1. This is a plaintiff's appeal arising out of a suit by a cosharer for accounts against the other cosharers including the lambardar under Section 165 of the old Agra Tenancy Act. Only four points are urged in the grounds of appeal. The first is that as the lambardar was not realizing the rents and distributing the profits but the cosharers were making collection directly, the lambardar should not have been allowed the lambardar's remuneration at five per cent. This point has no force. The duties of the lambardar are manifold and are not confined to the realization of rents and distribution of the profits. So long as he holds the office he is entitled to his prescribed dues.
2. The second point is that the decree should have been based on a gross rental against the lambardar. When it was conceded that by arrangement the cosharers were allowed to make their own collection, no question of the negligence of the lambardar arose if the total amount of rents were not collected. In this suit it was unnecessary to go into the question of any alleged negligence of the lambardar. As regards the cosharers the lower appellate Court has acted rightly in allowing these cosharers who had made collections to appropriate the full amount of their shares of profits according to the gross rental and account for the surplus only.
3. The third point urged is that the interest pendente lite should have been allowed at 12 per cent and not at six per cent. The matter was discretionary and I am unable to interfere in the exercise of the discretion by the lower appellate Court.
4. The fourth point is that interest should have been allowed before the suit. The Assistant Collector in making the calculation took into account the excess rents realized, but did not calculate interest on the sum up to the time of the suit. He however granted future interest at Rs. 0-8-0 per cent per mensem. This presumably meant pendente lite and future interest. In the grounds of appeal before the lower appellate Court the plaintiff urged that the lower appellate Court in not allowing any interest or interest pendente lite was wrong. Apparently the plaintiff urged not only that the rate of interest was to low but that interest previous to the suit should be allowed, though it was vaguely put. The judgment of the learned Judge shows that he has applied his mind only to the question of pendente lite interest. I think there is no reason why the plaintiff should not get interest on the excess collection prior to the suit. The rate of interest should be at one per cent per mensem as mentioned in Section 225, Agra Tenancy Act.
5. I accordingly allow this appeal in part and modifying the decree of the lower appellate Court increase the amount decreed by allowing interest at one per cent per mensem simple on the excess amount calculated from the dates of the expiry of the Fasli years during which they fell duo. The office will have to calculate this amount and put it in the decree. I direct the parties to receive and pay costs in proportion to their success and failure.