1. This is a first appeal by a defendant, purchaser of a house in Benares, against the part of a decree awarding the plaintiff, H.H. Maharaja of Benares interest on zar-i.chharum of Rupees 3287-65-0 at 6 per cent, per annum from the date of sale on 18th January 1928. The appeal is taken only on the ground that the Court below should not have allowed interest. Now the facts are that this sale deed was duly registered in 1928 and it was open to the agents of the plaintiff to ascertain that fact from the office of the sub-registrar. It was not until 1931 that a notice of demand for the zar.i-chharum was sent by the plaintiff to the defendant. The date of delivery of that notice is shown on p. 13 to be 7th July 1931. That notice might have included a demand for interest, and if it had, the provisions of the Interest Act (32 of 1839) would have applied and from that date the plaintiff would have been entitled to interest. The notice on p. 12 shows that there was no demand for interest. Again there was a long delay before the plaintiff brought his suit on 20th September 1933. The result is that there has been a delay from the said deed till the date of suit of 54 years. The plaintiff now comes forward with an equitable claim for the award of this amount of interest. The lower Court has not considered whether there are any reasonable grounds for awarding interest. A decree based on equitable grounds is always one at the discretion of the Court. It appears that the delay was solely due to the negligence of the agents of the plaintiff and therefore in equity there exists no ground at all for awarding interest.
2. Learned Counsel for the appellant has contended that the decree based on equitable grounds was bad in law. The Court below recognized that there was no basis of any contract or under the Interest Act for the award of interest, but the Court considered that a decree could be granted on equitable grounds and the Court referred to the following three rulings : Mt. Hamira Bibi v. Zubaida Bibi (1916) 3 A.I.R. P.C. 46 This was a case where a Mahomedan widow had been in possession for a number of years of her deceased, husband's landed property under her lien for unpaid dower and the other heirs had sued her to recover possession of their shares and prayed for accounts and the question arose whether in taking such accounts she was entitled to interest on her dower. Their Lordships held that it would be inequitable to make her account for the profits except on the terms of allowing her reasonable interest on her dower debt. There appears to be a great difference between that case and the present case and that case is not an authority for allowing interest in a case like the present. The next ruling to which reference was made was Maharaj Bahadur Singh v. A.H. Forbes (1921) 8 A.I.R. P.C. 27. That was a case where interest was allowed under the provisions of Order 21, Rule 93, Civil P.C. and therefore it has no application to the present case. The remaining case is that in Kishwar Jahan Begum v. Zafar Mohammad Khan : AIR1933All186 . That was a ruling by a Bench of this Court of which one of us was a member, to the effect that where a beneficiary under a deed of wakf institutes a suit to recover his share of the profits from the property from a mutawalli under the deed and there is unreasonable delay in payment the beneficiary is entitled to interest on the amount of his claim. On p. 23 the Bench stated that the rule laid down by the Privy Council appeared to be that where a case in England would fall within the Common law jurisdiction no equitable principles are to be applied in awarding or withholding interest; but where a case fell within the equitable jurisdiction exercised by the Court of Chancery, equitable considerations might induce the Court to allow interest, and the Bench proceeded to hold that because the question between the mutawalli and the beneficiary was one which in a similar matter would come under the Court of Chancery in England, therefore equitable considerations might be applied. That ruling therefore is no authority in favour of the plaintiff in the present case.
3. Two rulings were shown in regard to interest on zar-i.chharum claims. One of these by a single Judge is reported in Kali Charan Chowdhuri v. Benimadho Prasad Singh : AIR1937All257 . In that case interest was disallowed on the ground that the claim could not be made in law. Another ruling was unreported Bishnath Upadhia v. Asharfi Singh Second Appeal No. 1034 of 1982 and the decision that interest could not be allowed on the claim for zar-i-chharum was upheld in Letters Patent Appeal No. 25 of 1935, decided on 9th Deoember 1935.
4. On the other hand learned Counsel for plaintiff, respondent is not able to show any case of haq-i-chharum where interest has been allowed. We consider therefore that both on grounds of law and on the ground of no cause being made out for the exercise of equitable jurisdiction, the Court below was wrong in allowing interest to the plaintiff. We therefore allow this appeal with costs and direct that the amount of interest, Rs. 1118-8-0, should be struck off from the decree of the Court below, which is the amount of interest op to the date of the suit, but pendente lite and future interests will remain in the decree. The amount of costs in the lower Court was proportionate and as the decree has now been reduced, the amount of costs in the lower Court will be correspondingly reduced.