the said Board meeting stood adjourned to 23-9-1957. (11) On 23-9-1957 the said adjourned board meeting was held. Agreed portions of the minutes of that meeting have been put in as Ex. 5. As appearing from the said minutes the said meeting passed the following resolution: "In view of the concensus of opinion of the majority of the Board of Directors that the arrangements earlier resolved of division of responsibilities between the Managing Director and Joint Managing Director having not worked as desired by the Resolution dated 24-6-1957, the Resolution of the Board of Directors dated 15-6-1956 appointing General Shanta Shamsher J. B. R. as the Executive Director of the Company and the Resolution dated 24-6-1957 appointing General Shanta as Joint Managing Director of the Company be and are hereby superseded and revoked. Further resolved that Shri P. R. Kamani do act as sole Managing Director of Company and as such he is hereby vested with all the powers of the Board of Directors under the Articles of Association of the Company under the Law delegatable, and he do accordingly exercise the same." It is this resolution the validity whereof has been challenged in this suit. A glance at the minutes of this meeting dated 23-9-1957 shows that the plaintiff and defendants Nos. 7 and 8 were on one side supporting the plaintiff and the other directors being defendants Nos. 2 to 6 were on the other. Even at the hearing of this suit also the defendants Nos. 7 and 8 have supported the plaintiff whereas defendants Nos. 1 to 6 have opposed the plaintiff. What transpired at the said board meeting was circularised by the third defendant as the chairman of the first defendant company by his circular dated 23-9-1957 (Ex. E.) but the same is not relevant for the purposes of this case. (12) The only other document exhibited in this case is Ex. 6 which is a copy of the plaint in the Bombay City Civil Court Suit No. 2851 of ,1951 wherein the plaintiff and the 7th defendant are plaintiffs and that defendants Nos. 1 to 6 and the 8th defendants are the defendants. As stated in that plaint (Ex. 6) the subscribed and paid up capital of the first defendant company is Rs. 15,00,000/- divided into 15,000 ordinary shares of Rs. 100/- each. Out of the said 15,000 shares the seventh defendant owns 50 shares and the remaining 14,950 shares are held by the defendants Nos. 2 to 6 and their relations and nominees, who form what may be called, "The Kamani group." Out of the said 14,950 shares 4,500 shares have been pledged as aforestated to the said Shanta Brothers Private Ltd., and by reason of the provisions of Cl. 7 (e) of the said finance agreement the voting rights in respect of 4,500 shares are controlled by the said Shanta Brothers Private Ltd., of whose Board of directors the plaintiff is the chairman and the 8th defendant is a member. (13) It is common ground that at all relevant times as also at present the Kamani group controlled the voting rights in respect of 10,450 shares whereas the group of the plaintiff and the defendants Nos. (13) It is common ground that at all relevant times as also at present the Kamani group controlled the voting rights in respect of 10,450 shares whereas the group of the plaintiff and the defendants Nos. 7 and 8 effectively control the voting rights in respect of 4,550 shares. (14) At the hearing of the suit, after the pleadings were read, five issues only were raised originally, the same being as suggested by Mr. Munshi on behalf of the first defendant company. The respective counsel appearing for the defendants Nos. 2 to 6 joined in these issues. A reading of the pleadings shows that the same contains statements of fact on which the plaintiff wants to rely. But there are very few submissions of law which would clearly indicate what "exactly is the plaintiffs cause of action. Undoubtedly it was not necessary that the plaint should contain any submissions of law. The result however was that the contesting defendants did not know what would be the exact cause of action which the plaintiff would formulate at the hearing on the basis of this plaint. Para 17 of the plaint does contain certain submissions of law on behalf of the plaintiff. From these submissions and the prayers in the plaint at least one thing is clear, viz., that the plaintiff challenged the said resolution dated 23-9-1957 passed by the Board of Directors of the first defendant company as being ultra vires the board of directors. Now, it should be remembered that the plaintiff is not a share-holder of the first defendant company, but was a special director of the first defendant company appointed because of the provisions of the said clause 7 (c) of the said finance, agreement. Not being able to ascertain from the plaint the exact cause of action which the plaintiff would make out at the hearing and as the plaintiff was not a share-holder but still challenged the said resolution dated 23-9-1957 as ultra vires, certain technical defences were taken in paras 1, 2 and 3 of the written-statement of the first defendant to the effect that the suit as framed is not maintainable. That contention is the subject-matter of issue No. 1. The burden so far as issue No. 1 is concerned being on the contesting defendants, Mr. Munshi the learned Counsel for the first defendant company argued first, confining his arguments to that issue only. That contention is the subject-matter of issue No. 1. The burden so far as issue No. 1 is concerned being on the contesting defendants, Mr. Munshi the learned Counsel for the first defendant company argued first, confining his arguments to that issue only. Mr. Munshi argued that the suit is not maintainable because Courts have no jurisdiction to interfere with the internal management of the company, that if the company acts ultra vires, i.e., outside the ambit of its memorandum of Association or in definance of its Articles, share-holder under certain circumstances is entitled to have the act declared void and seek relief to compel the company to act within its