Rangnekar, J.
1. This appeal raises an important question of law, which has not come up for decision yet in this Court.
2. The plaintiff-appellant brought this suit to recover a one-fifth share in the property in suit by partition and mesne profits. It appears that defendants Nos. 1 to 4 and Aminabi were co-owners of certain property and obtained a decree for possession of the same in suit No. 229 of 1912. On July 8, 1925, Aminabi sold her one-fifth share in the property to the plaintiff by a registered sale deed, and this suit was filed by the plaintiff on that sale deed. The defendants claimed a right of pre-emption. This was, however, found against them and a decree for partition was passed by the trial Court. In appeal by the defendants the question as to the right of pre-emption was given up, and the only point raised was whether the sale deed was void as Aminabi had sold the right to recover mesne profits along with her share, and as a right to recover mesne profits could not be legally sold, the whole transaction was void. The plaintiff-appellant objected to the plea on the ground that it was not raised in the trial Court, but the learned Judge rightly rejected this contention. He held that as the sale was of land as well as the right to recover mesne profits, and that as mesne profits were in the nature of damages, the whole transaction was void under Section 6(e) of the Transfer of Property Act. He found that the consideration paid by the plaintiff was a single consideration for both land and the right to mesne profits, and that the transaction was indivisible and the gale void. The learned Judge relied upon Har Prasad Tiwari v. Sheo Gobind Tiwari I.L.R. (1922) All. 486 and Kathu Jairam v. Vishwanath Ganesh I.L.R. (1925) Bom. 619 : 27 Bom. L.R. 682 which I think had no application to the facts of this case. He further referred to Shyam Chand Koondoo v. The Land Mortgage Bank of India I.L.R. (1883) Cal. 695 and Seetamma v. Venkataramanayya I.L.R. (1913) Mad. 308 The question is whether the decision is right.
3. Mr. Desai for the appellant has argued that, assuming that the right to recover mesne profits cannot be legally sold, where there is a sale of land and a right to recover mesne profits of that land is sold with it, Section 6 (e) of the Transfer of Property Act does not apply, and the sale is valid even though the consideration is not severable. It is common ground that what was sold was the one-fifth share of Aminabi and mesne profits appertaining to that share.
4. Section 6 (e) of the Act runs as follows: ' A mere right to sue cannot be transferred.' Now the word 'mere' seems to me to be important, and apart from any authority, what the section means is, that, what is known in English law as a 'bare' right to sue cannot be transferred. But if along with the land the right to recover the profits of the land which have already accrued due is sold, then it is difficult to see how it can be said that the subject matter of the sale is a ' bare' or a ' mere ' right to sue. In such a case, in my opinion, the section would not apply and the transaction would not be illegal. In such a case what is sold is not a mere right to sue, but property with an incidental right attached to the property itself.
5. There is ample authority for this view. In Ellis v. Torrington [1920] 1 K. B. 399 Bankes L.J. stated that the rule that a bare right of action for damages is not assignable rested on the principle that the law will not recognise any transaction savouring of maintenance or champerty, and that there is an exception to the rule, and the exception is where the assignee can establish that he has an interest in the suit. The learned Lord Justice then referred to the observations of Best C.J. in Williams v. Protheroe (1829) 2 M. & P. 779 and observed (p. 407) :-
It was held then that the purchase of an estate conferred on the purchaser an interest sufficient to validate an assignment of a right of action for damages for breach of a covenant to repair the premises, and that the law of champerty could not be invoked to defeat his rights under the assignment.
The learned Lord Justice was of opinion that where a right to profit is appurtenant to the right to property, it is not a bare right to sue. The judgment of Scrutton L.J. is very instructive on the point under consideration, The learned Lord Justice pointed out that 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 a right of action was permissible, and did not savour of champerty or maintenance. In support of this statement the learned Lord Justice referred to Glegg v. Bromley [1912] 3 K. B. 474 Dawson v. Great Northern and City Railway [1905] 1 K. B. 260 and Dickinson v. Burrell (I860) L.R. 1 Eq. 337 All these cases emphasize the distinction between the assignment of a bare right of action for damages and the gale of property with all incidents attached to it, and upheld the validity of the latter. Warrington L.J.also took the same view.
6. Turning to the Indian cases, I find that the game view is taken by at least three of our High Courts, In Monmatha Nath Dutt v. Matilal Mitra (1928) 33 C.W.N. 614 Ghose J. observed at page 617 as follows :-
In this ease the question is whether what was assigned was a mere right to sue or property with an incidental remedy for its recovery and consequential benefit. An assignment of a mere right to sue does not convey any property, e. g, if any person out of possession of immoveable property makes an assignment to the effect that the assignee would have a right to sue, without conveying any interest in the property, the assignee would not be entitled to maintain any suit for the recovery of the property. But it would be otherwise if the property itself is transferred.
7. In Ganga Din v. Piyare : AIR1929All63 Mukerji J. observed as follows:-
With all respects to the learned Judges who decided the case of K. Seetamma v. P. Venkataramayya I.L.R. (1913) 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 T. P. Act. I may point out that in the Madras High Court itself the soundness of this decision has been doubted in Venkatarama Aiyar v. Ramasami Aiyar I.L.R. (1920) Mad. 539.
Mesne profits has been defined in the Civil Procedure Code as:
those profits which the person in wrongful possession of snob property actually received or might with ordinary diligence have received therefrom, together with interest on such profits.'
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.
8. In Jagannath v. Kalidas A. I. R. [1929] Pat. 245 Chatterji J. observed at page 247 as follows:-
A point was argued by the learned Advocate for the respondent that what was purchased was a right to sue for compensation and that this cannot be transferred. UnderSection 6, Clause (e), T.P. Act, the prohibition is against the transfer of a mere right to sue. The word 'more' implies that the transferee acquires no interest in the subject of transfer other than the right to sue. But in the present case what has been purchased is the tank and along with it any covenant running with the land has passed to the plaintiff and by virtue thereof the plaintiff brings this action. It cannot, therefore, be stated that what has been purchased is a mere right to sue. The test to be applied is pointed out in Glegg v. Bromley [1912] 3 K.B. 474 quoted with approval in Jai Narayan Pandey v. Kishun Dutta Misra I.L.R. (1924) Pat. 575:
The question was whether the subject matter of the assignment was, in the view of the Court, property with incidental remedy for its recovery or was a bare right to bring an action either at law or in equity.'
Applying that principle it cannot be asserted that what was assigned to the plaintiff was a bare right to bring a suit. I am unable to accept the contention put forward on behalf of the respondent in this respect.
9. This brings me to the Madras decision on which Mr. Manerikar relies, In Seetamma v. Venkataramanayya I.L.R. (1913) Mad. 308 it was held that a transfer of a claim for past mesne profits is invalid under Clause (e) of Section 6 of the Transfer of Property Act. As far as I can see, in the short judgment is that case the distinction between a mere right to recover mesne profits and right to recover mesne profits incidental to the property sold is not at all noticed. The learned Judges simply referred to an earlier case in Shyam Ghand Koondoo v. The Land Mortgage Bank of India I.L.R. (1883) Cal. 695 and an equally earlier case of Pragi Lal v. Fateh Ghand I.L.R. (1882) All. 207 They also referred to a Madras decision, Varahaswami v. Eamohandra Raju : (1913)24MLJ298 , The claim in that case was, as appears from the head-note, to recover damages from an agent for being negligent in collecting rent, and it was held that it was a mere right to sue within the meaning of Section 6 (e) of the Transfer of Property Act. Seetamma v. Venkataramanayya, however, was doubted in a later case of Venhatarama Aiyar v. Ramasami Aiyar I.L.R. (1920) Mad 539 Mr. Justice Sadasiva Ayyar stated that the decision in Seetamma's case and some other cases was the result of what he thought was an unnecessarily close adherence to the law of torts in English Courts. Mr. Justice Seshagiri Aiyyar rested his decision on Ellis v. Torrington. The learned Judge then referred to Beetammaa case and to another case to which he was a party and observed that these decisions did not seem to have recognised the distinction between a bare right to sue and a right which was only subsidiary to the enjoyment of the property itself. The learned Judge observed as follows at page 543:-
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 its.
10. 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 Seetamma a case, and in my opinion, the word 'mere' in Clause (e) of Section 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.
11. I am, therefore, unable to accept the view taken by the lower appellate Court, and the appeal must be allowed. The decree of the lower appellate Court is set aside and that of the trial Court is restored with all costs throughout.