CHINNASAMI BATTAR Vs. MLRAMASWAMI PILLAI

JUDGEMENT

(1.) THE defendant-appellant pleads non-liability for interest in respect of the sums found due to the plaintiff. THE plaintiff and the defendant were co-owners. THE defendant as a resident of the village was allowed to collect the rents 0 etc., due from the ryots, to pay the poruppu or jodi due to the Government, to incur various expenses relating to the collection and to pay the plaintiff his share of the income. A preliminary decree was passed, accounts were taken, various disputes were settled and the amount finally arrived at was Rs. 578-1-4 available for the plaintiff's share. THE lower Courts have granted interest from the dates of the collections on the above sum due to the plaintiff's share. In doing so, the lower appellate Court has relied on a decision of the Allahabad High Court in Abdul Jalil V/s. Mohamed Abdul Salam . That decision has been considered by this Court in Yasobadra Nainar V/s. Samanthabadran (1935) 70 M.L.J. 311 : I.L.R. 59 Mad. 154. As Stone and Varadachariar, JJ., pointed out on pages 156 and 167, the decision of the Allahabad High Court proceeded on the assumption that the co- sharer in question who was made to pay interest was liable to hand over to the other co- sharers their shares at a given date. THEre is no doubt that if the money due to the plaintiff's share was to be paid over on a fixed date, then under the Interest Act interest would be payable from that date. Apart from such a consideration the Madras High Court has taken the view that no interest can be granted on equitable grounds and the position of co-owners has been dealt with in Ramachandrappa V/s. Narqyanappa (1939) M.W.N. 927. THEre after a division in status and after the division of some properties the person who was till then the manager continued to collect the outstandings due to the joint family which had come to an end. He did not bring all the collections into the accounts kept by him and it would appear that after a reference to arbitration and division of some of the immovable properties, a suit was filed by a junior member of the family for partition of the other properties and for taking an account of the monies collected by the defendant. A receiver was appointed by the Court to collect the outstandings yet uncollected and in spite of the receiver's appointment the defendant went on making collections. THEre was an order of Court directing the defendant to pay into Court the plaintiff's share of the money collected by him. Even that was not done. THE suit was pending for a long time and the amount due to the plaintiff was ascertained some years after the institution of the suit. THE question was whether the plaintiff was entitled to interest from the date of the collections or at any rate from the date of the suit. THE learned Judges pointed out that in the case of co-owners there was no liability to pay interest from the dates of collections. THEy even refused interest from the date of suit and held that it was only where the defendant was guilty of fraud he could be made to pay interest from the date of suit. We are not concerned with the question whether on the facts they came to a correct conclusion that fraud was not made out or with the view expressed that the only remedy of the plaintiff for the defendant's disobedience of the Court's order directing him to pay plaintiff's share into Court was to proceed by way of contempt but the learned Judges definitely ruled that no interest could be granted prior to the date of the final decree. It has been brought to my notice that in a later decision the Judicial Committee held in Lala Hakim Rai V/s. Lala Ganga Ram (1943) 1 M.L.J. 16 (P.C.) that in the case of a dissolved partnership the plaintiff was entitled to interest from the date of suit. THEy distinguished the earlier decision of theirs reported in Suleman V/s. Abdul Latiff (1930) 59 M.L.J. 121 : L.R. 57 I.A. 145 : I.L.R. 58 Cal. 208 (P.C.), on the ground that the earlier case related to a casa of a going partnership and not to a case of a dissolved partnership. I am of opinion that the decision in Lala Hakim Rai V/s. Lala Ganga Ram (1943) 1 M.L.J. 16 (P.C.) ought to be applied to the case of co-owners and that interest from the date of suit ought to be allowed. It is clear that the grant of interest prior to the date of suit is indefensible.

(2.) THE objection that junior vakil's fees ought not to be allowed has no force seeing that the valuation given in the plaint was above Rs. 1,000. In the result, the decrees of the lower Courts are modified by substituting Rs. 578-1-4 for principal and by granting interest at six per cent. per annum from the date of plaint. THE order of the trial Court as to costs will stand but in the lower appellate Court and in this Court each party will bear his own costs. Leave to appeal is refused.