1. This is a defendant's appeal arising out of a suit for profits under Section 226, Agra Tenancy Act. The facts are fully set forth in the order dated 22nd November 1933, which is reported in Lallu Singh v. Chander Sen 1934 All. 155. Before remanding certain issues it was decided by the Full Bench that the plaintiff as assignee of the profits for 1334 F was entitled to maintain the suit against the lambardar and also that such a suit lay in the Revenue Court. It was further held that the defendant can claim adjustiment on account of any decree held by him in respect of any payment of Government revenue made during the year 1334 F, but not earlier. It was also laid down that when an ostensible purchaser who is not a bona fide purchaser and has simply lent his name to a debtor to be used as a cloak for the property, brings a suit to enforce the debtor's claim, it is open to a creditor of the debtor to prove the nature of the transfer, and that the suit can be regarded as a suit instituted by the debtor herself through her benamidar. The further question whether if the transfer was not a sham and bogus transaction, but had really passed property though it was effected in order to defeat or delay creditors and was therefore fraudulent in that sense, the defendant can still be allowed to defeat the plaintiff's claim op the ground that the transfer is not binding upon him, was not decided. And as the facts had not been clearly found, issues were sent down to the lower appellate Court for fresh findings.
2. The lower appellate Court has now found that Rs. 527-15-0 was the amount of the Government revenue paid by the lambardar on account of the plaintiff's share in the year 1334 F; and therefore the defendant is undoubtedly entitled to claim a. deduction of this amount from the principal sum of Rs. 696, which was the share of the profits of the assignor of the plaintiff in that year. The learned advocate for the plaintiff urges before us that that he is entitled to support the decree of the lower appellate Court on the ground that the amount should not be reduced inasmuch as the plaintiff should be given interest at the rate of 1 per cent per mensem pendente lite, and not only 6 per cent, per annum which Was allowed by the trial Court. No doubt the plaintiff was entitled to support the decree on such a ground if valid. But the trial Court had fixed only 6 per cent per annum as the rate of pendente lite and future interest and no objection was taken in the lower appellate Court to this rate, although the lower appellate Court actually reduced the amount decreed to the plaintiff. No cross-objections were filed in this High Court in respect of the lower rate of interest.
3. The learned advocate for the plaintiff relies on the case of Mohammmad Abdul Jalil Khan v. Mohammad Abdus Salam Khan 1932 All. 178, for the proposition that the plaintiff is entitled to get simple interest at the rate of 1 per cent per annum on his share of the net profits from the date when they became divisible till actual realisation. No doubt in that case, having regard to the circumstances there present, such, a rate of interest was allowed instead of allowing to the plaintiff the principal sum with interest at 12 per cent per annum up to the date of the suit and pendente lite and future interest at 6 per cent per annum on the consolidated amount. But it was nowhere laid down in that case that the plaintiff cosharer is entitled as of right to recover interest at 12 per cent per annum on the principal amount of profits from the date when they accrued till the date of realization. Under the provisions of Section 225 a cosharer is entitled to claim interest at the rate of 1 per cent per mensem. The Court is therefore bound to award him interest at 12 per cent per annum up to the date of the suit, As regards the interest pendente lite and future, the case is governed by Section 34, Civil P.C., which is applicable to suits in the Revenue Court as well, and under that section, in addition to any interest adjudged on the principal sum far any period prior to the institution of the suit, the Court may order interest at such rate as it seems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree, as well as further interest from the date of the decree till the date of realization. It is therefore incumbent on the Court to fix mates for pendente lite and future interest if it decides to award such interests; but it is not obligatory on the Court to award interest at the rate of 12 per cent per annum, just as it is not obligatory on a Court to award pendente lite and future interest at the contractual rate in case of simple money debts. In Mohammmad Abdul Jalil Khan v. Mohammad Abdus Salam Khan 1932 All. 178, the particular method of calculating interest was chosen; because there were altogether 34 appeals between the parties which were conveniently to be disposed of on some common principle. It was not intended to be laid down there that in. every case a plaintiff is entitled as of right to claim interest at the rate of 1 per cent per mensem even after the institution of the suit. In the circumstances of the present case we do not think that we should award to the plaintiff interest at 12 per cent per annum pendente lite.
4. The next point whether the defendant can take advantage of the principle underlying Section 53, T.P. Act, against the plaintiff assignee of the profits by showing that the transfer was with intent to defeat and delay her creditors does not, arise, because of the clear finding of fact by the lower appellate Court that in the present case there is absolutely nothing to show that the present plaintiff had colluded with his assignor to defraud the appellant by getting the profits sold to him fictitiously, or even that he had any knowledge that his assignor wanted to defraud any of her creditors by making the transfer to him. We do not think that the lower appellate Court has placed the burden of proof wrongly on the defendant-appellant. He is not invoking the provisions of Section 53, T.P. Act, in terms, but is seeking the aid of the principles of justice, equity and good conscience which cannot be applied unless the facts are fully established by him.
5. We would accordingly allow this appeal in part, and modify the decree of the lower appellate Court in this way, that we order that a sum of Rupees 527-15-0 be first deducted from the principal sum of profits of Rs. 696, leaving a balance of Rs. 168-1-0, and that the plaintiff should have interest at 12 per cent per annum, on this balance from 1st August 1927, till 17th September 1927, and thereafter at 6 per cent per annum on the consolidated amount till the date of realization or till the date of the deposit in the Court below, if made in this case. Pairties will receive and pay costs in proportion to success and failure in. all Courts.