P. Subramonian Poti, J.
1. Defendants 1 to 6, 8 and 9 are the appellants in this appeal. The suit out of which this appeal has arisen was one for partition of Thekkeveedu paramba which originally belonged in jenmom to the tarwad of the plaintiffs and the deceased father of defendants 1 to 6. Kunhikuttan. The 7th defendant is the widow of the said Kunhikuttan. A prior karnavan of the tar-wad, one kanarukutty, demised the property to one Chandu on kanom. One Ravunni, the uncle of the plaintiffs, took an assignment of this kanom right. While he was in enjoyment under the said kanom, he created a Sub-kanom right on 20-9-1877 under Ext. A-1 in favour of one Chathukutty. Later. Ravunni assigned his rights in the property to two members of his tarwad, namely. Makkam, his sister and her cousin Cheeru. The plaintiffs claimed under the said Makkam while the defendants claimed under Cheeru. Kunhikuttan, the deceased father of defendants 1 to 6, was the son of Cheeru. Ext. A-2 is the assignment by Ravunny in favour of Makkam and Cheeru and that was on 27-11-1889. Sometime thereafter, on 6-1-1890 Cheeru, one of the two assignees under Ext A-2, obtained an assignment of the Sub-kanom right of Chathukutty under Ext A-3 which is the same as Ext B-3. The case in the plaint is that the said assignment;
Ext. B-3, was taken in 1890 with the funds of Makkam as well as Cheeru though the document stands in the name of Cheeru alone. As such, it is claimed that the plaintiffs are entitled to the subtenancy rights equally with the defendants. This plea of the plaintiffs is refuted by the defendants, according to whom. Ext. B-3 having been an acquisition of the sub-kanam right by Cheeru alone, the defendants are solely entitled to that right and that should not be the subject of partition. Therefore, the question that arose for decision in the Courts below was whether Ext. B-3 right taken by Cheeru enured to Makkam also and whether the plaintiffs were entitled to partition in regard to such sub-kanom rights also. On that, the Courts below have found in favour of the plaintiffs and, therefore, the defendants have come up in appeal.
2. On the question pleaded in the plaint, the Courts below have taken divergent views. While the plaintiffs’ case is that for taking Ext. A-3 Makkam contributed equally with Cheeru though the document was taken in the name of Cheeru, that has not been accepted by the appellate Court though the trial Court accepted the case. It is seen from Ext. A-3 that the assignment was taken on payment of a sum of Rs. 45/-. On the face of it, the document shows that it was taken with the funds of Cheeru who is the assignee thereunder. There is no evidence to show that Makkam contributed one half of the consideration and even the trial Court which found in favour of the plaintiffs, did not base its conclusion on the evidence in the case. On the other hand, it assumed that it was for Cheeru and those claiming under her to show that the document was taken by Cheeru alone: in other words, the view taken by the trial Court was that the source of consideration for the acquisition must be proved by Cheeru, failing which it will be assumed that the property belonged to Cheeru as well as Makkam. As rightly pointed out by the appellate Court, one is unable to appreciate this approach to the case by the trial Court. The document, so long as it stands in the name of Cheeru, must be taken to be evidence of acquisition of rights by Cheeru alone and it is for the person who contends against the apparent tenor of any document to prove it. Whenever a document of acquisition is seen to be standing in the name of a person and it is pleaded that the right to the property under the document does really belong to someone else or belongs, also to someone else, it is for the person who pleads so to adduce evidence to dislodge the presumption that would normally be available from the fact that the tenor of the document is otherwise.
3. The appellate Court seems to have made the correct approach and found that in the absence of any evidence, it cannot be said that Makkam contributed one half for the acquisition under Ext. A-3. Notwithstanding this finding and contrary to the finding of the trial Court, the plaintiffs were given a decree as the Court was of the view that as a co-owner the acquisition under Ext. A-3 made by Cheeru must be taken to have been on behalf of Makkam also, to reach this conclusion the Court relied on the provisions of Section 90 of the Indian Trusts Act. 1882. According to the Court, as a co-owner, Cheeru obtained an advantage and that advantage was in derogation of the rights of Makkam and so, that advantage must be held for the benefit of Makkam also. There is a plea of adverse possession at the instance of the defendants. According to them, Cheeru who obtained Ext. A-3 had dealt with the properties and this dealing for a long number of years must be sufficient to show that at no time the property was treated as that of Makkam also. On that, the Court below seemed to think that since in the case of a co-owner, ouster has to be positively proved, that must be found to have not been so proved in the case and therefore the defendants are not entitled to succeed in their plea of adverse possession.
