Judgment :- Bhat, J. These appeals are directed against the decree and judgment passed by the Subordinate Judge, Kasaragod in O.S.60 of 1977. 2. Plaint A schedule consists of 16 items of immovable properties, plaint B schedule comprises two items of immovable proper ties and plaint C schedule comprises three movables, namely, a jeep, water pump set and motor cycle. Plaintiffs and defendants are admittedly members of a Namboodiri Illam, being descendants of one Keshavan Namboodiri. Second plaintiff is the wife of and plaintiffs 3 to 8 are children of first plaintiff. Seventh defendant is the wife of and defendants 3 to 5 are the children of first defendant. Ninth defendant is the wife of third defendant. Eighth defendant is the wife of and sixth defendant is the daughter of second respondent. First plaintiff and defendants 1 and 2 are the children of Keshavan Namboodiri. Plaintiffs have 8/17 shares in the Illam assets, if otherwise they are entitled to a share. Plaintiffs filed the suit for partition claiming separation of their share with past profits for three years and future profits. First defendant filed a written statement and defendants 3 to 5 and 7 to 9 filed a joint written statement, raising more or less similar contentions, which can be grouped under the following heads: (i) The rights of the plaintiffs, if any, in the Illam properties are barred by adverse possession limitation. (ii) Item 2 of plaint B schedule is a self-acquisition of first defendant and is not an asset of the Illam. (iii) Several other items of properties were in the possession of tenants and either the tenants or their assignees have obtained purchase certificates from the Land Tribunals concerned on the basis of T forms consented to by the Illam Karanavan, namely, first defendant. (iv) Movables described in plaint C schedule do not belong to the Illam, but to the third defendant. (v) The rate of profits claimed is excessive. In regard to some of the disputed tenancies, the lower court made reference to the Land Tribunals which on the basis of the previous J' form orders and purchase certificates upheld the claims of tenancies in regard to item 9 and portions of items 1 and 2. In regard to some of the other tenancies no reference had been made to the Land Tribunals. In regard to some of the other tenancies no reference had been made to the Land Tribunals. Item 9 and portions of items 1 and 2 form part of properties described in schedule Y of the written statement of defendants 3 to 5 and 7 to 9. Parties conceded before the lower court that items 8 and 11 of A schedule are not partible. Accordingly the lower court held that other items of immovable properties are available for partition. The lower court also held that the C schedule movable properties are available for partition. The plea of adverse possession limitation was over-ruled. Accordingly preliminary decree was passed for partition. Plaintiffs, first defendant and defendants 3 to 5 and 7 to 9 are aggrieved by the various findings and decree. 3. According to the contesting defendants, first plaintiff left the Illam about thirty years prior to the suit and plaintiffs never cared to come back to the Illam nor attempted to participate in the income from the Illam properties, that all along the contesting defendants have been in exclusive possession of the properties in direct possession and enjoying the income and collecting rent in regard to tenanted properties and, therefore, plaintiffs have been ousted and their rights are barred by adverse possession limitation. 4. Our attention is invited to the decisions of Division Bench of this Court in Sooppi v. Moosa (1969 KLT 121) Paru v. Chiruthai (1985 KLT 563), Sainaba Umma v. Moideenkutty (1987 (2) KLT 59) and Full Bench decision in Kunjamma Cicily v. Kasim Beew (AIR 1969 Ker. 293) and decision of the Supreme Court in P. Lakshmi Reddy v. L Lakshmi Reddy (AIR 1957 SC 314). 293) and decision of the Supreme Court in P. Lakshmi Reddy v. L Lakshmi Reddy (AIR 1957 SC 314). Even though an attempt is made on the basis of the decision in Peru's case (1985 KLT 563) to strike a different note in reasoning, we find that the consistent view taken by this Court and the Supreme Court is the one reflected in the Supreme Court decision followed in Sooppi's case (1969 KLT 121): "When one co-owner takes possession and continues in possession for a long time enjoying the income of the* property without sharing it with the other co-owners it is a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this, courts will be justified in inferring ouster or exclusion. Ouster is certainly a positive matter and the hostile animus necessary to constitute ouster must also be a positive matter. It is a matter involving action; it cannot be mere inaction. If the co-owner in possession did not give a share of the income to the other co-owner out of possession merely because the latter did not ask for it, then, such animus may be only a negative animus. On the other hand, if the evidence shows that even if the co-owner out of possession demanded his share the co-owner in possession would not have given him a share, then, the animus is positive, in the sense that it is indicative of an animus to exclude." 