1. These Second Appeals are connected with S. A. No. 1179 which was disposed of yesterday. The original plaintiff in these Second Appeals whose legal representative is now the appellant was the reversioner who sold the property to the plaintiff in the other suit. The suits out of which these Second Appeals arise are filed to recover mesne profits for faslis 1328 and 1329. The profits for these faslis were also intended to be transferred by the sale deed in favour of the vendee in the other case. That is Ex. A in that Second Appeal. But the plaintiff in the other Second Appeal did not sue for these profits apparently on the ground that the transfer is void according to the decision in Seetamma v. Venkalaramanayya : (1913)25MLJ410 and the vendor and the vendee seem to have agreed that the vendor himself should sue for these profits. Accordingly the actual reversioner brought these suits to recover the mesne profits. The District Munsif decided against the plaintiff saying:
The plaintiff has not come into Court with clean hands. It would not be equitable to allow the plaintiff to get at profits in this indirect fashion.
2. I do not understand these sentences. On appeal the Subordinate Judge held relying on Venkatarama Aiyar v. Ramaswami Aiyar ILR (1920) M 539. : 1920 40 MLJ 204 that the transfer was valid and therefore the vendee under Ex. A ought to have sued for mesne profits and not the present plaintiff and accordingly dismissed these suits though he decreed the other suit. The plaintiff files these Second Appeals.
3. The decision in Seetamma v. Venkataramanayya : (1913)25MLJ410 has been followed in Mulhu Hengsu v. Netravathi Naiksavi (1920) 12 LW 44 in which the Judges also rely upon Defries v. Milne (1913) 1 Ch 98. The same view was taken in Mohesh Lal v. Mohant Bawan Das ILR (1883) C 961 and recently again by Greaves and Cumming, JJ., in Sukhamoyee Biswas v. Manoranjan Chaudhury 89 IndCas 827. The Patna High Court also took the same view in Jai Narayan Pande v. Kishun Dutta Misra ILR (1924) Pat 575. The point did not arise in Venkatarama Aiyar v. Ramaswami Aiyar ILR (1920) M 539. : 1920 40 MLJ 204 where what was transferred was a decree in regard to past mesne profits. But, though this question did not arise there, both the learned Judges made a passing reference to it. Sadasiva Aiyar, J., said that these decisions are the result of an unnecessarily close adherence to the development of law of torts in English Courts. Seshagiri Aiyar, J., says that when he decided the case in Muthu Hengsu v. Netravathi Naiksavi (1920) 12 LW 44 the fact, that the sale deed covered the right to mesne profits, was not brought to his notice at the time of the hearing and then he adds:
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.
4. If the learned Judge meant to say that the right to past profits is subsidiary to the enjoyment of the property, I am not prepared to agree with him. 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. This is also the view of Das, J., in Jai Narayan Pande v. Kishnn Dutta Misra ILR (1924) Pat 575. I am therefore inclined not to share the doubts of Seshagiri Aiyar, j., in Venkatarama Aiyar v. Ramaswami Aiyar ILR (1920) M 539 : 40 MLJ 204, and I am of the opinion that the earlier decision to which he was a party, namely, Muthu Hengsu v. Netravathi Naiksavi (1920) 12 LW 44 is rightly decided. There is a singularly uniform course of decisions on this point in all the Courts and as I do not feel any doubt on the matter I do not see why I should depart from the decision in Seetamma v. Venkataramanayya ILR (1913) M 308 : 19136 25 MLJ 410 on account of the doubts in the nature of obiter dicta expressed in Venkatarama Aiyar v. Ramaswami Aiyar ILR (1920) ILR 44 M 539 : 40 MLJ 204. I may point out that Sadasiva Aiyar, J., himself had followed in Govindasami Pillai v. Ramasivarni Aiyar : (1916)30MLJ492 the decision in Seetamma v. Venkataramanayya : (1913)25MLJ410 . Following these decisions I think the plaintiff in these cases is entitled to a decree for the mesne profits prayed for.
5. It having been found that the defendants are not entitled to the land, they are certainly liable to pay profits to the present plaintiff who was the owner at the time when the defendant trespassed on the lands. The defendants having incurred an obligation in favour of the present plaintiff, the fact that : the plaintiff's right was transferred to some transferee ought not to make the obligation any the less. It may be that in such a case the defendants ought to be protected from a double action. Of that there is no fear in the present litigation. It seems to me that even if the assignment is valid, the right of action originally residing in the assignor has not ceased It is true Section 130 of the Transfer of Property Act says that where an actionable claim is transferred all the rights and remedies of the transferor are transferred. I do not deny this. All that I say is that the transferor may maintain the action and afterwards hand over the amount when collected to the transferee. The whole of Chap. VIII of the Transfer of Property Act is intended to enable transferees of actionable claims to maintain actions on the assignments and to get rid of the difficulties in the English Law where, for some time, assignees could not maintain an action at all and afterwards they were allowed to maintain action in the name of the assignor. But I do not think this chapter is intended to lay down that the transferor himself cannot maintain an action for the benefit of the transferee. This is the alternative ground on which I should think these second appeals ought to be allowed even if the assignment is valid.
6. The result is these second appeals should be allowed and the plaintiff will be given a decree in these two suits at the rate found by the Subordinate Judge in para. 7 of his judgment with interest at 6 per cent. from the date of accrual up to date of decree and future interest up to payment. The plaintiff will be entitled to costs throughout.