RADHYA S/O PANNA Vs. KAMRAYA AND ANOTHER

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in an action for redemption of the right to scavenge alleged to have been mortgaged by him with the defendant respondent for Rs 20. The plaintiff's claim was that he and the defendants are equal sharers in the right of doing scavenging work and deriving income therefrom in Mouza Dongar; that some twenty four years back in Samvat 1983 he mortgaged his share of the scavenging right to the defendants for Rs. 20 without any interest, on the stipulation that the plaintiff would be entitled to redeem the mortgage at any time on payment of the amount borrowed; and that the amount of Rs. 20 was tendered by him to the respondents on 21 -1 -1947 but they refused to accept it and discharge the mortgage. The plea of the defendant Kamaraya was that the plaintiff did not possess any right of scavenging in Mouza Dongar and that no such right was mortgaged by the plaintiff with him. The other defendant Bihari expressed his willingness to give a discharge of his share of the mortgage on receipt of Rs. 10 from the plaintiff. The trial Court decreed the plaintiff's claim. The Civil Judge, First Class, Guna, set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit on the ground that the plaintiff had failed to prove that he was the owner of a share in the right to scavenge in Mouza Dongar and that he had mortgaged his share with the defendant.

(2.) I have heard Mr. Diwan, counsel for the appellant, on the facts found by the lower appellate Court. On a consideration of the material on record I see no reason to diner from the Civil Judge, Guna, in his conclusion that the appellant has failed to prove that he has a share in the right to scavenge in Mouza Dongar, and the mortgage of his share to the defendants. I do not wish to bare my judgment solely on this finding of fact, as I am of the view that there is no such thing as a right to scavenge, and the recognition of any such right in any individual to the exclusion of others would be repugnant to law. A mortgage or a sale of such a right cannot be enforced by any Court of law. The claim which the appellant seeks to enforce has no basis either in any statutory law or in custom. In the year, in which the right of scavenging was, according, to the plaintiff, mortgaged favour of the respondents, there was no Transfer of Property Act in force in Gwalior State but the Courts in Gwalior State followed the principles, embodied in the Indian Transfer of Property Act, 1882. Now S. 6 (a) of this Act states that:

(3.) IT is clear from this provision that the mortgage of the income derivable in future from the scavenging work to be done would be invalid being an expectancy or a possibility within the meaning of S. 6 (a), T.P. Act. If, therefore, the mortgage is invalid the plaintiff cannot claim any relief thereon.