LexVITHAL DAS versus RUPCHAND & ORS.
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164 VITHAL DAS A v. RUPCHAND & ORS. B April 7, 1966 (K. SUB!IA RAO A~D V. RAMASWAMl. JJ.J Trusts Act 1882. ss. 2.1. 90 and 95-Appellant in possession oj part- nership property after dissolution-Collecting rental income-:-Whc- ther on partition interest pauable by him under s. 23 read teit.h s.<. 90 and 95 either as co-01DnP.r derit:ing advantage in derogation ~t C Tights of other partners or on lireaeh of tru.<t or beca>c<e of dday in payment of shares of income of other partners. Interest Act, 1839, s. I-Scope of. The plaint:!Ts instituted a suit for partition of immovable pro- perty constituting two blocks and for rendition of account•. They claimecl that the property was purchased with the capital of the part- nership firm in which the plaintiffs and the defendant were partners D and that by two documents dated July 2, !937 and July 16.1937, the properties continued to remain in the ownership of the partnership firm, though the firm was dissolved in 1937. The defendant contested the suit on various grounds and also alleged that he had invested Rs. 10,000/- for constructing a building on the land in one of the blocks The trial Court granted the plaintiffs a decree for most of the reliefs sought. The High Court, in appeal. held that the plaintiffs were E entitled to claim half >hare in the properties and that the defendant was liable to account for the income from the date of dissolution i.e. July 2. 1937 in the case of one block ancl from 1939 Lri th• case of the other block and furthermore that the plaintiffs were liable to pay haI.f th<• amount spent by the defendant in constructing the building on one of the blocks. Upon a remand of the case to the trial Court a Commissioner v..·as appointed to examinr the accounts of rent rcali· zed bv the defendant and on the basis of his report. the trial court r iirantcd the plointiffs a decree for the amount payable to them as their half share, together with interest upto April 1957 and after deducting the plaintiffs' shart> of the expenditure incurred by the defendant on the building. In further appeals to the High Court by both the parties the decision of the trial court was substantially confirmed. In the appeal to this Court b;· the defendant, it was contended. inter a!ia. on his behalf that the trial court and the High Court had erroneously decided that the defendant was liable to pav interest for G the period prior to the institution of. the suit on the half share of the ,..;, rental ;ncome on the ground that the relationship between the par- ties was in the nature of a trust under Section 90 of the Trusts Act, 1882. ~ ~ On the other hand the contentions for the respondents were that interest nrior to the date of institution of the suit could be paid to H ~em under the. Interest Act. 1839: that the defendant was in posseS'- sion of the entire pronert1es as co-owner after the dissolution of the partnership by the document dated July 16, 1937 and that a! he \ ---: ..---- -_,., ) I / • ·~ VITIIAL DAS"· RUPCHAND. (Ramaswami, J.) 165 A.\ was realizing rents of the .properties, he was in ihe position of a · constructive trustee under s. 95 of the Trusts Act and was liable there- fore to pay interest on the plaintiffs' share of rent under s. 23 read with s. 95 of the Act; and that he was in any event liable to pay in- terest under s. 23(b) of the· Trusts Act because there was unreason- able delay in paying the trust money to the beneficiary, B c 'n E G H HELD: Interest wao "only payable to the plaintiffs at the rate of 6% per annum from the date of the final decree on the amount found due to the plaintiffs. It is well-established that interest may be awarded for the period prior to the date· of_ the institution of the suit if there is an agree- ment for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of Jaw, or under the provisions of any substantive law as for instance under s. 80 of Nego- tiable Instruments Act or s. 23 of the Trusts Act. It was admitted in the present case that the two agreements between the parties dated July 2, 1937 and July 16, 1937 did not provide for payment of interest 1n the rental realised by the defendant on the joint properties. Nor was interest payable under any provision of law governiiig the case. Under the Interest Act, 1839, the court may allow interest if the amount claimed is a sum certain which is p
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