This appeal raises an interesting question of law. The respondents, the defendants in the action out of which this appeal arises, borrowed on the 25th June 1924 from the appellants, the plaintiffs in the action, a sum of Rs. 550 and executed a bond styled a hypothecation debt bond in their (plaintiffs) favour hypothecating the income derived from the houses numbering 109 described in Schedule A to the 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 two per cent per mensem. The respondents undertook to discharge the mortgage by payment of monthly instalments of Rs. 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 deed cancelled and take back the same. If you get the work done through your men in that manner, and if, then, we or our heirs cause hindrance by preventing the doing of the undermentioned sweeping work or by saying that income should not be given, we shall be liable to criminal prosecution for breach of trust against you.”

The case of the appellants is that the respondents committed default in making such payments and when pressed, allowed the appellants to do scavenging work for 36 out of the 109 houses for some time and in or about December 1931, alleging that the debt had been discharged, obstructed them from doing scavenging work in the said houses and began to do it themselves and hence the appellants had to institute the present action praying for a permanent injunction restraining the respondents from obstructing them by themselves doing or causing to be done the scavenging work in the 109 houses referred to in Schedule A to the plaint and also further restraining the respondents, their agents and servants from doing the scavenging work in all or any of the said 109 houses and directing them to put the appellants in possession of the scavenging right in the 109 houses. The basis of their claim is stated in paragraph 3 of the plaint wherein it is alleged that by virtue of the said deed of mortgage the respondents “mortgaged the scavenging right belonging to them in the said houses which scavenging rights are res commercium capable of being mortgaged, sold etc., amongst the scavenger community according to the custom obtaining amongst them in Madras.” 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 their 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 paragraph 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 delivered his award on the 5th January 1934 directing the respondents to pay Rs. 598-5-0 to the appellants. A decree was passed in accordance with the said award but on revision it was set aside by Burn, J., on the ground that the arbitrator exceeded his jurisdiction in granting a decree for money when the plaintiffs did not ask for that relief and when the only relief prayed for in the plaint was an injunction. He therefore remanded the suit for a fresh disposal and on remand the learned City Civil Judge declined to grant the injunction on two grounds: namely, (1) that damages are an adequate remedy and (2) 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. It is against this decision that this appeal has been preferred.

It is strongly contended before me that both the grounds on which the learned Judge rested his decision are unsound and that the right claimed should, at any rate, be upheld on the ground of the custom set up by the plaintiffs and not denied by the defendants. Before dealing with the tenability of this contention it is necessary to examine the basis of the plaintiffs' claim. What was sought to be hypothecated in favour of the appellants was the future income to be derived from the work of scavenging. It was thus a mortgage of non-existing property and a transfer of property to come in future. Such a property may no doubt be mortgaged but it 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 13 A.C 523 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 identified. In Holroyd v. Marshall(1) Lord Westbury indicated that the said principle assumed that the supposed contract was one of that class of which a Court of Equity would decree specific performance. In Tailby v. Official Receiver(2) Lord Macnaghten points out that the doctrines relating to the specific performance do not afford a test or measure of the rights created and Lord Westbury did not intend to lay down as a rule to guide or perplex the Court that considerations applicable to the case of specific performance are to be applied to every case of equitable assignment dealing with future property. In the present case however, the test laid down by Lord Westbury will have to be applied as the substance of the plaintiff's claim is to enforce specific performance of the covenant, that is, of the negative bargain entered into by the respondents in favour of the appellants. But the main question in this case is, is the property capable of transfer under the Indian Law? Under the Indian Statute law what in English law would be called a transfer of possibility or expectancy is prohibited. S. 6(a) of the Transfer of Property Act is absolutely clear on the matter. It states that “the chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.” 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 Jagannadha Raju v. Sri Rajah Prasada Rao and Annada Mohan Roy v. Gour Mohan Mullick. In fact the Privy Council approved the dicta in Jagannadha Raju v. Sri Rajah Prasada Rao of both the learned Judges Sir John Wallis C.J, and Tyabji, J. that in view of the express provision of S. 6(a) of the Transfer of Property Act, the English decisions bearing on the matter would have no application. Therefore the principle of English law as laid down in Holroyd v. Marshall(3) or Tailby v. Official Receiver(4) cannot be applied in India to a case of transfer of expectancy or possibility though it has been applied to other cases of transfers of property to come into existence in future. In my opinion the mortgage of the income derivable in future from the scavenging work to be done by the respondents will be an expectancy or a possibility within the meaning of S. 6(a). The hypothecation in this case of the said income will therefore be invalid and no right to relief can be founded thereon.

