Judgement

OF REFERENCE.

BHIMASANKARAM, J. :- (11-04-1956) The plaintiff is the appellant in this second appeal. The suit was filed to recover a sum of Rs. 1,158-14-0 claimed to represent the value of cist or damages for use and occupation in respect of the plaint schedule property which was under the cultivation and enjoyment of the defendants. The plaintiff purchased the property under a sale deed, dated 29th November 1950, from one Sundaramma who had obtained a decree on compromise against the present defendants on the 29th of March, 1949, under which the defendants were bound to deliver her the property. She filed E. P. No. 285 of 1949 for possession. But as the defendants agreed to pay her an yearly rent of 4,000 cocoanuts, she refrained from prosecuting the execution petition. After his purchase, the plaintiff applied as transferee-decree-holder in E. P. No. 695 of 1950 for possession of the properties and obtained delivery on 4th February, 1951. During the period from 29th March, 1949 to 4th February, 1951, the defendants were thus in possession of the lands. They did not pay any rent to the landlord. The claim is therefore for the value of 4,000 cocoanuts said to have been agreed to as payable from 29th March, 1949, to 29th March, 1950 and the value of a proportionate number for the period from 29th March, 1950 to 4th February 1951. There were several defences raised to the suit but none of them proved completely effective and the suit was partly decreed to the extent of Rs. 375 with proportionate costs and future interest by the learned District Munsif of Razole. Appeals against the decision of the learned District Munsif were taken to the learned Subordinate Judge both by the plaintiff who asked for a larger sum and the defendants who claimed total immunity. One of the points raised by the defendants for the first time before the learned Subordinate Judge was whether the transfer of profits that accrued prior to the date of the sale deed in favour of the plaintiff is hit at by S. 6(e) of the Transfer of Property Act and hence unenforceable. The learned Subordinate Judge held that the plaintiff did not obtain valid transfer from Sundaramma in respect of the suit claim because it was a mere right to sue and therefore he dismissed the plaintiffs suit.

2. The question, therefore, for consideration in this second appeal is whether the right claimed by the plaintiff in the suit is enforceable or whether it falls within the mischief of S. 6(e) of the Transfer of Property Act.

3. To my surprise, I found, that there is an unresolved conflict of judicial opinion on this point. The earliest case in point to which my attention was drawn in Seetamma v. Venkatarammanayya, ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A), a decision of Benson and Sundara Ayyar, JJ. There, the plaintiff had obtained a transfer of immoveable property and along with it a right to recover past profits. But the learned Judges do not seem to have noticed that there was any difference between a transfer of the right to profits along with the transfer of immoveable property in respect of which the profits arose and the transfer of a mere right to recover profits therefrom. The question posed by them was whether a right to past mesne profits was transferable and did not fall within the mischief of S. 6(e) of the" Transfer of Property Act. So posed, there could be only one answer and that is the answer to which they eventually came. But, unfortunately, they did not notice, as I have already pointed out, that in the case before them, what was transferred was not a mere right to sue for profits but a right to obtain profits along with a right to the property itself. They referred in their judgment to an earlier case of the Madras High Court reported in Varahaswami v. Ramchandra Raju, ILR 38 Mad 138 : (AIR 1916 Mad 595) (B), a decision of White, C.J., and Tyabji, J., which dealt with the transfer of a right to recover damages from an agent for negligence in collecting rents, in which it was held that such a right was a mere right to sue within the meaning of S. 6(e) of the Transfer of Property Act. The reliance upon that case by the learned Judges clearly shows that they did not notice the distinction mentioned above by me. The point which directly arises for determination in this appeal is, in one sense, covered by the decision in ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A), and there is no other decision of the Madras High Court directly in point. But the decision in ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A), suffers from the infirmity that the question was not properly posed with reference to the specific facts of the case.

