Alfred Henry Lionel Leach, C.J.
1. The two appellants were the second and the third defendants in the Court below. The appeal was filed by the first appellant, but as he did not press it the third respondent was made a co-appellant, and he has alone supported it. The suit was filed by the first respondent, who is the father of the second respondent, for partition of the family properties. The first defendant was the father of the appellants and the first respondent, but he died during the pendency of the litigation. The suit was filed on the 1st September, 1919 and on the 31st December, 1926, a preliminary decree was passed in favour of the first respondent. The final decree was passed on the 31st March, 1931, and the appeal is concerned with this decree.
2. The first question which arises relates to the provision to be made for the marriage of the sister of the appellants and the first and fourth respondents, the 37th defendant. The learned trial Judge has held that the expenses of this marriage should be borne by the appellants and their brother, the fourth respondent. After the first respondent separated from the family, the family consisted of the father, the appellants and the first respondent. The learned Judge was wrong in ordering the appellants and the fourth respondent to bear the expenses alone and this is properly conceded by the learned Advocate who appears for the first and second respondents. The law was stated by this Court in the case of Subbayya v. Ananda Ramayya (1928) 57 M.L.J. 826 : I.L.R. 53 Mad. 84. Moreover there was a provision in the preliminary decree that the first respondent should bear his share of the expenses. The final decree will, therefore, be varied in this respect and the first respondent will bear one-fifth of the expenses of the marriage. It is agreed that on this basis the first and second respondents will be made liable for Rs. 1,000.
3. Four other points were then taken, namely : (1) that the appellants are not liable to pay interest on the mesne profits awarded to the first respondent; (2) that the rate of interest fixed, namely, 7 1/2 per cent, is in any event too high; (3) that no allowance has been made for the payment by the appellants of the land revenue; and (4) that the learned trial Judge has calculated the mesne profits at paddy prices higher than those claimed by the first respondent.
4. The learned Advocate for the second appellant has relied on the decision of this Court in Ramaswami Aiyar v. Subramania Aiyar : (1922)43MLJ406 , in support of his contention that the trial Court erred in law in allowing interest on mesne profits. In that case it was held that a co-owner who was awarded profits in a partition suit against another co-owner in possession was not entitled to interest on such profits in the absence of proof of fraud or inefficiency in the realisation of the profits. We accept the contention that in an ordinary case interest should not be allowed, but in certain cases the circumstances may be such that the Court is entitled to award interest. The circumstances mentioned in the case referred to are not exhaustive and we think that the circumstances here are such as to justify the decision of the learned trial Judge. I have mentioned that the suit out of which this appeal arises was filed in 1919. The claim of the first respondent to share in the family properties was strenuously resisted by the appellants on the ground that the first respondent had assigned his interest in them. After proceedings which lasted for seven years this contention was held to be without foundation, and the preliminary decree sought by the first respondent was passed. The appellants appealed to this Court and maintained before this Court the attitude which they adopted in the lower Court. This Court, however, agreed with the trial Court. Still the appellants were not satisfied and appealed to the Privy Council. That appeal also failed, being dismissed by the Judicial Committee on the 5th March, 1935. During the period the appeal was pending before the Privy Council all proceedings were stayed at instance of the appellants. It follows that the first respondent has been kept out of the enjoyment of his share of the family properties for a period of 13 years during which time the appellants have enjoyed the income. Moreover, they adopted an obstructive attitude when the Commissioners were dealing with the question of the amounts received by them as rents. They have from first to last placed every obstacle in the way of the first respondent obtaining his rights, and as a consequence have kept him out of moneys which he was entitled to and have utilised them for themselves. In these circumstances we consider that it is only right and proper that the appellants should make full restitution and they cannot make full restitution unless they pay interest on these moneys. The award of interest will, therefore, stand.
5. The learned Advocate for the second appellant has not pressed the contention that the rate of interest, 7 1/2 per cent., allowed by the learned trial Judge is too high, the learned Judge having given a sound reason for fixing the interest at this rate. With regard to the claim that the appellants should be allowed to deduct the amounts paid by them for land revenue all that needs to be said is that they have not shown that they paid anything by way of land revenue. The failure to do so is no doubt due to the obstructive attitude which they adopted when the case was before the Commissioners, but the responsibility is theirs and no allowance can be made without proof of payment, which is not forthcoming. The learned trial Judge has based the amount of mesne profits payable by the appellants on the prices of paddy ruling in the various years. It is said that for the years 1918 and 1919 a higher value was allowed than that claimed by the first respondent. Evidence was given as to the prices ruling in the various years and no objection was raised to proof being given of the prices for the years 1918 and 1919. We consider that in these circumstances the first respondent is entitled to have the mesne profits assessed on the actual values proved. If on this basis he receives more than what is estimated by him in the plaint he will have to pay a higher court-fee before he can enforce his decree.
6. The second appellant also contends that the learned trial Judge is wrong in giving to the first respondent a one-fifth share in a debt due to the family at the time of separation. It is said that this debt was collected by the father. That the debt existed is not denied and if it was collected by the father the proceeds would go to swell the assets of the joint family. It is not said that it was not collected. We can see no reason here to disturb the finding of the lower Court that the first respondent is entitled to a one-fifth share.
7. It follows that except as regards the provision for the marriage expenses the appeal fails and will therefore be dismissed. The appellants will receive costs on that part of the appeal which has succeeded, namely, on the question of the marriage expenses, but will pay costs on the questions which have been decided against them. The second appellant as the receiver will pay the balance due in respect of the printing charges.