Abdur Rahman, J.
1. The only two questions debated in this appeal relate to (a) interest claimed by the plaintiff, and (i) set-off claimed by defendants 2 to 5. They arise out of the following facts. Muthangi Butchiramiah the first defendant and Muthangi Narasiah, were real brothers. Narasiah died leaving him surviving a son Sitharamiah, the first plaintiff and four daughters. Sitharamiah died childless pendente lite and is now represented by his sisters plaintiffs 2 to 5.
2. Sitharamiah was a minor at the time of his father's death and his uncle Butchiramiah acted as his guardian. Disputes seem to have arisen between them in regard to partition of property after Sitharamiah had come of age. Butchiramiah was, it appears, adamant, but his sons defendants 2 to 5 took a more reasonable attitude. They settled the matter amicably and entered into an agreement (Ex. A) on the 11th March, 1930, with Sitharamiah under which a partition of joint family properties, both movable and immovable, was agreed upon. A perusal of this document however shows that on account of difficulties in regard to partition of outstandings due to them by third persons, the parties to the agreement agreed to divide them along with other movables separately and by a process different from what was to be adopted in the partition of immovable properties. It also appears from this document that the defendants 2 to 5 were to make a proposal for partition of immovable properties by dividing them into two lots and since the choice of selecting one of them for himself was given to Sitharamiah, he had agreed to pay a sum of Rs. 5,500 to the persons making the proposal for partition. The properties were accordingly divided by defendants 2 to 5 into two lots 'A' and 'B' and in order to equalise the value of the two lots, the lot 'A' was to carry with it a liability to pay a sum of Rs. 14,000 to the person who got the lot 'B'. Sitharamiah select-ed the lot 'B' and thus became entitled to recover a sum of Rs. 14,000 from the defendants who had got immovable properties of that value in excess of their share. This settlement was recorded on the 14th March, 1930, in the deed of partition, Ex. B, under which the lot 'B' was declared to have been allotted to Sitharamiah and the lot 'A' along with its liability to pay the sum of Rs. 14,000 to all the defendants including Butchiramiah, his sons taking the responsibility on themselves to secure their father's consent to the partition thus effected and to indemnify the plaintiff if he suffered any loss in consequence of Butchiramiah's refuaal to agree to the partition. Ex. B provided that the 'share marked B was allotted to Sitharamiah of us and he shall immediately' or (as translated by Mr. Govindarajachari as soon as possible) 'take possession of the properties of that share and enjoy them'. The same provision was made in regard to the other lot 'A' allotted to the defendants. The deed of partition also contained the following provision:
The income derived from the properties in Schedules A and B shall be taken by the persons to, whose respective share they had fallen. After 1st July, 1929 each sharer shall take the income derived from his respective share of properties.
The schedule referring to the lot 'A' appended to this deed of partition and described as Schedule A was followed by the following words:
Those Who got this A schedule of properties should pay separately tot those who got B schedule of properties a sum of Rs. 14,000.
And a note was added t6 the effect that,
there is no connection whatever between this amount and the sum of Rs. 5,500 payable by Muthangi Sitharamiah to Muthangi Jaggarao and others.
Butchiramiah ratified the agreement Ex. A and the deed of partition Ex. B.
3. The defendants did not, in spite of taking possession of their share of immovable properties in accordance with the deed of partition, pay the said sum of Rs. 14,000 to Sitharamiah. This led to the institution of the suit out of which the present appeal arises. The plaintiff claimed interest at 12 per cent. per annum with effect from either the 1st July, 1929 or from the 14th March, 1930, to the 14th March, 1936, i.e., the date when the suit was instituted. He also asked for subsequent interest from the date of the plaint up till the date of realisation of the amount sued for.
4. Besides the objection as to limitation, non-maintainability of suit, etc., the defendants denied their liability to pay interest and claimed a set off of Rs. 5,500 in accordance with the agreement contained in Ex. B. In regard to the partition of movable properties and outstandings another suit was brought by the defendants in 1931 in the Subordinate Judge's Court of Rajahmundry. This is now numbered as O.S. No, 7 of 1935 and is in spite of a lapse of a decade still pending in that Court.
5. The learned District Judge of East Godavari overruled the other objections raised by the defendants; but refused to allow the interest asked for by the plaintiff and allowed the set-off claimed by the defendants. In dealing with the question of interest, he agreed with the contention raised by counsel for the* plaintiffs that there was nothing in Section 73 of the Indian Contract Act or in Section 1 of the Indian Interest Act that would disentitle the plaintiff from recovering interest, thereby obviously meaning that it could be awarded under Section 73 of the Indian Contract Act, a proposition which had already been negatived in Kamalammal v. Peeru Meera Lavvai Rowthen : (1897)7MLJ263 , and in Nanchappa Goundan v. Ittichathara Mannadiar (1929) 59 M.L.J. 358 : I.L.R. Mad. 549 and has now been set at rest by the decision of their Lordships of the Privy Council in Bengal Nagpur Railway Co., Ltd. v. Ratanji Ramji (1938) 1 M.L.J. 640 : L.R. 65 IndAp 66: (1938)I.L.R.2 Cal. 72 (P.C.). As regards Section 1 of the Interest Act the point was not so easy as not to have merited any discussion at all. This was the main point that has engaged the attention of this Court and of learned Counsel for the parties for more than a day and we will have to deal with it in due course in this judgment.
