Bhag Singh vs Dan Singh and Others

Daya Krishan Mahajan, J.—The only question in this second appeal is whether the right to mesne profits can be transferred. There is a conflict of judicial opinion whether the right in land as well as the right to mesne profits is transferable. One view is that the transferee can bring an action to recover mesne profits. The other view is that he cannot. This conflict has no bearing so far as the present case is concerned because here the right to recover mesne profits was transferred and not the land. The question is whether such a transfer is hit by Section 6(e) of the Transfer of Property Act. The lower appellate Court has held that it is so hit. The transferee has come up in appeal.

Mr. Atma Ram, who appears for the transferee, contends that the right to mesne profits is an actionable claim and is not a mere right to sue. So far as decided cases go, excepting one, which is indirectly in point, they tend to show that the transfer of a right to recover mesne profits is hit by Section 6(2). The earliest decision in point is Shyam Chand Koondoo v. The Land Mortgage Bank of India, Limited ILR (1883) 9 Cal. 695, The other decisions taking the same view are Durga Chunder Roy v. Koilas Chunder Roy and Ors. 2 CWN 43, Kocharla Seetamma v. Pillala Venkataramanayya and Ors. AIR 1916 Mad. 473 (1), K. Chidambaram Pillai Vs. M.S. Doraiswamy Chetty, , Pusuluri Varahaswami v. Mantena Rarrtachandra Raju 24 Madras Law Journal 298, Pragi Lal v. Fateh Chand ILR (1883) 5 All. 207, and Abu Mahomed v. S.C. Chunder ILR (1909) 36 Cal. 345. No decision taking a contrary view has been brought to my notice. The only decision, which casts slight doubt, is the one in Venkatarama Aiyar Vs. Ramasami Aiyar and Others, , wherein Sadasiva Aiyar, J., after noticing the cases of Shyam Chand Koondoo v. Land Mortgage Bank of India, Ltd. ILR (1883) 9 Cal. 695, Seetamma v. Venkataramayya ILR (1915) 38 Mad. 308 and Muthu Hengsu v. Netravati Naiksavi 58 I.C. 383, observed as follows:

I am inclined to hold that those decisions are the result of what I consider, with the greatest respect to be an unnecessarily close adherence to the development of the law of Torts in English Courts. I think a suit for mesne profits (as pointed out by my learned brother during the course of the argument) partakes more of the nature of a suit for account (along with which it is enumerated in the schedule to the Provincial Small Cause Courts Act). I think also that such a suit has under ordinary circumstances some affinity to a suit for money had and received and I see no reason why in India where according to the Privy Council the law of champerty and maintenance as developed in England has very little application, the transfer of a right to claim mesne profits should be held invalid.

The learned Judge put a different interpretation on the decision in Pusuluri Varahaswami than was put by other learned Judges in Settamma''s case. But the most pertinent fact about this decision is that the learned Judges did not base their ultimate decision on the observations which I have already quoted above. They proceeded to decide the matter on a different ground which is set out below:

It is, however, unnecessary to express a final opinion on the question whether a claim for mesne profits which has not been declared to exist in the transferor by a decree of Court can be validly transferred or not. Where, however, such a claim has been declared by a decree and if only the exact amount recoverable has been left to be ascertained in future proceedings in the same suit, I think there can be no difficulty in holding that the transfer of such a right is valid, and I find that in Prasanna Kumar v. Ashutosh Ray 20 I.C. 685 and Hari Prasad Misser v. Kodo Marya 37 I.C. 998 the validity of the transfer of such a right has been upheld. Following those decisions, I would dismiss this appeal with costs.

It will, therefore, appear that the observations of the learned Judge, that the transfer of a right to mesne profits is not hit by Section 6(e) of the Transfer of Property Act, are merely obiter. In this situation, I am not prepared to accept Atma Ram''s argument, based on the decision in P. Venkatarama Aiyar''s Case. The learned Counsel has also brought to my notice the decisions in Jat Mal v. Hukam Mal Tani Mal and Ors. AIR 1930 Lah 820, Seth Lachmi Narayan v. Dharamchand AIR 1926 Nagpur 396, Vatakkethala Thottungal Chakku''s Son Mathu Vs. Achu and Others, , Bharat Singh v. Binda Charan and Ors. AIR 1918 Oudh. 374 and Subh Ram and Ors. v. Ram Kishan and Ors. AIR 1943 Lah 265 in support of his contention. None of these cases has a direct hearing and are clearly distinguishable. In this view of the matter, I see no reason to differ from the decision of the lower appellate Court.

For the reasons recorded above, this appeal fails and is dismissed. But as there is no representation from the Respondents, there will be no order as to costs. In view of the importance of the question involved. I certify this case as a fit one for appeal under Clause 10 of the Letters Patent.