But it is contended that what was mortgaged was the right to scavenge and what was sought was therefore possession of such a right and not a mere possibility. The right that is claimed is a right in the defendants to do scavenging work in the 109 houses and to exclude others from doing so. The right is not based on any definite contract with the owners of the said houses by which they were bound to employ the respondents for any particular period. If the owners refused to employ them, no cause of action can be founded thereon and no injunction can be granted compelling them to employ these people: Vide Ramakristna v. Ranga(5) and Raja Valad Shivapa v. Krishna Bhat(6). 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 recognised exceptions known to law. Such exceptions have been recognised in the interests of trade or business and that too in the interest of the general public. It is not pretended that doing scavenging work is a trade or business or a profession involving skill. In Saripaka China Mahadeva Vayulu v. Muthura Suryaprakasam(7) Sadasiva Ayyar and Seshagiri Ayyar, JJ. declined to recognise a claim for the recovery of moneys said to be due to the plaintiffs from the defendant under a lease of an alleged right to do purohitam service in certain villages. The basis of the plaintiffs' claim in that case was that they were entitled to the hereditary purohitship of the said villages. In the course of the judgment Sadasiva Ayyar, J., observed as follows:

“The right to exclude other people from following a legitimate calling or profession cannot be countenanced by Courts. There can be no individual property in any such common calling, though, of course, the following of that calling by the plaintiff as an individual can give rise to rights in him as against those who have entered into contracts and obtained benefits from the exercise of that calling by the plaintiff.”

The right that is claimed in this case is not appurtenant to any office, a grant whereof was made by the Crown with a right of claim to do service to the exclusion of others and levy a fee for such service. Therefore, as the right that is claimed is one which the law cannot recognise, no injunction could be given in favour of plaintiffs.

Lastly, it is contended that the claim of the plaintiffs is based on custom and therefore it is sustainable. It is a well settled principle that any custom which is contrary to public good and operates 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 she belonged on the ground of customary right, Mukerjee, J., in Gourmoni Debi v. Chairman of Panihati Municipality, 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 generations, cannot confer upon her a legally enforceable right: Salisbury v. Gladstone. If we were to recognise 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. Allen would be conclusive upon the matter, namely, that if the monopoly was sustained, the person in whose favour that monopoly was created, might charge whatever price he pleased.”

I would respectfully apply those observations to the facts of this case and hold that the custom, if allowed, would turn out to be an oppressive monopoly and should not be allowed. Whatever may have been the origin of this custom at its commencement, having regard to the modern conditions, such a custom can never be sustainable in a Court of law. As observed by Lord Macnaghten in the course of the argument in Sadagopachariar v. A. Rama Rao the custom to claim a monopoly to pursue an occupation which is reasonable at one time may become unreasonable at another time. To my mind, the custom of the description that is now asserted could not have been reasonable even at the commencement and much less can it be held to be so in a city like Madras in the present day.

I therefore hold that the relief of injunction is clearly unsustainable and the learned Judge was right in declining to grant the injunction. I may also observe that I fully agree with the learned Judge that damages would be an adequate remedy assuming that there was a legal enforceable right in favour of the plaintiffs; and the plaintiffs could have, if they liked, sued for recovery of the money which they deliberately omitted to do. The decision of the learned Judge in non-suiting the plaintiffs is correct and this appeal is accordingly dismissed with costs.

Appeal dismissed.

N.R.R