1. This is an appeal from a final decree passed by the learned Subordinate Judge of Aligarh in a suit for accounts. The grounds of appeal are:
That the amount of profits alleged to have been recovered by the defendant between the years 1904 to 1907 as fixed by the Commissioner who took accounts was excessive.
2. That the defendant was wrongly refused credit for three items:
(a) of Rs. 2791.
(b) of Rs. 1505 and
(C) of Rs. 608-10.
(3) That the defendant was not liable to pay interest on the taking of accounts and he was wrongly saddled by the lower Court with the payment thereof.
2. The ground of appeal No.5, was abandoned.
3. As regards the calculation of profits of the two markets which it is now decided was received by the defendant we think that the Commissioner has correctly assessed them. The Commissioner did not trust for valid reasons the account books produced by the defendant and his opinion was that the safest way of assessing the income for the period from 1st January 1904 to 30th April 1907 was to apply the average of eight months from May to December 1907. This is as good a way of valuing the profits as any other that may be suggested. We, therefore, affirm the finding of the lower Court on this point.
4. The item of Rs. 2791 is made up of several items, a detail of which will be found at page 10 of part 3 of the printed book under the heading statement C. As regards only one item of Rs. 600 there is evidence that this money was paid by the defendant on behalf of the plaintiff, when the plaintiff was a minor, to one Jwala Prasad son of Khareg Sen. There was a partnership firm of which this Jwala Prasad and the plaintiff were partners and, on dissolution of that partnership, certain sums were paid to this Jwala Prasad who undertook the liability to pay himself the debts due from the firm. The agreement executed by Jwala Prasad is Ex.K. It is stated in the agreement that he received Rs. 600 from Mihin Lai father of the defendant. The defendant is entitled to set off this sum of Rs. 600 The other items the defendant claims are on the basis of entries in his account books which have been found to be untrustworthy. There is, further, no other evidence to render the plaintiff liable and so under Section 34 of the Evidence Act the entries in the account books by themselves are not sufficient to saddle the plaintiff with the liability for the payment of these sums.
5. Coming next to the item of Rs. 1505 we find it made up of different items of statement D at page 10 of part 3 of the printed book. As regards a sum of Rs. 200 a receipt alleged to have been given by Kalyan Das (Ex. N.) was put in by the defendant but it has not been proved in the ordinary way. There is no proof of the payment by defendant of any of the many items making up the sum of Rs. 1505. We, therefore, disallow this claim of the defendant.
6. The payment of the third item by the defendant on behalf of the plaintiff, when the plaintiff was a minor, is proved. The agreement referred to above declares that Jwala Prasad received Es. 500 from Mst. Sukha widow of Total Earn. The evidence of Makhan Lai a munim of the firm of Nathu Ram Jwala Prasad had proved that Mst. Sukha obtained this money by pledging her ornaments with that firm and that subsequently the defendant paid this money, got the ornaments redeemed and returned them to Mst. Sukha. It was pointed out by the respondent's learned Counsel that Jwala Prasad defendant was one of the partners of this firm. This fact is not sufficient to make us distrust the testimony of Makhan Lai. We are satisfied that the sum really came out of the pocket of the defendant. He is entitled to credit for this sum.
7. Finally there remains the question of interest. In two judgments of a Bench of this Court of 1918 it was pointed out that the only grounds upon which interest can be claimed upon a sum of money when the liability for the sum is established, are to be found either in Section 73 of the Contract Act, illustration (n) or in the Interest Act, No. 32 of 1839. In the present case interest is not recoverable on either ground. Obviously there was no contract between the parties for the payment of interest. The Interest Act provides that interest would be payable if debts or sums are due by virtue of some written instrument or, if payable otherwise, then from the time when demand of payment shall have been made in writing so as such demand shall give notice to the debtor that interest shall be claimed from the date of such demand until the term of payment Lalman v. Chintamani 49 Ind. Cas. 696 : 17 A.L.J. 169 : 41 A. 254. This principle was affirmed by the same Bench in Nathu v. Ghansham Singh 49 Ind. Cas. 737 : 17 A.L.J. 177 : 41 A. 259. The judgment in the second case was delivered by the other learned Judge constituting the bench. At page 187 of the Report the same principle was affirmed. There is a Privy Council authority which has not been cited in either of these rulings. There was such authority for the opinion of the Bench of this Court. In Kalyan Das v. Maqbul Ahmed 46 Ind. Cas. 548 : 40 A. 497 : 22 C.W.N. 866 : 16 A.L.J. 693 : 5 P.L.W. 159 : 35 M.L.J 169 : 28 C.L.J. 181 : 8 L.W. 179 : (1918) M.W.N. 535 : 24 M.L.T. 110 : 20 Bom. L.R. 864 (P.C.). their Lordships of the Privy Council observed at page 604 of the Report that interest depends on contract, express or implied, or on some rule of law allowing it. If there is no contract, allowance of interest can be made only as a matter of law. In the present case the money in the bands of the defendant was not demanded till 6th January 1920 and here was no contract for the payment of interest. It was pointed out that the plaintiff was a minor. If it be argued that for that reason he could not make a demand the reply would be that the defendant would not know to whom to make the payment upon a sufficient receipt during the infancy of the plaintiff. We think that the plaintiff is not entitled to receive any interest up to 6th January 1920.
8. In the result we allow the appeal for the principal sum of Rs. 1,209-10-0 and direct that interest at 6 per cent, per annum shall be charged from the 6th January 1920 till the date of realisation. The lower Court granted a decree for Bs. 12,300-4-71-, so that decree shall be altered to one of principal amount of Rs. 11,091-10-71 and interest on it shall run from 6th January 1920 till the date of realisation. In the decree the plaintiff shall be allowed a further sum of principal of Bs. 1,194 with interest at 6 per cent, per annum from the date of the final decree of the lower Court till the date of realisation. These are the only sums decreed to the plaintiff. Parties shall receive and pay costs of both Courts according to their success and failure. Costs in this Court will include fees on the higher scale.