4. Before me, the question of the source of consideration for taking Ext. A-3 has not been raised. So, the finding of the Court below on that must stand. It would mean that there is no proof of the plea in the plaint that Makkam contributed one half for the acquisition under Ext A-3.
5. Before I go into the correctness or otherwise of the finding of the Court below on the question of holding in trust of the property by Cheeru, I must necessarily notice the contention urged by the learned counsel Shri. T.L. Viswanatha Iyer that it is not for this Court to go into this question without a pleading in that behalf. The applicability of Section 90 of the Indian Trusts Act to the facts of any case must be determined on the evidence. Whether any person has obtained advantage as a qualified owner and whether that advantage has been in derogation of the interest of another are matters depending upon the proof of facts. Necessarily, therefore, any person seeking to avail of the benefit of Section 90 of the Indian Trusts Act must plead so. In the absence of such a pleading, it is not proper for a Court to go into that question. In this case, as I have Pointed out, the only basis for the claim of the
plaintiffs that Makkam has one half right under Ext. A-3 was that she had contributed equally with Cheeru. There is no plea that Cheeru in taking Ext. A-3 had taken advantage of her position as a co-owner or that it was in derogation of the rights of the co-owner. In fact, there is no issue on this in the suit. In these circumstances, the Court below ought not to have gone into the question as to whether the property was held by Cheeru in trust for the benefit of Makkam also.
6. Since the Court below has gone into the question of the availability of Section 90 of the Indian Trusts Act and that has been urged before me too, in fairness to counsel, I would just point out here that even assuming that the pleadings in the case are sufficient, on merits the plaintiffs are not entitled to succeed.
7. The following conditions are requisite for the application of Section 90 of the Trusts Act:
(i) A tenant for life, co-owner, mortgagee or other qualified owner of any property gains an advantage.
(ii) such an advantage is gained by availing himself of his position as such, and
(iii) it is in derogation of the rights of other persons interested in the property.
It is the use by a person placed in a fiduciary position of the advantage of that position that imposes the obligation to hold the gains in trust. The mere fact that an advantage has been gained by a qualified owner is, therefore, by itself not sufficient to enable other persons interested in the property to claim that the benefit enures to them also.
8. It is well settled since the decision in Kennedy v. De. Trafford, 1897 AC 180 that a co-owner does not stand in a fiduciary position to the other co-owners. If a co-owner gains an advantage he does not hold such an advantage for and on behalf of the other co-owners unless it be that there is something more than the co-ownership to impose on him the obligation to act in a fiduciary capacity. May be, there are agreements between the co-owners or may be, the co-ownership property is held under a covenant which imposes certain obligations on one of the co-owners. These place such co-owner in a position different from that of a co-owner pure and simple. Where this is not shown, the mere fact that a person who gains an advantage happens to be a co-owner will not by itself be sufficient to enable the other co-owners to claim that such advantage must be held for their benefit too. I need only refer to the decisions in Mohammadkhan v. Kedermal. AIR 1943 Nap 302 and K. Visweswara v. K. Krishnamurthi, AIR 1957 Andh Pra 337.
9. Under Ext. A-2. Makkam and Cheeru obtained rights of Ravunni. They were told that the property was outstanding under a kanom with Chathukutty and it was open to them to redeem him and enjoy it. There is nothing in the transfer deed Ext. A-2 which casts an obligation on any one of the two to redeem the Sub-kanom on behalf of the other. They were each independent acquisitions of one half of the rights under Ext. A-2 and it was open to them in that capacity to recover the Sub-kanom of Chathukutty to the extent of their one half. Cheeru chose to take an assignment of the entire Sub-kanom right under Ext. A-3 by paving the entire consideration. In doing so, she was not exercising any act in derogation of the rights of the other co-owner. “Acting in derogation of the rights” of the other would arise only when the party concerned was obliged to act in the interest of the other and did not so act. Therefore, in taking Ext. A-3 Cheeru was acting for herself and no question of holding the property by wav of constructive trust under Section 90 of the Indian Trusts Act would arise.
