Judgement Appeal from a decree of the Court of the Judicial Commissioner (Aug. 19, 1899) affirming a decree of the Deputy Commissioner of Sitapur (Aug. 19, 1898). The respondent, a taluqdar, obtained a decree in the first Court against the appellant (and another defendant, Gadadhar Bakhsh, who did not appeal therefrom) for Rs.11,491 as arrears of rent in respect of certain villages of which the defendants were under-proprietors. The questions at issue were whether the defendants were liable to pay rent jointly or separately in respect of their shares; and whether the appellant was liable to pay interest on arrears of rent, and, if so, at what rate. Law Rep. 31 Ind. App. 116 ( 1903- 1904) Thakur Ganesh Bakhsh V. Thakur Harihar Bakhsh 33 Both Courts decided in favour of the joint liability of the defendants to pay rent, and also that they were liable to pay interest. Be Gruyther, for the appellant, contended that s. 141 of the Oudh Kent Act (XXII. of 1886) did not, according to its true construction, impose on the appellant as an under-proprietor the liability to pay interest on arrears of rent. He was not a tenant within the meaning of that section. His liability to rent resulted from his status as under-proprietor, and was not created by contract. Interest, if un-claimable under s. 141, could not be claimed as damages for breach of contract. He referred to Muhammad Mehndi Ali Khan v. Muhammad Yasin Khan. (( 1898) L. R. 26 Ind. Ap. 41.) Ross, for the respondent, contended that there was evidence of a contract of tenancy between the parties, and that its breach rendered the defendants liable to pay interest as damages for the breach of it, and that under s. 12 of the Oudh Rent Act they would, in the absence of an agreement to the contrary, be liable to pay their rent one month before the date fixed for the payment of revenue. Reference was also made to s. 73 of the Contract Act and Ganshiam Singh v. Daulat Singh (( 1896) Ind. L. R. 18 Allah. 240.); see also the Interest Act (XXXII. of 1839). De Gruyther replied. The judgment of their Lordships was delivered by LORD DAVEY. The respondent, Thakur Harihar Bakhsh, is the taluqdar of Sarora in Oudh, and the appellant, Thakur Ganesh Bakhsh, is an under-proprietor on the same estate. L. R. 18 Allah. 240.); see also the Interest Act (XXXII. of 1839). De Gruyther replied. The judgment of their Lordships was delivered by LORD DAVEY. The respondent, Thakur Harihar Bakhsh, is the taluqdar of Sarora in Oudh, and the appellant, Thakur Ganesh Bakhsh, is an under-proprietor on the same estate. The questions raised by the present appeal are whether the appellant is liable to pay rent jointly with one Gadadhar Bakhsh Singh, or each of them is liable separately for his own share only, and whether he is liable to pay interest on arrears of rent, and, if so, at what rate. The counsel for the appellant, however, admitted that the first question was res judicata, and the only question left for the decision of their Lordships is as to the interest. In the year 1863 litigation took place in the Court of the Settlement Officer at Sitapur between Ganga Bakhsh, the father of the respondent, and the then taluqdar on the one side, and Bisheshar Bakhsh, his first cousin, and Uman Pershad, his paternal uncle, on the other. The claim is stated to have been for recovery of possession of certain villages in possession of the latter parties, and the provision for them of maintenance in cash. A compromise was effected by an agreement dated May 4, 1864, on the basis of Bisheshar Bakhsh and Uman Pershad each taking one-fourth of the estate and paying to Ganga Bakhsh half of the Government revenue, with the addition of 10 per cent, taluqdari dues on the present Government revenue, or which might be fixed from time to time. The Settlement Officer made a decree dated May 6, 1864, according to the terms of the agreement, and directed the parties to file a statement shewing how they pro posed to allot the undivided villages. This was done, and the Settlement Officer made, his final decree on December 14, 1864. Bisheshar Bakhsh died childless in November, 1865, and on the death of his widow Uman Pershad succeeded, after litigation, to Bisheshars share of the under-proprietary estate. On the death of Uman Pershad the under-proprietary estate again became divided between his sons Jang Bahadur and the appellant, and on the death of the