Skip to content


Kuniyil Parvathi Amma and ors. Vs. Vilangil Mani Amma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 165 of 1972
Judge
Reported inAIR1975Ker139
ActsTraansfer of Property Act, 1882 - Sections 44 and 47
AppellantKuniyil Parvathi Amma and ors.
RespondentVilangil Mani Amma
Appellant Advocate A. Achuthan Nambiyar,; T.P. Kelu Nambiyar and; C.S. Nara
Respondent Advocate V. Bhaskaran Nambiyar,; C.R. Natarajan and; M.K. Anandak
DispositionAppeal dismissed
Cases ReferredBalakrishnan v. Makkam
Excerpt:
- - 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 co-ownership funds had been invested in or had gone into, the acquisition of rights under exts p-4 and p-5, is correct. the court below has also noticed the other relevant considerations in the light of which it recorded its finding in paragraph 14 that the plaintiffs had failed to prove that the defendant was in exclusive enjoyment of the profits of the co-ownership property and that exts......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 issueless; 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 plaintiff, the assignment of the rights of chathu kurup and kelu kurup was obtained by the.....
Judgment:

Gopalan Nambiar, J.

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 Trav-Co 279 is in conflict with an earlier ruling of the same court in Arokia v. Sowriyaru, AIR 1953 Trav-Co 305. The question to be considered in this case is as to the nature, of the acquisition made by a managing co-owner by making use of the funds of the co-ownership property; viz., whether the acquisition itself Is to be treated as enuring for the benefit of all the co-owners, or whether, the acquisition would enure only for the benefit of the acquirer, leaving the other co-owners only with a right to demand their share of the co-ownership 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 issueless; 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 plaintiff, the assignment of the rights of Chathu Kurup and Kelu Kurup was obtained by the defendant with co-ownership funds by availing himself of his character as a co-owner, and therefore the plaintiffs treated the shares thus conveyed to the 1st defendant also as co-ownership 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 camp to the conclusion that it had not been shown that Exts. P-4 and P-5 assignments by Kelu Kurup and Chathu Kurup were obtained by the defendant by making use of co-ownership funds or by availing himself of his character as co-owner. It therefore decreed the suit for partition only for one-forth 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 co-ownership funds had been invested in or had gone into, the acquisition of rights under Exts P-4 and P-5, 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 D. Ws. 2 and 3 admitted that they were getting their shares of the income of the co-ownership 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 paragraph 14 that the plaintiffs had failed to prove that the defendant was in exclusive enjoyment of the profits of the co-ownership property and that Exts. P-4 and P-5 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 co-ownership funds were made use of by the defendant for getting Exts. P-4 and P-5 assignments, there is enough authority for the proposition that this would not enable the remaining co-owners 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 v. M.L. Subbarava Setty, AIR 1972 SC 1279, which was followed by a Division Bench of this Court in A. S. No. 345 of 1967 (Ker) etc. A learned Judge of this Court also took the same view in Balakrishnan v. Makkam, 1973 Ker LJ 157 = (AIR 1974 Ker 18).

4. In the light of these decisions, there seems to be no foundation for the contention that the acquisition made with co-ownership funds must enure for the benefit of all the co-owners.

5. We dismiss this Second Appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //