A. Gopala Iyer vs Ramaswami Sastrial

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.C. Chander ILR (1909) 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.