former he was succeeded by his son Gadadhar Bakhsh. A partition was effected between the appellant and Gadadhar Bakhsh, and they obtained separate possession of the villages allotted to them. On the death of Uman Pershad the under-proprietary estate again became divided between his sons Jang Bahadur and the appellant, and on the death of the former he was succeeded by his son Gadadhar Bakhsh. A partition was effected between the appellant and Gadadhar Bakhsh, and they obtained separate possession of the villages allotted to them. Thenceforward the, appellant and Gadadhar Bakhsh maintained that they were no longer jointly liable for the whole rent of the under-proprietary estate, but only for their Law Rep. 31 Ind. App. 116 ( 1903- 1904) Thakur Ganesh Bakhsh V. Thakur Harihar Bakhsh 34 separate shares. The respondent, on the other hand, insisted on holding them jointly liable for the whole. The under-proprietors tendered their shares of the rent and their tenders were refused, and suits for the rent were brought by the respondent against the appellant and Gadadhar in 1896, and again in 1898. In the suit of 1896 the Deputy Commissioner, by his judgment dated April 8, 1896, decided that the appellant and Gadadhar Bakhsh were jointly liable for the rent, but that the taluqdar was not entitled to interest on the arrears. This judgment seems to have been affirmed on appeal, but Mr. Boss stated that the judgment, though printed in the record, was not put in evidence. It is, however, immaterial, because the judgment relied on as res judicata on the joint liability is that of the Deputy Commissioner. In the suit of 1898 Mr. Chamier, the Second Additional Judicial Commissioner, by his judgment dated June 27, 1898, decided oil appeal from the District Judge that the deed of compromise of May 4, 1864, was a contract to pay the rent, and that the respondent was entitled to recover interest by way of damages for the breach of that contract. The present suit was also one for payment of rent under similar circumstances. The Deputy Commissioner, by his judgment dated August 11, 1898, held that the respondent was entitled to interest following Mr. Charmers judgment in the previous case, and that the question of the joint liability of the defendants was res judicata. The decree founded on this judgment, which was dated August 18, 1898, was, on August 19, 1899, affirmed on appeal by the present appellant alone on the same grounds. Charmers judgment in the previous case, and that the question of the joint liability of the defendants was res judicata. The decree founded on this judgment, which was dated August 18, 1898, was, on August 19, 1899, affirmed on appeal by the present appellant alone on the same grounds. The judgment of June 27, 1898, was not, and probably could not have been, given in evidence by the respondent as an estoppel against the appellant, or in bar of the present suit Their Lordships, therefore, are not precluded from deciding the question of interest on its merits. In the argument before their Lordships the liability to interest was maintained by the respondent as well on the Interest Act of 1839 (Act XXXII. of 1839) as on s. 73 of the Indian Contract Act, 1872, and on the other hand it was contended that under s. 141 of the Oudh Rent Act of 1886 (Act XXII. of 1886) no interest was payable on arrears of rent by the under-proprietor, and the decision of this Board in Muhammad Mehndi Ali Khan v. Muhammad Yasin Khan (L. R. 26 Ind. Ap. 41.) was relied on. By s. 141 of the Act of 1886 it is provided that when an arrear of rent remains due from any tenant he shall be liable to pay interest on the arrear at the rate of 1 per cent, per mensem. And it was decided by this Board that an under-proprietor is not a tenant within the meaning of that section. But there is nothing in the Act or in the decision referred to which excludes any liability for payment of interest which the under-proprietor might be under apart from the Act. With regard to the Contract Act, their Lordships observe that neither of the present litigants was party to the deed of compromise, nor have they, in fact, made any contract with each other. The whole of the proceedings in the suit of 1863 are not before their Lordships, but the suit is said to have been decided on 6th April, 1864," and the compromise which was subsequently come to may have been executed for settling details