Shah, J.:— (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:)
2. The content of the presumption is set out by their Lordships of the Privy Council in Appalaswami v. Suryanarayanmurti, 50 Bom. LR 628 : (AIR 1947 PC 189), in the following terms:
“Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property”.
3. The presumption applies only to property acquired during the subsistence of the joint family and not thereafter. Mr. Paranjpe has not been able to invite our attention to any rule of Hindu law which supports the submission that property which is acquired, after severance of the joint family status must, even if there be no agreement in that behalf, be regarded as acquired for the family. Evidently by the severance of the status effected in the year 1945 the plaintiffs and the defendant became tenants in common of the property held by them. The entire immoveable property of the family, which consisted of the ancestral lands and the subsequent acquisitions till the year 1945, remained after severance with the defendant, and it is admitted by the defendant that he did not maintain separate accounts of the income received from the properties in which the plaintiffs had a share, and the properties acquired by him after the partition. The defendant also, it is conceded, dealt with the income derived from his share and the share of the plaintiffs.
4. Mr. Paranjpe says that when the defendant continued to receive the plaintiff's 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 properties 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 plea was raised in the Court below. He merely asserts it as a proposition of law that a co-sharer in possession 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 argument 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 family 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.
5. In Kennedy v. De Trafford, 1897 AC 180, it was observed:
“There is no fiduciary relation between tenants in common of real estate as such. Nor can one tenant in common of real estate, by leaving the management of the property in the hands of his co-tenant impose upon him an obligation of a fiduciary character.”
6. A co-sharer collecting rents and profits of the entire property is therefore not a trustee for the other co-sharers. It is then difficult to accept the argument of Mr. Paranjpe that when the defendant collected the rents and profits of the immoveable property after the plaintiffs left Fursungi and migrated to Poona, and mixed up the same with the income of his separate acquisitions, the total fund became impressed with a trust in favour of the plaintiffs, so that in the Property acquired with the aid thereof, the plaintiffs acquired an interest.
7. Sections 90, 94 and 95 fall in Chapter IX of the Trusts Act, and they deal with certain obligations in the nature of trusts. A person who is not an express trustee but who holds a position qua another which may be regarded as fiduciary in character, will be subject to certain obligations set out in the various sections of that chapter. Section 90, on which reliance is placed, requires a person who has qualified ownership in any property to hold, for the benefit of all the persons interested, any advantage gained by him by availing himself of his position in derogation of the rights of the other persons interested in the property. In order that S. 90 of the Trusts Act may apply, it must be established that the party against whom relief is sought availed himself of his position, that he gained an advantage by so doing and that the advantage was gained in derogation of the right of the person interested in the property. In other words, a person standing in a fiduciary relation to another cannot by taking advantage of his position gain exclusively for himself an advantage which he could not have obtained but for the position which he occupied. That the defendant when he collected the rents and profits of the property may be liable to account for the same is undisputed. But it is difficult to appreciate when the plaintiffs left the defendant in enjoyment of their share of the property and the latter collected the rents and profits thereof how he may be regarded as having availed himself of his position and having obtained an advantage in derogation of the rights of the plaintiffs, which rendered him liable to hold for the benefit of the plaintiffs the property acquired by him out of the fund with which the income of the plaintiff's share was mixed up. In our judgment, S. 90 can have no application to this case.
8. Section 94 only extends the obligations prescribed by Ss. 81 to 93 of the Trusts Act to constructive trusts in cases not otherwise expressly provided for; and does not add substantially to the provisions of S. 90 on which reliance has primarily been placed.
9. Section 95 of the Trusts Act provides:
“The person holding property in accordance with any of the preceding sections of this Chanter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it”.
10. If however, the defendant be not regarded as holding the property in a fiduciary capacity in accordance with any of the preceding sections of Chanter IX by reason of S. 95 he will not evidently be subject to the liabilities and disabilities of a trustee. There is, in our judgment, nothing in Ss. 90, 94 and 95 which expressly or by implication renders the self-acquisition of the defendant liable to be held for the benefit of the plaintiffs merely because the defendant has not maintained a separate account of the income received by him out of the share of the plaintiff's in the property.
11. But Mr. Paranjpe relied strongly upon a judgment of this Court in Ramabai Govind Gadre…(Original Plaintiff), v. Raghunath Vasudeo Joshi…(Original Defendant), .*, 53 Bom LR 883 : (AIR 1952 Bom 106), in support of his argument. In that case, the Court hold that where a trustee had purchased property from a fund, which consisted of the income received from trust property and the other property belonging to the trustee, the property so purchased will be held by the trustee as if the beneficiary had the same right therein as in the trust property. In that case, the person who acquired the property in the view of the Court occupied the position of an express trustee. He had collected the income of the trust property as well as of other properties, and had mixed up the income and out of the fund so collected he had acquired the disputed property. The question then arose whether to the disputed property the beneficiary of the trust could have recourse; and this Court held that the property so acquired must be held by the trustee as if it was trust property. It was conceded in that case that Martand son of the trustee Trimbak took upon himself the powers and duties of the trustees under the will of Govind though he was not a trustee or Executor nominated in that behalf by the will. Martand collected the income of the property held by him under the will and mixed up that income with the other income belonging to him. It was observed by Mr. Justice Bhagwati in delivering the judgment of the Court at page 892: (of Bom LR): (at p. 110 of AIR):
“There is no doubt whatever that all the properties inclusive of Govind's share therein were managed as a single unit and at no time was these any demarcation or separation of the properties which fell to Govind's share from the rest of the properties. It can, therefore, be taken as established that Martand, who was in the position of a trustee qua Govind's estate, mixed up the properties which came to the share of Trimbak's branch with the properties which came to Govind's share. If that is so, the trustee did mix up his own properties with the trust properties, and the position in law in such cases is well established and set out in Lewin on Trusts, 15th ed., at p. 225; ‘The trustee, wherever the trust property may be placed must always be careful not to amalgamate it with his own, for, if he do, the cestui que trust will be held entitled to every portion of the blended property which the trustee cannot prove to be his own’.”
12. We are unable to agree that the principle of this case has any application to the facts of the present case. As we have already pointed out, the defendant Baburao was not a trustee either express or even by implication of the property held by him, and by recovering the rents and profits of the share of the plaintiffs in the property in dispute he did not become liable as a trustee for the plaintiffs. If the defendant was not a trustee, the principle in Ramabai's case can have no application to the present case.
13. (The rest of the judgment has been omitted as it is not considered material for the purposes of this report.)
JC/V.B.B
Appeal dismissed.