1. The hearing of this appeal has involved a grievous waste of the time of two Judges of this Court. There are no merits in the appeal as there were none in the suit. The suit was based upon an extraordinary claim. It was alleged that the plaintiff's grandmother had 'absolute rights of scavenging' in about 230 houses in the 16th Division of the City of Madras and that under her will which was dated 25th August 1926 she had bequeathed the said right to the minor plaintiff, her grandson. It was alleged that the plaintiff's grandmother had borrowed Rs. 350 and Rs. 200 in October 1931 from the defendant Ramulamma and her brother now deceased on promissory notes. It was alleged that 'under an arrangement' - the plaintiff carefully refrained from mentioning who were the parties to the arrangement - the defendant should do the scavenging work of 198 houses out of the 230 yielding an income of Rs. 90 per mensem, that the defendant was to appropriate Rs. 45 out of the Rs. 90 for payment to the servants to be engaged by her for doing scavenging work and was to credit the balance of Rs. 45 a month towards the amounts due under the two promissory notes until they were fully discharged. It was then alleged that the defendant under this arrangement had gone on collecting Rs. 45 a month and had by the time of the suit collected more than Rs. 1445 in excess over and above the amount due to her under the promissory notes. The plaintiff therefore prayed for a decree for Rs. 1445, for a direction to the defendant to surrender to him the scavenging work of 198 houses or in the alternative to pay Rs. 1800, its value, thirdly for a declaration that the plaintiff alone has the right to carry on the scavenging work in the 198 houses and for a permanent injunction restraining the defendant or any one on her behalf from interfering with his rights.
2. The learned Judge of the City Civil Court has found that the plaintiff's grandmother had no right of scavenging in the houses, which could be bequeathed to the plaintiff or which could be transferred to the defendant either by way of mortgage or in any other manner. This finding of the learned Judge is clearly correct. It is admitted that there was no contract between the plaintiff's grandmother and the owners or occupiers of the 230 houses by which the plaintiff's grandmother was entitled to do the scavenging work in these houses. The house owners or the occupiers are not parties to the suit, nor are the scavengers, who actually do the work. In these circumstances it is absurd to speak of any 'right of scavenging.' As the learned Judge has pointed out, in houses where flush out latrines are introduced there is no scavenging left to be done of the kind that is done under the auspices of the plaintiff's grandmother or of the defendant, and even if flush out latrines are not introduced in any particular house, there is nothing to compel any of the occupants of the 230 houses to employ the scavengers sent by the plaintiff's grandmother or to employ any scavenger at all. In these circumstances, it is ridiculous to speak of any 'right' to scavenge the houses referred to in the plaint.
3. The plaintiff relies mainly upon the conduct of the defendant. He is able to point out that the defendant has admitted that she collected certain sums of money from the scavengers who did the work in the 198 houses referred to in the plaint. In fact, it appears that the 'arrangement' was that one half of the scavengers' fees should be taken by the defendant and the other half only left to the scavengers. Why the scavengers should have consented to any such arrangement as this I am not able to say. It is not alleged that the plaintiff's grandmother did anything for the scavengers in return for which she was entitled to collect 50 per cent, of the fees earned by them. The whole arrangement appears to me to be extremely immoral and contrary to public policy. How it originated I do not know nor has it been shown during the trial of the suit. From the documents produced in this suit it would appear that persons like the plaintiff's grandmother having obtained some kind of ascendancy over the scavengers have assumed to themselves the function of sending scavengers to various houses and have virtually extorted from the scavengers one half of the wages earned by them. There is no basis for this in law and, considered as a custom, it is certainly a custom which no Court of law could possibly recognize. That the defendant has repaid herself the amounts borrowed by the plaintiff's grandmother out of the fees earned by the scavengers is not, even if true, a circumstance that has any bearing on the plaintiff's alleged right. The mere fact that the defendant has done this does not render it right. The matter is really covered by authority in this Court and therefore I do not propose to spend further time upon it. Venkataramana Rao, J. in Raghudu v. Arraiya A.I.R. (1938) Mad. 881, has dealt with the matter fully and exhaustively and I agree entirely with everything that he has said. Adopting part of a quotation made by Venkataramana Rao J., from a judgment of Mukerji J. in Gourmoni Debi v. Chairman of Panihati Municipality (1910) 12 C.L.J. 75 I will say:
If we were to recognize the alleged custom as reasonable, we would have to uphold what must, in the end, turn out to be an oppressive monopoly, and the very first reason assigned in the celebrated case of monopolies, Darcy v. Alien (1602) 11 Coke 84, would be conclusive upon the matter, namely that if the monopoly was sustained, the person in whose favour the monopoly was created might charge whatever price he pleased.
