Chatterji, J.:— This is an appeal by the defendant no. 1 from a preliminary decree passed in a suit for accounts.

Defendant no. 1 had three brothers, Quadir Bux, Khoda Bux and Elahi Bux, all of whom are dead. Plaintiffs 1, 2 and 3 are son, daughter and widow, respectively, of Khoda Bux. Plaintiffs 4 to 9, who were originally impleaded as defendants 4 to 9 but subsequently transposed to the category of plaintiffs, are the heirs of Elahi Bux, plaintiffs 4 and 5 being his sons, plaintiff 6 his widow, and plaintiffs 7 to 9 his daughters. Defendants 2 and 3 are son and daughter, respectively, of Quadir Bux.

Plaintiff no. 1 and Elahi Bux instituted a partition suit (no. 41 of 1933) in the Court of the Subordinate Judge at Gaya against defendant no. 1 and the remaining co-sharers which ended in a compromise. As a, result of the compromise a, tasfanama deed, dated the 9th June, 1934, was executed by plaintiffs 1 to 3, Elahi Bux and defendants 1 to 3. In Schedule 3 of the deed were mentioned certain debts due to the family in which the share of each of the four brothers or his branch was specified to be 4 annas. By the terms of this deed defendant no. 1, as mutwalli for the time being of the Manshahi Wakf Estate under a wakf deed of the same date referred to in the tasfianama deed, was authorised to realize these debts and distribute them, if realized in cash, among the co-sharers according to their shares.

The plaintiffs 1 to 3 instituted the present suit on the 4th January, 1938, for accounts and for recovery of the money that might be found due, with interest at 12 per cent per annum, alleging that in spate of demand defendant no. 1 did not furnish them with any account of the realizations made or make over to them their share of the amount realized, and that, so far as they could ascertain, defendant no. 1 realized the dues mentioned in Schedule 2 of the plaint. The plaintiffs' 4 as share out of these dues together with interest at 12 per cent per annum was Rs. 12,056, and the suit was valued at this amount.

Defendants 4 to 9 filed separate written statement substantially supporting the plaintiffs' case. Defendants 4 and 5 further stated that though they granted receipts to defendant no. 1 for small amounts paid to them, defendant no. 1 did not render any account to them. Subsequently, however, defendants 4 to 9 were transferred to the category of plaintiffs and were made plaintiffs 4 to 9. They paid court-fee on the tentative value put by them on their claim.

Defendant no. 1 contested the suit on various grounds, of which those that are material to this appeal are (1) that plaintiffs 2, 4 and 5, in any case, are not entitled to ask for accounts for the period up to 22nd Asarh 1344, because they received their full share of the moneys realized during that period and granted receipt to defendant no. 1 giving full acquittance after inspecting the accounts, (2) that the plaintiffs are not entitled to any interest, and (3) that they are not entitled to any costs as the defendant no. 1 was always ready to pay them their share of the moneys realized and in fact he deposited the same in the Imperial Bank at Purnea. In his original written statement defendant no. 1 gave an account of the receipts and expenses during the years 1342-1343, 1343-1344, 1344-1345 and 1345-1346 (Mulki). According to this account, Rs. 22,149-8-9 was admittedly due to the plaintiffs 1 to 3 for their 4 as share. In the supplementary written statement filed by defendant no. 1 after the defendants 4 to 9 became plaintiffs 4 to 9, he gave a further account stating that Rs. 10,698-7-6 was deposited in the Imperial Bank to the credit of plaintiffs 4 and 5 and Rs: 5,260-6-9 was deposited to the credit of plaintiffs 6 to 9.

On the application of the plaintiffs 1 to 3, defendant no. 1 in obedience to the. Court's order deposited in Court the sum of Rs. 22,149-8-9 which was admittedly due to those plaintiffs, and they withdrew the amount. This was before the defendants 4 to 9 were transposed to the category of plaintiffs.