4. There is another case in Govindaswami Pillai v. Ramaswami Aiyar, 30 Mad LJ 492 : (AIR 1917 Mad 735) (C), where Sadasiva Aiyar and Moore, JJ., held that where a claim is one purely for damages and not one based upon contract, it was a mere right to sue for damages. But, this decision is not helpful. But, in Venkatarama Aiyar v. Ramaswami Aiyar, ILR 44 Mad 539 : (AIR 1921 Mad 56) (D), Sadasiva Aiyar and Seshagiri Aiyar, JJ., discussed the validity of a transfer of a decree for mesne profits along with the transfer of the land. Sadasiva Aiyar, J., in his judgment refers to Muthu Hengsu v. Netravathi Naiksavi, 12 Mad LW 44 : (AIR 1920 Mad 386) (E); ILR 38 Mad 138 : (AIR 1916 Mad 595) (B) and ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A). He does not refer to the decision to which he was a party, 30 Mad LJ 492 : (AIR 1917 Mad 735) (C). But, during the course of the discussion he seems to throw some doubt upon the correctness of the cases referred to by him. Seshagiri Aiyar, J., who was a party to the decision in 12 Mad LW 44 : (AIR 1920 Mad 386) (E), which actually turned on the terms of S. 8 of the Transfer of Properly Act and which had really no bearing on the interpretation of S. 6(e) of the Transfer of Property Act expressed some doubt as to his view in 12 Mad LW 44 : (AIR 1920 Mad 386) (E), as being right. Ramesam, J., in Chandrasekharalingam v. Nagabushanam, 53 Mad LJ 342 : (AIR 1927 Mad 817) (F), considered that the learned Judge (Seshagiri Aiyar, J.) was wrong in doubting his own earlier view. There are decisions of other High Courts (to which I do not propose to make a detailed reference in view of the course I propose to adopt) which, however take the view, generally speaking, that where there is a transfer of a right to recover profits along with a right to recover the land from which the profits arose, S. 6(e) is no bar to the maintainability of a suit. In fact, emphasis is laid upon the word mere and the learned Judges have also referred to the fact that the principle which discouraged the transfer of a bare right to sue was founded upon the doctrine of champerty and maintenance with their Lordships of the Judicial Committee had declared as early as 1874 as not being applicable to India.

5. That being so, I think it is necessary that these conflicting observations in many of these cases need reconciliation and I therefore frame the following question for determination by a Full Bench :

""Whether a transfer of the right to recover profits which arose out of land along with a transfer of the land itself is hit at by S. 6(e) of the Transfer of Property Act?"

This second appeal will be posted before the learned Chief Justice for direction as to the constitution of a Full Bench for determination of the question framed above.

(In pursuance of the above order of reference, the appeal was posted before a Full Bench consisting of Subba Rao, C.J., Satyanarayana Raju and Mohd. Ahmed Ansari, JJ.)

JUDGMENT OF THE FULL BENCH.

SUBBA RAO, C.J. :-

6. I had the advantage of reading the judgment prepared by my learned brother Ansari, J., and I agree with him.

SATYANARAYANA RAJU, J. :-

7. I have had the benefit of reading the judgment of my learned brother Ansari, J., and I agree with him.

MOHD. AHMED ANSARI, J. :-

8. This second appeal has been referred to the Full Bench because of divergence of views in authorities on a question that has arisen for decision in the case. The appellant is the plaintiff, and had filed the suit to recover from the defendants Rs. 1,158-14-0, as damages for use and occupation of the plaint-schedule property. On November 29, 1950, he had purchased the aforesaid property from one Sundaramma, who had obtained on March 29, 1949, a compromise decree against the defendants to this suit. Under the decree the defendants were bound to deliver the property, and Sundaramma filed E. P. No. 285 of 1949 for getting the possession; but it is alleged that as the judgment-debtors agreed to pay 4,000 cocoanuts as yearly rent she refrained from prosecuting the petition. The appellant after his purchase applied as transferee-decree-holder for possession of the property in E. P. No. 695 of 1950 and obtained delivery on February 4, 1951. Thereafter the suit was filed, because the defendants were in possession of the lands from March 29, 1949 to February 4, 1951, and had failed to pay any rent to the landlord. The plaint claims the value of 4,000 cocoanuts with interest from March 29, 1949 to March 29, 1950, and the value of proportionate number from March 29, 1950 to February 4, 1951. Several defences were raised and the trial Court gave a decree for Rs. 375, with proportionate costs and future interest. Both the plaintiff and the defendants appealed to the lower appellate Court and one of the points raised by the defendants for the first time before the lower appellate Court was the transfer of profits that had accrued prior to the date of the sale deed in favour of the appellant was contrary to S. 6(e) of the Transfer of Property Act. The Judge of the lower Appellate Court held that the plaintiff did not obtain a valid transfer of such profits from Sundaramma, allowed the defendants appeal, disallowed the plaintiffs and dismissed the entire suit. The learned single Judge hearing the second appeal, found divergence of authorities on the transfer of the right in favour of the appellant being hit by S. 6(e) of the Transfer of Property Act, and, therefore, directed the following question to be placed before his Lordship the Chief Justice for purposes of its determination by a Full Bench :

"Whether a transfer of the right to recover profits which arose out of land along with a transfer of the land itself is hit at by S. 6(e) of the Transfer of Property Act?"

9. The jurisdiction of a single Judge to refer directly a question to a Full Bench being doubtful, the entire case has been posted before this Bench by his Lordship the Chief Justice under the Appellate Rules of the Court.

10. Before dealing with the conflict of authorities which has necessitated the reference, it will be helpful to recall the reasons on which Courts of Equity excepted bare right of action from being assignable. Under the common law ordinary choses in action were not assignable, but were generally speaking, assignable in equity. In case of legal choses equity compelled the assignor to allow his name to be used for their recovery in legal proceedings and in the latter case the assignee could sue in equity in his own name. The exception to the rule was that the equity did not give validity to the assignment of what came to be called a bare right of action and the real reason why equity did not allow the assignment was on the ground that it savoured of or was likely to lead to maintenance. The basis of the exception being that transaction savouring of maintenance or champerty should not be recognised, it follows that a transaction not open to the charge would be upheld. Therefore, soon an exception to the rule of a bare right of action being assignable came to be recognised. This exception provides that a right of action may be assigned if it be incidental or subsidiary to a conveyance of property. From the aforesaid historical background it is clear how closely S. 6(e) of the Transfer of Property Act, which provides that a mere right to sue cannot be transferred is associated with the exception of the bare right of action not being assignable. It is equally clear that the provision being aimed against transactions which according to English Law would amount to champerty and maintenance, whenever a transaction be free of such a charge it would be valid. Champerty, so called from campipartio, is a particular kind of maintenance of an action, in consideration of a promise to give to the maintainer a share in the subject-matter or proceeds thereof. It is a species of maintenance with the additional feature of a partition in the subject-matter of the suit. Maintenance is the giving of assistance or encouragement to one of the parties to an action by a person who has neither an interest in the action nor any other motive recognised by the law. It is true that both maintenance and champerty were held by the Privy Council in Ram Coomar Coondoo v. Chunder Canto Mookerjee, 4 Ind App 23 (G), not to apply both in mofussil and Presidency Towns in this country. But it is equally true that in determining whether a transaction offends S. 6(e) of the Transfer of Property Act, precedents on what do not amount to an assignment of bare right of action have been followed. It appears to me that in doing so some of the authorities have adopted the test laid in a latter English authority for determining when a transaction amounts to assignment of a bare right of action, whereas in others the older text has been adhered to. Consequently, the trends of authorities in most of the High Courts have not been uniform, and I will deal chronologically with the authorities of the Madras High Court first.