5. Plaintiffs specifically claimed past profits for a period of three years on the basis that profits had been paid till then. This is rebutted in the written statements. Plaintiff was not examined. Defendants 1 and 3 were examined as D.Ws. land 2 who asserted that for nearly thirty years plaintiffs had never come to the Illom and had never participated in the income. Evidently first plaintiff left the Illam in his you thin search of other avenues of employment and settled down at a place within the same District and raised his own family. Because he was able to find other avenues of earning income he did not bother to trouble the co-owners residing in the Illam. There is no 'evidence that plaintiffs ever demanded share of income and that was refused by the contesting defendants. Because he was able to find other avenues of earning income he did not bother to trouble the co-owners residing in the Illam. There is no 'evidence that plaintiffs ever demanded share of income and that was refused by the contesting defendants. There is nothing to indicate that the contesting defendants, apart from merely collecting income from the property and spending the same, ever attempted to exhibit a hostile animus. Though non-participation in the income for fairly a long period is evident in this case, there is no other circumstance to support the possibility of an inference being drawn that there has been ouster. Mere non-participation by itself, in the absence of any other circumstance, may not be sufficient to enable the court to hold that there is ouster. In these circumstances, we agree with the trial court that the plaintiff's rights in the Illam properties are not barred by adverse possession of limitation. 6. We now deal with the defendants claim in regard to items 5,6,11,13 and 14 of plaint a schedule. There was an earlier partition suit (OS 494 of 1934), which ended in compromise decree. A person said to be a Kuzhikanomdar by name Madhavan Chakyar was the third defendant in that suit. The suit was filed by the father of present first plaintiff and defendants 1 and 2 and his wife and children. The suit ended in a compromise decree as seen in Ext.A1, as per which items shown included in schedule I were put in the possession of defendants 1 and 2 in that suit for their enjoyment during the life time of the first defendant with entitlement to the plaintiffs thereunder to obtain possession of the same on the death of first defendant and enjoy the property though with liability to pay maintenance to second defendant therein. Properties included in schedule II therein, namely, items 5 to 7,13 and 14 were directed to be enjoyed by the third defendant therein during his life time with liberty to the plaintiffs therein, after the expiry of a period of 20years to pay the value of improvements and take back possession. Ext.A1 also shows that third defendant thl^ein relinquished his right over some other items. Contesting defendants have a contention that Madhvan Chakyar had lease hold right in these items and his successor-in-interest had obtained purchase certificate and, therefore, the properties are not available for partition. Ext.A1 also shows that third defendant thl^ein relinquished his right over some other items. Contesting defendants have a contention that Madhvan Chakyar had lease hold right in these items and his successor-in-interest had obtained purchase certificate and, therefore, the properties are not available for partition. Parties adduced no evidence to show that he was in possession till his death and his heirs came into possession and continued in possession till the date of the suit. However, we find that learned Subordinate Judge did not advert to this contention and did not record any specific finding. We are of opinion that this matter has to be investigated and a definite finding recorded. 7. Contesting defendants are aggrieved by the finding of the lower court that parts of items 1 and 2 of A schedule and Item 1 of B schedule are available for partition. According to them, these plots are in the possession of tenants or their assignees who Obtained purchase certificates from Land Tribunals. The question was not referred to the Land Tribunal and no finding was obtained and the lower court recorded a positive finding that they are available for partition. Contesting defendants produced documents after evidence was over and prayed that evidence may be reopened. The request was rejected before hearing arguments. The court could certainly have reopened the evidence, putting them to terms. The finding cannot stand. The matter requires to be investigated afresh though we direct that reference to Land Tribunal is no longer necessary. 8. We may refer to the grievance of the plaintiffs regarding the decision of the lower court that items 5 to 7,13 and 14 of A schedule are not available for partition. This question was referred to the Land Tribunal, which answered the reference by stating that these items are in the possession of tenants who have obtained purchase certificates. The reference order is based on the earlier order of the Land Tribunal based on a consented 'J' form, that is, on the consent of the claimants and the first defendant, the Illam Karanavan without notice to the other members of the Illam including the plaintiffs. That order or purchase certificate may not be binding on the other members of the Illam. Therefore, the finding of the Land Tribunal on reference is not sustainable. That order or purchase certificate may not be binding on the other members of the Illam. Therefore, the finding of the Land Tribunal on reference is not sustainable. Lower court did not consider the contentions regarding item 12 of a schedule and item 1 of B schedule. These controversies will have to be decided afresh by the lower court without any further reference to the Land Tribunal and independent of any finding recorded on reference. 9. The next controversy relates to item 2 of plaint B schedule. There is no dispute that this item formed Kumki to the Warg property (ancient property) of the Illam. The landholder or the Wargdar under the law then obtaining in the locality was entitled to certain privileges in the government land adjoining the Warg land to a distance of 100 yards. He had also a preferential right to claim assignment of the land from the government. First defendant as the Karanavan or Kartha of the Illam, was undoubtedly dealing with the Kumki lard also. While so, he applied for and obtained assignment of the land from the government. Plaintiffs contended that the acquisition enures to the benefit of the Illam while the first defendant contended that it is his self-acquisition. The lower court found that the acquisition enures to the benefit of the Illam. First defendant is aggrieved by this finding. 