6. The facts which the learned Judge has mentioned for disallowing interest and the considerations by which he seems to have been guided in coming to that conclusion seem to be entirely irrelevant and would not bear examination. The learned Judge holds that he is quite satisfied 'that the parties had no intention at all at the time of Ex. B of charging any interest for businessmen as they were, they would have made some provision for interest in Ex. B itself.' The interest was not. claimed under any agreement arrived at between the parties and in the absence of any such allegation a reflection like this was apt to lead him astray and succeeded in doing so. It has nothing to do with the application of the provisions of the Interest Act. Then the learned Judge states that the suit was filed on the last day of limitation without any registered notice (having regard in all probability to the provisions of the Interest Act but as to which there was no allegation) on rather legal advice that this claim for Rs. 14,000 would be time barred. What again had the delay in instituting the suit to do with the award of interest, it is not easy to understand.' No equitable relief was being asked for in regard to which delay could have been a deciding or even a material factor. Nonetheless, the learned Judge proceeds to say that he did not think it was a fit case in which interest should be awarded upto the date of decree--as if the grant of interest was a question of discretion and any reason would have been enough not to award it. Last of all he states, in his judgment that
the fact that interest has been disallowed in this suit can be brought to the notice of the Sub-Court, Rajahmundry when final decree is passed in the pending partition suit.
We really fail to see what was at the back of the learned Judge's mind. He was not dealing with the other suit and the decision in this litigation could possibly have no bearing on the other one unless it be that he had the consent expressed by D.W. 1 in the witness box to pay interest in this suit conditional on his getting the same in O.S. No. 7 of 1935, in mind, which he had rejected in an earlier portion of his judgment on the ground that it had probably emanated from the defendant with the object of prolonging this suit and deferring partition of movable property. Nothing was said by the learned Judge in regard to the subsequent interest claimed by the plaintiff.
7. The learned Advocate-General who argued the case on behalf of the plaintiffs (appellants) contended in the first instance that, according to the true construction of Ex. B, the date of payment of the sum of Rs. 14,000 should be held as specified and fixed and the money found to be payable at a 'certain time' within the meaning of that expression as used in Section 1 of the Interest Act (Act XXXII of 1839). If that be so, the provisions of the Interest Act would apply and the plaintiffs would be entitled to get interest at a rate not exceeding the current rate.
8. In view of the decision in Bengal Nagpur Railway Co., Ltd. v. Ratanji Ramji (1938) 1 M.L.J. 640 : L.R. 65 IndAp 66: (1938) I.L.R. 2 Cal. 72 (P.C.) it was admitted that interest could be awarded only if it was payable by custom or if there was an agreement either express or implied to pay interest or under the provisions of any substantive law entitling the plaintiff to recover the same. Since there was no proof of custom or even of an express agreement (although at one time the learned Advocate-General wished to bring it within the meaning of the expression 'income derived from the properties in Schedules A and B' used in Ex. B, a contention with which we were not impressed as, in our opinion, the word 'properties' used in that context refers to immovable properties alone), the second contention advanced by the learned Advocate-General was to the effect that inasmuch as possession of Sitharamiah's share had passed to the defendants from the 1st July, 1929, and they had been enjoying the rents and profits thereof from that date, the agreement to pay interest may be implied as from that date or in any case from the 14th March, 1930, when Ex. B was executed.
9. The last position taken up on behalf of the appellant was that the defendants having got possession of the plaintiff's property on partition without paying its full price or equivalent in value, there was no reason why equitable jurisdiction should not be invoked and interest not awarded to the plaintiff within the meaning of the proviso to Section 1 of the Interest Act which is to the effect that 'interest shall be payable in all cases in which it is now payable by law'.
10. Learned Counsel for the respondents contended, on the other hand that:
(a) the provisions of the Interest Act could not be attracted in this case as the date on which the payment of Rs. 14,000 was to be made could not be regarded as 'certain' within the meaning of that Act. He admitted that it was not necessary that a date to be 'certain' should be specifically mentioned for payment but it was essential He contended, for the purpose of the Interest Act, that in the absence of a specific date on which a payment is to be made, a definite time for payment must have been explicitly and expressly mentioned in the document by virtue of which it is to be made and must not be left to be either merely inferable from its construction or held to have been impliedly fixed as contended for on behalf of the appellant in this case.
(b) The date for payment, even if it could be inferable from the construction of the document or held to have been impliedly fixed, as urged by the learned Advocate-General, could not be regarded as 'certain' as the payment of the sum of Rs. 14,000, was, according to the contents of Ex. B, contingent on the delivery of possession to the defendants.
(c) There was no intention to pay any interest and the omission by businessmen like the parties to this document to mention the same was extremely significant.
(d) That partition of movable and immovable property was the one object for which Ex. A came into being and the arrangement in Ex. B was merely a preliminary step towards a final partition of their entire properties between the parties. The item as to interest could therefore be at the outside an item in general accounting between them at the time of final partition in the suit O.S. Mo. 7 of 1935, which is still pending in the Court of the Subordinate Judge of Rajahmundry.
