A GOPALA IYER Vs. RAMASWAMI SASTRIAL

JUDGEMENT

(1.) EXHIBIT E purports to be a transfer by Sundari Ammal to the plaintiff of a right to sue for damages for breach of contract between Sundari Ammal and the defendant (EXHIBIT A), the breach of the contract having occurred prior to 11 the execution of Ex. E. It seems to us that this is a mere right to sue within the meaning of Section 6(e) of the Transfer of Property Act, and consequently could not be transferred. On this point we agree with the decision of the Calcutta High Court in Ali Mahommad V/s. S.C. Chander (1909) I.L.R. 36 C. 345. We are of opinion that even prior to the amendment of the Transfer of Property Act, a mere right to sue for damages for breach of contract was not asssignable under the common law. The Advocate General has contended that the fact that the debts which the defendant contracted under Ex. E to discharge were debts owing by the plaintiff and that the plaintiff has in fact paid these debts give the plaintiff a right to sue the defendant under Ex. E. We know of no principle of law or equity which gives any such right. The plaintiff, however, alleges in his plaint (paragraphs 4 and 10) a personal promise, by the defendant to the plaintiff, to pay the debts in question. As to this there was no issue and there has been no finding. In view of the fact that the point now taken before us was not raised in the courts below, we think the plaintiff should have an opportunity of showing, if he can, that the personal agreement by the defendant with the plaintiff, which is alleged in the plaint, was in fact made. The case will go back to the District Judge for a finding on this question. Further evidence may be taken. The finding should be submitted within two months, and ten days will be allowed for filing objections. This order is without prejudice to the right of the appellant to rely on the other grounds of appeal.