in order to carry into effect the previous decision of the Settlement Officer. The whole of the proceedings in the suit of 1863 are not before their Lordships, but the suit is said to have been decided on 6th April, 1864," and the compromise which was subsequently come to may have been executed for settling details in order to carry into effect the previous decision of the Settlement Officer. But, however this may be, it appears to their Lordships that the terms of the agreement were carried into effect by the subsequent decree, and the agreement was, in fact, merged in the decree. In other words, the obligation of the appellant to pay the rent is derived from the status of under-proprietor, which was established by the decree, and not from the previous agreement, which furnished the materials upon which the decree is based. Their Lordships are, therefore, of opinion that this is not a suit for breach of contract within the meaning of s. 73 of the Indian Contract Act. Law Rep. 31 Ind. App. 116 ( 1903- 1904) Thakur Ganesh Bakhsh V. Thakur Harihar Bakhsh 35 In order to avail himself of the provisions of the Interest Act of 1839, the respondent must shew that the rent was payable by the appellant "by virtue of some written instrument at a certain time." Neither the deed of compromise nor the decree prescribed any time for the payment of the rent, or contained any terms from which the time could be ascertained. But it was said that the Court should incorporate in, or read into, one or other of these instruments the provision contained in s. 12 of the Oudh Rent Act, 1886, that, unless otherwise agreed, the rent payable to the proprietor by the under-proprietor shall be held to become due one month before the date fixed for the payment of the revenue on account of the village in which the land is situate. It would be a novel proceeding to read into an agreement a section in an Act subsequently passed. Nor would it help the respondent in the present case. The Interest Act was passed for the purpose of extending to India the provisions of the English Act (3 & 4 Will. 4, c. 42), and the words above quoted are the same as those in the English Act. The English decisions on that Act may, therefore, be referred to as a guide in construing the Indian Act. The Interest Act was passed for the purpose of extending to India the provisions of the English Act (3 & 4 Will. 4, c. 42), and the words above quoted are the same as those in the English Act. The English decisions on that Act may, therefore, be referred to as a guide in construing the Indian Act. In Duncombe v. Brighton Club and Norfolk Hotel Co. (( 1875) L. R. 10 Q. B. 371.) it was decided in the Queens Bench (dissentiente Blackburn J.) that the actual day for payment need not be fixed in the instrument if the basis of the calculation which was to make it certain was to be found in the instrument itself. In London, Chatham and Dover By. Co. v. South Eastern By Co. ([ 1892] 1 Ch. 120.) it was pointed out that this decision was inconsistent with a previous decision of the Exchequer Chamber in Merchant Shipping Co. v. Armitage (( 1873) L. R. 9 Q. B. 99.), which appears to have been overlooked by the learned judges. In that case it was held that it was necessary that the actual day for payment should be fixed by the written instrument, and that was the view expressed by Blackburn J. in the case in L. R. 10 Q. B. Their Lordships have not to say which of these two decisions they prefer, for either of them is fatal to the argument of the respondent. Their Lordships are, therefore, of opinion that interest is not payable on the arrears of rent found due from the appellant and Gadadhar Bakhsh Singh, and they will humbly advise His Majesty that the decree of the Court of the Judicial Commissioner of Oudh dated August 19, 1899, be discharged, and instead thereof it be ordered that the decree of the Deputy Commissioner of August 18, 1898, as subsequently amended, be varied by omitting the direction therein contained for payment of interest on the sum thereby found due from the appellant and Gadadhar Bakhsh Singh, and that with this variation the decree be affirmed. As the appellant has failed on one point and succeeded on the other one, their Lordships will further advise His Majesty that there should be no costs of the appeal to the Court of the Judicial Commissioner. And there will be no costs of this appeal.