PUSULURI VARAHASWAMI Vs. MANTENA RAMACHANDRA RAJU

JUDGEMENT

(1.) The plaintiff sues on a sale deed executed to him by the heir of one Krishna Boyamma. Krishna Boyamma died in February 1905 and the deed is dated 24th February 1905. The deed recites that on Krishna Boyamma s death certain lands described as a Mokhasa Inam as well as all the current dues and arrears recoverable on those lands and all kinds of rights relating to the Mokhasa passed to the heir. By the deed, the heir sold to the plaintiff all the said lands and the current and past dues etc., and all other rights as per details given in the deed. The "details" referred to are the rights incidental to the ownership of the land and "all kinds of rights relating to the Mokhasa." The deed does not refer to the defendant. The plaint alleges, and this is not denied that the defendant was Krishna Boyamma s manager. The plaintiff claims delivery of documents and accounts relating to the estate kept by the defendant s father and alleged to be in the possession of the defendant, Rs. 1,000, the cash balance in the defendant s hands, and Rs. 300 as damages for the defendant s failure to deliver the documents and accounts referred to above. In his written statement the defendant denies that either he or his father had any documents in his possession--he says that he only managed for 18 months, that he only collected Rs. 100 and odd, and that this was not sufficient to pay his salary and that of his peon. We are dealing with this case in second appeal and are bound by findings of fact. Neither of the Courts below finds that the defendant had money in hand for which he was liable to account to the plaintiff. The Munsif finds (paragraph No. 21) that the defendant might have collected about Rs. 400 in F. 1313 and about Rs. 300 in F. 1314, and that if he had not collected those sums he could with ordinary diligence have done so. The Subordinate Judge s finding is to the same effect.

(2.) The plaintiff does not allege that the defendant was his agent, and he says that his cause of action arose on the date of Krishna Boyamma s sale to him and on the date two months later of the final demand for an account and delivery of the documents. The Courts below would appear to have found the defendant liable for Rs. 700, not as the " balance remaining...according to chitta" which is the plaintiff s claim, but as damages for negligence in not collecting the rents which he might have collected for Faslis 1313 and 1314. In the first place, this is not the plaintiffs claim, and in the second place, assuming that the evidence establishes that before she died Krishna Boyamma could have recovered damages from the defendant on the ground of negligence as her agent (and I do not feel altogther satisfied as to this) it seems to me that Krishna Boyamma s claim (assuming the deed purported to transfer it to the plaintiff) was nothing more than a right to recover damages, a mere right to sue within the meaning of Section 6(e) of the Transfer of Property Act and could not be transferred. If Krishna Boyamma s claim was founded on tort it is well settled that the claim is not assignable. See the judgment of the Court of appeal in Dawson v. Great Northern and City Railway Co. (1905) 1 K.B. 260 and the recent judgment of the Court of appeal in Defries v. Milne (1913) 1 Ch. 98. If the claim was grounded on contract the transfer was after breach (if any) and I think the principle of the decision in Abu Mahomed v. S.C. Chunder (1908) I.L.R. 36 C. 345 applies. See too, Shyamchand Koondoo v. The Land Mortgage Bank of India (1883) I.L.R. 9 C. 695. The case of Madhodas v. Ramji Patak (1894) I.L.R. 16 A. 286 is clearly distinguishable. There, for the purposes of the question whether the right was assignable, it was assumed that when the assignment was made there was money in the hands of the agent which was money had and received to the use of his principal. Here there is no such finding. In the unreported case to which we have been referred (A. No. 71 of 1910) the right assigned was a right to recover moneys which had been omitted from an account, not unliquidated damages. There are some observations in the case of Dawson v. Great Northern and City By. Co. (1905) 1 K.B. 260 which to a certain extent support the contention of the respondents. But I think the case is clearly distinguishable. There it was held by the Court of appeal reversing Wright, J. that "a claim under Section 68 of the Land s clauses consoidation Act 1845, compensation in respect of an interest in lands, hijuriously affected was not a claim to damages for a wrongful act, but a claim to compensation for damages done in the lawful exercise of statutory powers and that such a claim was capable of assignment," The Court of Appeal point out that the claim of the plaintiff was not in the nature of damages for a wrong (p. 275). The claim there arose from an act which was not unlawful but was done lawfully in the exercise of statutory powers. It is pointed out that the compensation might be regarded as the price payable for the exercise of the statutory powers and was property. I am of opinion that Krishna Boyamma s claim against her agent based on his failure to collect the rents was not assignable.

(3.) I do not think we ought, in second appeal, to interfere with the finding of the courts below as to the non-delivery of the accounts or with the damages awarded in respect thereof. I would modify the decree of the Lower Appellate court by giving the plaintiff a decree for Rs. 300 only and direct that the parties should pay and receive proportionate costs throughout. Tyabji, J.