SHANKARAPPA KOTRABASAPPA HARPANHALLI Vs. KHATUMBI JAMALUDDINSAB

JUDGEMENT

(1.) This appeal raises an important question of law, which has not come up for decision yet in this Court.

(2.) The plaintiff-appellant brought this suit to recover a one-fifth share in the property in suit by partition and mesne profits. It appears that defendants Nos. 1 to 4 and Aminabi were co- owners of certain property and obtained a decree for possession of the same in suit No. 229 of 1912. On July 8, 1925, Aminabi sold her one-fifth share in the property to the plaintiff by a registered sale deed, and this suit was filed by the plaintiff on that sale deed. The defendants claimed a right of pre-emption. This was, however, found against them and a decree for partition was passed by the trial Court. In appeal by the defendants the question as to the right of pre-emption was given up, and the only point raised was whether the sale deed was void as Aminabi had sold the right to recover mesne profits along with her share, and as a right to recover mesne profits could not be legally sold, the whole transaction was void. The plaintiff-appellant objected to the plea on the ground that it was not raised in the trial Court, but the learned Judge rightly rejected this contention. He held that as the sale was of land as well as the right to recover mesne profits, and that as mesne profits were in the nature of damages, the whole transaction was void under Section 6(e) of the Transfer of Property Act. He found that the consideration paid by the plaintiff was a single consideration for both land and the right to mesne profits, and that the transaction was indivisible and the gale void. The learned Judge relied upon Har Prasad Tiwari V/s. Sheo Gobind Tiwari (1922) I.L.R. 44 All. 486 and Kathu Jairam V/s. Vishwanath Ganesh, s.c. 27 Bom. L.R. 682, which I think had no application to the facts of this case. He further referred to Shyam Chand Koondoo V/s. The Land Mortgage Bank of India (1883) I.L.R. 9 Cal. 695 and Seetamma V/s. Venkataramanayya (1913) I.L.R. 38 Mad. 308 The question is whether the decision is right.

(3.) Mr. Desai for the appellant has argued that, assuming that the right to recover mesne profits cannot be legally sold, where there is a sale of land and a right to recover mesne profits of that land is sold with it, Section 6 (e) of the Transfer of Property Act does not apply, and the sale is valid even though the consideration is not severable. It is common ground that what was sold was the one-fifth share of Aminabi and mesne profits appertaining to that share.