Full Judgment
N.G. Chandavarkar, Kt., J.
1. The landlord called the mulgar, who is the appellant, seeks to make the tenant, who is the mulgeni-dar-respondent, liable to pay the enhanced assessment; but the terms of the kabulayat do not support that claim. The khata was no doubt transferred to the name of the mulgenidar at the time of the mulgeni or perpetual lease; but the transfer had only the effect of making the khatedar liable to pay the assessment to Government-he became the person to whom Government was to look for payment. But the question still remains whether as between the mulgar and the mulgenidar the liability existed in the latter as khatedar by reason of the transfer of the Mate to his name. That the original liability of the mulgar continued, notwithstanding the transfer, is obvious from the provision in the kabulayat that the responsibility for payment of the amount of the assessment (Rs. 6-14-6), then payable to Government annually, should rest on the mulgar. It is argued that because that specific amount was mentioned the parties must be held to have -agreed that the mulgar's liability should be limited to that amount and no more. But while by the kabulayat the mulganidar ,in terms agreed to pay a fixed amount of rent in perpetuity ' without reduction or enhancement, ' there was no such agreement as to the assessment. The amount of assessment, Rs. 6-14-6, mentioned in the kabulayat as being payable by the mulgar, must, therefore, be deemed to refer to the assessment as it then existed, irrespective of the question of its reduction or enhancement thereafter.
2. As to interest claimed on the arrears of rent sued for it was payable in kind according to the terms of the kabulayat. And payment in kind is not such a debt as is contemplated by the Interest Act (Act XXXII of 1839), which requires that there must be a debt or sum certain at the time when the promise was made to bring it within the operation of the Act: Juggo-tnohun Ghose v. Manikchand (1859) 7 M.I.A., 263. There was no debt certain at that time, because the market value then need not have been necessarily the same as the market value at the time of the breach of the contract.
3. But it is contended that interest is recoverable under Section 73 of the Indian Contract Act as damages for breach of the contract to pay rent. But where the contract is, as in the present case, to pay rent in kind on a certain day, and it is not so paid, a suit to recover the money value of the rent in kind is a suit to recover unliquidated damages under Section 73, and those damages are measured by the market value of the goods deliverable under the contract on the day when they ought to have been but were not delivered. And to award interest in addition would be to give interest not as but on unliquidated damages, ' but interest does not run upon unliquidated damages': Framji Hormasji v. Commissioner of Customs et al (1870) 7. A.C.J. 89; Abdul Rajak Saheb wd. Abu Baker v. Hasan Saheb wd. Ruknudin Mahomed Ali Mir Mohidin Saheb (1875) P.J. 210; and Niladhar alias Liladhar Lakhshmi & Co. v. Magniram and Mansukhdas (1875) P.J. 166.
4. The appellant, however, is entitled to interest from the date of the suit (Section 209 of the Civil Procedure Code, Act XIV of 1882). The decree must be amended by awarding interest at six per cent, from the date of the suit to the date of its satisfaction. In other respects the decree is confirmed. Costs in this and the District Court in proportion.