The learned Subordinate Judge who tried the suit overruled all the defences taken by defendant no. 1 and passed a preliminary decree with costs against him with the direction that the period of accounting should be from the date of the tasfianama deed, that is, 9th June, 1934, up to the date of the preliminary decree. As regards interest, he allowed it at per cent per annum to be calculated from the date of each cash realization. Hence this appeal by defendant no. 1, who will be referred to hereafter as the defendant.

The first point argued by Mr. S.N Dutt for the appellant is that plaintiffs 2, 4 and 5 are not entitled to ask for accounts, for the period up to 22nd Asarh 1344, inasmuch as they received their share of the amount realized up to that date and gave full discharge after examining the accounts. The defendant relies on the receipts Exts. B, B(1) and B(2).

The receipts Exts. B(1) and B(2) themselves contain a gist of the account, and it is difficult to hold that plaintiffs 4 and 5 blindly signed the receipts without satisfying themselves that the statement of account was correct. They with their eves open gave full acquittance and they cannot again ask for accounts for the period covered by the receipts.

Indeed the defendant will have to render accounts to the other plaintiffs from the date of the tasfianama. But the Plaintiffs 4 and 5 will not be entitled to the benefit, if any, of the examination of such accounts, so far as the period up to Asarh 22, 1344, Mulki is concerned. If however, as the result of such examination some fraud or mistake is discovered, that is to say, if it is found that during the said period some more money had been realized by the defendant, but either fraudulently or by mistake not included in the account already rendered to the plaintiffs 4 and 5, they will be entitled to their proportionate share of such money.

The next point argued by Mr. S.N Dutt is that the plaintiffs are not entitled to any interest on the money which the defendant is said to have wrongfully detained for the period before, the institution of the suit. Reliance is placed on the Privy Council decision in Bengal Naapur Railway Company v. Ruitanji Ramji and on the decision of this Court in J.H Pattinson v. Srimati Bindhya Debi. In the Privy Council case it was held that in the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest for the period before the institution of the suit, interest for that period cannot be allowed for the wrongful detention of money. The Patna decision is also to the same effect.

The provisions of the tasfianama Ext. 1 on which the plaintiffs' claim is founded are to be found in paragraph 6, of which the material portions are:

“We the executants, fully authorise the mutawalli for the time being to realise the entire debt, principal and interest, on behalf of us, the executants, and our heirs, from all the debtors by whom the payment is due……. If any debt be realised in cash it will be necessary for the mutawalli for the time being to distribute it among us, the executants, and our heirs and representatives, in proportion to our respective shares mentioned above.”

It thus appears that, in the first place, the position of the defendant (who is the present mutawalli) is that of an agent in regard to the collection of the debts and that, in the second place, there is no provision for payment of interest on the moneys realized by him but not forthwith distributed among the co-sharers. Any claim for interest founded on contract, therefore, must fail.

As to provision of law, there is nothing in Chapter X of the Indian Contract Act, which deals with “Agency”, to support the claim for interest. Turning to English law, which may be a guide when the Indian Contract Act is silent, we find that in Turner v. Burkinshaw Lord Chelmsford, L.C, said “It is the first duty of an agent—as Sir Thomas Plumer said in Pearse v. Green, quoting the words of the Lord Chancellor in Lord Hardwicke v. Vernon,—to be constantly ready with his accounts. But this must mean that the agent must be ready to render his accounts when they are demanded. If no demand is made upon him, it is the simple case of an agent retaining money which he ought to pay over, but which he has not been required to pay; and there is no case, of which I am aware, where under such circumstances, without anything more, the agent has been made to pay interest.” In Bowstead on Agency, 9th edition, at pp. 138-39 the law is thus stated:

“No agent is liable to pay interest upon money received by him to the use of his principal, except where he receives or deals with the money improperly, and in breach of his duty or refused to pay it over to the principal on demand”.

In the present case there is nothing more than that the defendant did not distribute the money when realized. In other words, it is a case of mere detention of money. As regards demand, I shall deal with it later.

Coming to the Interest Act (Act XXXII of 1839), section 1 provides:

“It is, therefore, hereby enacted that upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment:

Provided that interest shall be payable in all cases in which it is now payable by law”.

