P VENKATRAMA AIYAR Vs. GRAMASAMI AIYAR

JUDGEMENT

(1.) The 23rd defendant is the appellant before us. The purchaser from the 1st plff. who was entitled to and given a decree for 1/6th share in certain proper-ties prayed under Order 20, Rule 2 to have the mesne profits due to the petitioner by the 23rd defendant ascertained, the decree in the suit having, as I read it, declared the 1st plaintiffs right to recover mesne profits from the date of suit against the 23rd defendant and having only left the actual amount to be ascertained and awarded in a supplemental decree. I do not agree with the contention of the appellant s learned vakil that the sale deed to the petitioner by the 1st plaintiff did not transfer the 1st plaintiff s rights under the decree but transferred merely a right to claim mesne profits.

(2.) The only remaining contention which has to be considered is whether when a decree declaring such a right has been passed in favour of a litigant against another litigant, whether such a right can be transferred lawfully and whether the transferee is entitled to have the mesne profits due to his transferor ascertained by the ordinary procedure in the same suit in the ordinary course. Reliance is placed by the appellant s learned vakil on the decisions beginning with Shyam Chand Koondoo v. The Land Mortgage Bank of India (1833) I.L.R. 9 Cal. 695 (See also Seetamma v. Venkataramanayya (1913) I.L.R. 38 M. 308 and Muthu Hengsu v. Netravalh Naiksavi (1920) 12 L.W. 44) in which it has been held that a claim for mesne profits is a claim for damages in tort which falls under the heading of "mere right to sue" in Section 6(e) of the Transfer of Property Act and hence cannot be assigned. I am inclined to hold that those decisions are the result of what I considered with the greatest respect to be an unnecessarily close adherence to the development of the law of torts in English Courts. I think a suit for mesne profits (as pointed out by my learned brother during the course of the argument) partakes more of the nature of a suit for account (along with which it is also enumerated in the schedule to the Provincial Small Cause Court s Act). I think also that such a suit has under ordinary circumstances some affinity to a suit for money had and received and I see no reason why in India where according to the Privy Council the law of champerty and maintenance as developed in England has very little application the transfer of a right to claim mesne profits should be held invalid. I think the reasoning in Ramiah v. Rukmani Ammal (1912) 24 M.L.J. 313 rather points to the conclusion that the transfer of such a right is not invalid. It is however unnecessary to express a final opinion on the question whether a claim for mesne profits which has not been declared, to exist in the transferor by a decree of court can be validly transferred or not. Where, however, such a claim has been declared by a decree and if only the exact amount recoverable has been left to be ascertained in future proceedings in the same suit, I think there can be no difficulty in holding that the transfer of such a right is valid, and I find that in Prasanno Kumar Panja v. Ashutosh Ray (1913) 18 C.W.N. 450 and Hariprasad Misser v. Kodo Marya (1916) 1 Pat. L.J. 427 the validity of the transfer of such a right has been upheld. Following those decisions, I would dismiss this appeal with costs. Seshagiri Aiyar, J.

(3.) I agree. The question for decision is whether after a preliminary decree which directs enquiry into the mesne profits and after a declaration has been inserted in the final decree regarding the rights of the parties, such a decree can be assigned to a stranger to enable him to execute it against one of the parties to the decree. My learned brother has said that the technicalities of the English Law should not be imported into this country. I take a different view. My complaint is not that we too slavishly follow English Law, but that we have, not kept pace with the development of that law during the last few years. I may refer to one of the recent decisions, namely, Ellis v. Torrington (1920) 1 K. B. 399, where the exact import of the expression "a bare right to sue" has been well pointed out. Scrutton, L.J. at page 411 says thus : "But early in the development of the law the courts of equity and perhaps the courts of common law also took the view that where the right of action was not a bare right, but was incident or subsidiary to a right in property, an assignment of the right of action was permissible and did not savour of champerty or maintenance." Bankes, L.J. takes even a stronger view and says that where a right to profits is appurtenant to the right to property it can be assigned. Warrington. L.J. expresses himself similarly. The interpretation here given should govern courts in India in construing Section 6 of the Transfer of Property Act. Applying that principle, there can be no doubt that the right to sue for mesne profits assigned in this case is appurtenant to the right of enjoyment of the property itself and therefore that right was an enforce-able right. Reference may also be made to one other English case, Hambleton v. Brown (1917) 2 K. B. 93, where it was held that after a decree there can be assignment of the rights litigated. There-fore if the English law were properly applied in this country there can be no doubt that this case can be decided only in one way, and that is against the appellant.