1. The plaintiff sued to recover rent in respect of certain lands for the Malayalam year 1100 and 1101, claiming that he had become entitled to the amount as assignee of the same from the landlord. Five defendants were impleaded as parties to the suit but we are at present concerned only with the liability of defendant 1 who is the appellant here. The trial Court dismissed the suit as against him but the lower appellate Court has given a decree against him. Hence this appeal. I see no reason to differ from the conclusion of the lower appellate Court as to the liability of defendant 1 for rent in respect of the two years in question or even as to the rate of rent. Mr. Govinda Menon made some point with reference to the observation in para. 18 of the lower appellate Court's judgment that la pothipads of land are in the possession of defendant 5. But the records show that the claim for rent now made does not include these 11/2 pothipads because, as the learned Judge himself points out, that portion of the land was not included in Kovan Nair's lease and it is on the basis of the rent payable by Kovan Nair that the rent claimed in the present suit has been fixed. I agree with the lower appellate Court that it is unnecesssary for the purposes of this case to decide upon the reality or otherwise of Ex. F.
2. The only other question pressed before me by Mr. Govinda Menon is as regards defendant 1's liability for interest prior to date of suit. The plaint purported to base the claim upon an alleged written lease of 1085 stating that it provided for payment of interest as well. But the Courts below have found that no such lease in writing existed; and the rent has been fixed only with reference to the rents actually paid in the past. There is accordingly no contractual basis, whether oral or written on which in interest would be awarded. In these circumstances Mr. Govinda Menon contends on the authority of Nachappa Goundan v. Ittichathara Mannadiar 1930 Mad. 727 that the plaintiff is not entitled to claim interest prior to date of suit. On behalf of the respondent it has been insisted that no such point appears to have been taken before the lower appellate Court. But I cannot ignore the fact that the written statement emphatically denies the liability to pay interest, and Issue 3 has been raised so as to cover the question of the liability to pay interest, as well as of the rate. Before me learned Counsel on both sides have examined the prior receipts for rent exhibited in the case and they do not throw any light on the question whether interest has in fact been paid in the past, in para. 20 of the first Court's judgment the learned Subordinate Judge accepted plaintiff's evidence as to the customary rate of interest both in respect of paddy and on the cash rent due and awarded interest on that basis. But he was giving his decree on the basis of Ex. F against defendant 2; and as Ex. E contains an express provision for interest his task was easy enough.
3. It is only when we come to deal with the liability of defendant 1 that the question becomes more difficult. Mr. Kuttikrishna Menon contends that, as the lower appellate Court has found that Ex. E was really taken benami for the benefit of defendant 1, defendant 1 must be hold bound to pay interest as per terms of Ex. IP. I do not think this is a right position to take. I am proceeding on the basis on which the lower appellate Court has in one part of its judgment proceeded, that for the purpose of his case it is unnecessary to go into the question whether Ex. E is benami or not. If Ex. E, is out of the way and there is no contract to pay interest, I have tried, to see whether interest could be awarded on the ground of custom. There are no doubt statements by some of the witnesses examined in the case as to the customary rate of interest; but those statements do not bear upon the question of the liability to pay interest 'but only on the question as to the rate wherever the liability is otherwise established. I am unable to read those statements as justifying an award of interest on the ground that it is customary to pay interest on arrears of rent.
7. In these circumstances I am obliged to disallow the claim for interest prior to date of suit. From date of suit up to date of payment, the plaintiff will be entitled to interest at the rates awarded by the decrees of the Courts below. The result will be that for the sum of Rs. 4,000 as on the date of plaint a sum of Rs. 2,433-6-10 will be substituted. The costs payable to the plaintiff by defendant 1 will also be calculated on the basis of the sum above awarded in all the Courts.