The first part of the section applies where sums certain are payable by virtue of some written instrument at a certain time. In Juggomohun Ghose v. Manick Chund the Privy Council explained that the certainty of amount and of the time of payment must exist at the time when the promise is made. In the present case though the debts which the defendant was authorized to realize and distribute were ascertained sums, as detailed in Schedule 3 of the tasfianama, there was no certainty as to when they would be realized. The amounts so realized could not, therefore, be said to be payable by defendant no. 1 at a certain time. Consequently the first part of the section cannot apply.

The second part of the section refers to debts or sums certain payable otherwise than at a certain time. In such cases, if there has been a written demand of payment, interest may be allowed from the date of demand. In the present case plaintiff no. 1, in reply to a notice Ext. 3, dated the 14th July, 1937, given by the defendant, sent him a reply Ext. 3(a), dated the 17th July, 1937, demanding accounts in these terms:

“I……………call upon you to render me the account and pay me share of the debts realized with interest by way of damages for wrongful detention”.

There being thus written demand of payment, as required by the second part of the section, plaintiff no. 1 will be entitled to interest from the date when the notice Ext. 3(a) was admittedly received by the defendant. This date is not known, but may safely be taken to be 20th July, 1937.

The same result will follow under the proviso to the said section

“Provided that interest shall be payable in all cases in which it is now payable by law”.

In 1839 when the Interest Act was passed the rule of English law which was enunciated by Lord Chelmsford so long ago as 1867 in the case cited above must be regarded to have been the law in India in regard to the agent's liability to pay interest. According to that law, the agent is liable to pay interest when there has been demand of payment.

The liability of the defendant to pay interest to the plaintiff no. 1 from the date of receipt of the notice. Ext. 3(a) being thus established, the question arises whether the other plain-stiffs will be entitled to claim interest from the same date. The notice Ext. 3(a) expressly says

“render me the account and pay me my share”.

But, I think, the matter will have to be decided with reference to the provisions of paragraph 6 of the tasfianama under which the defendant's liability as agent was created. The co-sharers were treated as forming four groups, each group having 4 as share. The share of plaintiffs 1 to 3 who were executants nos. 5 to 7 was taken to be

“4 annas jointly.”

Provision was made for distribution of the cash realizations

“in proportion to our respective shares mentioned above”.

The plaintiffs 1 to 3, therefore, must be taken to be joint principals to whom the defendant is accountable in respect of their joint 4 annas share. Consequently plaintiffs 1 to 3 will be entitled to claim interest by reason of the demand made by plaintiff no. 1 by the notice Ext. 3(a).

It must be made clear that the plaintiffs 1 to 3 will be entitled to interest from 20th July, 1937, on the collections made before that date. With regard to the collections made after that date, interest will be calculated from the date of each collection. The rate of interest will be 6 per cent per annum, as allowed by the learned Subordinate Judge.

The position of plaintiffs 4 to 9 is different. They form a separate group of co-sharers having 4 annas share. They cannot claim the benefit of the notice Ext. 3(a). They did not even originally join as plaintiffs when the suit was filed. They are, therefore, not entitled to interest for the period before the institution of the suit.

It is hardly necessary to mention that so far as the period subsequent to the institution of the suit is concerned, the granting of interest will be governed by the provisions of section 34 of the Civil Procedure Code.

The last point urged by Mr. S.N Dutt relates to costs.

There is no reason why these plaintiffs should not get their costs. * * * *

The costs subsequent to the preliminary decree will be dealt with at the time of passing the final decree.

So far as plaintiffs 4 to 9 are concerned, they did not originally join as plaintiffs and were impleaded as defendants

It is thus clear that plaintiffs 4 to 9 might have easily obtained payment of these admited amounts without becoming co-plaintiffs. In the circumstances, these plaintiffs are not entitled to cost's at this stage.

In the result I would allow the appeal in part and modify the decree of the Court below * * *

the plaintiffs 1 to 3 only will be entitled to interest, as indicated above, for the period before the institution of the suit

In the circumstances, I would make no order for costs in this, Court.

Shearer, J.:— I agree.

H.R.K

Appeal partly allowed.