powers, that no such suit would lie even at the instance of a shareholder in respect of unauthorised acts of the directors if the company could ratify the same and that no such suit can lie at the instance of a person who is not a share-holder as the cause of action of a non-member can only be in breach of contract or tort, his remedy being in damage. Mr. Munshi further argued that when a non-member is appointed a managing director the same amounts only to a contract of employment and in such an event the appointment of the managing director would be under that contract, but that no such contract, express or implied, has been mentioned in the plaint. He cited several authorities in support of his contentions and developed his point as to why the suit was not maintainable. Thereafter Mr. Bhatt, the learned Counsel for the plaintiff, opened the case of the plaintiff and pointed out what according to the plaintiff is the cause of action in this suit. According to him this suit is under S. 42 of the Specific Relief Act, that the plaintiff is entitled to a "legal character", that that legal character of the plaintiff has been denied and that therefore the plaintiff is entitled to the declaration and injunction prayed for. He stated that the cause of action as read in the plaint by Mr. Munshi was not the correct cause of action. Inasmuch as Mr. Munshi had however advanced the said arguments, Mr. Bhatt advanced an argument to distinguish the same by stating that the wrong complained of in the plaint was an individual wrong, that the arguments advanced and the authorities cited by Mr. Munshi was not the correct cause of action. Inasmuch as Mr. Munshi had however advanced the said arguments, Mr. Bhatt advanced an argument to distinguish the same by stating that the wrong complained of in the plaint was an individual wrong, that the arguments advanced and the authorities cited by Mr. Munshi had no application and that therefore the plaintiff was in any event entitled to maintain the suit. In support of this contention that the wrong suffered by the plaintiff was an individual wrong and that therefore the plaintiff was in any event entitled to maintain the suit Mr. Bhatt cited another string of authorities. When Mr. Bhatt however stated that the only cause of action, according to the plaintiff, was under the said S. 42 of the Specific Relief Act, Mr. Munshi pointed out that in view of that contention of the plaintiff his own earlier contentions were no longer necessary. Thereupon Mr. Bhatt stated that if Mr. Munshi was not relying upon his, said contentions in support of issue No. 1 it was no longer necessary for the plaintiff to rely upon the said contentions about the suit being maintainable and the wrong which the plaintiff had suffered being an individual wrong. The position that emerges is that issue No. 1 is now confined to the only cause of action stated by Mr. Bhatt as having been made out in the plaint, viz., the one under the said S. 42 of the Specific Relief Act. (15) No oral evidence has been led and only certain documentary evidence has been tendered and admitted. On behalf of the various parties arguments were addressed by their respective counsel. As arguments developed and proceeded from time to time it became apparent that the issues as originally framed were not adequate. As the arguments progressed applications were made on several occasions for framing additional issues. I have separately noted such applications as and when made and my orders thereon. As a result of these applications several issues have been added from time to time. What now appear as issues Nos. 6, 7 and 8 were added first. Thereafter issue No. 9 was added and thereafter the said issue No. 8 was amended and two more issues were added., the same being issues Nos. 10 and 11. When issues Nos. As a result of these applications several issues have been added from time to time. What now appear as issues Nos. 6, 7 and 8 were added first. Thereafter issue No. 9 was added and thereafter the said issue No. 8 was amended and two more issues were added., the same being issues Nos. 10 and 11. When issues Nos. 8, 7 and 8 were added, it was contended by some of the parties that the addition of those issues may necessitate the taking of further evidence. It appeared to me however that the addition of those issues was merely for crystallising the contentions; which emerged from the arguments of Counsel and that no further evidence would be necessary. As some of the parties however contended that they may have to lead further evidence, I specifically gave liberty to all parties to lead further evidence if the same was relevant and necessary. I should record however that thereafter none of the parties applied for leading any further evidence, either oral or documentary, and that as a matter of fact towards the conclusion of the hearing I had to ask the parties whether any of them desired to lead evidence in pursuance of the said liberty given by me in that behalf. And it was at that stage that counsel stated that none of them desired to lead any further evidence. (16) The first point for consideration is whether the plaintiff is entitled to a "legal character" within the meaning thereof in S. 42 of the Specific Relief Act. The said S. 42 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. This section therefore applies when a person is entitled to any legal character or to any right as to any property. The phrase "legal character" occurs in two Statutes, viz., in S. 42 of the Specific Relief Act and in section 41 of the Indian Evidence Act, but that phrase has not been defined in either of the said two Acts. There appears to be no decided case which defines "legal character" or lays down general principles for determining the same. I will therefore first reproduce the arguments of Mr. Munshi and Mr. There appears to be no decided case which defines "legal character" or lays down general principles for determining the same. I will therefore first reproduce the arguments of Mr. Munshi and Mr. Bhatt