11. In order to ascertain whether the date of payment for the sum of Rs. 14,000 was fixed between the parties and 'certain' or whether the payment of that sum was merely conditional or contingent on the happening of certain other events, we will have to bear the terms of the deed of partition in mind. It clearly states that the share marked 'B' was allotted to Sitharamiah and not that it was to be allotted to him later on. This would mean that Sitharamiah had on or before the date on which this partition deed was executed, i.e., the 14th March, 1930, become, in accordance with the arrangement contained therein, the complete owner of the properties specified in the B schedule. Then follows the expression 'and so he shall immediately take possession' and not that the other party, i.e., the defendants in the present suit will deliver possession. What I understand by that expression is that either party who was in joint possession of all the properties upto that date had agreed on partition that had been completed by them to surrender his respective rights and possession in the properties that had fallen to the other. In other words, the defendants to whom the properties specified in the 'A' schedule had been allotted agreed to withdraw their rights and possession from the properties which had fallen to the plaintiff's share and the plaintiff agreed to withdraw his rights and possession from the share allotted to the defendants. Both the parties thus became free from that day to go and take possession of their respective shares irrespective of any act of the other. It could not therefore be said that the arrangement contained in the deed of partition or the payment' of the sum of Rs. 14,000 was conditional or contingent on anything that had to happen or to be done subsequently.
12. It was vehemently argued by Mr. Govindarajachari, learned Counsel for the respondents, that it is not open to a Court to find out the date of payment from the construction of a document and in order to fall within the provisions of the Interest Act, it should be either found to have been expressly stated' therein or specified in it explicitly so as to be known by an arithmetical calculation or by a reference to a calendar. But this is not correct in my opinion.
13. Whether the time is found to have been specified expressly or by means of a necessary implication on a construction of a document, the result in both the cases is, in my judgment, the same Construction of a document is one of the well-recognised methods from which the intention of the parties is to be gathered. Where the Court is asked to find a date from a document, on which a certain act had to be done by one of the parties, it is net only permissible but incumbent upon the Court to ascertain it not only from what the parties have stated expressly but also from what they may be deemed to have said impliedly though unambiguously. It may be that a document may contain no indication, express or implied, from which an inference as to the date on which the act had to be done or performed may be deducible. But that is a different matter. In that case the conclusion will be that the parties had omitted to specify the date of performance altogether. But this would be because by a reading of the document or by a construction of the same, the intention of the parties cannot be gathered. Ascertaining the intention of the parties as to the date of performance by an act of arithmetical calculation or by a reference to a calendar is as much permissible for a Court as to discover it by the construction of a document or from what may be implied from the nature of the transaction from which it might be inferred that the contracting parties must have intended that date to be a part of the agreement between them. No date was expressly specified in Ex. B for payment and unless it is contended that it was not to be paid at all, which would be obviously against the intention of the parties if the contract is to be effective, it must be held to be implied in that deed on the presumed intention of the parties. When a representation 'that it was safe for a ship to lie at a wharf was imported into a contract for the use of the wharf in the Moorcock's case (1889) 14 P.D. 64 C.A, on the presumed intention of the parties and in order to give the transaction that efficacy that both parties must be intended to have given and to prevent such a failure of consideration as could have been within the contemplation of the parties, there is no reason why in construing the deed of partition, the date of payment should not for the same reasons be held to have been impliedly and unambiguously fixed between the parties in this case. Similarly, if A writes a slip to B to meet him in half an hour to receive payment of a debt due to the latter without specifying or mentioning the date on which he was to meet or on which the slip was written, the date on which the payment was to be made must be, in my opinion, held to be specified and certain although not expressly mentioned in the slip of paper if the date on which it was written could be established aliunde. Since the sum of Rs. 14,000 was to go to Sitharamiah in consideration of the larger share of the property which under the partition was allotted to the defendants, he must be, in my . judgment, held entitled to recover that money, in the absence of anything else stated in the document, on that day in the same manner as he was entitled to recover or get possession on that day of the immovable properties allotted to him. According to the construction that I am placing on Ex. B, the contract to pay cannot be deemed to have been contingent, as urged by learned Counsel for the respondents, and the date of payment must be held to be fixed. Whether it is possible to regard that date as falling within the expression of 'at a certain time' under the provisions of the Interest Act is a different question and will be discussed later.
14. The contention of the learned Advocate-General that as in view of the provisions in Ex. B either party had to get the income of their respective shares from the 1st July, 1929, his clients should be entitled to recover interest from that date and that the sum of Rs. 14,000 had to become payable to them on that day is also, in my opinion, incorrect. I have already referred to the fact that the word 'properties' used in Ex. B in the expression 'income derived from the properties in Schedule A' does not refer to the sum of Us. 14,000. It is clear from Ex. A which came into existence on the 11th March, 1930, that the proposal for partition, not to say of the actual allotment of properties in accordance with that proposal, was not made up to the time when that document was executed. How can then a sum of Rs. 14,000 or for the matter of that-any other sum be said to be payable to Sitharamiah, before that date? It was only after the execution of that document that the proposal to divide the immovable property must have been made by the defendants and as a part of that proposal, a sum of Rs. 14,000 had, in order to equalise the shares, to go to the person or persons who got the 'B' lot. Had Sitharamiah selected the A Schedule he would have been indebted in a sum of Rs. 14,000 instead of becoming entitled to recover the same sum from the defendants. In view of this it is impossible to hold that the sum of Rs. 14,000 was payable on any date prior to the acceptance by Sitharamiah of the proposal for partition made by the defendants. Moreover no income can be said to have been derived or in any case proved to have been so from this sum of Rs. 14,000 even if the expression 'income derived from his respective share of properties' is interpreted so as to cover this amount. The date of payment cannot be, for the above reasons, held to be the 1st July, 1929, but the 14th March, 1930, the date on which the title to the entire property specified in Schedule B passed to Sitharamiah.
