BENUMETCHA GANGARAJU Vs. VELURI GOPALA KRISHNAMURTHI

JUDGEMENT

(1.) THE Plaintiff is the Appellant in this second appeal. The suit was filed to recover a sum of Rs. 1,158 -14 -0 claimed to represent the value of cist or damages for use and occupation in respect of the plaint schedule property which was under the cultivation and enjoyment of the Defendants. The Plaintiff purchased the property under a sale deed, dated 29th November 1950, from one Sundaramma who had obtained a decree on compromise against the present Defendants on the 29th of March, 1949, under which the Defendants were bound to deliver her the property. She filed E. P. No. 285 of 1949 for possession. But as the Defendants agreed to pay her an. yearly rent of 4,000 cocoanuts, she refrained from, prosecuting the execution petition. After his purchase, the Plaintiff applied as transferee -decree -holder in E. P. No. 695 of 1950 for possession of the properties and obtained delivery on 4th February,, 1951. During the period from 29th March, 1949 to 4th February, 1951, the Defendants were thus in possession of the lands. They did not pay any rent to the landlord. The claim is therefore for the value -of 4,000 cocoanuts said to have been agreed to as payable from 29th March, 1949, to 29th March, 1.950 and the value of a proportionate number for the period from 29th March, 1950 to 4th February 1951. There were several defences raised to the suit but none of them proved completely effective and the suit was partly decreed to the extent of Rs. 375 with proportionate costs and future interest by the learned District Munsif of Razole. Appeals against the decision of the learned District Munsif were taken to the learned Subordinate Judge both by the Plaintiff who asked for a larger sum and the Defendants, who claimed total immunity. One of the points raised by the Defendants for the first time before the learned Subordinate Judge was whether the transfer of profits that accrued prior to the date of tire sale deed in favour of the Plaintiff is hit at by Section 6(e) of the Transfer of Property Act and hence unenforceable. The learned Subordinate Judge held that the Plaintiff did not obtain valid transfer from Sundaramma in -respect of the suit claim because it was a mere right to sue and therefore he dismissed the Plaintiffs suit.

(2.) THE question, therefore, for consideration in this second appeal is whether the right claimed by the Plaintiff in the suit is enforceable or whether it falls within the mischief of Section 6(e) of the Transfer of Property Act.

(3.) THERE is another case in Govindaswami Pillai v. Ramaswami Aiyar,, 30 MLJ 492 :, AIR 1917 Mad 735) (C), where Sadasiva Aiyar and Moore J.I., held that where a claim is one purely for damages and not one based upon contract, it was a mere right to sue for damages. But, this decision is not helpful. But, in Venkatarama Aiyar v. Ramaswami Aiyar,, JLR 44 Mad 539 :, AIR 921 Mad 56) (D), Sadasiva Aiyar and Seshagiri Aiyar, JJ., discussed the validity of a transfer of a decree for mesne profits along with the transfer of the land. Sadasiva Aiyar J., in his judgment refers to Muthu Hengsu v. Netravalhi Naiksavi,, 12 Mad LW 44 :, AIR 1920 Mad 386) (E);, ILR 38 Mad 138 :, AIR 1916 Mad 595) (B) and, ILR 38 Mad 308 :, AIR 1916 Mad 473 (1.) (A). He does not refer to the decision to which lie was a party,, 30 MLJ 492 :, AIR 1917 Mad 735) (C). But, during the . course of the discussion he seems to throw some . doubt upon the correctness of the cases referred to by him. Seshagiri Aiyar J., who was a party to the decision in, 12 Mad LW 44 :, AIR 1920 Mad 386) (E), which actually turned on the terms of Section 8 of the Transfer of Property Act and which had really no bearing on the interpretation of Section 6(e) of the Transfer of Property Act expressed some doubt as to his view in, 12 Mad LW 44 :, AIR 1920 Mad 386) (E) as being right. Ramesam J., in Chandrasekharalingam v. Nagabushanam, : 53 MLJ 342 : AIR 1927 Mad 817) (F) considered that the learned Judge (Seshagiri Aiyar, J.) was wrong in doubting his own earlier view. There are decisions of other High Courts (to which I do not propose to make a detailed reference in view of the course I propose to adopt) which, however take the view, generally speaking, that where there is a transfer of a right to recover profits along with a right to recover the land from which the profits arose Section 6 (e) is no bar to the maintainability of a suit. In fact, emphasis is laid upon the word 'mere' and the learned Judges have also referred to the fact that the principle which discouraged, the transfer of a bare right to sue was founded upon the doctrine of champerty and maintenance with their Lordships of the Judicial Committee had declared as early as 1874 as not being applicable to India.