TMI Blog1957 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 1.950 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 ₹ 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 tire sale deed in favour of the Plaintiff is hit at by Section 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 -re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity that the question was not properly posed with reference to the specific facts of the case. ( 3. ) There is another case in Govindaswami Pillai v. Ramaswami Aiyar,, 30 MLJ 492 :, AIR 1917 Mad 735) (C), where Sadasiva Aiyar and Moore J.I., 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,, JLR 44 Mad 539 :, AIR 921 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. Netravalhi 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 lie was a party,, 30 MLJ 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 ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ₹ 375, with pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 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 compilation, 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 tire law. It is true that both maintenance and champ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord's 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 Old field and Seshagiri Aiyar JJ., has decided: Section 8, T. P. Act, provides that on a transfer of property, the legal incidents of the transferor's 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 in accordance with English authority. I now come to ILR 44 Mad 539 : AIR 192 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 has declared the first Plaintiff entitled to recoveries profits from the date of the suit against the 23rd Defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mortgage right and the question was whether after the assignment of the mortgage, by virtue of Section 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. ( 9. ) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Ramaswami Naidu, : AIR 1933 Mad 710(1) (L), where Venkatasubbarao J., held that the word 'mere' in Section 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 under lease which expired on December 15, 1917. All the three leases contained covenants to repair the premises and the -last sub under lease became vested by assignment in the Defendant -Appellant. On December 18, 1917 the Plaintiff who had been a tenant to the Defendant of toe same premises and was liable to him under a covenant to repair agreed to purchase and on May 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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. His Lordship then continues at page 412 as follows: ....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......... ( 10. ) The aforesaid observations clearly bring out the significance of the word 'bare' in the English rule, and the word 'mere' in Section 6 (e) of the Transfer of Property Act should be given similar importance. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. 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. ( 11. ) The Bombay High Court has considered all the 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 Section 6 (o) 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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