Decided on November 14,1974

MANI AMMA Respondents


- (1.) The plaintiffs are the appellants in this Second Appeal. The appeal was referred to a Division Bench by a learned Judge of this Court, as it was felt that the decision of the Travancore - Cochin High Court in Kunjaiyyappan v. Unnaman (AIR 1955 TC 279) is in conflict with an earlier ruling of the same court in Arokia v. Sowriyaru (AIR 1953 TC 305) The question to be considered in this case is as to the nature of the acquisition made by a managing coowner by making use of the funds of the coownership property; viz., whether the acquisition itself is to be treated as enuring for the benefit of all the coowners, or whether the acquisition would enure only for the benefit of the acquirer, leaving the other coowners only with a right to demand their share of the coownership funds which had gone into the acquisition.
(2.) One Chathappan Nambiar died in 1943 leaving his wife who died in 1957 and five sons, viz., Rairu Kurup, Narayana Kurup, Chathu Kurup Kanna Kurup and Kelu Kurup. After the death of the wife, Kanna Kurup died issue less; and the plaint property acquired by Chathappan Nambiyar, devolved on the four sons as on intestacy under the provisions of the Madras Marumakkathayam Act. The plaintiffs are the wife and children of Narayana Kurup; and the defendant in the suit out of which this second appeal arises is Rairu Kurup The defendant acquired the rights of the other two brothers, Chathu Kurup and Kelu Kurup in the plaint property. The plaintiffs claim to be entitled to one half rights in the property. According to the plaintiffs, the assignment of the rights of Chathu Kurup and Kelu Kurup was obtained by the defendant with coownership funds by availing himself of his character as a coowner and therefore the plaintiffs treated the shares thus conveyed to the 1st defendant also as coownership property in which they were entitled to a one half share The Trial Court decreed the plaintiffs' suit. On appeal, the lower appellate court, on an analysis of the evidence came to the conclusion that it had not been shown that Exts. P4 and P5 assignments by Kelu Kurup and Chathu Kurup were obtained by the defendant by making use of coownership funds or by availing himself of his character as coowner. It therefore decreed the suit for partition only for one fourth share, and not for the one half share as claimed by the plaintiffs.
(3.) Despite the strenuous attempt made by Counsel, we are satisfied that the finding of the court below that the plaintiffs had not shown that coownership funds had been invested in, or had gone into, the acquisition of rights under Exts. P4 and P5, is correct. The court below has pointed out that the defendant was shown to be a man of means. It has also pointed out that Chathu Kurup and Kelu Kurup, examined as Dws. 2 and 3 admitted that they were getting their shares of the income of the coownership property from the defendant, who was managing the same, till they conveyed their shares to the defendant. The court below has also noticed the other relevant considerations in the light of which it recorded its finding in Para.14 that the plaintiffs had failed to prove that the defendant was in exclusive enjoyment of the profits of the coownership property and that Exts. P4 and P5 were acquired with the income of the plaint A schedule property. Being in agreement with this finding, which is amply supported by the evidence on record, strictly speaking, the question of law, for the consideration of which this reference was occasioned to this Division Bench, does not arise for consideration. The reference having been made, we wish to point out that even assuming that coownership funds were made use of by the defendant for getting Exts.P4 and P5 assignments, there is enough authority for the proposition that this would not enable the remaining coowners to demand their shares in the properties thus acquired, but would only entitle them to ask for an account of their share of the money invested in the acquisition. It is enough to refer to the decision of the Supreme Court in M. N. Aryamurthi & Another v. M. L. Subbaraya Setty by his legal representatives ( AIR 1972 SC 1279 ), which was followed by a Division Bench of this Court in AS 345 of 1967 etc.. A learned Judge of this Court also took the same view in Balakrishnan and Others v. Makkam & Others (1973 KLJ 157).;

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