BHAG SINGH Vs. DAN SINGH AND ORS.

JUDGEMENT

(1.) THE only question in this second appeal is whether the right to mesne profits can be transferred. There is a conflict of judicial opinion whether the right in land as well as the right to mesne profits is transferable. One view is that the transferee can bring an action to recover mesne profits. The other view is that he cannot. This conflict has no bearing so far as the present case is concerned because here the right to recover mesne profits was transferred and not the land. The question is whether such a transfer is hit by Section 6(e) of the Transfer of Property Act. The lower appellate Court has held that it is so hit. The transferee has come up in appeal.

(2.) MR . Atma Ram, who appears for the transferee, contends that the right to mesne profits is an actionable claim and is not a mere right to sue. So far as decided cases go, excepting one, which is indirectly in point, they tend to show that the transfer of a right to recover mesne profits is hit by Section 6(2). The earliest decision in point is Shyam Chand Koondoo v. The Land Mortgage Bank of India, Limited, I.L.R. (1883) 9 Cal. 695, The other decisions taking the same view are Durga Chunder Roy v. Koilas Chunder Roy and Ors. : 2 CWN 43, Kocharla Seetamma v. Pillala Venkataramanayya and Ors., A.I.R. 1916 Mad. 473 (1), K. Chidambaram Pillai v. M.S.M. Doraiswami Chetty : A.I.R. 1916 Mad. 974, Pusuluri Varahaswami v. Mantena Rarrtachandra Raju 24 Madras Law Journal 298, Pragi Lal v. Fateh Chand I.L.R. (1883) 5 All. 207, and Abu Mahomed v. S.C. Chunder I.L.R. (1909) 36 Cal. 345. No decision taking a contrary view has been brought to my notice. The only decision, which casts slight doubt, is the one in P. Venkatarama Aiyar v. G. Ramaswami Aiyar and Ors. : A.I.R. 1921 Mad. 56, wherein Sadasiva Aiyar, J., after noticing the cases of Shyam Chand Koondoo v. Land Mortgage Bank of India, Ltd., I.L.R. (1883) 9 Cal. 695, Seetamma v. Venkataramayya, I.L.R. (1915) 38 Mad. 308 and Muthu Hengsu v. Netravati Naiksavi, 58 I.C. 383, observed as follows:

(3.) IT will, therefore, appear that the observations of the learned Judge, that the transfer of a right to mesne profits is not hit by Section 6(e) of the Transfer of Property Act, are merely obiter. In this situation, I am not prepared to accept Atma Ram's argument, based on the decision in P. Venkatarama Aiyar's Case. The learned Counsel has also brought to my notice the decisions in Jat Mal v. Hukam Mal Tani Mal and Ors., A.I.R. 1930 Lah 820, Seth Lachmi Narayan v. Dharamchand, A.I.R. 1926 Nagpur 396, Vatakkefhala Thottungal Chakku's son Mathu v. Achu and Ors. : A.I.R. 1934 Mad. 461, Bharat Singh v. Binda Charan and Ors., A.I.R. 1918 Oudh. 374 and Subh Ram and Ors. v. Ram Kishan and Ors. A.I.R. 1943 Lah 265 in support of his contention. None of these cases has a direct hearing and are clearly distinguishable. In this view of the matter, I see no reason to differ from the decision of the lower appellate Court.