GULABRAO FAKIRRAO Vs. BABURAO FAKIRRAO

JUDGEMENT

(1.) (After stating the facts and holding that there was in fact severance of the joint family status clearly in 1945 between the plaintiffs on the one hand and the defendant on the other, the judgment proceeded:) The content of the presumption is set out by their lordships of the privv Council in Appalaswami v. Suryanarayanmurti, 50 Bom. LR 628: (AIR 1947 PC 189), in the following terms:

(2.) Mr. Paranjpe says that when the defendant continued to receive the plaintiffs share of the income even after partition in the ancestral and the joint family properties and mixed up the income belonging to the plaintiffs' share with the income of his own share and acquired properities from time to time, all the properties so acquired must be deemed to be impressed with the character of the fund out of which the properties were acquired, i.e., that the properties belonged to the three parties to the suit as tenants in common. Counsel does not rely in support of this contention upon any agreement express or implied in that behalf, because no such pllea was raised in the court below. He merely asserts it as a proposition of law that a co-sharer in possesssion of immoveable property belonging to himself and other shares is a trustee for the other co-sharers, and when he mixes up the income received by him from property in which he is a co-sharer with his own fund and acquires property with that fund, the property so acquired is impressed with the same tenure in which the other property of which the income is received is held; and in support of this augument Mr. Paranjpe relies upon Ss.90, 94 and 95 of the Trusts Act. In our judgment, the argument of Mr. paranjpe proceeds upon several assumptions which are not warranted. Because the defendant continued to receive the rents and profits of the share of the plaintiffs in the properties which were originally ancestral or joint faimly properties he did not thereby become a trustee of the rents and profits so received for the plaintiffs. As a co-sharer, it is true, the defendant was and continued to be liable to account for the rents and profits received by him, but the fact that the defendant failed to maintain separate accounts of the income of the plaintiffs' share collected by him did not impress the fund accumulated by him after severance with the character of a fund belonging to the plaintiffs and the defendant; the fund in the hands of the defendant was still a fund of which he was the owner. It was not impressed with any trust in favour of the plaintiffs: and the property acquired with the aid of that fund was the exclusive property of the defendant and the plaintiffs had no claim or share in that property. Mr. Paranjpe also urged that when the income received by the defendant from the properties held by him as a tenant in common with the plaintiffs was blended by the defendant with the other income received by him, the defendant was guilty of conversion and the property which was acquired by that conversion must be regarded as impressed with the rights which the plaintiffs had in the property from which the income was received from time to time. But this is the same argument in another guise; and in support of this contention also Mr. Paranjpe has not been able to cite any authority or to advance any substantial argument.

(3.) In Kennedy v. De Trafford, 1897 AC 180, it was observed: