All rights are either substantive or procedural and all substantive rights are either "antecedent" or "remedial." An antecedent right is a right to have an act done for its own sake, and a 'remedial right' is a right to have an act done on default of another act: (see Holland on Jurisprudence, Edn. 10, p. 141). The right to the delivery of goods under a contract is an 'antecedent right.' The right to have damages for breach of contract is a remedial right because it is claimable on default of the original right of delivery of goods. The antecedent right, out of which a remedial right may arise, may be a right of property or may not be a right of property. For instance, a right to personal safety and freedom, a right to the society land control of one's dependents, a right to one's reputation and a right to immunity from damages by fraud-these being rights in rem; the conjugal right of a husband against his wife, the right of chastisement or restraint of a father against his child, the right of a guardian to restrain his ward-these being rights in personam -are all rights which cannot be classed as 'property.' If any of these rights is infringed there may arise a right to get damages by way of compensation, but such right to damages does not arise out of what may be termed a 'property right.'
18. On the other hand, antecedent rights may be of possession and ownership-rights in rem or to the specific performance of a contract e.g., a contract for delivery of goods a right in personam. These are all property rights. Any remedial right arising out of these rights may be said to arise out of property rights. In our opinion this distinction furnishes a clue to the real significance of the word "mere" in phrase 'mere right to sue for damages,' Where a right to sue for damages arises out of an antecedent right which is a right of property, it is not a 'mere' right to sue for damages. But where it arises out of an antecedent right which is not a right of property, it may be termed as a 'mere right to sue for damages.' Again, the expression mere right to sue for damages' can be validly applied to a case in which the antecedent right of property is severed by transfer or otherwise from its remedial right. Where the antecedent right vests in one person and the 'remedial right to sue for damages' vests in another person, then also the 'right to sue for damages' may legitimately be said to be 'a mere right to sue for damages.' We would, therefore, hold that a mere right to sue for damages' is a right which either does-not arise out of a right of property, or though originally arising out of a right of property has been severed from it by transfer or otherwise and vests in a person different from the person who holds the antecedent right of property.
In Halsbury's Laws of England, vol. II, Article 255, p. 186, the law has been stated as follows:
All rights of action which relate directly to the [bankrupt's property and can be turned into assets for 'the payment of debts pass to the trustee, but where a cause of action arises from the bodily or mental suffering or personal inconvenience of the bankrupt, or from injury to his person or reputation, then the right of action remains with the bankrupt.
Allahabad High Court
Bans Gopal Sheo Narain And Anr. vs P.K. Banerji And Ors. on 24 November, 1948
Equivalent citations: AIR 1949 All 433
