DIVYADARU CHENDRASEKHARALINGAM BEING MINOR BY NEXT FRIEND DIVYADARU BASAVAMMA Vs. ARIGAPUDI NAGHABHUSHANAM

JUDGEMENT

(1.) These Second Appeals are connected with S. A. No. 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. Venkalaramanayya (1913) ILR 38 M 308 : 25 MLJ 410 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 plaintiff to get at profits in this indirect fashion.

(2.) I do not understand these sentences. On appeal the Subordinate Judge held relying on Venkatarama Aiyar V/s. Ramaswami Aiyar (1920) ILR 44 M 539. : 40 MLJ 204 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) ILR 38 M 308 : 25 MLJ 410 has been followed in Mulhu Hengsu V/s. Netravathi Naiksavi (1920) 12 LW 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. Mohant Bawan Das (1883) ILR 9 C 961 at 965 (PC) and recently again by Greaves and Cumming, JJ., in Sukhamoyee Biswas V/s. Manoranjan Chaudhury (1925) 89 IC 827. The Patna High Court also took the same view in Jai Narayan Pande V/s. Kishun Dutta Misra (1924) ILR 3 Pat 575. The point did not arise in Venkatarama Aiyar V/s. Ramaswami Aiyar (1920) ILR 44 M 539. : 40 MLJ 204 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 Aiyar, J., says that when he decided the case in Muthu Hengsu V/s. Netravathi Naiksavi (1920) 12 LW 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 adds: 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.