15. Having construed the deed of partition Ex. B and found that the sum of Rs. 14,000 was payable by the defendants to Sitharamiah on the date on which the properties were allotted to him under Ex. B, the next question to decide is whether this is sufficient to attract the provisions contained in the first part of Section 1 of the Interest Act.
16. Before proceeding to consider that section however, it must be stated that in applying the provisions of the Interest Act, the facts that there was no agreement to pay interest or that the parties did not intend to pay interest as deducible by way of an inference from a mere omission of a promise to pay the same are, in my opinion, entirely irrelevant. Had there been an agreement to pay interest either express or implied it would have had to be awarded independently of the provision of the Interest Act. The questions whether a creditor did or did not intend to take interest or a debtor did not intend to pay the same have no bearing when a Court is called upon to decide whether interest could be awarded under the provisions of the Interest Act.
17. Since the terms of the Interest Act (Act XXXII of 1839) are identical with Section 28 of Lord Tenterden's Act (3 and 4 William IV, Chap. 42) or even with Section 24(1) of the New Brunswick Judicature Act of 1909, the parties freely referred to the English decisions on the paint. The 'following English and Indian decisions were cited by learned Counsel for the parties in the course of their arguments.-De, Bernales v. Fuller (1810) 2 Camp. 426: 170 E.R. 1206 Juggomohun Ghose v. Manickchund and Kaisreechund (1859) 7 M.I.A. 263, The Merchant Shipping Co., Ltd. v. Armitage (1873) L.R. 9 Q.B. 99 Buncombe v. The Brighton Club and Norfolk Hotel Co. (1875) L.R. 10 Q.B. 371 The London Chatham and Dover Railway Co., Ltd. v. The South Eastern Railway Co. (1892) 1 Ch.D.20 The London Chatham and Dover Railway Co., Ltd. v. South Eastern Railway (1893) A.C. 429 (H.L.) In re Homer, Fooks v. Horner (1896) 2 Ch.D. 188 Maine and New Brunswick Electrical Power Co., Ltd. v. Alice M. Hart (1929) A.C. 631 : 1929 57 M.L.J. 662 Rajah of Pittapur v. Ballapragada Pallamraju (1920) 40 M.L.J. 18 Attakoya Thangal v. Kunhikoya Thangal I.L.R. (1940) Mad. 50 Gulab Shankar v. Mulchand Nimichand : AIR1927All444
18. It is supererogatory on my part to examine the English cases as most of them have been considered in In re Homer, Fooks v. Honner (1896) 2 Ch.D. 188 and by their Lordships of the Privy Council in Maine and New Brunswick Electrical Power Co., Ltd. v. Alice M. Hart (1929) A.C. 631 : 57 M.L.J. 662 It may however be stated generally that every one of the English cases on which reliance was placed by learned Counsel for the respondents are cases of contingent or conditional contracts in regard to which the dates of payment could not have been said to be certain until some other event had come into existence.
19. A great deal of stress was laid by learned Counsel for the respondents on Lord Blackburn's (then Mr. Justice Blackburn) dissenting opinion in Buncombe v. The Brighton Club and Norfolk Hotel Co.. Ltd. (1875) L.R. 10 Q.B. 371 which was accepted later in the London Chatham and Dover Railway Co. v. The South Eastern Railway Co), and by the House of Lords in the London Chatham and Dover Railway Co. v. The South Eastern Railway Co. (1893) A.C. 429 (H.L.). But even Mr. Justice Blackburn's dissenting opinion does not, in my judgment help the respondents. Reliance was placed by Mr. Govindarajachari on the following words in his judgment:
I think that the construction of the statute, is that the written instrument should specify the time; and if that be so, the written instrument in this case does not do it.
In order to understand these words, one might remember that Mr.. Justice Lush was putting the case thus:
In this ease the contract is, one-third to be paid in cash, that is, in ready money, as soon as the goods are delivered and the invoices are delivered, so that the amount can be ascertained. So that the time of payment is fixed by the contract of the parties, and it is to be determined by the time when the goods are delivered. That is, I think, in accordance with and in analogy to cases decided upon the well known maxim, 'Id certum est quod' certum reddi potest.
Mr. Justice Blackburn's opinion to the contrary was that the section.
does not mean by 'certain time', a time which is to depend on a future-named event, which will, when the event happens, become certain.
This would show that the words on which reliance was placed by Mr. Grovindarajachari only meant to convey that time should not have been conditional or contingent on things which were to happen subsequently but was certain on the date on which the document under which the payment was to be made came into being. He did not lay down that the written instrument should specify the time expressly. This was not the point which he was considering. That is how Lord Tomlin understood the effect of Mr. Justice Blackburn's decision as approved by the Court of Appeal and by the House of Lords in the London Chatham and Dover Railway Co., Ltd. v. The South Eastern Railway Co. (1893) A.C. 429 (H.L.) in Mayne and New Brunswick Electrical Power Co., Ltd. v. Alice M. Hart (1929) A.C. 631 : 57 M.L.J. 662
20. The reply to the question 'whether a sum certain is not payable by the written instrument at a time certain' under Section 1 of the Interest Act was given by Lord Tomlin in delivering the ' judgment of the Board in Maine and New Brunswick Electrical Power Co., Ltd. v. Alice M. Hart (1929) A.C. 631 : 1929 57 M.L.J. 662 in the following words:
that a sum certain is not payable by the written instrument at a time certain if its payment is contingent upon events which may newer happen and the amount payable is capable of ascertainment only if and when those events happen and the time for happening of those events, if they ever do happen, may be indefinitely postponed.