as to what is legal character and then proceed to see whether it is possible to define what is "legal character" or whether there are any general principles which would help in determining what is "legal character". (17) Mr. Bhatt in his opinion relied upon paragraphs 9 to 14 of the plaint and Exs. 3, B, Articles 99 and 100 of the Articles of the first defendant company (Ex. 1), and Exs, 4 and C. He pointed out that as stated in paragraph 9 of the plaint and shown by Exhs. 3 and B, the plaintiff was appointed Executive Director from 14th June, 1956 and acted as such and that as stated in paragraphs 12 and 13 of the plaint and Exhs. 4 and C the plaintiff was appointed joint Managing Director on 24th June, 1957 and acted as such. He also referred to S. 2 (26) of the Indian Companies Act, 1956 which states that "Managing Director" means a director who by virtue of an agreement with the company or by a resolution passed by the company in general meeting or by its Board of Directors or by virtue of its Memorandum or Articles of Association, is entrusted with any powers of management which would not otherwise be exercisable by him, and includes a director occupying the position of a managing director, by whatever name called." He contended that under the circumstances the plaintiff was appointed and acted as Managing Director and was entrusted with certain powers as such Managing Director and that therefore the plaintiff was entitled to a "legal character within the meaning thereof in the said S. 42. By way of an analogy he said that the position of the plaintiff was exactly like that of a person who has been appointed as a trustee, who is informed that he has been so appointed and who accepts office as such trustee. Mr. Bhatt however did not point out in detail how far the position of the plaintiff as the joint Managing Director was analogous to that of a trustee under the said circumstance. (18) Mr. Mr. Bhatt however did not point out in detail how far the position of the plaintiff as the joint Managing Director was analogous to that of a trustee under the said circumstance. (18) Mr. Munshi in his reply argued that the plaintiff has no right to sue for the declaration under prayer (a) of the plaint because as the joint Managing Director the plaintiff has no legal character within the meaning thereof under section 42 nor had the plaintiff any interest in property. Now, so far as the latter is concerned, the same does not at all arise for consideration in this case. Even Mr. Bhatt has not claimed or argued that the plaintiff has, as joint Managing Director, "any right as to any property" and in my opinion quite rightly so because as joint Managing Director the plaintiff had certain rights only to manage the property and the affairs of the first defendant company, it being the first defendant company and not the plaintiff who owned the property. As regards S. 2 (26) of the Indian Companies Act, 1956 Mr. Munshi pointed out that the entrustment of the smallest power, e.g., like signing cheques or being sent to Indore for buying 100 bales of cotton, to a director of the first defendant company would make him a Managing Director within the meaning thereof under section 2 (26). He further argued that the definition of "officer" under section 2(30) of the Indian Companies Act, 1956, would not include a Managing Director and that this shows that the office fundamentally is that of a director only, that there 13 no separate office of a Managing Director and that only when certain extra powers are delegated to a Director that the Director is for certain purposes termed a "Managing Director". (19) As regards the meaning of "legal character" Mr. Munshi relied upon K. P. Ramakrishna Pattar v. K. P. Narayana Pattar. ILR 39 Mad 80 : (AIR 1915 Mad 584), which is a judgment of a Division Bench of the Madras High Court. One of the contentions in that suit was that the plaintiffs suit to declare that he had contractual rights as against the first defendant did not fall under S. 42 of the Specific Relief Act because it was not a suit to declare a right to a legal character or a right to property. One of the contentions in that suit was that the plaintiffs suit to declare that he had contractual rights as against the first defendant did not fall under S. 42 of the Specific Relief Act because it was not a suit to declare a right to a legal character or a right to property. In respect of this contention, the following passage from the judgment appearing at p. 82 (of ILR): (at pp. 584-585 of AIR) was relied upon by Mr. Munshi, viz., "We take it that a mans "legal character" is the same thing as a mans status. "A mans status or legal character is constituted by the attributes which the law attaches to him in his individual and personal capacity, the distinctive mark or dress, as it were, with which the law clothes him apart from the attributes which may be said to belong to normal humanity in general". According to Holland, the chief varieties of status among natural persons may be referred to the following causes:-(1) sex, (2) minority, (3) patria potestas and manus, (4) coverture, (5) celibacy, (6) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession, (11) civil death (12) illegitimacy, (13) heresy, (14) foreign nationality and (15) hostile nationality (see Banerjees Lectures on Specific Relief). We think that a declaration that a valid personal contract still subsists between the plaintiff and the first defendant is not a right to declare a title to a legal character or a title to right to property". The above passage contains a quotation from S. C. Banerjees Law of Specific Relief in British India (1909 edition) pages 617-618. It will be noticed that "legal character" has been taken in this judgment to mean the same thing as a mans status. (20) Another case relied upon by Mr. Munshi was that of Madanlal v. State of Madhya Bharat, (S) AIR 1055 MB 111. In that case there was a contract between A and B and B was claiming some moneys as due in respect of that contract. According to the plaintiff it was A who was liable to B in respect of that claim and not the plaintiff, but B demanded those moneys from the plaintiff. In that case there was a contract between A and B and B was claiming some moneys as due in respect of that contract. According to the plaintiff it was A who was liable to B in respect of that claim and not the plaintiff, but B demanded those moneys from the plaintiff. Under the circumstances, the plaintiff filed the suit for a declaration that according to the contract it was A who was liable to B and not the plaintiff and for an injunction against B restraining B from claiming from the plaintiff any amount in respect of the said contract. It was held that legal character under S. 42 is the same as legal status, i. e., a position recognized by law and that a suit for a declaration that under a certain contract the plaintiff is not liable, is not a suit for a declaration that he is entitled to a legal character or any right as to any property. This case again shows that "legal character" under S. 42 is the same as legal status. (21) Mr. Munshi also cited two other cases, viz., Deokali Koer v. Kedar Nath, ILR 39 Cal 704 and Sheoparsan Singh v. Ramnandan Prasad Singh, ILR 43 Cal 694: (AIR 1916 PC 78). Although the said two cases relate to S. 42 of the Specific Relief Act, the decisions therein are confined to the facts of the particular case. The judgments do not contain any general discussion as to the meaning of "legal character" nor do they lay down any general principles for guidance as to what would amount to "legal character" under the said S. 42. (22) Mr. Munshi then referred to S. 41 of the Indian Evidence Act which provides as under : "A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or; insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specific person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant". In this section also the words "legal character" have been used, although in a different context. In this section also the words "legal character" have been used, although in a different context. The said words "legal character" as occurring in S. 41 have been construed in Punjab National Bank v. Balikram Kissenchand AIR 1940 Cal 225. In that case Sen J. in his judgment at page 227 of the said report observes as follows: "The words used are "declares any person to be entitled to a legal character". A declaration of a legal right is a different thing from a declaration of a legal character. The word "character" means status, it is something more than a mere right. The declaration of a persons right operates as against a particular person or group of persons against whom the right is claimed, whereas a mans status is something which defines his position not in relation to any particular person or group of persons but in relation to the rest of the world; his status distinguishes him from the rest of the world. To say that a person is not a partner of a firm is not to declare his status or legal character, it is merely to declare his position with respect to the particular firm". This judgment also says that "character" means status and that it is some thing more than a mere right. Mr. Munshi also cited two English cases being Pulbrook v. Richmond Consolidated Mining Co. (1878) 9 Ch. D. 610, and Hayes v. Bristol Plant Hire Ltd., (1957) 27 Com. Gas 442. In neither of these two cases did the words "legal character" have to be construed and neither is even of any help in construing the said words. Mr. Munshi concluded his arguments on this point by stating that no definition of "legal character" was possible but that it could only be negatively said that the words "legal character" would not include any interest in property or legal rights under a contract, and that legal character must be a legal status against the whole world and not against an individual or a group of individuals only, a status a declaration in respect whereof would, be a judgment in rem under S. 41 of the Indian Evidence Act. He argued that a Managing Director would be the creature of a contract between the Managing Director and the Company or a mere agency arising by reason of the delegation of powers to a director and would not be "legal character" within the meaning thereof under S. 42. (22A) Mr. Bhatt in his reply to Mr. Munshi agreed with Mr. Munshi that it was difficult to define "legal character". As regards the said three tests mentioned by Mr. Munshi, he stated that as regards the test that an interest in property would not be included in "legal character", he pointed out that the same was obvious from the said S. 42 itself, because that section provides for a declaration being made for two categories of rights, viz. legal character and any right as to any property, and therefore the said two categories of rights were obviously meant to be separate and distinct from each other. As regards the said second negative test suggested by Mr. Munshi, he pointed out that the same also could not be correct because under most systems of law marriage is a contract and therefore the status of husband and wife would be the result of a contract and yet, even according to Mr. Munshi, the status of husband or of wife would be legal character. He argued that therefore all rights arising under a contract were not in any event excluded from "legal character". As regards the said test suggested by Mr. Munshi that legal character would include only such status a declaration whereof would be a judgment in rem under the said S. 41, he pointed out that the same was not at all a correct test because S. 43 of the Specific Relief Act itself provides that a declaration under Chapter VI of the Act, which chapter includes S. 42, would be binding only on the parties to the suit and persons claiming under them. Mr. Bhatt also relied upon Sat Narain Gurwala v. Hanuman Parshad, AIR 1946 Lah 85. In that case the right of franchise and the right of being elected as a Municipal Commissioner were held to be "legal character" within the meaning of the said S. 42 as appears from the following passage at page 94 of the Report from the judgment of Mahajan J., (as a Puisne Judge of the Punjab High Court as he then was), viz. : "The only other matter that I wish to mention before concluding this judgment is that in my opinion the right conferred on a subject, i. e., a right of vote or a right to stand as a candidate for being elected as a Municipal Commissioner is a very valuable right and a suit for a declaration that a person's nomination paper has been illegally rejected and that the defendant had not been elected as a member of the Municipal Committee nan be entertained by the Civil Court even under the provisions of S. 42, Specific Relief Act. The words, "legal character" are wide enough to include the right of franchise and the right of being elected as a Municipal Commissioner. The defendant was the person interested who denied the right of the plaintiff to such a legal character. A suit can, therefore, be properly brought under the provisions of S. 42, Specific Relief Act". It will be noticed that there are no general tests or reasons mentioned by reason whereof the said right of franchise was held to be "legal character", the only reasons stated being that the same was a very valuable right. Mr. Bhat further pointed out that "Managing Director" is not only defined in S. 2 (26) of the Companies Act, 1956 but that in S. 316 (3) of that Act what a Managing Director occupies has been referred to as "office", that Managing Directorship is an office recognised by law, that therefore a Managing Director has by law been clothed with certain attributes as stated by Banerjee and that therefore managing directorship is a legal status or legal character. Mr. Bhatt also argued that the distinction made by Mr. Munshi that in the case of a trustee the legal ownership would vest in the trustee and that the trustee may, therefore, sue for a declaration under S. 42, because he would be entitled to a right as to property and not because he was entitled to a legal character was not proper, because Courts have made declarations under the said S. 42 even in the case of persons who did not own any property but were entitled only to a right to management of property, e. g., a director of policy-holders in a life insurance Company in Subramania Aiyar v. United India Life Insurance Co. Ltd., AIR 1928 Mad 1215, a Mutawali in Mahomed Jafar Husain v. Mohammad Taqi, AIR ,1933 Oudh 517, and in Ali Shah v. Fateh Mohammad Mutawalli, AIR 1935 Lah 657, and a trustee of a temple who was entitled only to management, the ownership being in the deity, in K. R. Swaminatha Iyer v. A. Ramier, AIR 1925 Mad 421. Mr. Bhatt also cited Chapsey v. Jethabhai, 9 Bom LR 514, where the plaintiff and the defendants were trustees appointed under a deed of trust executed by members of a caste. The defendants, relying upon a resolution said to have been passed by the general committee of the caste purporting to remove the plaintiff from the trusteeship, excluded the plaintiff from the management of the trust properties. The plaintiff thereupon filed a suit against the defendants as co-trustees for a declaration of his trusteeship and for an injunction to restrain the defendants from interfering with his right? as a trustee. Chandavarkar J., held that the plaintiff's legal character being denied, he was entitled, according to S. 42 of the Specific Relief Act, to institute the suit against any person denying such character. I may state 1959 Bom. D.P./14 that in this case there is no discussion at all as to what is the meaning of "legal character" or as to why trusteeship is "legal character". The judgment assumes that the trustee was entitled to "legal character". (23) From the above arguments and the cases, cited on either side, it is clear that there has yet not been formulated any definition of "legal character" or any general test for ascertaining what; the same is. Section 42 provides for a declaration being made in respect of a legal character and a right as to any property. These two categories, viz., legal character and a right as to any property, have been separately mentioned and would therefore prima facie appear to be distinct, separate and exclusive. Section 42 provides for making a declaratory decree, i. e., making a decree declaring a man's rights, which would mean legal rights, and it would therefore appear that both the said categories mentioned in S. 42 are species of the same genus, viz., "legal rights". Section 42 provides for making a declaratory decree, i. e., making a decree declaring a man's rights, which would mean legal rights, and it would therefore appear that both the said categories mentioned in S. 42 are species of the same genus, viz., "legal rights". "Legal character" however does not appear to be a phrase common to jrurisprudence nor does it appear to have been used in Statutes, except in S. 42 of the Specific Relief Act and S. 41. of the Indian Evidence Act. In at least three judgments mentioned above, viz., 1LR 39 Mad 80: (AIR 1915 Mad 584); (S) AIR 1955 Madh B. 111 and AIR 1940 Cal 225 "legal character" has been taken to mean, "legal status" a phrase known to jurisprudence. When the legislature used the phrase "legal character" in the said two sections it is legitimate to assume that the legislature was using the same in respect of some known legal concept and the context in S. 42 of the Specific Relief Act indicates that what was intended to be meant by "legal character" was "legal status". It is necessary to ascertain what is meant by "rights", "legal rights" and "legal status"? (24) Now, what is a "right"? According to Salmond (Salmond on Jurisprudence, 10th Edition, page 229), "a right is an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong." "All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind, that is to say, upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest. If any act is wrong or unjust, it is because the interests of men are prejudicially affected by it. Conduct which has no influence