JUDGMENT Pullan, J.
1. This appeal arises from a suit brought by Mahomed Abdul Salam Khan for a one-third share in the annual rent of a property known as Glanville, owned by him and his two brothers who are defendants 1 and 2 in the case and leased to Messrs. Evans Fraser & Co., who are defendant 4. The third' defendant Mr. Lindsay Smith is the agent who receives rent from defendant 4 for the lessors. The plaintiff has already brought one suit against his brothers in the year 1925, and there is no question that since that time the plaintiff has been attempting to get from his brothers his share in the profits of the family property and that the profits have been withheld, from him. The present suit has been decreed for a sum of Rs. 18,159-5-9 together with proportionate costs against defendant 1 only. This sum includes the plaintiff's one-third share in the rent of the property and also interest at the rate of one per cent per month. Three points are raised in appeal by defendant 1 Abbul Jalil Khan. He pleads in the first place that the claim for interest should have been disallowed; secondly, that the claim for the first six-monthly instalment of the year 1925 falling due en 1st March 1925 cannot be granted as this was part of the subject-matter of the suit of 1925 and the decision in that suit must be held to operate as res judicata; and thirdly, ha claims credit for income-tax which has been paid by him on the total amount of rent collected for these premises. Grounds 2 and 3 of objection present no difficulty. We have read a copy of the plaint of the suit filed by the plaintiff in 1925. That suit referred to the period during which the present appellant was the agent of the plaintiff-respondent. That agency terminated in the year 1934 and there was no relief prayed in that suit for the rent accruing for Granvilla estate for the six months terminating in March 1925. Nothing therefore in the judgment of that suit can operate as res judicata in the present suit. As to the claim to credit for income-tax paid by the appellant on the profits of the Granville estate, we are of opinion that no such claim can be sustained by way of a set-off where it has not been specifically pleaded and a court-fee paid on the amount claimed. There remains the appellant's objection to the decree for interest. This is based mainly on the desion of a Bench of this Court reported in Jwala Prasad v. Hoti Lal A.I.R. 1924 All. 711. the judgment in that suit which purports to follow a decision of their Lordships of the Privy Council in Kalyan Das v. Maqbul Ahmad A.I.R. 1918 P.C. 53 states that:
the only grounds upon which interest can be claimed upon a sum of money when the liability for the sum is established are to be found either in Section 73, Contract Act, Illus. (n), or in the Interest Act No. 32 of 1839.
2. The learned Judges held that in the case before them interest was not recoverable on either ground. A similar view had already been expressed by another Bench of this Court in the case of Lalman v. Ghinta Mani [1919] 41 All. 254. It must be noticed however that in both these eases reference is made to Illus. (n), Section 73, Contract Act. The judgment of the Privy Council in the case of Kalyan Das v. Maqbul Ahmad A.I.R. 1918 P.C. 53, does not refer to any section of the Contract Act. The dictum of their Lordships is in general terms. They say:
interest depends on contract express or implied or on some rule of law allowing it.
and as to the case before them they observed:
there is no express contract for interest and none can be implied, and no circumstances less capable of justifying the allowance of interest as a matter of law can be imagined.
3. We do not consider that this observation of their Lordships gives rise to the conclusion that interest can be allowed only under the provisions of the Interest Act or of Section 73, Illus. (n), Contract Act. There are circumstances in which interest can be allowed on general grounds of equity and Illus. (n) does not cover the whole of Section 73, Contract Act. This has already been pointed out by a Bench of this Court in the case of Anrudh Kumar v. Lachhmi Chand A.I.R. 1928 All. 500, where the ruling referred to above in Jwala Prasad v. Hoti Lal A.I.R. 1924 All. 711, was considered. In the case of Hamira Bibi v. Zubaida Bibi A.I.R. 1916 P.C. 46 their Lordships of the Privy Council allowed a Mahomedan widow's claim to interest on her unpaid dower debt on the ground that although there was no agreement that she should obtain any sum in excess of her actual dower, she was entitled on equitable considerations to some reasonable compensation "be it calculated on the basis of an equitable rate of interest."
4. In the present case it is not necessary to rely merely on principles of equity. We consider that this is a case falling under Clause 3, Section 73, Contract Act. The appellant was a cosharer collecting rents on behalf of himself and the respondent. It was his duty to pay to the plaintiff his share of rent when that rent was collected, and although there was no express contract that he should compensate the plaintiff for delay in making the payment by an additional payment of interest there was in our opinion:
an obligation resembling those created by contract incurred by the appellant and not discharged by him to pay to the plaintiff his share of profit on due date.
and the plaintiff being injured by the appellant's failure to discharge that obligation:
is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract.
5. Such injury can be compensated and, in our opinion should be compensated, by, allowing an equitable rate of interest. The rate of interest allowed by the lower; Court is 1 per cent per mensem. We do not consider that that is an excessive rate. Thus the appeal fails on all grounds. and is dismissed with costs.