1. This is an appeal from the final decree in a partition suit passed by the learned District Judge of North Arcot. First defendant is the appellant. The appellant raises eight points. He has been throughout the brother in possession of the family estate. The plaintiff is his younger brother. [Their Lordships dealt with the several points and continued :]
2. There is also a memorandum of cross-objections filed by the plaintiff and under that two points arise. It is said that the first defendant has collected outstandings, has thereby obtained sums of money and he should be made liable on equitable grounds for interest at equitable rates upon such sums as from the date of collection and two cases were relied upon. A.W. Inglis v. Sarju Prasad Misser I.L.R.(1923) 3 Pat. 311 Abdul J alii v. Mohammad Abdul Salam : AIR1932All505 and Yerukola v. Yerukola : (1922)42MLJ507 was sought to be distinguished. Had in fact interest been earned, no doubt the plaintiff would have been entitled to his half share of that interest. But the question is whether there is any legal or equitable foundation for the giving of interest to one member of a joint Hindu family who has brought a partition suit, upon sums collected but not invested by another member of the family. If so is the interest that should be allowed that interest that would have been earned during the partition proceedings had the other member of the joint family put out the moneys collected to interest? A.W. Inglis v. Sarju Prasad Misser I.L.R.(1923) 3 Pat. 311 makes it clear that the Court there proceeded on the basis that it was entitled to presume that the person recovering the money had put that money out to interest. It therefore does not touch the question as to what happens when in fact the conclusion is arrived at that he has not put the money out to interest. In Abdul J alii v. Mohammad Abdul Salam : AIR1932All505 it was held that on equitable grounds interest could be given where one of the co-sharers collects rent on behalf of himself and the other co-sharer and does not pay over in due time the share to the other co-sharer. That case proceeded on the assumption that the co-sharer in question who has been made liable for interest was liable to hand over, to the other co-sharer a sum of money at a given date. He was accordingly made liable when he failed to hand over such sum of money at such date. In this case however it is clear that during the partition proceedings there was no item of property and no sum of money that the plaintiff or indeed the defendants could say belonged to him, for whether it belonged to him or not, would depend upon what was given to him under the final decree. As Kumaraswami Sastri, J. observed in Yerukola v. Yerukola (1922) I.L.R. 45 Mad. 648 at 670 : 1922 42 M.L.J. 50 (F.B.):
Until the properties are actually divided) it cannot be predicated that any particular item of property would fall to any particular member of the joint family nor can it be said that any particular member of the joint family has a right to insist that each item of property shall be broken UR into as many shares as there are sharers and that he should get a particular share of each item.
3. As far as possible, in suits for partition, entire items of family property will be allotted to any of the members if it can be done without any prejudice to the rights of the others. It may thus well be that where a co-sharer has received the whole or a portion of the moneys due on a debt due to the family, that particular item might be allotted to the member who has so received or in taking accounts, it may well be, that one Coparcener who lays claim to a particular item has overdrawn his share and is not entitled to any portion of the family pro perty. Under these circumstances, if a co-parcener should file a suit for a specific share in an outstanding recovered, he will be met with the reply that not only is the suit for that share not maintainable but that the liability of the parties should be; adjusted with reference to the taking of the general accounts.
4. It is clearly impossible in our opinion to hold 'the first defendant liable on any ground of an implied agency for, in this position he is in no way different from a working partner who collects moneys for the partnership and does not re-invest those moneys but keeps them as money in the partnership safe. Mr. Raja Aiyar quite properly admits that in such a circumstance the capitalist partner would not be able to claim interest on the moneys so collected unless of course he could show that in the taking of the partnership accounts the moneys had been invested and had earned interest. We therefore think that the cross-appeal on this point fails.
5. There is a second point. The first defendant was assessed in respect of the joint family income to income-tax and has paid Rs. 2,288. He has been allowed those payments. The plaintiff says that the accounts put in by the first defendant show an income which would carry an income-tax of Rs. 729 only and that if the first defendant paid Rs. 2,288 he did so at his own risk. The facts appear to be as follows. The first defendant made no return to income-tax and was accordingly assessed to income-tax. At all material times the books were in Court. All that the first defendant had got to do was to produce his books. Then the income-tax authorities would either have accepted those books or they would not. If they had accepted the books, the income-tax would have been Rs. 729. We are of the opinion that where the person in possession of the books and receiving the family income pays an income-tax far in excess of what he would have to pay had he produced the books and those books had been accepted by the income-tax authorities, he should not be allowed the amount that he so paid but should be allowed the amount that he would have paid if he had acted in a reasonable manner. The first defendant in this case did not act reasonably in two particulars. First of all he made no income-tax return and thereby called upon himself an official assessment and having become assessed he failed to contest that assessment which he could easily have done by producing the family books. We therefore think that to the extent of the plaintiff's half share of the difference between Rs. 2,288 and Rs. 729 the cross appeal succeeds.
6. In the result therefore the appeal partly' succeeds and the cross appeal partly succeeds and neither will carry costs.