upon the interests of any one has no significance either in law or morals." "Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists .............. Conduct which has no influence upon the interests of any one has no significance either in law or morals." "Every wrong, therefore, involves some interest attacked by it, and every duty involves some interest to which it relates, and for whose protection it exists .............. The interests which thus receive recognition and protection from the rules of right are called rights." (25) According to Holland (Holland's Elements of Jurisprudence, 12th Edition, page 82) a right "is one man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society." (26) Now, what is a "legal right"? (27) According to Salmond (page 230): "A legal right is an interest recognised and protected by a rule of legal justice-an interest the violation of which would be a legal wrong done to him whose i **icerest it is, and respect for which is a legal duty". (28) According to Holland (Page 83): "A legal right is a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others". (29) Therefore, according to both Salmond and Holland, every interest or right which is recognised and protected by the State, i. e., by the laws of the State, is a legal right and every such legal right involves a legal duty or obligation. (30) Again, according to both Salmond (page 233) and Holland (Page 91), a legal right has the following four characteristics or elements; (1) A person who is the owner of the right. The person in whom the right resides, or who is clothed with the right. The person who is benefited by its existence. Salmond calls him the person of inherence. (2) A person against whom the right is available. The. person whose duty it is to act or forbear for the benefit of the person who is entitled to the right. Salmond calls him the person of incidence. (3) In many cases, though not in all, an object or subject-matter over which the right is exercised. (4) Acts or forbearances which the person in whom the right resides is entitled to exact. It obliges the person bound to an act or omission in favour of the person entitled. Salmond calls it the content of the right. (3) In many cases, though not in all, an object or subject-matter over which the right is exercised. (4) Acts or forbearances which the person in whom the right resides is entitled to exact. It obliges the person bound to an act or omission in favour of the person entitled. Salmond calls it the content of the right. (31) For the above four, Salmond uses the word "characteristics" while Holland uses the word "elements", but the analysis of a legal right of both Salmond and Holland is identical. According to Salmond, however, there is a fifth characteristic of a legal right, viz., every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner. It is clear that the title to a right would be a characteristic of a legal right, but it is not an element of a legal right. (32) Salmond illustrates these five characteristics by the following example: "Thus if A buys a piece of land from B, A is the subject or owner of the right so acquired. The persons bound by the correlative duty are persons in general, for a right of this kind avails against all the world. The content of the right consists in non-interference with the purchaser's exclusive use of the land. The object or the subject-matter of the right is the land. And finally the title of the right is the conveyance by which it was acquired from its former owner." But, as pointed out by Holland, there are rights in which the third element, viz., object, or Subject-matter may be absent. For example, B is A's servant. Here A is the "person of inherence", reasonable service is the "act" to which be is entitled, and B is the "person of incidence" against whom the right is available. (33) Now, the possible modes of classifying rights as also legal rights are almost infinite, but only some are of greater importance. Various modes of classifying rights would, it should be observed, have nothing to do with one another; they would be only cross divisions. If a certain type of distinguishing characteristic is, taken as the basis of classification, the rights would divide1 themselves into two classes as judged by their distinguishing characteristics. Various modes of classifying rights would, it should be observed, have nothing to do with one another; they would be only cross divisions. If a certain type of distinguishing characteristic is, taken as the basis of classification, the rights would divide1 themselves into two classes as judged by their distinguishing characteristics. For example, based on the incidence of correlative duties, a right may be a right in rem when it corresponds to a duty imposed upon persons in general or the right may be a right in personam when it corresponds to a duty imposed upon determinate individuals. It may here be mentioned that as will appear hereafter this particular classification of legal rights into rights in rem and rights in personam is of no relevance for the purpose of ascertaining "legal character", that is, "legal status". (34) Another classification of legal rights is to divide them into Proprietary and Personal Rights. Salmond (Pages 256 to 258) says. "Another important distinction is that between proprietary and personal rights. The aggregate of a man's proprietary rights constitutes his estate, his assets, or his property in one of the many senses of that most equivocal of legal terms. The sum total of a man's personal rights, on the other hand, constitutes his status or personal condition, as opposed to his estate. If he owns land, or chattels, or patent rights, or the goodwill of a business, or shares in a company, or if debts are owing to him, all these rights pertain to his estate. But if he is a free man and a citizen, a husband and a father, the rights which he has as such pertain to his status or standing in the law. X X X X It makes no difference in this respect whether a right is jus in