11. In Ramiah v. Rukmani Ammal, 24 Mad LJ 313 (H), a claim to recover sums from the agent, who had fraudulently omitted to bring them into account when he has collected them, and if he has not from the person from whom they were due, was held to be an actionable claim and not mere right to sue. Miller J., held that the right to reopen settled adcounts was transferable, and Abdur Rahim J., held it not to be a right to recover damages. I now come to the authority on which lower Appellate Court has relied in dismissing the appellants suit and which has been the subject-matter of approval or of dissent in most of the subsequent authorities on the question arising in this appeal. This is the case of ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A), wherein facts were that the first plaintiff had in December, 1906, bought the rights of one of the heirs after the succession had opened in 1896 and brought in 1907 a suit for possession as well as mesne profits for the years 1904, 1905 and 1906; that this claim for mesne profits before the date of his purchase was disallowed, and he filed memorandum of objections in the High Court. It was held that the transfer of past mesne profits was invalid under Cl. (e) of S. 6 of the Transfer of Property Act, and in so deciding the learned Judges relied among others on the first authority referred to learlier in the judgment. Next is 30 Mad LJ 492 : (AIR 1917 Mad 735) (C), where the question mooted was whether a claim to damages for use and occupation from a tenant continuing on the land after the expiration of his lease without the landlords consent was a mere right to sue for damages and was not transferable. Sadasiva Aiyar J., observes at page 495 (of Mad LJ) : (at p. 737 of AIR) that damages for use and occupation cannot under the Indian law be validly transferred, and he referred to ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A), Moore J., agreed. Again in AIR 1920 Mad 386 (E), a Division Bench consisting of Oldfield and Seshagiri Aiyar JJ., has decided :

"Section 8, T. P. Act, provides that on a transfer of property, the legal incidents of the transferors interest, which are to pass, shall include the rents and profits due after the transfer. In ILR 38 Mad 308 : ( AIR 1916 Mad 473 (1)) (A), it was held that a transfer of a claim to past profits was invalid and this is in accordance with English authority."

12. I now come to ILR 44 Mad 539 : (AIR 1921 Mad 56) (D). Here the purchaser from the first plaintiff, who was entitled to and given a decree for one-sixth share in certain properties prayed to have the mesne profits due to the petitioner from the 23rd defendant ascertained. The decree in the suit had declared the first plaintiff entitled to recover mesne profits from the date of the suit against the 23rd defendant and had left the actual amount to be ascertained and awarded in a supplementary decree. The question before the Division Bench consisting of Sadasiva Aiyar and Seshagiri Aiyar JJ., was whether the transferee was entitled to have the mesne profits due to his transferor ascertained by the ordinary procedure, and it was held that the right to mesne profits was not a transfer of a bare right to sue and, therefore, not invalid under S. 6(e) of the Transfer of Property Act, Sadasiva Aiyar J., after referring to 24 Mad LJ 313 (H); ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A) and AIR 1920 Mad 386 (E) cases, observed at page 541 (of ILR 44 Mad) : (at p. 57 of AIR);

"I am inclined to hold that those decisions are the results of what I consider, with greatest respect, to be an unnecessarily close adherence to the development of the law of Torts - English Courts. I think a suit for mense profits (as pointed out by my learned brother during the course of the agreement) partakes more of the nature of a suit for account.......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 did not refer to the decision in 30 Mad LJ 492 : (AIR 1917 Mad 735) (C) of which he was a party; but that does not detract from the soundness of the observation that he was making in ILR 44 Mad 539 : (AIR 1921 Mad 56) (D), Seshagiri Aiyar J. was equally emphatic against the view in ILR 38 Mad 308 : (AIR 1916 Mad 473(1) (A). After referring to the authority of Ellis v. Torrington, (1920) I KB 399 (I), the learned Judge observes at pages 542 and 543 (of ILR 44 Mad) : (at p. 58 of AIR) as follows :

"In my opinion while 24 Mad LJ 313 (H) is quite in consonance with the view taken in England, ILR 38 Mad 308 : ( AIR 1916 Mad 473 (1)(A), as well as the decision to which I was a party viz., AIR 1920 Mad 386 (E), do not seem to have recognised the distinction between a bare right to sue and a right which became only subsidiary to the enjoyment of the property itself. I was under the impression that in the case to which I was a party there was an assignment of the mortgage right and the question was whether after the assignment of the mortgage, by virtue of S. 8 of the Transfer of Property Act the transferee can claim mesne profits which had accrued due before the date of the transfer. If that was the question the decision will be right. But my learned brother has drawn my attention to the fact that in that case there was an actual transfer of the right to mesne profits. Apparently that fact was not brought to our notice at the hearing. 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."