If that is the test which has to be applied to this case, there can be no doubt that the payment of Rs. 14,000 was not contingent upon events which might never happen, as partition had already been effected and Sitharamiah and the defendants had become complete owners of their definite shares which had fallen to them on partition. The last three Indian decisions to which reference was made have also no application as in the case of the Rajah of Pittapur v. Ballapragada Pallamraju (1920) 40 M.L.J 18 the contract had provided that,
all work done by the contractor shall be paid for by the Raja according to the rates herein specified within a reasonable time after it has been inspected and finally approved and passed.
The money due under the contract could not be held to have been payable by the Rajah unless it had been approved and passed and was for that reason held by Sir John Wallis, C.J., (as he then was) not to 'contain a provision for 'the payment of a sum certain or for the payment of such sum on a certain day'.
21. As for the second Madras decision in Attakoya Thangal v. Kunhikoya Thangal I.L.R. (1940) Mad. 50 the inam granted in that case did not fix the dates when the land revenue was to be paid to the inamdar; and as within the provisions of the Interest Act, the debt or sums payable were to be so by virtue of a written instrument and the written instrument in that case was the inam grant only the pro-visions of the Interest Act could not be held, to apply. In the case Gulab Shankar v. Mulchand Nimichand : AIR1927All444 the rokka in question had simply stated that the defendant's father had borrowed Rs. 4,000 in cash 'which is to be debited to my account and I have therefore executed this rokka'.
22. Having regard to those words, it was held by the learned Judges of that Court that there was nothing in the form of a promise to pay much less to pay on any certain day.
23. I must therefore hold that the authorities cited by learned Counsel for the respondents have no application to the facts of the present case and the time on which the payment was to be made must be held to be certain and the sum must be held to be payable on the 14th March, 1930, by virtue of the written partition deed, Ex. B, within the meaning of the first section of the Interest Act. This is quite enough to grant the plaintiff the relief as to interest which he claims although not at 12 per cent, as mentioned in the plaint but at a rate not exceeding the current rate of interest from the time when the sum of Es. 14,000 was payable. But in view of the other contentions raised by the parties it is desirable that I might say a few words in regard to them as well.
24. The second contention advanced by the learned Advocate-General was that an agreement to pay interest may be implied from the fact that Sitharamiah's share had passed to the defendants who were to get the rents and profits of the same from the 1st July, 1929. It is not possible for me however to accept that contention. According to my construction of the partition deed, the sum of Rs. 14,000 had to be paid by the defendants on the 14th March, 1930. There was therefore no necessity for them to have agreed to pay any interest either expressly or even by implication. The money had to be paid on the 14th March, and if it was not paid on that day, it was open to Sitharamiah to bring an action against the defendants on the next day. In fact the cause of action for the recovery of that money must be deemed to have accrued on the date on which Ex. B was executed and had this money not been sued for a period of six years, it would have been barred by time. That is why an attempt was made on behalf of the defendants to defeat this claim on the ground of limitation. But fortunately the document under which the payment was to be made was registered and the limitation for this payment was six years and not three. There was thus no question of credit granted to the defendants for the payment. I cannot, therefore, reasonably infer any implied agreement from the deed of partition, Ex. B.
25. The third contention advanced by the learned Advocate-General was that in so far as the defendants had taken the plaintiff's share of the property on partition and had begun to enjoy it not only from the date on which the partition took place but as from the 1st July, 1929, his client was entitled to recover interest under the proviso to Section 1 of the Interest Act as interpreted by various Indian and Privy Council decisions where Courts of Equity could in the circumstances, mentioned above and in the exercise of their equitable jurisdiction award interest. Had the jural relationship between the parties to this suit been that of a Tendor and purchaser, the jurisdiction of the Equity Courts to grant interest would have been undisputed. There is a specific provision now in regard to the payment of interest in cases where the vendor has parted with possession of the property sold by Mm without receiving the price either wholly or in part. (Vide Section 55 (4) (b) of the Transfer of Property Act). This is not however a case of sale but that of partition. It was contended by the learned Advocate-General that even in this suit, Sitharamiah's share must be held to have passed to the defendants in consideration partly of the defendants' share in the joint property that was conveyed under this scheme of partition and partly of cash, i.e., of the sum of Rs. 14,000 and viewed thus, this sum would really be nothing else but the price payable to him (the first plaintiff) in cash by the defendants for the property that had passed to them.
26. Learned Counsel for the respondents contended, on the other hand, that in order to attract the equitable jurisdiction of the Courts, the legal relationship between the parties must necessarily be such as mentioned in Halsbury's Laws of England, First Edition, Vol. XXI, para. 74 at pages 40 and 41 and inasmuch as the jural relationship between the parties to the present suit did not fall under one of the heads mentioned therein, the equitable jurisdiction could not have been exercised by the Courts and interest could not be therefore said to be 'payable by law'.
