1. This is a second appeal by the plaintiff whose suit has been dismissed in full by both the lower Courts. The family tree is as follows:
Har Lal__________|_________| |Rajrani Mt. Swami deft. 2| |Paij Sing, deft. 1 Asa Ram deceased.
2. Har Lal died first and after him his son Asaram died leaving Paij Singh as the sole survivor of the family. On 7th December 1921 Paij Singh, defendant.1, executed a deed of agreement by which he transferred for her lifetime and for her maintenance two plots to Mt. Sawai, his stepmother, defendant 2. She brought a suit, No. 529 of 1924, for possession and obtained a decree on 18th May 1925, and her name was entered, but she did not obtain possession. Subsequently she married, as is admitted in the written statement, a man called Badle in Gwalior, and after that, on 10th February 1926, she executed a deed of usufructuary mortgage of the two plots in favour of the plaintiff in this suit. On the same date she also executed a sale deed of her right to damages (that is mesne profits) for the years 1333 Fasli and 1334 Fasli in favour of the plaintiff. The consideration for the mortgage deed was Rs. 60 and the term was twenty years. We will first deal with the question of what rights arose under the usufructuary mortgage. It has been argued before us that the intention of the deed of agreement was to create a personal estate for life only in Mt. Sawai, and accordingly that she had no right to transfer her interest in that estate to the plaintiff, because Section 6(d), T.P. Act, states that
an interests in property restricted in its enjoyment to the owner personally cannot be transferred by him.
3. Various rulings have been quoted before us, and we leave out of account those rulings which refer to attachment of property under decree under Section 266, former Civil P.C. or Section 60. present Civil P.C., because the case of a voluntary transfer is not governed by the same principle as those sections. We may, however, note that in Tara Sundari Debi v. Saroda Charan Banerji  12 C.L.J. 145 there is a very full discussion of the principles governing both classes of transfer. At p. 154 the following principle has been laid down with which we are agreed:
From a review of the authorities to which reference has been made it is clear that, when a grant of land has been made and accepted in lieu of a right to maintenance and there is no restraint upon alienation, there is no divergence of judicial opinion that the interest of the grantee is liable to be seized and sold in execution of a personal decree
4. The principles of voluntary alienation by a person entitled to maintenance have been well laid down by the Chief Justice in Subraya Sampigethaya v. Krishna Baipadithaya A.I.R. 1924 Mad. 22 at p. 669 (of 46 Mad.) as follows:
I think that the view expressed above that this question must turn on the intention of the parties reconciles most, if not all of the apparently conflicting decisions on this question.
5. In that particular case the ruling states that no general law was laid down, but that the case must be governed by its particular set of circumstances. Now in the present case the deed of agreement does not provide for any restriction on alienation. It was open to Paij Singh to enter in his deed restrictions on alienation. The fact that he did not do so leads us to the conclusion that the deed does not restrict the right of Mt. Sawai to alienate this property for the period of the limited interest in it which was granted to her. Accordingly in the present case and under the particular facts of this case we consider that Mt. Sawai was empowered to transfer her rights in these two numbers to the plaintiff by the usufructuary mortgage in question.
6. The next question which was argued is that there is a forfeiture under the Hindu Widow Remarriage Act, Act 15, 1856, Section 2, and therefore the plaintiff cannot receive any rights by his usufructuary mortgage which was executed after the remarriage of Mt. Sawai. The law on this subject has been laid down for this High Court in Gajadhar v. Kausilla 31 All 161 which states at p. 165:
According to these rulings not only is Act 15, 1856, inapplicable in the case of a widow who is permitted by the custom of her caste to remarry, but she does not forfeit the property inherited by her from her husband.
7. That is, if a Hindu widow is allowed to remarry by the custom of her caste, there is no need for recourse to Act 15, 1856, for the validity of her marriage, and therefore there is no forfeiture under that Act of her right to maintenance. On the other hand, if her remarriage is not permitted by the custom of her caste and is only valid under Act 15 of 1856, there would be a forfeiture of her right to maintenance under Section 2 of that Act. Now in the present case the plaint naturally did not set forth the fact of remarriage but the written statement in para. 2 recited that
before the execution of the mortgage deed dated 10th February 1926, Mt. Sawai took Badle as her husband and began to live with him in the State. Under the circumstances, the agreement dated 7th December 1921, and the mortgage deed and the sale deed dated 10th February 1906, are according to Hindu law and statutory enactments null and void and inoperative as against the defendant,
8. We do not find here any pleading that because the remarriage of Mt. Sawai was not allowed by the caste of Ahirs to which she belongs, therefore there was a forfeiture of her right to maintenance. Accordingly as it was never pleaded that remarriage was not permitted by the caste of Ahirs, no issue was framed on that point. It is, in our opinion, too late for the respondent to come forward now and allege that under the custom of Ahirs there is no right of widow remarriage. Further, we consider that the recital in para. 8 of the written statement that Mt. Sawai took Badle as her husband is an admission of the validity of such a widow remarriage among Ahirs. We consider, therefore, that the plaintiff is entitled to a decree for possession of these two plots as usufructuary mortgagee and we grant him a decree accordingly.
9. In regard to the claim for Rs. 50 as mesne profits for the year 1333 Fasli during which the plaint in para 3 admits that defendant 1 was in actual possession, the point taken is that the right to sue for mesne profits cannot be transferred because it is a mere right to sue under 01. (e), Section 6, T.P. Act. This has been held by three High Courts in K. Seetamma v. P. Venkataramanayya  38 Mad. 308, Jai Narain Pandey v. Kishun Dutta Misra A.I.R. 1924 Pat. 551 and in Durga Chandra Boy v. Kailash Chandra  2 C.W.N. 43. We follow these rulings and hold that the right to sue for mesne profits is not transferable. There is also a claim for Rs. 50 for mesne profits for 1334 Fasli. The usufructuary mortgage in favour of the plaintiff was executed on 10th February 1926, and 1334 Fasli began on 1st July 1926. The plaint was filed on 22nd January 1927. The claim for mesne profits for 1334 Fasli is for a period after the plaintiff had become entitled to possession of the plots and consequently the claim is valid. There is no finding by the lower Courts as to the amount of mesne profits. But the sale-deed for 1333 Fasli shows that Rs. 50 was paid by the plaintiff for mesne profits for that year. We consider that Rs. 50 is a correct figure for mesne profits for l334 Fasli. In the result we allow this appeal to the extent that we grant the plaintiff a decree for possession as usufructuary mortgagee of the two numbers in suit and Rs. 50 (fifty) mesne profits for 1334 Fasli with proportionate costs in al Courts. We dismiss the claim for mesne profits for 1333 Fasli with proportionate costs.