13. This authority, as I shall presently show, has been the starting point of the dissentient view taken by other High Courts in several cases; but it does not appear to have laid at rest in the Madras High Court the other view which was still adhered to in a later case. In Surayanarayana v. Venkayya, AIR 1923 Mad 177 (J) Krishnan J., held that transfer of rent for the period prior to the date of transfer of immovable property did not fall under S. 8 and S. 6(e) of the Transfer of Property Act, and was no bar to, the maintainability of the suit. But in Chandrasekaralingam v. Nagabhushanam, 53 Mad LJ 342 : (AIR 1921 Mad 817) (K), Ramesam J. held that a transfer of claim to past mesne profits was invalid under S. 6(e) of the Transfer of Property Act. In doing so he relied apart from the earlier Madras cases already referred to in the judgment on certain authorities of the Calcutta and Patna Courts and disagreed with the doubts expressed by Seshagiri Aiyar J. in ILR 44 Mad 539 : (AIR 1921 Mad 56) (D) in the following words :

"Section 8 of the 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 past 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..........I am, therefore, inclined not to share the doubts of Seshagiri Aiyar J., ........and I am of the opinion that the earlier decision to which he was a party is..........rightly decided............"

With all respect to the learned Judge, I beg to differ; for in adhering to the earlier view, he did not adequately consider the facts and reasoning of the (1920) 1 KB 399 (I), on which Seshagiri Aiyar J., has based his judgment. As will appear presently the assignment in that case was of breach of convenant to repair in a lease and it was urged that the transaction would not fall within any of the exceptions because the lease, to which the covenant might have been incidental or subsidiary, had expired prior to the assignment. The transaction was upheld on the ground that it was connected with the enjoyment of property, which in the case was purchase of fee simple and in upholding it the learned Judges ascertained whether the assignment was free from the charge of amounting to champerty or maintenance. The test appears to me to be wider than that of finding whether any particular assignment is covered by one or other of the known exceptions to the rule, and because of this test the authority deserved consideration by Ramesam, J. But to continue with the cases of the Madras High Court, there remains only Susai Lazar Villavaraya v. Ramaswami Naidu, AIR 1933 Mad 710 (1) (L), where Venkatasubbarao J., held that the word mere in S. 6(e) of the Transfer of Property Act is not without significance and implies that the transferee has acquired no interest other than a bare right to sue, and that where property is transferred with rights to past profits, claim to profits on grounds of such transfer is valid and could be enforced. It will be observed that the divergence of views in the Madras High Court is still unresolved and the dissenting view is based on the case of (1920) 1 KB 399 (I). At this stage it will be useful to refer in greater details to the facts and reasoning of the aforesaid authority. The facts are that a freehold property was subject to three leases; a head-lease which expired on December 18, 1917, and a sub-underlease which expired on December 15, 1917. All the three leases contained covenants to repair the premises and the last sub-underlease became vested by assignment in the defendant-appellant. On December 18, 1917 the plaintiff who had been a tenant to the defendant of the same premises and was liable to him under a covenant to repair agreed to purchase and on May 1, 1918, took a conveyance of the fee simple of the premises together with the benefit of the covenants in the head-lease. At the expiration of all the leases the premises were out of repairs. The defendant was threatening the plaintiff with an action on his covenant whereupon the plaintiff obtained on September 17, 1918, an assignment of the full benefit of the lessees covenants contained in the sub-underlease, and commenced an action against the defendant. Sargent J., gave the judgment to the plaintiff and in appeal it was urged that as the transfer was long after the lease had terminated, the assignment was of a bare cause of action. It was held that the assignment was free from objection on the ground of maintenance or champerty, the right of action on the covenants being so connected with the enjoyment of property as to be more than a bare right to litigate. Bankes L. J. at page 407 observes :

It is true that in this case the conveyance of the property and the assignment of the right of action were made by different persons, but I fail to see what difference in principle that makes when the test is whether the transaction incurs or avoids the charge of maintenance and champerty.................Guided by those three cases I approach the question, is there anything in the facts of this case to justify the Court in holding that, notwithstanding the respondents interest, this action was champertous and the assignment of September 17, 1918, unenforceable? I think not. In my opinion Sargent J. was perfectly right when he said that the rights of action for breaches of covenant by the appellant were sufficiently connected with the enjoyment of the property to escape being bare right of action within the meaning of that phrase as used by Parker J., in Glegg v. Bromley, (1912) 3 KB 474 (M)."

Warrington, L. J. concurring with Bankes L. J. observes at page 410 :

".........Interest, sometimes of a most shadowy nature, in the subject-matter was sufficient to save a transaction from the imputation of maintenance.............."

Also Scrutton L. J. after referring to several authorities, says at page 411 :

"But there came a point on which both Courts would have agreed; to assign a bare right of action, a bare power to bring an action was not permitted in either Court; and the reason was as pointed out by Warrington, L. J., that both Courts treated such an assignment as offending against the law of maintenance or champerty or both. But early in the development of the law the Courts of equity and perhaps the Courts of common law also took the view that where the right of action was not a bare right, but was incident or subsidiary to a right in property, an assignment of the right of action was permissible, and did not savour of champerty or maintenance."

"..........The exception and the limits defining it are easily apprehended when the nature of champerty and maintenance is considered. Many acts used to be regarded as acts of maintenance which are not so regarded now......Champerty is only a particular form of maintenance, namely, where the person who maintains takes as a reward a share in the property recovered. When the person who assists is himself interested in the subject-matter of the suit before its commencement there is neither champerty nor maintenance........."

14. The aforesaid observations clearly bring out the significance of the word bare in the English rule, and the word mere in S. 6 (e) of the Transfer of Property Act should be given similar importance. For the clause has been framed on the said rule, and precedents defining the limits of the rule have been frequently followed as guide in applying the clause. Moreover, the doctrine of champerty and maintenance not having been fully adopted in this country, S. 6 (e) of the Transfer of Property Act should not be extended beyond that it was intended to prohibit. In this connection, it will be useful to examine what attitude other High Courts have adopted towards 1920-1 KB 399 (I). There are authorities of the Calcutta High Court to the contrary, some of whom have been referred to by Ramesam, J., in 53 Mad LJ 342 : (AIR 1927 Mad 817) (K), but the trend of the later authorities of the Court has been in support of the view taken in ILR 44 Mad 539 : (AIR 1921 Mad 56) (D). For in Manmatha Nath v. Matilal Mitra, AIR 1929 Cal 719 (N), a Division Bench has held that the transfer of properties and all interests in suits including past and future mesne profits by original plaintiff in a suit for possession of land to the plaintiff subsequently substituted, is not a mere right to sue, and is not prohibited by S. 6 (e). Ghose, J., after referring to 1920-1 KB 399 (I), and then to the observations of Seshagiri Aiyar, J., in ILR 44 Mad 539 : (AIR 1921, Mad 56) (D), observes at p. 722 as follows :

"I entirely agree with those observations. The transfer in this case was of the properties and all the interest which the original plaintiff had in the suits. I am of opinion that in this case there was no transfer of a mere right to sue which is prohibited under S. 6 (e), Transfer of Property Act."