10. Learned counsel representing the contesting defendants relies on Bappani Rai v. Thyampanna Rai (AIR 1965 Kerala 221) in support of his contention. In that case the Kumki land was granted on dark hast, to the first respondent therein. Other members of the family claimed that the assignment enures to the benefit of the family. This was repelled by learned Single Judge of this Court relying on the decision of the Madras High Court in M. Rama Rao v. Appu (AIR 1925 Mad. 1226) that: "When the government granted Kumki land on drakhast, any right previously granted by the wargdar in favour of a tenant regarding the Kumki land came to an end and even if there was a mortgage right on the kumki land created by the wargdar, it also came to an end as soon as the grant of dark hast was made." Learned Judge also referred the decision of the Madras High Court in Kodi Shankara Bhatta v. Moidin (AIR 1919 Mad. 121) and sought to distinguish the same. 121) and sought to distinguish the same. From the Reported decision in Bappani Rai's case (AIR 1965 Ker. 221), we are unable to find whether the first respondent therein was the Kartha of the joint family or had a representative capacity vis-a-vis the other co-owners. This would make all the difference in considering the applicability of S.90 of the Trusts Act. The above decision, cannot be regarded as an authority for the proposition that when a Kartha of a joint family In enjoyment of Kumki land obtains an assignment of Kumki and from the government, 'it will be his self-acquisition and will not enure to the benefit of the family. 11. Accordingly to S.90 of the Trusts Act "where a tenant for life, co-owner, I Mortgagee or other qualified owner of any property, by availing himself of his position As such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in Such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained". When a Karanavan of a tharavad or Illom or the Karlhaofajoint family who by virtue of his position is either in possession of Kumki land or is exercising Kumki privileges applies to the government for assignment and obtains The assignment, without anything more, the only inference which can be drawn is that he So applied for assignment in his capacity as Karanavan and for the benefit of the family. If he seeks assignment in his individual capacity and not in representative capacity that Certainly would be in derogation of rights of other members of the FAM >y who would be Entitled to contend that the family has preferential right to obtain assignment. Either way the position is that the assignment in favour of the Kartha enures to the benefit of the family. This proposition can be spelt out from the decision of the Division Bench of the Madras High Court in Kodi Shankara Bhatta's case (AIR 1919 Mad. 121). That was a Case where a mortgagor who executed a usufructuary mortgage obtained assignment of The Kumki land from 'the government. It was held that the assignment did not enure to The benefit of the mortgagee. On behalf of the mortgagee reliance was sought to be Placed on S.90 of the Trusts Act. 121). That was a Case where a mortgagor who executed a usufructuary mortgage obtained assignment of The Kumki land from 'the government. It was held that the assignment did not enure to The benefit of the mortgagee. On behalf of the mortgagee reliance was sought to be Placed on S.90 of the Trusts Act. Sadasiva Aiyar, J. speaking for the Division Bench indicated that S.90 would apply to tenants for life, co-owners, mortgagees and similar persons who avail themselves of their position to obtain benefit for themselves in derogation of the rights of other persons interested or as representing all persons interested and the provision would not apply where a mortgagor obtains the assignment and not the mortgagee. We affirm the finding of the lower court that assignment of item 2 of plaint B schedule enures to the benefit of the Illam and it is partible if otherwise it is available for partition. 12. According to the plaintiffs plaint C schedule movables are available for partition, a claim denied by the third defendant. According to him, they constitute his separate property. Plaintiff was not examined. Though third defendant was examined as D.W.I, he did not refer to this aspect in his evidence. We are unable to find in whose name the movables stand; even the jeep and motorcycle which must have a registration certificate and the pump set which must have a purchase bill. Since the matter has to go back for decision on some of the questions already adverted to, we are inclined to give an opportunity to the parties to adduce further evidence in regard to this matter. The finding of the court below that the movables are partible is set aside. 13. In the result, the impugned preliminary decree and judgment are seta side and the suit is remanded to the file of the Subordinate Judge's Court, Hosdurg for disposal afresh in accordance with law and in the light of the observations contained in this judgement. The finding of the court below that the movables are partible is set aside. 13. In the result, the impugned preliminary decree and judgment are seta side and the suit is remanded to the file of the Subordinate Judge's Court, Hosdurg for disposal afresh in accordance with law and in the light of the observations contained in this judgement. On remand, the lower court will decide afresh the question of tenancy relating to items 1,2,5 to 7,9 and 12 to 14 of plaint A schedule, the question of tenancy in regard to plaint B schedule as well as dispute regarding plaint C schedule movables after giving a reasonable opportunity to all the parties to adduce further evidence and after giving an opportunity to the plaintiffs to implead the persons allegedly in possession of some of the disputed items and as expeditiously as possible. The appeals are accordingly allowed to the extent indicated above, but in the circumstances witi out costs. The suit 'will be called in the lower court on 9-11-1990. Send back records forthwith.