,r - IN THE HIGH COURT OF THE STATE OF TRAVANCOBE-COCHIN AT ERNAKULAM. P.resent:- The Hon'ble Shr1 K.I Koshi, Chief Justice and The Hon•ble Shri N. Va.rada.raja T_yenga.r, Judge. .S. No._ 26 £ 1954. 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.rakkal Mu.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.risth residing 1n Pulikkaparamba, Eravoor Desom, Nadarm Village, Cochin-Kanayannur Taluk•• 2 Mariam, the wife of No. l, died., He.r children and heiss being Annamma, .residing in do. do. j f $ l \ 6 Minor Pappu] brother of No, .&, residing in do do. by do, residing in do. R.:- 6. Annamma, wife of Olikkal Pall1, do. Desom, do. VUlage, do.Talli guardiangd 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, being his widow, Koma, .residing in do. do.. 5, Paru, daughter of No• 4, teacher in the Min.gayil School, ! .tr t , 7, Mriam, daughter of No. 6 and wife of Thalasse.ri Ouseph .resi-a--, ing 1n Kumbal.am. Desom, Kumibalam Village,Cochin-Kanayannur Talul a. Aeli, duaghter of No. 7 and w11'e of Theva.rakkattu 04seph, re- siding 1rt Theva.ra Desom, Eraakulam Pillage, do. Taluk 9• Ku.ruvila, son of VilangattU Koehn Ouseph, .residing in Nadama Desom, 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, th1s court on 18•6-1956, delivered the following:- - +"gr%eTe -·· i•' . ·--. (Koshi, CJ and Varadaraja Iyengar, J.) . . ----·-------------~~--······------------ A.S. No. 26 of 1954. Ju D G ME N T. Delivered by Koshi, C.J. -----------............ 4111!_~.;... This is a plaintitt•s appeal. The lower court has passed a preliminary decree for parti•tion declaring that the plaintiff . . -~ is entitled to. two•third share of the plaint properties. She claimed a one-third share in her own right and anothe1• one.-third as assignee of the rights of a _deceased sister. Defendat 2, since deceased, was the other sister and defendants l, 3 and 4 represent her interests. Ihe plaintiff and her two sisters were the sole heirs to the properties of their mother, ochu Mariam, In the appeal the_ only point pressed before us on' behalf of the plaintiff-appellant was that her claim to a two-third share of the past pro.fits aught not to have· been disallowed by the· lower court. According to her- past 'profits· constituted a partible asset of the family and as such as in the case of the j.m.ruovable property she was entitled to a two•third· share of it. • I Though before the lower eourt and in the memorandum of appeal - to this Court such share as claimed in the profi ts commencing from llO7, the year of the death of. the 1other, in the argument the clai was liaited to the share of the profits for six years. immediately preceding the-suit. The lower court has 'allowed tf'..e plaintiff to realise h~r share_ of the profits from the date of the inst_i tution, of the suit, ?r. ahalinga iyer appearing for the piaintiff•appellant cou.tended tr.at the view taken by the lo\-.rer court that past profits cannot be allowed to the plaint:.tff ,J. --- -·-·a±re cg. . s=cs+ inasmuch as· there was no prayer in the plaint f'or accounting For the covery from her or heir estate cannot be sustained. of the prof'its received b'y t~ co-owner•in•possessicn and re- $ I purpose of this appeal it is unnecessary for us to consider ° whether the lower court's view is right or not. The above is · but one of the reasons mentioned by the learned Judge to nega- ' --- ,. -- . . .,_,_ '._ _,. - . tive the plaintiff1s claim for past profits. Issue (iv) re- 'lated to the question 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. ' I The 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 s paragraph 18 of the judgn:ent the learned ·J'udge ae:s-»;ated: ... "3ut as co-owners in aetual possession and in actual receipt of the income, if they ade any improvements, it has to be presumed 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 /i · .i,.cl S'J value of improve:nents raised by defendants l to cannot be] allowed.a Again 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 amount wh1.ch defendants 1 to 4 are entitled on accounts of the li'abi• lity they discharged in respect of the ex;>enses for the funeral of ochuaaria, it has to be remembered that. they were appro- priating the profits of the property. Taking that fact into consideration, the· defendants cannot be given credit for any i interest on the Rs. 1000/- which has been spent for the funeral. • - -••••• -. • • • • • • • Defendants 1 to 3 and 4 are entitled to a charge over the plaint schedule' properties to Y' that extent and for 68 interest on that from the date of suit. I - 3 t %i by the final decree," La deciding the questions covered by the issues under reference the learned Judge has tried to make an equitable adjustment and in our opinion no one party can I • ' The discussion on the issues referred to above is concluded by the learned J·udge thus;.. ".Defendants l to 3 and 4 are not entitled to any value of improvements. 1'hey are ent1tled to a charge over the properties to the extent of Rs. 1058-l-l sand interest thereon from date of suit at 6:'. 1'he pla:intiff is not allowed to recover any share in the profits of the properties till date of au.it. She 1.s entitled to a 2/3 of the profits from the date of .suit. The amount of profits will be settled -be allowed to question the correctness of the finding relating to any one of them without re-opening the other findings as well. We do not think tha.t interests of jus ti. ce demand such re·opening, hn the whole the learned Judge's findings are just and equitable. While the plaintif'f· is not allowed to recover past profits defendants l, 3 and d are not given anything for .improving_the property or by way of interest on the plaintiff's share 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's deeision. tsJune, 1956. . AR/P-- '7--56 .Order , accordingly. Sd/- K.T. Koshi C J . ' . . ' Sd/- N. Varadaraja Iyengar, J. (True Copy),• Dy. Registrar, for Regi. strar • The appeal will, therefore, stand dismissed.: However, in - the circumstances or the case we make no order :f'or costs •