JUDGMENT Mukerji, Ag. C.J.
1. This is an appeal by the defendant in the suit and she raises two questions: one of construction of a document and the other of law. There is a pedigree appended to the plaint which explains the relationship that exists between the parties. It appears that Mt. Bismilla Begum, the mother of the defendant, executed, among other documents, a deed of wakf by which she sought to confer certain benefits in certain properties on Akhtar Jahan Begum and after her on some other persons. We have to decide whether the plaintiff-respondent is one of those some other persons to benefit under the deed of wakf. The document is dated 24th September 1926. It has not been translated and printed but the original document has been read out to us and we are of opinion that the Court below was right in its construction of the document. The document says at two places that on the death of Akhtar Jahan Begum her heirs, according to the Mahomedan law; would be entitled to the profits (from the property) which were being enjoyed by Akhtar Jhan Begum. The learned Counsel for the appellant has argued that Bismilla Begum really meant to say that the lineal descendants of Akhtar jahan Begum would alone enjoy the profits and not any other heir under the Mahomedan law. The plaintiff is the husband of Akhtar Jahan Begum and is not therefore a lineal descendant of Akhtar Jahan Begum though he is one of her legal heirs.
2. Some evidence was admitted by the Court below which was meant to explain what was in the mind of Mt. Bismilla Begum. This oral' evidence, in our opinion, was inadmissible having regard to the provisions of Section 91, Evidence Act. Mt. Bismilla Begum lived for several years after the execution of the deed of wakf and she never sought to rectify it on the ground that her intentions were not fully expressed by the document. As we have said, we hold with the Court below that the plaintiff-respondent is entitled to a share in the profits which were remarked for Akhtar Jahan Begum. The second point is whether the respondent has been properly allowed interest on his claim by the Court below. The question of interest is not entirely free from difficulty. The learned Subordinate Judge held that the appellant was in the position of a lambardar and as interest was allowed against a lambardar by the Tenancy Act, on principle, he, the learned Judge, was entitled to award interest against the defendant. 3. A number of rulings has been cited before us and we may refer to some of them. In Jwala Prasad v. Hoti Lal AIR 1924 All 711 a Bench of this Court held that interest could be awarded only as a matter of law, and in the case of a contract as damages. What the Bench laid down was that there was no arbitrary rule for awarding interest. The correctness of this case was doubted in a later case, Anrudh Kumar v. Lachmi Chand AIR 1928 All 500, but the decision in that case was based on a quasi contract and the principle of law enunciated under Section 73, Contract Act, applied. In Kalyan Das v. Maqbal Ahmad AIR 1918 PC 53, their Lordships of the Privy Council are reported to have stated at the top of p. 504 (of 40 ALL.):
Interest depends on contract, express or implied, or on some rule of law allowing it. Here 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.
4. In Hamira Bibi v. Zubaida Bibi AIR 1916 PC 46 their Lordships of the Privy Council allowed to a Mahomedan lady who was in possession of her husband's estate in lieu of dower, a certain amount of interest by way of compensation to her, as she had to manage the property and render an account, and had refrained from enforcing her right of dower against the estate. Their Lordships there said that they were allowing interest on "equitable grounds." In a much later case, Main and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart AIR 1929 PC 185 disallowing interest which had been allowed by the lower Court, their Lordships of the Privy Council are reported to have stated at p. 1069 (of 1929 A.L.J.) as follows:
It remains to consider whether any rule of equity entitles the plaintiffs to interest.
5. Their Lordships before making this statement had examined the language of a certain statute somewhat similar to our Interest Act, and had come to the conclusion that no interest could be allowed under that rule of law. Then their Lordships further stated:
In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts equitable jurisdiction, as for example, the non. performance of a contract of which equity can give specific performance.
6. Then their Lordships proceeded to examine whether the case before them was one in which interest could be awarded as a matter of equity and their Lordships remarked that the suit was based on a covenant which was contained in a contract which had been fully executed and there was no room for exercise of equitable jurisdiction. From these cases, the rule laid down by their Lordships seems to be this: Where a case, in England, would fall within the Common law jurisdiction, no equitable principles are to be applied in awarding or withholding interest, but where a case fell within the equitable jurisdiction exercised by the Court of Chancery, equitable considerations might induce the Court to allow interest. In the case reported in Main and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart AIR 1929 PC 185, there was no jurisdiction of the equity Court and therefore it was held that no interest could be allowed.
7. If this principle be correct we are of opinion that interest would be allowed in this case, if it were tried in England. It is true that their Lordships of the Privy Council have held, in Muhammad Rustam Alikhan v. Mushtaa Husain AIR 1921 PC 105, that the mutwali was not a "trustee" and therefore had no interest in the property which he managed and therefore the deed of trust was not required by the law of registration to be registered. But so far as the position of a mutawalli as the manager of the estate goes and so far as it is his duty to make certain payments enjoined by the deed of wakf he, in our opinion, stands in the position of a quasi trustee, lie may not have any personal interest in the property but he has to discharge all the obligations which would ordinarily fall upon a trustee. A suit for accounts in England would lie in the Court of Chancery and that was the reason why in Hamira Bibi's case AIR 1916 PC 46 their Lordships applied "equitable considerations" and awarded interest. If then the case before us would fall-within the equity jurisdiction of the Court in England, interest would be allowed on equitable considerations. Here in India Section 23, Trusts Act, would be our guide in deciding whether on equitable considerations interest may be allowed to the respondent or not. Section 23, Trusts Act, lays down that a trustee committing a breach of trust is not liable to pay interest except in the following cases:
...Where the breach consists in unreasonable delay in paying trust money to the beneficiary....
8. We think that taking Section 23(b) as our guide, we are entitled to hold that interest was properly allowed against the appellant by the Court below. We are not forgetful of the fact that the case does not fall within the Trusts Act. We have tried to find out with the aid of that Act, whether we are entitled to award interest on what has been termed by their Lordships of the Privy Council as "equitable grounds." The result is that the appeal fails and is hereby dismissed with costs.