1. This appeal arises out of a suit for accounts and is directed against an order of remand made by the learned Additional District Judge of Midnapur.
2. The facts of the case have been shortly stated as follows in the judgment of the Court of first instance:
This is a suit for accounts. The plaintiff's case is that the defendant No. 1 was Gomastha under the pro forma defendant Ho. 2 in Mouzas Barkola and Mirzapore and that he executed a security kabuliyat for his work in favour of the pro forma defendant on the 7th Kartik 1306 A. 'S. mortgaging the plaint schedule properties and on the strength of that kabuliyat he did the Gomaatha work from Kartik 1306 to Magh 1327 A. S.. that on the 5th Falgun 1327 A.S., the pro forma defendant No. 2 sold off to plaintiff all his rights in the two mouzas together with his rights to get accounts and papers from defendant No 1 and to recover from him the sums due thereon, by a registered kobala taking due and proper consideration thereof, that on the basis of the security kabuliyat this defendant No, 1 was to submit all collection papers and explain those and pay off all sums found due thereon, and he was to be liable for all rents and decretal dues barred by limitation owing to his default and to get 1 rupee 4 annas monthly pay for his work, that the defendant No. 1 submitted and explained his accounts and papers till 1309 A.S. to pro forma defendant No. 2 and from 1310 A. S., he submitted no accounts and papers to him except a Thoka only of 1327 A.S. and as per hisab given in schedule ' ka ' of the plaint, the plaintiff, on the basis of the kobala in his favour, asks for such accounts and papers provisionally valuing his claim at Rs. 937-15 annas 18 3/4 gandas. It is also stated in the plaint that after the plaintiff's kobala such accounts and papers were demanded from defendant No. 1 on 11th Falgun 1327 A. Section but no such accounts wore submitted.
3. The learned Munsif on a construction of the deed of sale, held (i) that the plaintiff did not purchase the rights of defendant No. 2 under the mortgage kabuliyat executed by defendant No. 1 in favour of defendant No. 2, and (n) that the plaintiff, if he purchased anything at all, purchased the right to sue for accounts, which is unassignable under Section 6(e) of the Transfer of Property Act. In the result he dismissed the suit. On appeal the learned Additional District Judge reversed both these findings and remanded the case for determination on the merits which, in the circumstances of this case, must mean for taking accounts from the defendant No. 1.
4. When the Courts below have differed on the construction of the deed of sale executed by the defendant No. 2 in favour of the plaintiff, it becomes necessary to closely examine the terms thereof. In the heading of the document, it is stated that the sale is in respect of the mouzas belonging to defendant No. 2 together with back rents from tenants for a sum of Rs. 720 which is the full consideration for the transfer. In para. 2 after a description of the mouzas sold and their appurtenances the following passage appears : 'And Tahbil (cash) due to me and my dues from the Gomastha together with the right of taking accounts from the Gomastha and the right of taking the papers from him.' Para 6 runs thus:
If the Thoka or the Karcha of the year 1327 filed by the Gomastha be not correct, you will make enquiries yourself and will ascertain the correct amount; you will be entitled to realisa the said amount together with, the amount, realised by the Gomastha from the date of his kabuliyat and the rents which had become time barred through the negligence of the Gomastha together with damages according to your calculation or as will be ascertained by Curt from the said Gomastha.
5. Reading these clauses together and regard being had to the general tenor of the deed, it seems clear that what the plaintiff purchased was the right to take; account from the defendant No. 1 and to recover such sums as might be found to be due from him upon an account being, taken. The deed does not specify any consideration for the transfer of this right,, and the amount recoverable from the defendant No. 1, if any, is uncertain and? dependent upon the taking of accounts. Indeed, as the learned Munsif has observed, the suit is for accounts tentatively valued at a certain sum for purposes-of jurisdiction and Court-fee. The observations of the learned Additional District Judge on the point seem to be somewhat inconsistent and inaccurate. He says:
The present suit is one to recover sums of money realised on behalf of defendant No. 2 but embezzled by defendant No. 1. In view of the allegation that the respondent has submitted no accounts, it is not possible for the plaintiff to say what precise sum is due, until an account is taken. Although the plaintiff has been compelled to sue for accounts, his claim is really one-for a sum of money received on behalf of defendant No. 2 and misappropriated by defendant No. I.
6. He further observes that the transfer was not of a mere right to sue, but of a right to a specific sum of money which has been embezzled. It seems to mo, however, that the transfer was not of a right to a specific sum but of a right to call for accounts, and to recover any sum at present indefinite which may be found to be due on the taking of accounts. The learned vakil for the respondent has argued on the same lines and contends that what the plaintiff purchased was the right to money due from defendant No. 1 which is an 'actionable claim.' It is conceded that a right to sue for accounts is not assignable in law, but it is maintained that the right to a sum to money found due on the taking of accounts is so assignable. I am unable to accede to the proposition of law thus broadly stated. To so hold would be to encourage an evasion of the law which prohibits the transfer of a right to sue for accounts. One useful test for determining the transferability or otherwise of an inchoate right is whether it can be attached in the execution of a decree. That the right to demand accounts or to an indefinite sum which may or may not be found due on the taking of accounts cannot be attached will not, I think, be disputed.
7. It has been further argued that Section 6, Clause (e) declares rights to damages arising from torts to be incapable of transfer, but does not prohibit the transfer of rights or obligations ex contractu. This is not an altogether correct view of the law Rights arising out of torts are undoubtedly unassignable, but there may also be rights arising out of contract which offend against the rules as formulated in the section. Abu Mahomed v. S.C. Chunder (1909) 36 Cal. 345. This is indicated by the alteration in Section (6)(e) in 1900 by eliminating the words 'for compensation for a harm illegally caused' which formed part of the clause before the amendment.
8. On a proper construction of the document and regard being had to the frame of the suit, it seems to me that the plaintiff is not entitled to maintain the suit since he has purchased, if anything, a mere right to sue for accounts. A number of cases, English and Indian, have been cited by the learned vakils on both sides, but I do not consider it necessary to refer to them, as none of them is exactly in point and every case must be decided with reference to its own particular facts. Some of the reported cases may, however, be briefly referred to. In Varahaswami v. Rama Chandra Raju (1913) 38 Mad. 138, it was held that a mere right to recover damages for the negligence of an agent in failing to collect rent is not assignable. There does not seem to be much difference in principle between failure to collect rent and failure to pay rent collected. A claim for mesne profits is not transferable. Sham Chand Kundu v. The Land Mortgage Bank of India, Ltd. (1883) 9 Cal. 695 and Seetamma v. Venkataramanayya (1913) 38 Mad. 308. The principle for lowed in these cases is applicable in the present case. The learned Additional District Judge has relied on the case of Madho Das v. Ramji Patak (1894) 16 All. 286. There a sum of money was in the hands of the agent on his principal's account to be spent for certain purpose. It was held that that sum or so much of it as had not been actually spent could be attached in execution of a decree. That case, having regard to its particular facts, is no authority for the view which found favour with the learned Judge. The learned vakil for the respondent has laid great stress on the case of County Hotel and Wine Go. Ltd. v. London and North-Western Ry. Co. (1918) 2 K.B. 251. If anything, that case supports the view that we have adopted. There the subject of transfer was an option under a lease and McCardie, J., held that a mere right of litigation cannot be transferred.
9. In view of the conclusion at which I have arrived above, the question whether the plaintiff purchased the rights of the defendant No. 2 under the security kabuliyat ceases to be of any importance.. I may state, however, that I am unable to agree with the view of the learned Additional District Judge on this point also. The kobala does not mention the transfer of defendant No. 2's right as mortgagee, nor does it contain any description of the properties covered by the kabuliyat. The only mention thereof is-to be found in a schedule at the end of the document. The learned Judge held On two grounds that the defendant No. 2; transferred his lien on the property mortgaged to him by the defendant No. 1, (1) that that was the intention of the parties, and (2) that the mortgage kabuliyat at was delivered by defendant No. 2 to the plaintiff at the time of the execution of the kobala. I am unable to accept the learned Judge's reasoning. Where the document is not itself ambiguous, the intention of the parties should not be taken into consideration and the mere delivery of a document of title does not constitute a transfer of the right to the property. There are certain well recognised rules relating to the mode of transfer of interest in immovable properties and transfer of such interest can be effected in no other way.
10. In the above view of the matter the appeal succeeds. The judgment and decree of the lower Appellate Court are set aside and those of the first Court restored with costs 3 gold mohurs.
11. I agree.