AS/26/1954 of MARIAM Vs KUNHUVARKI on 18 June 1956

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IN THE HIGH COURT OF THE STATE OF TRAVANCOBE-COCHIN AT ERNAKULAM.

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The Hon'ble Shr1 K.I Koshi,Chief JusticeandThe Hon•ble Shri N. Va.rada.raja T_yenga.r, Judge.f$.S. No._ 26 £ 1954.l\o.s. No. 120 of 1122 of the Anjika.1mal Dist.r1.ct Court.

Anpellant:• Plaintiff.Pe.riam, wife of IVamp11ly- Va.riath Ouseph, residing at Na.rakkalMu.ri, Na.rakkal Village, Cochin-Kanayannur Taluk.

By .Advoca.te Shri T.M. Ml.halingom Iyer.

,Respondents:- Defendants.·1. Kunhu Va.rkey son of Kur:tsum1ttathu l&\mpllly Kochu Va.risthresiding 1n Pulikkaparamba, Eravoor Desom,Nadarm Village,Cochin-Kanayannur Taluk••2 Mariam, the wife of No. l, died.,He.r children and heissbeing Annamma,.residing in do.do.6Minor Pappu]brother of No, .&, residing in dodo. byguardiangd litem, the Naz1r of the Anjikaizool District Court.4. The hei.rs of the deceased Kochu Kt1njan of puthanpa.rambu,Ndame Desom, Nadama Village, Cochin-Kanayannur Taluk, beinghis widow, Koma, .residing in do.do..5, Paru, daughter of No• 4, teacher in the Min.gayil School, residing in do.do,-R.:6. Annamma, wife of Olikkal Pall1, do. Desom, do. VUlage, do.Talli,7, Mriam, daughter of No. 6 and wife of Thalasse.ri Ouseph .resi-a--,ing 1n Kumbal.am. Desom, Kumibalam Village,Cochin-Kanayannur Talula. Aeli, duaghter of No. 7 and w11'e of Theva.rakkattu 04seph, re-siding 1rt Theva.ra Desom, Eraakulam Pillage, do. Taluk9• Ku.ruvila, son of VilangattU Koehn Ouseph, .residing in NadamaDesom,Nada~ Village, Co ch1n-Kanayannu.r Taluk.10. Mariam, wti'e of Ouseph, .residing in Nadumpu,rathu Palathingal,Ponitha.ra Desom, Ponitha.ra Village,Cochin-Kanasyannur Taluk, By Advocate Shri N, Kumaran Achen fo.r Respondent l,This Appeal Suit having been finally hes.rd on 8-6-1956, th1scourt on 18•6-1956, delivered the following:- - "+-··gr%ei•' .·--.Te (Koshi, CJ and Varadaraja Iyengar, J.)

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..----·-------------~~--······------------A.S.No. 26 of 1954.

Ju D G MEN T.

Delivered by Koshi, C.J.-----------............4111!_~.;...

This is a plaintitt•s appeal.The lower court has passeda prel.iminary decr.ee for par-~ti•tion declaring that the plaintiffis entitled to. two•third share of the plaint properties.Sheclaimed a one-third share in her own right and anothe1• one.-thirdas assignee of the rights of a_deceased sister.Defendat 2,since deceased, was the other sister and defendants l, 3 and 4represent her interests.Ihe plaintiff and her two sisterswere the sole heirs to the properties of their mother, ochuMariam, In the appeal the_ only point pressed before us on' behalfof the plaintiff-appellant was that her claim to a two-thirdshare of the past pro.fits aught not to have· been disallowed bythe· lower court.According to her- past 'profits· constituted apartible asset of the family and as such as in the case of thej.m.ruovable property she was entitled to a two•third· share of it.•IThough before the lower eourt and in the memorandum of appeal-to this Court such share as claimed in the profi ts commencingfrom llO7, the year of the death of. the 1other, in the argumentthe clai was liaited to the share of the profits for six years.immediately preceding the-suit.The lower court has 'allowed tf'..eplaintiff to realise h~r share_ of the profits from the date ofthe inst_i tution, of the suit,?r. ahalinga iyer appearing forthe piaintiff•appellant cou.tended tr.at the view taken by thelo\-.rer court that past profits cannot be allowed to the plaint:.tff ,J.

