1. The question in this appeal is whether the plaintiff in the suit is entitled to claim interest and costs. Her deceased husband subscribed to a chit, of which the father of the defendant was the karaiswan. He paid 17 instalments before his death, after which the plaintiff paid the remaining four. The chit closed on 6th April 1919 and. Rs. 2,100 were then due to her. She claimed this sum, but the karaiswan did not discharge till August 1922, his pretext being that till that time her title was in question in a suit brought by her brother-in-law. This pretext did not commend itself to the District Munsif who tried the suit or to the Subordinate Judge who dismissed the first appeal. In second appeal however, Spencer, J., came to the opposite conclusion, finding that the karaiswan was justified in withholding the money till the suit had been concluded.
2. The facts are these: The plaintiff's husband died in February 1917. Some months later the plaintiff applied for a succession certificate which was opposed by her brother-in-law, on the strength of a will alleged to have been executed by her husband, of which he produced not the original but what purported to be a duplicate. A certificate was issued to the plaintiff on her
undertaking not to collect the outstandings due to the deceased for one month from the date of the certificate in order to enable the respondent to file a suit to prove the will.
3. A few days later the suit was filed. The brother-in-law applied for an injunction against the widow, but it was refused as regards the amount now in question. This occurred on 15th October 1918. The intention of the Judge who granted the certificate is perfectly clear. The widow was not to collect the money for a month. If in that time no suit was filed she could collect it at once. If a suit was filed further proceedings were left to the Court which was seised of it. The brother-in-law failed to get a further stay and the karaiswan could not plead good faith when he refused to pay the money on the date on which it fell due. Nor was that all. A week after the injunction had been refused, the Munsif found on a preliminary issue of law that the will propounded could not be sued on in the absence of probate or letters of administration. The present defendant 1 was a defendant in that 'suit and was dismissed from it on 21st October 1918. As the Munsif has remarked, from that date he was free to pay the money to the widow. The will had been pronounced to be useless and there was no injunction against him. Under the circumstances Section 16, Succession Certificate Act, afforded him a complete indemnity. It is idle to plead that it was still open to the brother-in-law to apply for probate before his suit was disposed of, for he made no effort nor was he likely to do so. The karaiswan, however, went on refusing to pay on the ground that, if the brother-in-law's suit succeeded, he might have to pay twice over. As the Munsif has observed:
Defendant, would not have been lacking in bona fides in paying over to the plaintiff, only if he had reasonable grounds to suspect that the certificate was not validly obtained, but when once the certificate had been placed beyond challenge by the alleged will being put aside, the defendant could make no excuse to the holder of the certificate.
4. In these observations we concur. We think that the defendant did not act in good faith in refusing to pay, as he was completely indemnified. It is contended that the plaintiff is not entitled to interest as, in her notice she claimed interest on the terms of the contract, which does not provide for it. We see no reason to accede to this contention. It is sufficient that she claimed interest. In what form or at what rate she claimed it is not material. We think that the Subordinate Judge's decision was right and restore it with costs throughout, subject to one reservation.
5. The costs of the plaintiff's memorandum of objections, which was dismissed, must be excluded from the costs which have to be paid by the respondents.