JUDGMENT S.K. Kader, J. 1. The defendant in a suit for partition is the appellant. The suit property having an extent of 75 cents is a portion of 1 acre and 21 cents, which belonged to deceased Kutti Kesavan in kanapattom right, and he assigned his entire right to Kochuvava, in the year 1100. Parties are Ezhavas. Kochuvava had two children, a son and a daughter. The defendant is the son and Kochuvava Devaki (now deceased), the mother of plaintiffs I to 3, was the daughter. Kochuvava died in 1119 and her right over the entire 1 acre 21 cents devolved on the sub tarward consisting of the plaintiffs and the defendant. The defendant and Kochuvava Devaki surrendered the kanapattom right over 46 cents to the jenmi and executed Ext. A1 kanapattom deed on 6th Dhanu 1121 in respect of the suit property for and on behalf of the sub tarwad. Kochuvava Devaki died in the year 1125 and the plaintiffs who are her children are entitled to 7/8 share in the suit property. This, in short, is the case of the plaintiffs. 2. Raising mainly the following contentions, the defendant contested the suit. The kanapattom right in the entire property belonged exclusively to deceased Kochuvava and on her death the defendant and Kochuvava Devaki alone inherited the property in equal shares. Thereafter the defendant and Kochuvava Devaki took kanapattom right in respect of 75 cents under Ext. A1 from the jenmi and after the death of Kochuvava Devaki, her right devolved on the defendant. He has effected improvements in the property and the right of the plaintiffs, if any, is lost by adverse possession and limitation. 3. The Trial Court found that the property in question was the self acquisition of Kochuvava, that, though on her death the property devolved on the defendant, Kochuvava Devaki and plaintiffs 1 and 2 in equal shares, the defendant and Kochuvava Devaki surrendered a portion of the property to the jenmi and took a kanapattom under Ext. A1 in their name, that plaintiffs 1 and 2 have not questioned the validity of this surrender or this transaction on their attaining majority, that therefore the defendant and Kochuvava Devaki alone are entitled to the property taken under Ext. A1 in equal shares, and that the defendant is entitled to half share while plaintiffs 1 to 3, 1/3 each. A1 in their name, that plaintiffs 1 and 2 have not questioned the validity of this surrender or this transaction on their attaining majority, that therefore the defendant and Kochuvava Devaki alone are entitled to the property taken under Ext. A1 in equal shares, and that the defendant is entitled to half share while plaintiffs 1 to 3, 1/3 each. Regarding value of improvements, it was found that in equity the defendant will be given the costs incurred by him for making improvements on the property. A preliminary decree in these terms was passed. 4. The plaintiffs took up the matter in appeal and the lower appellate court while upholding the finding of the Trial Court that on the death of Kochuvava, her rights devolved on the defendant, plaintiffs 1 and 2 and their mother Kochuvava Devaki as tenants in common, held that Ext. A1 cannot be taken as an independent transaction on the basis of which Kochuvava Devaki and the defendant alone were entitled to the property and that even if there was any fresh right on the basis of Ext. A1 it must be deemed to have been acquired for and on behalf of the other coowners also under the provisions of S.90 of the Trusts Act. It was therefore held that the plaintiffs are entitled to 3/4 share and the defendant 1/4 share in the suit property. The claim of the defendant for value of improvements was disavowed. The appeal was thus partly allowed modifying the decree and judgment of the Trial Court in the manner stated above. 5. Attacking the decree and judgment of the lower appellate court, the learned advocate appearing for the appellant urged the following points: (i) S.90 of the Indian Trusts Act has no application to the facts of this case. (ii) In the absence of pleading in this regard, the lower appellate court should not have considered this point. (iii) The lower appellate court ought to have held that the appellant was entitled to value of improvements effected by him. 6. A memorandum of cross objection has been filed by the plaintiffs contending that acquisitions of Kochuvava must be treated as tarwad property and that the courts below should have therefore held that the suit property is the sub tarwad property of plaintiffs 1 to 7 and the defendant. 7. 6. A memorandum of cross objection has been filed by the plaintiffs contending that acquisitions of Kochuvava must be treated as tarwad property and that the courts below should have therefore held that the suit property is the sub tarwad property of plaintiffs 1 to 7 and the defendant. 7. I shall first deal with the point whether the suit property was tarwad property or the self acquisition of Kochuvava. Both the courts below as a fact concurrently found that this was the self acquisition of Kochuvava and rightly too on the facts and evidence in the case. In Para.2 of the plaint, it has been categorically stated that this property was the self acquisition of Kochuvava. ".....Malaylam...." The cross objection has therefore no merits and is only to be dismissed. 8. Next I shall consider the points raised on behalf of the appellant one by one. S.90 of the Indian Trusts Act, 1882 (Act II of 1882), (which will hereinafter be called the Act, for brevity) deals with the principles of constructive trusts. Except in cases otherwise provided by statute, a constructive trust can be held to arise only under S.88 or S.90 of the Act. S.94 of the Act is the residuary section. Where no trust is declared, but for the purposes of justice, the law deems one to have been created, the trust is termed constructive. In other words, where no trust has been declared, a person would not be accountable as a trustee until obligations are found to have been created which are in the nature of a trust and under which he may be held to be, what is termed in English law, a constructive trustee. S.90 is based on the principle of constructive trust and is an extension of the principle that a trustee shall not be allowed to make profit out of the trust. To put it differently, the principle underlying the section is that no person who is in a fiduciary capacity or position can make a profit to the detriment of those interested. The basic principle depends upon whether any duty is owed by the person who obtains the advantage of making over that advantage or sharing that advantage with others. 