27. Learned Counsel for the appellant relied on several decisions in support of his contention. The first one was of Fludyer v. Cocker (1805) 12 Ves. 25 : 33 E.R. Reprint 10 This was a case where a purchaser who had taken possession of a property without a conveyance was compelled to pay interest though the money was to be paid at a particular date on the execution of the conveyance. The Master of the Bolls in delivering the judgment for the plaintiff observed as follows:
The purchaser might have said, he would not have anything to do with the estate, until he got a conveyance. But that is not the course he took. He enters into possession; an act, that generally amounts to a waiver even of objections to title. He proceeds upon the supposition, that the contract will be executed; and, therefore agrees, that from that day, he will treat it, as if it was executed. The act of taking possession is an implied agreement to pay interest; for so absurd an agreement, as that the purchaser is to receive the rents and profits, to which he has no legal title, and the vendor is not to have interest, as he has no legal title to the money, can never be implied.
Our attention was also drawn to the decision of Ratanlal Chunilal Panalal v. The Municipal Commissioner for the City of Bombay where Lord Shaw in a case of compulsory acquisition awarded interest on equitable considerations. He observed as follows:
The Board is of opinion that the right to interest depends upon the following broad and clear consideration. Unless there be something in the contract of parties which necessarily imports the opposite, the date when one party enters into possession of the property of another is the proper date from which interest on the unpaid price should run. On the one hand, the new owner has possession, use, and fruits; on the other, the former owner, parting with these, has interest on the price. This is sound in principle and authority fully warrants it.
Following this decision, the Bombay High Court subsequently awarded interest in the case Pandurmg Balajji v. Mahadev Gopal I.L.R.(1921) 46 Bom. 195 where in pursuance of a contract for sale of property a purchaser was let into possession and the vendor was in seeking to recover the balance of the purchase money held entitled, independently of the provisions of the Transfer of Property Act, to get interest on such unpaid balance from the date when possession was delivered by him. Mr. Govindarajachari relied, on the other hand, on a decision by a Division Bench of this Court in Nanchappa Goundan v. Ittichathara Mannadiar (1929) 59 M.L.J. 358 : I.L.R. Mad. 549 where it was held that a lessor was not entitled to recover interest on the arrears of rent under the provisions of the Interest Act on general equitable grounds as the proviso to Section 1 of the Interest Act enabled the Court to award interest only in cases where it was' payable in law before the Act was passed and the Courts in India following the practice of the English Courts did not, prior to the Indian Act, award interest in the case of ordinary debts but did so only in certain special cases.
28. Having regard to the various decisions to which reference has been made there cannot be much of a doubt that although the jural relationship of the parties to the present suit was not one of those stated in Halsbury, Volume XXI, pages 40 and 41 yet in view of what was stated by their Lordships of the Privy Council in Ratanlal Chunnilal Panalal v. The Municipal Commissioner for the City of Bombay and having regard to the fact that 'the defendants had been realising the income of the plaintiff's share in the joint property under the deed of partition even from the 1st July, 1929 without discharging the debt that they were liable to pay under the terms of the partition deed, it may not be incorrect to award interest under the proviso to Section 1 of the Interest Act even if the analogy of a vendor and purchaser may not be strictly applicable to this case.
29. As for the question of set-off claimed by the defendants and allowed by the lower Court, I am of opinion that the decision of the learned District Judge was correct and cannot be interfered with. Having regard to certain English decisions, the learned Advocate-General did not advance the contention, and rightly so, that the defendants were not, in view of what was contained in the note to the partition deed Ex. B and which has been reproduced in this judgment, entitled to claim a set-off; but he contended that in so far as the first defendant was not a party to the partition and a promise by Sitharamiah to pay Rs. 5,500 was made to the defendants 2 to 5 only, it was not permissible to grant a set-off to them in an action to which the first defendant, was also a party. And in support of this reliance was placed on the statement made by the second defendant as a witness in this case where he had expressed his inability to say if his father had anything to do with the sum of Rs. 5,500. It is true that the agreement to pay Rs. 5,500 was entered into between the first plaintiff and the defendants 2 to 5 only; but having regard to the fact that they were acting on behalf of the whole joint family including their father and the properties were being allotted on the assumption that the first defendant (i.e.' the father) was a party to the arrangement of partition, which he had eventually ratified, there can be no manner of doubt, that this money was payable to all the defendants in spite of what the second defendant had stated in his cross-examination and not only to defendants 2 to 5. It was therefore rightly allowed by way of set-off to the plaintiffs' claim.
30. For the above reasons, the plaintiffs' appeal must be accepted to the extent that they will be entitled to recover interest at six per cent, from the 14th March, 1930 up to the date of realisation. The parties will be entitled to pay and receive proportionate costs, in accordance with the measure of their success and failure both in this and in the lower Court.
Venkataramana Rao, J.
31. The facts are so fully stated in the judgment of my learned brother that I consider it unnecessary to re-state them. He has also dealt with the question of set-off which arisies in the case. I therefore do not propose to deal with it at length. The set-off must be clearly allowed in view of Ex. A, Clause (1), and the fact that the father ratified the partition.