4. It is obvious that if the plaintiff got any such declarations as he claims in this suit, he would be entitled to send his own scavengers to the houses in question and to claim any fees he liked without consulting the house-holders and without coming to any arrangement with them. The learned advocate for the appellant does not suggest that any of the 198 house-holders could be compelled to accept the services of the plaintiff's scavengers, or of anybody else's scavengers for that matter. The learned advocate for the plaintiff has contended that even if the supposed contract is void, the defendant having had the benefit of it ought to be compelled to refund whatever amounts she has collected from the scavengers in excess of the amount due to her under the promissory notes. This contention is completely devoid of substance. It is not a case in which the plaintiff or the plaintiff's predecessor, in-title has parted with any money to the defendant. The allegation is merely that the plaintiff's grandmother borrowed money from the defendant and that the defendant has been recouping herself from the wages of the scavengers who, as already mentioned, are not parties to this suit under an arrangement, come to between the defendant and somebody else, perhaps the father and mother of the plaintiff. It is certainly not under any arrangement between the defendant and the plaintiff's grandmother, for there is no evidence of any arrangement between these two parties. The defendant cannot be said to have obtained any advantage from the plaintiff which under Section 65, Contract Act, she could be compelled to restore or for which she could be compelled to make compensation.
5. The 'arrangement' pleaded by the plaintiff and apparently admitted by the defendant is virtually an arrangement for the exploitation of the labour of the scavengers, of a kind which, in my opinion, is long out of date. I should be very sorry to encourage its perpetuation by my judgment that I could deliver from this bench. I agree with the conclusion of the learned Judge of the City Civil Court and think that this appeal ought to be dismissed with costs and that the appellant should pay the court-fee due to Government on the memorandum of appeal.
6. I entirely agree. I confess that I have throughout this case found it extremely difficult to understand what is the alleged cause of action. But it seems that two points stood out. The first was that this was an assignment of a contract and as such, it having been held to be void, the defendant was bound under Section 65, Contract Act, to restore any advantage which she had received or to compensate the other contracting party. My learned brother has dealt fully with the question of what it was that the plaintiff's grandmother purported to assign. He has also pointed out that it has never been alleged in this case 'that any contract was assigned at all. There never was any contract between the householders and the plaintiff's grandmother by which the plaintiff's grandmother contracted with the house-holders to supply scavengers for their houses. The suit is entirely based on the supposition that the plaintiff's family had some sort of vague hereditary right to do the scavenging work in the 16th division of Madras. That being so, no question arises under Section 65, because the money which was received by the defendant was never the money of the plaintiff at all but was money which she received from the house-holders in her turn as a payment by the house-holder to her for providing scavengers. It has already been dealt with by my learned brother and I only desire to express added agreement on this particular point. I am glad further also to add my agreement with the observations that have been made with regard to the nature of the scavenging agreement as conceived by the plaintiff in this case. They amount to nothing else except a trafficking not only in labour in this city but also in the rights of third parties (the house-holders) to employ what scavengers they pleased. It is inevitable that, if this sort of notion was encouraged by the Courts, people will never dare to make their own arrangements for fear of boycotts or even worse action by people who arrogate to themselves the rights which the plaintiff, I consider, has arrogated in this case. I agree that this appeal should be dismissed.