rem or jus in personam. Eights of either sort are proprietary, and make up the estate of the possessor if they are of economic value. Thus my right to the money in my pocket is proprietary; but not less so is my right to the money which I have in bank. Stock in the funds is part of a man's estate, just as much as land and houses : and a valuable contract, just as much as a valuable chattel. Thus my right to the money in my pocket is proprietary; but not less so is my right to the money which I have in bank. Stock in the funds is part of a man's estate, just as much as land and houses : and a valuable contract, just as much as a valuable chattel. On the other hand, a man's rights of personal liberty, and of reputation, and of freedom from bodily harm, are personal, not proprietary. They concern his welfare, not his wealth; they are judicial merely, not also economic. So, also, with the rights of a husband and father with respect to his wife and children. Rights such as these constitute his legal status, not his legal estate. If we go outside the sphere of private into that of public law, we find the list of personal rights greatly increased. Citizenship, honours, dignities, and official position in all its innumerable forms, pertain to the law of status, not to that of property." (35) From the above, it is clear that a legal right must be either proprietary, i. e., in the nature of property, or personal and it is only the latter that creates a status. For a better understanding of what is meant by 'status', and to find out what is the demarcating line between a right which is a proprietary right and a right which is a personal right I will now turn to Holland. (36) A right, as stated above, has four elements, two of which are 'the person of inherence* and 'the person of incidence', i. e., the person in whom the right resides and the person against whom the right is available. Holland says (Page 94): "Persons are subjects of Duties as well as of Rights ................ Persons, i. e., subjects of Fights or of Duties, are in general individual human beings; but, in imitation of the personality of human beings, the law recognises certain groups, of men or of property, which it is convenient to treat as subjects of rights and duties; as Persons in an artificial sense. A 'natural', as opposed to an 'artificial', person is such a human being as is regarded by the law as capable of rights or duties; in the language of Roman law as having a 'status'. A 'natural', as opposed to an 'artificial', person is such a human being as is regarded by the law as capable of rights or duties; in the language of Roman law as having a 'status'. As having any such capacity recognised by the law, he is said to be a person, or, to approach more nearly to the phraseology of the Roman lawyers, to be clothed with, or to wear the mask (persona) of legal capacity". Besides possessing this general legal capacity, or status, a man may also possess various special capacities, such as the 'tria capita' of liberty, citizenship, and family rights. A slave having, as such, neither rights nor liabilities, had in Roman Law. strictly speaking, no 'status', 'caput', or 'persona'." (37) Holland (page 135) says that the status of the persons concerned is a basis of the division or rights, "that is to say, there are some rights in which the status of the persons concerned has to be specially taken into consideration, while in others this is not the case. (38) This distinction has led to a division of law into the law of persons' and the 'law of things'." (39) Holland points out that the said four elements of a Right divide themselves into two classes, the first consisting of the person of inherence and the person of incidence, giving rise to the law classified as 'the law of persons' and the second consisting of the object and/or the acts or forbearances, giving rise to the branch of law classified as 'the law relating to things'. About the latter, it should be noted that although the word used is 'tilings', 'the law relating to. things' would include 'things' proper, meaning thereby corporeal things which can be touched, such as a farm or a slave, and also incorporeal things, which cannot be touched, consisting of rights only, such as a right of survitude, a right of action, or a right arising out of a contract. (40) A Right varies with a variation in any one of the series of its constituent elements. The law of Persons, as* a source of variety in rights, if therefore distinct from and much smaller than the residue of the law, which is generally called the Law of Things. (40) A Right varies with a variation in any one of the series of its constituent elements. The law of Persons, as* a source of variety in rights, if therefore distinct from and much smaller than the residue of the law, which is generally called the Law of Things. If a line is to be drawn between the Law of Things and that of Persons, where is the line to be drawn? After discussing various tests of the characteristics of the law that ought to be treated under the latter head, Holland says pages 143-144): "The true test is surely this. Does the peculiarity of the Personality arise from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence? In order to determine, for instance, whether the right of landlords should be considered under the law of persons, we must ask whether landlords as a class have any juristic peculiarities unconnected with the acts which they are entitled to demand from their tenants; such as the payment of rent, the observance of covenants, etc. They clearly have not. A landlord merely means a person who is entitled to these acts. On the other hand, suppose the landlord to be an infant; here at once a whole set of characteristics are present, modifying the right to rent, etc. and quite unconnected with it. Nor is it only because the same person sustains the two characters of infant and landlord that this is the case; a man may be a pawn-broker and landlord, but the rights as landlord will not be affected by his