JUDGMENT

1. This is an appeal from a final decree passed by the learned Subordinate Judge of Aligarh in a suit for accounts. The grounds of appeal are:

That the amount of profits alleged to have been recovered by the defendant between the years 1904 to 1907 as fixed by the Commissioner who took accounts was excessive.

2. That the defendant was wrongly refused credit for three items:

(a) of Rs. 2791.

(b) of Rs. 1505 and

(C) of Rs. 608-10.

(3) That the defendant was not liable to pay interest on the taking of accounts and he was wrongly saddled by the lower Court with the payment thereof.

2. The ground of appeal No.5, was abandoned.

3. As regards the calculation of profits of the two markets which it is now decided was received by the defendant we think that the Commissioner has correctly assessed them. The Commissioner did not trust for valid reasons the account books produced by the defendant and his opinion was that the safest way of assessing the income for the period from 1st January 1904 to 30th April 1907 was to apply the average of eight months from May to December 1907. This is as good a way of valuing the profits as any other that may be suggested. We, therefore, affirm the finding of the lower Court on this point.

4. The item of Rs. 2791 is made up of several items, a detail of which will be found at page 10 of part 3 of the printed book under the heading statement C. As regards only one item of Rs. 600 there is evidence that this money was paid by the defendant on behalf of the plaintiff, when the plaintiff was a minor, to one Jwala Prasad son of Khareg Sen. There was a partnership firm of which this Jwala Prasad and the plaintiff were partners and, on dissolution of that partnership, certain sums were paid to this Jwala Prasad who undertook the liability to pay himself the debts due from the firm. The agreement executed by Jwala Prasad is Ex.K. It is stated in the agreement that he received Rs. 600 from Mihin Lai father of the defendant. The defendant is entitled to set off this sum of Rs. 600 The other items the defendant claims are on the basis of entries in his account books which have been found to be untrustworthy. There is, further, no other evidence to render the plaintiff liable and so u/s 34 of the Evidence Act the entries in the account books by themselves are not sufficient to saddle the plaintiff with the liability for the payment of these sums.

5. Coming next to the item of Rs. 1505 we find it made up of different items of statement D at page 10 of part 3 of the printed book. As regards a sum of Rs. 200 a receipt alleged to have been given by Kalyan Das (Ex. N.) was put in by the defendant but it has not been proved in the ordinary way. There is no proof of the payment by defendant of any of the many items making up the sum of Rs. 1505. We, therefore, disallow this claim of the defendant.

6. The payment of the third item by the defendant on behalf of the plaintiff, when the plaintiff was a minor, is proved. The agreement referred to above declares that Jwala Prasad received Es. 500 from Mst. Sukha widow of Total Earn. The evidence of Makhan Lai a munim of the firm of Nathu Ram Jwala Prasad had proved that Mst. Sukha obtained this money by pledging her ornaments with that firm and that subsequently the defendant paid this money, got the ornaments redeemed and returned them to Mst. Sukha. It was pointed out by the respondent's learned Counsel that Jwala Prasad defendant was one of the partners of this firm. This fact is not sufficient to make us distrust the testimony of Makhan Lai. We are satisfied that the sum really came out of the pocket of the defendant. He is entitled to credit for this sum.

7. Finally there remains the question of interest. In two judgments of a Bench of this Court of 1918 it was pointed out 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 of the Contract Act, illustration (n) or in t