Since then the Calcutta High Court appears to have adhered to this view; for in Murlidhar v. Rupendra, AIR 1953 Cal 321 (O), which is the latest authority on the point, it has held that where property is transferred along with a right to recover damages or compensation in respect of the property, the assignment is not hit by cl. (e) of S. 6 of the Transfer of Property Act.

15. The Patna High Court in Jai Narayan Pande v. Kishun Dutta Misra, ILR 3 Pat 575 : (AIR 1924 Pat 551) (P), held that mesne profits were unliquidated damages, were not an actionable claim and a gift of immovable property along with the assignment of mesne profits accrued due to the donor was a mere right to sue within the meaning of S. 6 (e) so far as mesne profits are concerned, and was invalid. Neither ILR 44 Mad 539 : (AIR 1921 Mad 56) (D), nor 1920-1 KB 399 (I), has been referred to by the learned Judges, and the authority naturally suffers from this omission.

The same High Court in Jagarnath v. Kalidas, AIR 1929 Pat 245 (Q), has found that where a person purchases a tank and brings a suit by virtue of a covenant running with the land, it cannot be said that what was transferred was a mere right to sue. But this case can be treated as having proceeded on the exception that the right incidental to the enjoyment of property can be validly assignable.

16. The Bombay High Court has considered all he authorities in Shankerappa v. Katumbi Jamaluddinsab, ILR 56 Bom 403 : (AIR 1932 Bom 478) (R); and has held that if along with the land the right to recover the profits which have already accrued due, is sold, the subject-matter of the sale is not a bare or mere right to sue and S. 6 (e) of the Transfer of Property Act does not apply. Rangnekar, J., after reviewing the authorities says at p. 409 (of ILR Bom) : at p. 480 of AIR) :

As far as I can see, the course of decisions in Madras does not seem to be uniform. Whatever the view of the Madras High Court may be, I am unable to agree with the view taken in ILR 38 Mad 308 : (AIR 1916 Mad 473) (1) (A), and in my opinion, the word mere in cl. (e) of S. 6 makes the position clear. The rule, as pointed out by Bankes, L. J., is based on champerty and maintenance, and these specific rules of English Law against maintenance and champerty have not been adopted in British India."

17. In conclusion, I would refer to Ganga Din v. Piyare, AIR 1929 All 63 (1) (S), where Mukerji, J., has dissented from ILR 38 Mad 308 : (AIR 1916 Mad 473 (1) (A). It is clear that the later trend of authorities of the Calcutta and Allahabad High Courts is in support of the view taken by the learned Judges deciding ILR 44 Mad 539 : (AIR 1921 Mad 56) (D) and in the cases where contrary view has been taken, 1920-1 KB 399 (1) has not been considered.

Apart from the general approval and absence of any reasoned dissent from the case, it appears to me to be sound logic that a rule originating with a view to preserve another should not be held as having been infringed where the principal rule is not being broken. Therefore, S. 6 (e) of the Transfer of Property Act should not cover that assignment of the right to recover profit, which is supported by the alienation of the property out of which the profits arose, and is sufficiently connected with the enjoyment of the property.

Consequently, the answer to the question referred to us in the case is in the negative. Here the right to get cocoanuts is closely connected with being landlord of the property and its transfer to the person who was also purchasing the property cannot be said to be of a mere right to sue. The lower appellate Court has, therefore, erred in relying on ILR 38 Mad 308 : (AIR 1916 Mad 473) (1) (A), which does not correctly state the law, and I am further of the view that Seshagiri Aiyar, J., was right in ILR 44 Mad 539 : (AIR 1921 Mad 56) (D).

18. As the entire case is before the Bench, one further point requires consideration. The plaintiff has taken objection to the findings of the two lower Courts about his being entitled to only Rs. 375. But the two Courts have concurred in holding the oral agreement to give 4,000 cocoanuts not proved. They have also held the aforesaid amount to be fair compensation and these findings of fact must stand in second appeal. The result is that the decree of the trial Court is correct, which is restored with proportionate costs throughout, and the decree of the lower appellate Court is vacated.

Reference answered.