9. To put it differently, the principle underlying the section is that no person who is in a fiduciary capacity or position can make a profit to the detriment of those interested. The basic principle depends upon whether any duty is owed by the person who obtains the advantage of making over that advantage or sharing that advantage with others. 9. Relying on a decision of a learned Single Judge in Balakrishnan v. Makkam, 1973 KLJ 157 , and a Division Bench ruling, of this Court in Parvathi Amma v. Mani Amma, 1975 KLT 197 , the counsel for the appellant contended that S.90 of the Act has no application to the facts of this case, that Ext. A1 was not taken for the benefit of the family, that the plaintiffs have no case in the pleading that they are entitled to the benefits of this section, and that on the other hand, their case is that the property in question is the tarwad property. 10. Sri S. Parameswaran, learned advocate appearing for the respondents citing the decisions in Vittal Dass v. Rup Chand, AIR 1967 SC 183 and Mrutunjay Pani v. Bala Sasmal 1961 KLT (SC) 54, contended that it is not necessary for the application of S.90 that a co-owner should stand in a fiduciary relation or position to the other co-owners, that a plain reading of the section does not indicate the necessity of such a relationship, that by insisting that only a co-owner who stands in a fiduciary relation alone will come under this section the court will be introducing into the section something which is not there, that it was in Balakrishnan v. Makkam 1973 KLJ 157 , that the necessity of fiduciary relationship was insisted for the first time, and that this decision really requires reconsideration. 11. I have already stated that S.90 itself is based on the principles of constructive trusts. It is true that the section only refers to a tenant for life, co-owner, mortgagee or other qualified owner of any property. Construing the principles under this section, a Division Bench of the Madras High Court in Panchapagesa v. Kalyanasundaram, AIR 1957 Mad. 11. I have already stated that S.90 itself is based on the principles of constructive trusts. It is true that the section only refers to a tenant for life, co-owner, mortgagee or other qualified owner of any property. Construing the principles under this section, a Division Bench of the Madras High Court in Panchapagesa v. Kalyanasundaram, AIR 1957 Mad. 472 , following a catena of decisions on the point, held that S.90 is based on the principle of constructive trust and is an extension of the principle that a trustee shall not be allowed to make profit out of the trust and that all that the section says is that if there is a person in a fiduciary relation to another, he cannot take advantage of his position so as to gain something exclusively for himself which otherwise he would not have obtained but for the position which he held. It is a well established principle that he who has the duty shall not take any secret remuneration or any financial benefit not authorised by the law, or by his contract, or by the trust deed under which he acts. Though the term 'fiduciary relation' is not expressly used in S.90 of the Act, it is now well settled by a series of decision; of various High Courts and also by decision of the Supreme Court that the principle underlying this section is that no person who is in a fiduciary capacity or position can make a profit to the detriment of those interested and that in order to seek the benefit under this section it is essential that it must be shown that he has gained some advantage in derogation of the right of another person interested in the property. A co-owner pure and simple is not liable under this section. In other words, merely because a person is a co-owner it cannot be said that any benefit derived by him as a co-owner should go to the benefit of the other co-owners also. The law on this point has been well enunciated in the two decisions of this Court relied on by the Appellant. 12. In Mohammadkhan v. Kedermal, ILR 1943 Nag. The law on this point has been well enunciated in the two decisions of this Court relied on by the Appellant. 12. In Mohammadkhan v. Kedermal, ILR 1943 Nag. 658, it was held that S.90 does not apply unless one co-owner is placed in such a relation to another by the act or consent of another, that he becomes interested for him and with him in any subject or property or business and being in that position, he, acting for himself or as representing another, gains an advantage in derogation of another's rights. 13. In Ayyappan Kunjaiyyappan v. Aiyappan Unnaman, AIR 1955 TC 279 , it has been held that when a co-owner in possession of co-ownership property acquires other property even with use of co-ownership funds in his possession, the acquisition will not perforce become co-ownership property and the acquirer's obligation will only be to account for the co-ownership funds utilised by him. In K. Visweswara v. K. Krishna Murthi, AIR 1957 AP 337 , while construing S.90 of the Act, it was held that in order to invoke this section it is essential that it should be proved that the person is placed in fiduciary capacity and that he gained an advantage by virtue of such position and that ordinarily the relationship of one co-owner towards another is not strictly of a fiduciary character in the sense that there is an obligation on the part of the co-owner to protect the interest of the other co-owner. 