TMI Blog1938 (4) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint in respect of the work done by them. The parties belong to the scavenger caste and earn their livelihood by doing scavenging work. It is stipulated in the said bond that the amount borrowed should be discharged within three years with interest at 2 per cent, per mensem, The respondents undertook to discharge the mortgage by payment of monthly instalments of ₹ 17 and in default of such payment covenanted as follows : In default of payment in each month in that manner, you shall get the sweeping work done in the undermentioned houses by men through you from the month succeeding to that of default, irrespective of us, and give credit to that income. Immediately after the discharge of the debt, we shall get this hypothecation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scavenger community according to the custom obtaining amongst them in Madras. 3. It is alleged in the plaint that a large sum was due to the appellants and the respondents committed default in payment and they were entitled to possession of the scavenging rights and to a permanent injunction as prayed for. The defence is that the debt had been discharged and a denial of the right to an injunction claimed in the plaint. But the written statement admitted the allegations in para. 3 of the plaint which relate to the custom alleged therein. Subsequent to the filing of the written statement there was a reference to arbitration of Mr. P.R. Sundaresan, an advocate of this Court on the matters in dispute between the parties. The arbitrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be property which under the law, if existing, could be the subject of a transfer. Under the English law, property of every description, even possibilities and expectancies, is assignable for value : vide (1888) 13 AC 523 Tailby v. Official Receiver, (1888) 13 AC 523 : 58 LJQB 75: 60 LT 162: 37 WR 513 at p. 543, per Lord Macnaghten. The principle upon which such alienations are upheld under the English law is that though they are void under the common law, under equity they are treated as contracts binding on the conscience of the assignor and binding on the subject-matter of the contract when it came into existence, if it was of such a nature and so described in the deed of assignment so as to be capable of being ascertained and ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other mere possibility of a like nature cannot be transferred. 4. By virtue of this provision, our High Court and also the Privy Council prohibited the transfer of a reversion expectant on the death of a Hindu widow : vide 39 Mad 554 Jagannadha Raju v. Lakshmi Narasimma, AIR (1916) Mad 579: 29 IC 241: 39 Mad 554: 28 MLJ 650 and 50 Cal 929. Annada Mohan Roy v. Gour Mohan Mullick, AIR (1923) PC 189: 74 IC 499: 50 Cal 929: 50 IA 239 (PC). In fact the Privy Council approved the dicta in 39 Mad 554 Jagannadha Raju v. Lakshmi Narasimma, AIR (1916) Mad 579: 29 IC 241: 39 Mad 554: 28 MLJ 650 of both the learned Judges, Sir John Wallis and Tyabji JJ., that in view of the express provision of S. 6 (a), T.P. Act, the English decisions bearing on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aja Shivapa v. Krishna Bhat, (1878) 3 Bom 232. The right that is claimed is therefore in substance a right to prevent a man from pursuing his legitimate calling. The general principle is that the law will not permit anyone to restrain a person from doing what the public welfare and his own interest requires that he should do. and any restriction which is sought to be imposed on a man pursuing his legitimate calling will always be considered to be illegal unless it is brought within any of the recognized exceptions known to law; Such exceptions have been recognized in the interests of trade or business and they too in the interest of the general public. It is not pretended that doing scavenging work is a trade or business or a profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates to the prejudice of the many and beneficial only to a particular individual is prima facie unreasonable and cannot be enforced by any Court of law. In dealing with the claim of a plaintiff, who was a Brahmin, to officiate as a priest at cremation ceremonies to the exclusion of other Brahmins of the class to which he belonged on the ground of customary right, Mukerjee J. in 12 CLJ 74 Gourmonl Debi v. Chairman of Panihate Municipality, (1910) 12 CLJ 74 : 6 IC 864: 14 CWN 1057 at p. 83 made the following observations : The voluntary consent of the people to the employment of the plaintiff or her predecessors as cremation priests, cannot confer upon them any exclusive right, and the continuance of this state of things, even for generat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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