Susai Lazar Villavaraya vs M. Ramaswami Naidu and Others

Venkatasubba Rao, J.—Some of the co-owners transferred their rights in certain properties in favour of the plaintiff. They also purported to transfer their right to the past profits. Defendant 1 resists the claim to the profits on the ground that u/s 6(e), T.P. Act, a mere right to sue cannot be transferred. In the first place, was what was transferred a mere right to sue? The word "mere" in the section is not without significance and in my opinion implies that the transferee has acquired no interest other than a bare right to sue. But in this case not only was the right to the profits assigned, but the property itself was transferred. Secondly, defendant 1''s contention is that the transfer was of mesne profits and is therefore invalid. It is unnecessary to inquire whether mesne profits can be assigned or not. The expression "mesne profits" connotes that the defendant is in wrongful possession: vide Section 2(12) Civil P.C., but it is well settled that the receipt of profits by a cosharer in not wrongful; sea Yerukola alias Penta Jogulu (Dead) and Others Vs. Yerukola alias Penta Tatayya alias Purushottam and Others, . The right to the profits against a cosharer in possession, is not in law a right to mesne profits, but is a right to obtain and call for an account, and such a right, it has been repeatedly held, can be transferred: see Ramiah v. Rukmani Ammal (1913) 18 IC 138 and Annamalai Chettiar v. Muthukaruppan Chettiar AIR 1981 PC 9. In this view the assignment in favour of the plaintiff does not contravene any principle of law and must be recognized. In the result the second appeal is allowed with costs here and in the Court below and the judgment of the trial Court is restored.