32. The main question in the case is whether the plaintiffs are. entitled to claim interest on the sum of Rs. 14,000 payable under Ex. B., The claim to interest is rested by the learned Advocate-General who argued the appeal on the provisions of the Interest Act. Under that Act the Court can award interest upon all debts or sums certain payable at a certain time or otherwise in the following cases:
(i) The Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument;
(ii) If payable otherwise, then from the time when the demand for payment shall have been made in writing; and
(iii) Interest shall be payable in all cases in which it is payable by law.
33. The learned Advocate-General claimed interest both on the ground that there was a sum certain payable at a certain time by virtue of a written instrument, (Ex. B) and also that it was payable by law. Taking the first ground, there is the written instrument and the sum certain. But the question is whether the said sum was payable at a certain time. The learned Counsel on either side relied on a number of English cases in support of 'their respective contentions because the Interest Act is based on the English Act which is known as Lord Tenterden's Act and the English cases have been relied on both by the Privy Council and the Courts in India in the interpretation of the Indian Act. There is a conflict of view in regard to the interpretation to be placed on the expression 'certain time' in the English cases; but on a careful consideration of those eases it seems to me that with reference to the point in controversy in this ease, that conflict is not material. In Merchant Shipping Co. v. Armitage (1873) L.R. 9 Q.B. 99 Coleridge C.J., who delivered the judgment of the Exchequer Chamber, held that where a sum of money was payable under a charter-party after (entire discharge and right delivery of the cargo in cash two months after the date of the ship's report inwards at the custom house although the time was ascertained and became settled by the event, the money was not payable at a time certain within the meaning of the statute. Lindley, L.J., explained the scope of this decision in London Chatham & Dover Railway Co., Ltd. v. South Eastern Railway Co., Ltd (1892) 1 Ch. D. 120 thus:
The Act, as construed by the Exchequer Chamber, requires that the contract shall ascertain, the sum and the time; the certainty of both must appear from the contract. But still if all the elements of certainty appear by the contract, and nothing more is required than' an arithzmetical computation to ascertain the exact sum or the exact time for payment, that will be sufficient.
(The italics are mine).
Lord Tamlin dealing with this case in Maine and New Brunswick Electrical Power Co., Ltd. v. Hart (1929) A.C. 631 : 57 M.L.J. 662 remarked thus:
In their Lordships' judgment the decision of the Exchequer Chamber in Merchant Shipping Co. v. Armitages (1873) L.R. 9 Q.B. 99 is an authority binding the English Courts up to and including the Court of Appeal to hold under Lord Tenterden's Act that if the sum becomes payable at a time fixed by reference to a contingent event which may or may not happen, it is not payable by the written instrument at a time certain.
(The italics are mine).
In Duncombe v. The Brighton Club and Norfolk Hotel Co. (1875) L.B. 10 Q.B. 371 the Court had to consider this question and on the particular document before them there was a difference of view. In that case Blackburn, J., took the view that the money was not payable at a certain time within the meaning of the Act. But both Mellor, J., and Lush, J., differed from him. In that case there was a contract for the supply of furniturte. The terms of the contract were embodied in a letter which ran thus:
I have thought over your application respecting the Norfolk Hotel; the best terms I could offer would be one-third in cash, and bills at six and twelve months for the balance.
34. Blackburn, J., in construing this document remarked thus:
I have not the slightest hesitation in saying that the written instrument, by virtue of which the debt became payable, contemplated a particular day, which, when the goods were delivered, would be ascertained,, and then the money would be payable at a certain time. But did the debt become payable by the written instrument at a certain time?
35. He held not and gave the following reasons:
The construction of the statute is that the written instrument, would specify the time; and if that be so, the written instrument in this case does not do it...
36. Mellor, J., observed thus:
The object of the section was, not that the actual day should be ascertained upon the face of the instrument, but that the basis of the calculation which was to make it certain should be found in the instrument in writing.
He therefore took the view that when the goods were sent in, the time for the payment of the one-third in cash had arrived and that would be enough. Lush, J., observed thus:
I agree with my brother Blackburn that the early part of the section which we are now discussing intends that the written document should specify the time of payment; but then it appears to me that the section does not require that it should so specify it by mentioning the day of payment, The section says, 'upon all debts or sums certain payable at a certain. time, or otherwise'; that 'otherwise' is put into contrast with 'at a certain time'. It means, I think, payable originally by the contract of the parties at a time certain, or not at a time certain--where the time is fixed by the, agreement of the parties, or not fixed by the agreement of the parties. But where it is fixed by the agreement of the parties it shall appear in writing.... The other case 'or otherwise' is where no time is fixed for payment; then the creditor, the amount being due, may make interest to run from the time he chooses to demand it provided he makes the demand in writing. In this case the contract is one-third to be paid in cash, that is, in ready money, as soon as the goods are delivered and the invoices are delivered, so that the amount, can be ascertained. So that the time of payment is fixed by the contract of the parties, and it is to be determined by the time when the goods are delivered.
It will be seen from this decision that all the Judges have concurred in one matter, namely, the written instrument should specify the time of payment; if not, the section would not apply. The conflict between the learned Judges was whether the day of payment could be rendered certain by reference to a future named event, i.e., as soon as the goods are delivered. The view of Blackburn, J., was that when a time is made to depend upon a future named event, it cannot be called a certain time within the meaning of the section because it has to be rendered certain in future. But the other learned Judges were of the opinion that if the time of payment was specified, it would be enough. Mellor, J., put it thus:
It was quite sufficient if there was a time fixed which by extrinsic facts could be made to identify the date for the calculation, without its appearing in so many words upon the face of the instrument.
