1. This appeal arises out of a suit by a Nattukottai Chetti (plaintiff 1) against his father (defendant 1), his half brothers (defendants 2, 3 and 7) stepmother (defendant 4) and half-sisters (defendants 5 and 6) to recover his share of the family property. Plaintiff 2 is the son of plaintiff 1. The matter came up on a former occasion before this Court and was disposed of by Kumaraswami Sastri, J., and one of us. We then found that the plaintiffs were entitled to one fourth share of the family property and the case was sent back for ascertaining the amount due to the plaintiffs in respect of the various items claimed. The Subordinate Judge has now passed a final decree. The plaintiffs have filed this appeal and there is also a memorandum of objections filed by defendants 1, 4 and 7 (respondents 1, 3 and 4). (The judgment after dealing with certain items of property proceeds.) The next item argued by the appellants relates to interest from the date of plaint up to the date of decree. Interest prior to the date of plaint was allowed by the Commissioner.
2. Nothing more was said about further interest before the Subordinate Judge. It is now suggested for the appellants that the subsequent interest was overlooked by the Subordinate Judge. It is urged for the respondents that the plaintiffs never claimed it. But it does not appear that there is any particular stage at which any specific claim should be made about this item. The plaintiffs might have mentioned it in the course of the arguments before the Subordinate Judge but it cannot be said that they should lose it simply because no express reference was made to it. It has been argued by Mr. K.V. Krishnaswami Ayyar for the respondents that the plaintiffs are not entitled to this item of interest in any event and he relied on some decisions, which will be presently referred to. In Suleman v. Abdul Latif 1930 PC 185 at p. 212, it was observed by the Privy Council that in an action to dissolve and wind up the affairs of a partnership interest should be allowed to the plaintiff only from the date of the final decree. Having regard to the observations at p. 479 of Lindley on Partnership this principle must be confined to cases of partnership. It is observed in Lord Lindley's book that on principle each partner ought to be entitled to interest on sums overdrawn by the other partners. But the practice is the other way and apparently the decision in 1930 P C 185 (1) must be taken to be in conformity with the English practice. In Diwan Chand Kirpa Ram and Co. v. Weld and Co. 1925 PC 150 the case relates to a claim for damages for breach of contract. The lower Court did not grant interest up to the date of the decree. Their Lordships observed that such interest was not a matter of course. They made observations in favour of the plaintiff but were not prepared to vary the decree on mere conjecture.
3. This case does not help the respondents. In Bruland v. Earte (1905) AC 590 a sum of money was found due from the defendant and the question related to a direction for payment of interest on the amount so found and it was observed that such a matter was a matter for the discretion of the Court. But in the present case it must be noticed that the plaintiffs' claim is not strictly for interest. The plaintiffs' claim is for a portion of the income of the family during the years that intervened between the date of suit and the date of decree.
4. It is merely an accident that such income is in the shape of interest. The claim is not for interest on a sum found duo by the defendants to the plaintiffs but is for the plaintiffs' share of the income of the family which income is derived in the shape of interest. This circumstance distinguishes the case before us from the case in Bruland v. Earte (1905) AC 590 as well as the case in Diwan Chand Kirpa Ram and co. v. Weld and Co. 1925 PC 150. In Jyottbati v. Lachhmeshwar 1930 P t 260 and Ramswamy Ayyar v. Subramania Ayyar 1923 Mad 147, the question related to interest on mesne profits and in this respect resemble the two cases already distinguished and may be distinguished similarly. The case in Turner Ram v. Piru Mal Dina Nath 1927 Lah. 679, relates to a claim by a principal against an agent and as the agent should have the money always ready to be accounted for to the principal it cannot be presumed that he earns interest' on the amount. That ease should be distinguished on that ground. In the case before us the parties belong to a trading family and the presumption is that the money of the family is always invested. As a matter of fact the whole evidence shows that defendant 1 has always been investing his moneys. In Kesho Ram v. Piru Mal Dina Nath 1927 Lah. 679, Broadway, C.J., observed that there wa3 no reason for disallowing the interest prayed for.
5. He also observed that the Subordinate Judge obviously lost sight of this question of interest and except the omission there was nothing to show that he refused to grant interest. There is no principle of equity or justice in disallowing interest to a member of the family during the period of the litigation though presumably the defendants have been making income in the shape of interest. The case in Ghulusam Bivi v. Ahamadsa Rowther 1919 Mad 998, relates to mesne profits only and the principle of that decision ought not to be extended to a claim for interest. The decision in Hiralal Ichhalal v. Narsilal Chaturbhujdas (1913) 37 Bom 326, related to the application of the rule of Damdupat in a suit for redmption. The first Court declined to award interest and no complaint was made about it before the District Judge and the High Court refused to interfere. We do not think that this decision helps the respondent. The plaintiffs are therefore entitled to the interest claimed at 9 per cent. (The rest of the portion of this judgment's not necessary for purposes of this Report.)