LAWS(PVC)-1939-11-92

RAMAMURTHY Vs. NANDI RAMULAMMA

Decided On November 08, 1939
RAMAMURTHY Appellant
V/S
NANDI RAMULAMMA Respondents

JUDGEMENT

(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 16 Division of the City of Madras and that under her will which was dated 25 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/s. Arraiya (1938) 25 A.I.R. 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/s. 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/s. 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.