occupation as pawn-broker. The personality recognised in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter. Of such affections of Personality there are two classes: (1) The person may be 'artificial' i.e., may be not a human being. (2) The person may be under disability, or may enjoy exemption, on account of age, sex, mental incapacity, crime, alienage, or public station. All of these are abnormal deviations from the ordinary case of both parties concerned in a right being human beings, under no special and far-reaching disability or exemption. (2) The person may be under disability, or may enjoy exemption, on account of age, sex, mental incapacity, crime, alienage, or public station. All of these are abnormal deviations from the ordinary case of both parties concerned in a right being human beings, under no special and far-reaching disability or exemption. When the disability or exemption is not of a far-reaching character, it will not be treated in practice as founding a special status, although, upon the principles above stated, otherwise capable of being so treated. Thus, as a rule, soldiers, or blind, or illegitimate, persons are not held to occupy a status, although in several respects, and in particular with reference to testamentary powers and rights of succeeding ab intestato, they may respectively exhibit peculiarities which are not involved in the statement that they are in military service, blind, or illegitimate." (41) Therefore, to repeat what Holland has said a legal right can be classified to be a Personal right and would amount to one's Status, and is distinct from a Proprietary right, when it involves a peculiarity of the personality arising from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence. The personality recognised in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter. This then appears to be the test of what is legal status or "legal character" as mentioned in S. 42 of the Specific Relief Act. (42) Now, the field of law itself may be divided into Private Law, i.e., the law which regulates rights between subject and subject, and Public Law, i.e., the law which regulates rights between the State and its subjects omitting for the purposes of the consideration of the meaning of status, the third branch which is International law. As already seen, it is the law of Persons as contrasted from the Law of Things which creates 'status'. As stated by Holland, the contrast between the law of persons and of things, or between the law of 'normal' and of 'abnormal persons' is sharply defined only in Private Law and not in Public Law. As already seen, it is the law of Persons as contrasted from the Law of Things which creates 'status'. As stated by Holland, the contrast between the law of persons and of things, or between the law of 'normal' and of 'abnormal persons' is sharply defined only in Private Law and not in Public Law. In Private Law, where all characteristics of law are fully present, the law of Persons is a statement of the ways in which the general law is modified by varieties of status; while the law of Things is a description of the various kinds of rights enjoyed in private capacities by persons as being within the jurisdiction of a State, but not as being in any way representative of the sovereign power in the State. In Public Law, however, which possesses the characteristics of law in a lower degree of development, the distinction is but faintly traceable. What is analogous to the law of Persons here consists in a description of the State as a whole, of its ruling body, of bodies of persons enjoying delegated ruling power, and of its constituent members as such; in short what is usually known as 'Constitutional Law'. On the other hand, the residue of Public law consisting of the Administrative Law and the Criminal Law has its analogies to the law of Things. (43) Legal status of a subject may therefore arise in relation to Private Law or in relation to Public law. A person's franchise or right to vote to or right to a public office would constitute his 212 Bombay [Prs. 43-45] Shanta Shamsher v. Kamani Bros. (Pri.) Ltd. (Mody J) A. I. R. Status in relation to Public law and it was such status which was the subject matter of the said 'case of AIR 1948 Lah 85 and was held to be "legal character" within the meaning of section 42 of the Specific Relief Act. (44) As seen earlier, status arises by reason of some peculiarity of the person of inherence or the person of incidence. The person may be a natural person, i.e., a human being or an artificial person, i.e., a juristic person, like a company or what is known in English Law as a Corporation Sole. The personality of an artificial person is different from that of a normal natural person and it constitutes his status in law. The person may be a natural person, i.e., a human being or an artificial person, i.e., a juristic person, like a company or what is known in English Law as a Corporation Sole. The personality of an artificial person is different from that of a normal natural person and it constitutes his status in law. But amongst the natural persons themselves some have certain peculiarities about their personality and to illustrate the same, Holland says (at page 351): "The chief varieties of status among natural persons may be referred to the following causes: 1. sex; 2. minority; 3. 'patria potestas' and 'manus'; 4. coverture; 5. celibacy; 6. mental defect; 7. bodily defect; 8. rank caste, and official position; 9. race and colour; 10 slavery; 11. profession; 12. civil death; 13. illegitimacy; 14. heresy; 15. foreign nationality; 16. hostile nationality. All of the facts included in this list, which might be extended, have been held, at one time or another, to differentiate the legal position of persons affected by them from that of persons of the normal type". It is this passage from Holland which has been quoted by Banerjee in his Law of Specific Relief In British India, and which has been reproduced in the said case of ILR 39 Mad 80 : AIR 1915 Mad 584