1. This appeal must be allowed. The plaintiffs are the appellants before this Court. They purchased certain zamindari rights and also mesne profits admittedly payable by defendant 1, to the plaintiffs' vendors. The suit out of which this appeal has arisen was brought for recovery of possession and mesne profits. The suit succeeded in the Court of first instance. On appeal the learned District Judge dismissed the suit, so far as it claimed mesne profits, on the ground that transfer of mesne profits was a transfer of a “mere rights to sue” and was therefore invalid in law, having regard to the provisions of Section 6 of the Transfer of Property Act.
2. With all respects to the learned Judges who decided the case of K. Seetamma v. P. Venkatramanayya . [1913] 38 Mad. 308, I am unable to hold that a right to claim mesne profits is a “mere right to sue” within the meaning of Section 6 of the Transfer of Property Act.
3. I may point out that in the Madras High Court itself the soundness of this decision has been doubted in Venkatarama v. Ramasami . A.I.R 1921 Mad. 56.
4. Mesne profits has been defined in the Code of Civil Procedure as:
“those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits.”
5. A person who is entitled to a property in the possession of a trespasser is entitled not only to the property but to the profits of which he has been improperly deprived. The profits rightfully belong to the owner of the land and it is not accurate to say that the profits are payable merely by way of damages.
6. I allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance. The appellants will have their costs in this Court and in the Court below.
W.S/R.K
7. Appeal allowed.