Diayadaru Chandrasekaralingam vs Arigapudi Nagabhushanam and Another

Ramesam, J.—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. 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.

I do not understand these sentences. On appeal the Subordinate Judge held, relying on Venkatarama Iyer v. 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.

The decision in Seetamma v. Venkataramanayya [1913] 38 Mad. 308 has been followed in Muthu Hengsu v. Netravadhi Naikasavi [1920] 12

M. L. W. 44 in which the Judges also rely upon Defries v. Milne [1913] 1 Ch. 98 The same view was taken in Mohesh Lal v. Mchant Bavan Das

[1883] 9 Cal. 961 and recently again by Greaves and Cuming, JJ., in Sukhamayee Biswas Vs. Monoranjan Chaudhury and Others, . The Patna

High Court also took the same view in Jai Narayan Pande Vs. Kishun Dutta Misra, The point did not arise in Venkataramier v. 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. 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.

If the learned Judge meant to say that the right to past profits is subsidiary to the enjoyment of the property, I am not prepared to agree with

him. Section 8 Transfer of Property Act says only the rents and profits accruing after the sale must be regarded as included in the legal incidents of

the property. But as to profits that accrued due prior to sale, it cannot be said that they are subsidiary to the enjoyment of the property. It cannot

be said that to make a sale operative and effective the right to collect past profits must also be conveyed to the vendee. This is also the view of

Doss, J., in Jai Narayan Pande Vs. Kishun Dutta Misra, I am therefore inclined not to share the doubts of Seshagiri Iyer, J., in Venkatarama Iyer

v. Ramswami Iyer A. I. R. 1921 Mad. 56 and I am of the opinion that the earlier decision to which he was a party, namely Muthu Hengsu v.

Netravadhi Naikasavi [1920] 12 M. L. W. 44 is rightly decided. There is a singularly uniform course of decisions on this point in all the Courts

and, as I do not feel any doubts on the matter, I do not see why I should depart from the decision in Seetama v. Venkataramanayya [1913] 38

Mad. 308 on account of the doubts in the nature of the obiter dicta expressed in Venkataramier v. Ramaswami Iyer A. I. R. 1921 Mad. 56 I may

point out that Sadasiva Iyer, J., himself had followed in Govindasawmi Pillai Vs. Ramasawmi Aiyar and Another, the decision in Seetamma v.

Venkataramanayya [1913] 38 Mad. 308 Following these decisions I think the plaintiff in these cases is entitled to a decree for the mesne profits

prayed for.

It having been found that the defendants are not entitled to the land, they are certainly liable to pay profits to the present plaintiff who was the

owner at the time when the defendant trespassed on the lands. The defendants having incurred an obligation in favour of the present plaintiff the

fact that the plaintiff''s right was transferred to some transferee ought not to make the obligation any the less. It may be that in such a case the

defendants ought to be protected from a double action. Of that there is no fear in the present litigation. It seems to me that even if the assignment is

valid the right of action originally residing in the assignor has not ceased. It is true Section 130, Transfer of Property Act says that where an

actionable claim is transferred all the rights and remedies of the transferrer are transferred. I do not deny this. All that I say is that the transferrer

may maintain the action and afterwards hand over the amount when collected to the transferee. The whole of Chap. 8, Transfer of Property Act, is

intended to enable transferees of actionable claims to maintain actions on the assignments and to get rid of the difficulties in the English law where,

for some time, assignees could not maintain an action at all and afterwards they were allowed to maintain action in the name of the assignor. But I

do not think this chapter is intended to lay down that the transferrer himself cannot maintain an action for the benefit of the transferee. This is the

alternative ground on which I should think these second appeals ought to be allowed even if the assignment is valid.

The result is these second appeals should be allowed and the plaintiff will be given a decree in these two suits at the rate found by the

Subordinate Judge in para. 7 of his judgment with interest at 6% from the date of accrual up to date of decree and future interest up to payment.

The plaintiff will be entitled to costs throughout.