10. There is a contention of the counsel for the plaintiff that even assuming that there was no trust it must be held that the Sub-kanom right had come to an end when Cheeru, as Kanomdar, obtained an assignment. In other words, the plea is one of extinction of the Sub-kanom right by merger. There is no scope for this plea for more reasons than one. In order that there should be merger, the interest of the lessor and the lessee must be in the whole of the property. Otherwise there would be no merger. The interest of the lessor and the lessee in the whole of the property must unite in the same person at the same time. Admittedly, that is not the case here. Moreover, it is not correct to state, as a principle of law, that wherever the holder of a larger right acquires a lesser right, there would be merger. It would always be a question of intention whether the person who acquires such right intends to keep it alive. That will have to be decided with reference to several circumstances. One test commonly applied is to consider whether it would have been in the interests of the person who acquires such interests to keep the subsidiary or lesser interest alive for his own benefit. If it will be advantageous to have such interest survive he would be deemed to have intended to keep it alive since the Court may always presume that any person would normally act in furtherance of his own interests. It cannot be stated that in all cases where a lessor right is acquired by a person who holds a larger
right in the property, there must necessarily be a merger. If that is the case, then merger is a matter to be pleaded and proved. There is neither plea nor proof in this case and it cannot be Presumed that by taking Ext. A-3, Cheeru intended that Ext. A-3 right should be extinguished. On the other hand, the circumstances point the other way. She takes the document not as a release but as an assignment. She takes it in her name and not in the joint names of herself and her sister and these very circumstances indicate a case of very unequivocal expression of intention to keep Ext. A-3 right alive. Hence there is no scope for this Plea urged at the hearing by counsel for the plaintiffs to support the judgment of the Court below.
11. Apart from this. I find that the plaintiffs would be unable to support their case in the face of the plea of adverse Possession set up by the defendants. On this I find that the Court below was wrong in its approach. Ouster of a co-owner from possession is of course a matter for proof. But what evidence is necessary to inter ouster must depend upon the circumstances of the case. The evidence in this case points to the fact that at least from the year 1927 onwards Cheeru has been dealing with this property, executing a series of documents. Even strangers have come into possession under these documents. Suits have been filed on the basis of these documents and the persons on whom possession has devolved pursuant to such documents are now seen to be in possession. The plaintiffs have been out of possession all along. It is not as if the court below has not noticed that the property has been dealt with by Cheeru and those claiming under Cheeru by executing a series of documents under which persons who are. said to be put in possession are now in possession. One must remember the fact that even as early as in 1890 Ext. A-3 was taken not in the joint names of Cheeru and Makkam, but that of Cheeru alone. The conduct is consistent with the case that parties understood the right under Ext. A-3 to have been acquired by Cheeru alone. That conduct ranges over a period of more than 70 years. There is nothing on record to show that Makkam or her heirs ever exercised acts of possession with regard to this property or evinced interest in Ext. A-3 right. It is in this background that the dealing with these properties solely by Cheeru and her heirs for at least the last 40 years has to be appreciated. Viewed in this context, there is no reason to hold that there has been no ouster. It is too much to say that in spite of all this, it was not brought to the notice of Makkam and her
children. The suit, would in these circumstances be barred because of the adverse possession of the defendants.
In the result, the second appeal is allowed in reversal of the concurrent decrees of the courts below. The suit will have to be dismissed so far as the claim for partition of Ext. A-3 right is concerned. Whatever rights the parties have under Ext. A-2 subject to Ext. A-3 sub-kanam may be available for partition and a preliminary decree is passed in regard to such rights as prayed for in the plaint. But the decree which has been granted by the court below for partition will be limited to the right under Ext. A-2 and not under Ext. A-3. In the circumstances, the parties will suffer their costs in this appeal and in the courts below.