,J.

inasmuch as· there was no prayer in the plaint f'or accountingof the prof'its received b'y t~ co-owner•in•possessicn and re-$covery from her or heir estate cannot be sustained.For thepurpose of this appeal it is unnecessary for us to considerI°whether the lower court's view is right or not.The above is· but on'e- o-- ,.f t--he rea.son..,s_,_ men'._ _,.tio-ned by the learned. Judge to nega-tive the plaintiff[1]s claim for past profits.Issue (iv) re-'lated to the questi,o.n of- .._ past profits, issue (vi) related to· the value or cost of' improvements effected by the co-owner-in•possession and issue (ix) to the plaintiff's contribution to-wards common debts discharged by the co«+owner-in-possession.'IThe question raised by these issues have been considered to-gether.1n_disposing of the claim of the co-owner-in·possession. for value or actual costs .of the improvements effected during . -:i..~%t:he perj.od of such possess5-on, towards the co:ncJ.uding part of.,,hcS sparagraph 18 of the judgn:ent the learned ·J'udge ae:s-»;ated: ..."3ut as co-owners in aetual possession and in actual receiptof the income, if they ade any improvements, it has to bepresumed they made it for the benefit of all the co-owners and-subservient to their rights.It has to be remembered tha-t the-.co-owners who were not in actual:poss~ssion were not being given.any share in the income.Under ·the circumstances· the claim for /·S'.iJ,.clivalue of improve:nents raised by defendants l tocannot be]allowed.aAgain in determining t'he quantum which the plaintiff }]has to contribute towards common debts, discharged by defendants. '-"l to 4 the learned Judge has stated:-In fixing the amountwh1.ch defendants 1 to 4 are entitled on accounts of the li'abi•lity they discharged in respect of the ex;>enses for the funeralof ochuaaria, it has to be remembered that. they were appro-priating the profits of the property.Taking that fact intoconsideration, the· defendants cannot be given credit for anyiinterest on the Rs. 1000/- which has been spent for the funeral.• --••••• -. • • • • • • •Defendants 1 to 3 and 4 areentitled to a charge over the plaint schedule' properties tothat extent and for 68 interest on that from the date of suit. I

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The discussion on the issues referred to above is concluded"by the learned J·udge thus;...Defendants l to 3 and 4 are notentitled to any value of improvements.1'hey are ent1tled to acharge over the properties to the extent of Rs. 1058-l-l sandinterest thereon from date of suit at 6:'.1'he pla:intiff is notallowed to recover any share in the profits of the propertiestill date of au.it.She 1.s entitled to a 2/3 of the profitsfrom the date of .suit.The amount of profits will be settled by the final decree,"La deciding the questions covered bythe issues under reference the learned Judge has tried to makean equitable adjustmenIt and in our opinio•n no one party can-be allowed to question the correctness of the finding relatingto any one of them without re-opening the other findings aswell.We do not think tha.t interests of jus ti. ce demand such're·opening,hn the whole the learned Judges findings are just'and equitable.While the plaintiff· is not allowed to recoverpast profits defendants l, 3 and d are not given anything for.improving_the property or by way of interest on the plaintiff'sshare c_f the common debts discharged by them._ We cannot, there•fore, find a,.ry;y just1fic$ti on t.o interfere.with the lower court'sdeeision.

The appeal will, therefore, stand dismissed.:Howeveoweveweveeveveer,the circumstances or the case we make no order :f'or costs •

Howeveoweveweveeveveer, in-

.Order , accordingly.

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tsJune, 1956.

Sd/- K.T. Koshi'C J.. . ' . ' 'Sd/- N.Varadaraja Iyengar, J.

(True Copy)•,Dy. Registrar,for Regi. strar •

. AR/P-- '7--56