The main legal point established in the judgment is that a transfer of an actionable claim under the Transfer of Property Act involves the transfer of a certain sum of money belonging to the transferor, which is not a mere right to sue.

Miller, J.

1. The first and the third plaintiffs are transferees from one Chakrapani Chetty. The Subordinate Judge has held that the transfer deed conveyed nothing to them and on that ground the suit cannot be maintained. No other question has been decided. According to the transfer deed, a partition was made by the transferor of his property between himself and his sons on the 25th January 1908. As a part of that partition, the accounts of some silk and cloth business which were managed on his behalf by two of his sons were rendered by those sons and these were taken into account in making the partition. Subsequently, he has discovered, so he recites in the deed, that certain sums due to the firm, some out-standing debts, amounting to more than Rs. 10,000, were fraudulently concealed and omitted by the two sons from the accounts of the business and he proceeds to transfer to the two plaintiffs the said sums, which were fraudulently omitted of Rs. 10,000, and such other amount as may be found to have been omitted from the account, and which may be recoverable either from the two sons, the agents themselves, or from the debtors owing them to the firm. The Subordinate Judge says that this transfer is invalid as conveying a mere right to sue within the meaning of Section 6, Clause (e) of Transfer of Property Act. It seems to me that he has fallen into error in this matter. In one place, in his judgment he seems to treat the transfer as a transfer of a right to sue for damages for a tort. It clearly is not that because it is a transfer of the claim against the debtors as well as against the agents. He says in another part of his judgment: "The assignment in question was made voluntarily with a view to re open a question already closed between the parties by amicable contract," a statement which seems to me to assume, without any evidence having been taken, that the allegations in the transfer deed are false. Then he quotes from a case in which it was said: "The right to complain of fraud is not a marketable commodity," failing, I think, to notice that in the present case what is transferred is not the right to complain of fraud but the right to recover some money which had been omitted from an account. It really matters not whether the omission was fraudulent, accidental or with the consent of all the parties; the effect of the transfer is the same. The sums omitted are now alleged to be due and the transferee can take steps to recover them. I am unable to see how this does not fall within the definition of an actionable claim. The monies, the transferor alleges, are his monies put out in his business. They ought to have been brought into account as part of the assets of his business by his agents. They are either in the hands of his agents or still in the hands of the debtors, he dose not know exactly which. This is money in which he has, or alleges that ha has, a present existing interest and that present existing interest together with the right to sue to get it is what he has transferred. That is a claim to a beneficial interest in movable property which is not in his possession and that beneficial interest is existent, I see no reason myself why we should not hold, on the language of the transfer deed alone, that the plaintiffs are transferees of an actionable claim. Now on behalf of the respondents, it is said that what is transferred is merely a right to sue, not altogether on the ground that the Subordinate Judge seems to have put it, but on the ground that to recover the money, if any has been omitted from the accounts, the suit mast be for re-opening of the accounts already settled. In a sense, it may be said that this is so. But I am not prepared to say that, if it be invalid, the re opening of the accounts, on that ground alone the transfer is one of a mere right to sue; but in this case, I do not think that it is necessary to decide that the suit is to re-open a settled account. The transfer alleges in effect i