The exemption under the notification applies only to quarrying contracts of the materials mentioned therein and not to the out and out sale of those materials.

ORDER OF REFERENCE.

BHIMASANKARAM, J. :- (11-04-1956) The plaintiff is the appellant in this second appeal. The suit was filed to recover a sum of Rs. 1,158-14-0 claimed to represent the value of cist or damages for use and occupation in respect of the plaint schedule property which was under the cultivation and enjoyment of the defendants. The plaintiff purchased the property under a sale deed, dated 29th November 1950, from one Sundaramma who had obtained a decree on compromise against the present defendants on the 29th of March, 1949, under which the defendants were bound to deliver her the property. She filed E. P. No. 285 of 1949 for possession. But as the defendants agreed to pay her an yearly rent of 4,000 cocoanuts, she refrained from prosecuting the execution petition. After his purchase, the plaintiff applied as transferee-decree-holder in E. P. No. 695 of 1950 for possession of the properties and obtained delivery on 4th February, 1951. During the period from 29th March, 1949 to 4th February, 1951, the defendants were thus in possession of the lands. They did not pay any rent to the landlord. The claim is therefore for the value of 4,000 cocoanuts said to have been agreed to as payable from 29th March, 1949, to 29th March, 1950 and the value of a proportionate number for the period from 29th March, 1950 to 4th February 1951. There were several defences raised to the suit but none of them proved completely effective and the suit was partly decreed to the extent of Rs. 375 with proportionate costs and future interest by the learned District Munsif of Razole. Appeals against the decision of the learned District Munsif were taken to the learned Subordinate Judge both by the plaintiff who asked for a larger sum and the defendants who claimed total immunity. One of the points raised by the defendants for the first time before the learned Subordinate Judge was whether the transfer of profits that accrued prior to the date of the sale deed in favour of the plaintiff is hit at by S. 6(e) of the Transfer of Property Act and hence unenforceable. The learned Subordinate Judge held that the plaintiff did not obtain valid transfer from Sundaramma in respect of the suit claim because it was a mere right to sue and therefore he dismissed the plaintiffs suit.

2. The question, therefore, for consideration in this second appeal is whether the right claimed by the plaintiff in the suit is enforceable or whether it falls within the mischief of S. 6(e) of the Transfer of Property Act.

3. To my surprise, I found, that there is an unresolved conflict of judicial opinion on this point. The earliest case in point to which my attention was drawn in Seetamma v. Venkatarammanayya, ILR 38 Mad 308 : (AIR 1916 Mad 473 (1)) (A), a decision of Benson and Sundara Ayyar, JJ. There, the plaintiff had obtained a transfer of immoveable property and along with it a right to recover past profits. But the learned Judges do not seem to have noticed that there was any difference between a transfer of the right to profits along with the transfer of immoveable property in respect of which the profits arose and the transfer of a mere right to recover profits therefrom. The question posed by them was whether a right to past mesne profits was transferable and did not fall within the mischief of S. 6(e) of the" Transfer of Property Act. So posed, there could be only one answer and that is the answer to which they eventually came. But, unfortunately, they did not notice, as I have already pointed out, that in the case before them, what was transferred was not a mere right to sue for profits but a right to obtain profits along with a right to the property itself. They referred in their judgment to an earlier case of the Madras High Court reported in Varahaswami v. Ramchandra Raju, ILR 38 Mad 138 : (AIR 1916 Mad 595) (B), a decision of White, C.J., and Tyabji, J., which dealt with the transfer of a right to recover damages from an agent for negligence in collect