Even in Merchant Shipping Co. v. Armitage (1873) L.R. 9 Q.B. 99 the time was specified in the contract but as Lord Tomlin points out, the precise time of payment can only be fixed by reference to a contingent?event which may or may not happen. Sir John Coleridge, who delivered the judgment of the Privy Council in Juggomohun Ghose v. Manickchund & Kaisreechund (1859) 7 M.I.A. 263 remarks that the statute requires that certainty of time and the amount should be created by the written instrument and should exist at the time when the promise is made and therefore it does not affect debts contingent in amount and time of becoming due so that the Act would not apply to cases where ' there is no promise absolutely to pay any sum, certain or uncertain, nor any time limited for the payment but only a promise contingent on events which may never happen, to pay a sum capable of ascertainment only, and if when these shall happen, and the time for the happening of which, if they ever do happen, may be indefinitely postponed'. No doubt in this ease,there is no question of contingency in regard to the payment of the amount. But the question is whether there is a time 'limited for the payment'. The written instrument need not name the precise day' of payment but it should specify the time of payment. The exact day of payment can be ascertained with reference to the provision relating to the time specified.
37. The question in this case is, does Ex. B specify the time of payment? That which is relied on is the following passage in the document, 'Those who got this A Schedule share of properties should pay separately to those who get the B Schedule share of properties a sum of Rs. 14,000.'
38. Prima facie this clause declares only the liability and does not specify when the sum of Rs. 14,000 is payable. The learned Advocate-General has contended that the document specifies the time of payment and says that the time of 'payment is either 1st July, 1929 or at any rate 14th March, 1930, the date of the document. So far as the argument based . on the former date is concerned, it is untenable because the liability to pay Rs. 14,000 is net fixed until 14th March, 1930. The contention in regard to the date 14th March, 1930 is put thus: 'that as from that date the parties became severally entitled in respect of properties which were allotted to them at the partition, the amount must be deemed to be payable from that date. The question is not whether the amount can be deemed to, have become payable but did the document specify that from that date the amount was payable I find it a little difficult to say that the document specifies the time from which it is payable. It is. in such cases, I think as Lush, J., points out in Duncombe v. The Brighton Club & Norfolk Hotel Co. (1875) L.R 10 Q.B. 371 the words 'or otherwise' would become applicable ( vide 'the observations already cited by me). I therefore prefer to rest my decision on the second ground advanced by the learned Advocate-General which seems to be well founded. The proviso to the section that interest should be allowed in all cases in which it is payable by law has been construed by the Privy Council both in Maine & North Brunswick Electrical Power Co., Ltd. v. Hart (1929) A.C. 631 : 57 M.L.J. 662 and Bengal Nagpur Railway Co. v. Ratanji Ramji (1938) 1 M.L.J. 640 : L.R. 65 IndAp 66 : I.L.R. (1938) 2 Cal. 72 (P.C.) as applying to cases in which the Court of Equity exercises jurisdiction to allow interest. In case of sales and purchases of land, as pointed out by Viscount Cave in Swift & Co. v. Board of Trade (1925) A.C. 520
it is the practice of the Court of Chancery to require the purchaser to pay interest on his purchase money from the date when he took, or might safely have taken, possession of the land; but this practice rests upon the view that the act of taking possession is an implied agreement to pay interest,
and this rule has been extended to eases of compulsory purchase under the statutory enactments.
The principle of equity that is invoked is thus explained by Lord Shaw in Ratanlal Chunilal v. The Municipal Commissioner for the City of Bombay
On the one hand, the new owner has possession, use and fruits; on the other, the former owner, parting with these, has interest on the price. This is sound in principle, and authority fully warrants it.
The question is whether this principle can be extended to the present case. The sum of Rs. 14,000 to be paid by the person who takes the A Schedule properties to the person who gets the B Schedule properties is by way of equality of partition or what is termed as 'owellty' in a Court of Equity. When owelty has to be paid, the amount is always regarded as in the nature of a sum due to the vendor of land from his vendee. The reason is obvious. One co-sharer parts with a portion of the property as representing the share he is legitimately entitled to in consideration of a sum of money in respect whereof he must be regarded as the vendor and the person who takes the property must be regarded as the vendee. Mr. Govindarajachari relied upon a passage in Halsbury 's Laws of England, First Edition, Vol. XXI, page 40, in support of his contention that the case of partition is not mentioned as one of the cases where a Court of Equity would grant interest. Bull1 the cases mentioned therein are only illustrative and not exhaustive. The passage clearly indicates that where the relationship of a vendor and purchaser exists between the parties, the Court of Equity would award interest. Therefore the passage relied on by Mr. Govindarajachari does not support him.
39. I am therefore of the opinion that this is a case where the Court of Equity would certainly award interest. The plaintiffs would therefore be entitled to interest and I agree with my learned brother that the interest would be payable at six per cent, from 14th March, 1930. The plaintiffs will be entitled to have a decree for the sum of Rs. 8,500 after setting off the sum of Rs. 5,500 with interest from 14th March, 1930 up to the date of realisation. I also agree with the order as to costs proposed by my learned brother.