DIAYADARU CHANDRASEKARALINGAM Vs. ARIGAPUDI NAGABHUSHANAM

JUDGEMENT

(1.) These second appeals are connected with S. A. 1179 which was disposed of yesterday. The original plaintiff in these second appeals whose legal representative is now the appellant was the reversioner who sold the property to the plaintiff in the other suit. The suits out of which these second appeals arise are filed to recover mesne profits for faslis 1328 and 1329, The profits for these faslis were also intended to be transferred by the sale-deed in favour of the vendee in the other case. That is Ex. A in that second appeal. But the plaintiff in the other second appeal did not sue for these profits apparently on the ground that the transfer is void according to the decision in Seetamma V/s. Venkataramanayya [1913] 38 Mad. 308 and the vendor and the vendee seem to have agreed that the vendor himself should sue for these profits. Accordingly the actual reversioner brought these suits to recover the mesne profits. The District munsif decided against the plaintiff saying the plaintiff has not come into Court with clean hands. It would not be equitable to allow the plaintiffs to get at profits in this indirect fashion.

(2.) I do not understand these sentences. On appeal the Subordinate Judge held, relying on Venkatarama Iyer V/s. Ramaswami Iyer A. I. R. 1921 Mad. 56 that the transfer was valid and therefore the vendee under Ex. A ought to have sued for mesne profits and not the present plaintiff and accordingly dismissed these suits though he decreed the other suit. The plaintiff files these second appeals.

(3.) The decision in Seetamma V/s. Venkataramanayya [1913] 38 Mad. 308 has been followed in Muthu Hengsu V/s. Netravadhi Naikasavi [1920] 12 M. L. W. 44 in which the Judges also rely upon Defries V/s. Milne [1913] 1 Ch. 98 The same view was taken in Mohesh Lal V/s. Mchant Bavan Das [1883] 9 Cal. 961 and recently again by Greaves and Cuming, JJ., in Sukhamayee Biswas V/s. Manoranjan Choudhury A. I. R. 1926 Cal. 428. The Patna High Court also took the same view in Jai Narayana Pande V/s. Kishen Dutta Misra A. I. R. 1924 Patna. 551 The point did not arise in Venkataramier V/s. Ramaswami Iyer A. I. R. 1921 Mad. 56 where what was transferred was a decree in regard to past mesne profits. But though this question did not arise there, both the learned Judges made a passing reference to it. Sadasiva Aiyar, J., said that these decisions are the result of an unnecessarily close adherence to the development of law of torts in English Courts. Seshagiri Iyer, J., says that when he decided the case in Muthu Hengsu V/s. Netravadhi Naikasavi [1920] 12 M. L. W. 44 the fact that the sale-deed covered the right to mesne profits was not brought to his notice at the time of the hearing and then he said: if the decision to which I was a party is to be understood as laying down that even in cases of actual transfer of mesne profits as subsidiary to the enjoyment of the property, the right cannot be enforced, I am not prepared to stand by it.