14. As has been laid down in Balakrihnan v. Makkam 1973 KLJ 157 if a co-owner gains an advantage, he does not held 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 and 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. It has also been held in this case that any person seeking to avail of the benefit of S.90 of the Act must plead so and that in the absence of such a pleading, it is not proper for a court to go into that question. It has also been held in this case that any person seeking to avail of the benefit of S.90 of the Act must plead so and that in the absence of such a pleading, it is not proper for a court to go into that question. Whether a co-owner is standing in a fiduciary position and whether he obtained advantage as such in derogation of the interest of another are matters depending upon the proof of facts. The decision of the Supreme Court in Vithal Dass v. Rup Chand, AIR 1967 SC 188 , cited by the counsel for the respondents is also an authority for this proposition. It was held in that case that a co-owner in possession of joint properties dots not become trustee by mere fact of his collection of full amount of rents from tenants, and that if a co-owner is to be clothed with that status of trustee it must be shown that he has gained some advantage in derogation of other co-owners interested in the property and that he gained advantage by availing himself of this position as co-owner. To the same effect is the observation in Mrutunjay Pani v. Bala Sasmal, 1961 KLT (SC) 54, that S.90 of the Indian Trusts Act read with illustration of clause (c), clearly lays down that where an obligation is cast on the mortgagee and in breach of the said obligation the mortgagee purchases the property for himself, he stands in a fiduciary relationship in respect of the property so purchased for the benefit of the owner of the property. 15. 15. In answer to a reference made by a learned Single Judge of this Court, as it was found that the decision of the Travancore - Cochin High Court in Kunjaiyyappan v. Unnaman, AIR 1955 TC 279 , on the point is in conflict with an earlier ruling of the same Court in Arokia v. Sowriyaru, AIR 1953 TC 305, a Division Bench of this Court in Parvathi Amma v. Mani Amma, 1975 KLT 197 , approving the decision in Balakrishnan v. Makkam, 1973 KLJ 157 , and relying on the decision of the Supreme Court in M. N. Aryamurthi v. M. L. Subbaraya, AIR 1972 SC 1279 , held that the acquisition made by a managing co-owner with co-ownership funds would not ensure for the benefit of the other co-owners, that it 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. 16. In the case on hand, it is not disputed that after the death of Kochuvava her rights devolved on the defendant and the mother of the plaintiffs by virtue of S.18 and 19 of the Travancore Ezhava Act and that at the time of her death the defendant and plaintiffs 1 and 2 and their mother alone were alive and the property was taken by these four persons as tenants in common. It was with co-ownership funds that the defendant and the plaintiffs' mother took Ext. A1 document in their name. The evidence of P.W. 1 shows that the property was purchased by his wife, the mother of the plaintiffs and the defendant for themselves. The recitals in the document also show that the property was taken for the benefit of the defendant and Kochuvava Devaki and not for the benefit of the family. There is no evidence in support of the case of the plaintiffs that this was taken as a sub tarwad property and the courts below rightly rejected this contention. The plaintiffs have not put forward a plea seeking the benefits of S.90 in the plaint and they also did not put forward such a case at the trial or in the memorandum of appeal filed before the lower appellate court. The plaintiffs have not put forward a plea seeking the benefits of S.90 in the plaint and they also did not put forward such a case at the trial or in the memorandum of appeal filed before the lower appellate court. In the absence of any pleading on the point, they are not entitled to raise such a plea at this stage, and it is not proper for a court to go into the question. Their case even before this Court is that this is a sub tarwad property. Plaintiffs 1 and 2, now 35 and 29 respectively, have not chosen to question Ext. A1 transaction till they instituted this suit. The finding of the lower appellate court that plaintiffs are entitled to benefit of S.90 cannot therefore be sustained and is hereby set aside. It follows that the property belonged in equal shares to the defendant and the mother of the plaintiffs and the plaintiffs are only entitled to partition of the share of their mother. 17. It was also contended on behalf of the appellant that he has effected valuable improvements on the property and that he should be given the value of the same or he should be compensated by allotting that portion of the plot which he has improved. There is no specific plea in the written statement chat the appellant has improved a particular portion of the property. The contention in the statement is that almost all the improvements in the property were effected by him. In cases where the entire property has been either built up or otherwise improved by a co-owner, equity, if any, will become incapable of being worked out. In these circumstances, I do not think that the appellant is justified in asking for any relief in this regard and I find no reason to interfere with the decision of the lower appellate court on this point. 18. In the result, the Second Appeal is partly allowed in the manner and to the extent indicated above and in all other respects this Second Appeal stands dismissed. The cross appeal also is hereby dismissed. Parties are close relatives and in the circumstances, I pass no order as to costs in either.