Arnold White, C.J.
1. The plaintiff sues on a sale-deed executed to him by the heir of one Krishnaboyammah. Krishnaboyamma died in February 1905 and the deed is dated February 24, 1905.
2. The deed recites that, on Krishnaboyamma's death, certain lands described as a mokhasa inam as well as all the current dues and arrears recoverable on those lands and all kinds of rights relating to the mokhasa passed to her heir. By the deed, the heir sold to the plaintiff all the said lands and the current and past dues etc., and all other rights as per details given in the deed.
3. The details referred to are the rights incidental to the ownership of the land and 'all kinds of rights relating to the mokhasa.'
4. The deed does not refer to the defendant.
5. The plaint alleges, and this is not denied, that the defendant was Krishnaboyamma's manager.
6. The plaintiff claims delivery of documents and accounts relating to the estate kept by the defendant's father and alleged to be in the possession of the defendant and Rs. 1,00 the cash balance in the defendant's hands and Rs. 300 as damages for the defendant's failure to deliver the documents and accounts referred to above.
7. In his written statement, the defendant denies that either he or his father had any documents in his possession. He says that he only managed for 18 months, that he only collected Rs. 100 and odd and that this was not sufficient to pay his salary and that of his peon. We are dealing with this case in second appeal and are bound by findings of fact.
8. Neither of the Courts below finds that the defendant had money in hand for which he was liable to account to the plaintiff. The Munsif finds (paragraph 21) that the defendant might have collected about Rs. 400 in Fasli 1313 and about Rs. 300 in Fasli 1314 and that, if he had not collected those sums, he could, with ordinary diligence, have done so.
9. The Subordinate Judge's finding is to the same effect.
10. The plaintiff does not allege that the defendant was his agent and he says that his cause of action arose on the date of Krishnaboyammah's sale to him and on the date, two months later, of the final demand for an account and delivery of the documents.
11. The Courts below would appear to have found the defendant liable for Rs. 700, not as the 'balance remaining...according to Chittah' which is the plaintiff's claim, but as damages for negligence in not collecting the rents which he might have collected for Faslis 1313 and 1314.
12. In the first place, this is not the plaintiff's claim and in the second place, assuming that the evidence establishes that, before she died, Krishnaboyamma could have recovered damages from the defendant on the ground of negligence as her agent, (and I don't feel altogether satisfied as to this), it seems to me that Krishnaboyamma's claim, (assuming the deed purported to transfer it to the plaintiff), was nothing more than a right to recover damages, a mere right to sue within the meaning of Section 6(e) of the Transfer of Property Act, and could not be transferred. If Krishnaboyamma's claim was founded on tort, it is well settled that the claim is not assignable. See the judgment of the Court of Appeal in Dawson v. Great Northern and City Railway Company (1905) 1 K.B. 260; 74 L.J.K.B. 190 and the recent judgment of the Court of appeal in Defries v. Milne (1913) 1 Ch. 98; 82 L.J. Ch. 1. If the claim was grounded on contract, the transfer was after breach (if any), and I think the principle of the decision in Abu Mahomed v. S.C. Chunder 36 C.P 345; 13 C.W.N. 384; 1 Ind. Cas. 827 applies. See, too, Shyam Chund Koondoo v. Land Mortgage Bank of India 9 C.P 695; 12 C.L.R. 440. The case of Madho Doss v. Ramji Patak 16 A.P 286; A.W.N. (1894) 84 is clearly distinguishable. There, for the purposes of the question whether the right was assignable, it was assumed that, when the assignment was made, there was money in the hands of the agent, which money was had and received to the use of his principal. Here, there is no such finding. In the unreported case to which we have been referred Ramiah Chettyar v. Rukmoni Ammal 18 Ind. Cas. 138 the right assigned was a right to recover money which had been omitted from an account, not unliquidated damages.
13. There are some observations in the case of Dawson v. Great Northern and City Railway Company (1905) 1 K.B. 260; 74 L.J.K.B. 190; 69 J.P. 29: 92 L.T. 137; 21. T.L.R. 114 which, to a certain extent, support the contention of the respondents. But, I think, the case is clearly distinguishable. There, it was held by the Court of Appeal, reversing Wright, J., that a claim under Section 68of the Lands Clauses Consolidation Act,1845, to a compensation in respect of an interest in lands injuriously affected, is not a claim to damages for a wrongful act, but a claim to compensation for damages done in the lawful exercise of statutory powers, and that such a claim was capable of assignment.'
14. The Court of Appeal points out that the claim of the plaintiff was not in the nature of damages for a wrong (page 275). The claim there arose from an act which was not unlawful, but was done lawfully in the exercise of statutory powers.
15. It is pointed out that the compensation might be regarded as the price payable for the exercise of the statutory powers and was property. I am of opinion that Krishnabhoyamma's claim against the agent based on his failure to collect the rents was not assignable.
16. I do not think we ought, in second appeal, to interfere with the finding of the Courts below as to the non-delivery of the accounts or with the damages awarded in respect thereof.
17. I would modify the decree of the lower Appellate Court by giving the plaintiff a decree for Rs. 300 only and direct that the parties should pay and receive proportionate costs throughout.
18. I agree.