An arrangement for convenient enjoyment of joint family properties does not absolve the person in possession from accounting for the income, unless there is an allotment of properties made by the manager of the joint family.

RAMAPRASADA RAO, J.:- Defendants 2 to 4 and 6 to 9 in O. S. No. 17 of 1965 on the file of the Subordinate Judge of Coimbatore, are the appellants. The plaintiffs came to court for a partition and separate possession of their half share in the suit properties under the following circumstances. Kandaswami Gounder is the common ancestor. He had two sons, Nanjappa Gounder, the first defendant and Palani Gounder, the first plaintiff. His other son Subba Gounder died as a bachelor in 1959. Palaniammal is his daughter. The first defendant, who is the eldest son who died pending suit is herein represented by his legal representatives, defendants 2 to 10. In fact, it is the second defendant who is contesting the action. Plaintiffs 2, 3 and 4 are the sons and daughter of the first plaintiff. The fifth plaintiff is the wife of the first plaintiff and the 4th plaintiff is the wife of the 1st defendant. The plaintiffs' case is that Kandaswami Gounder died in Adi 1955. Prior to the Hindu Succession Act of 1956 and that, therefore, Palaniammal, the daughter of Kandaswami Gounder cannot be reckoned as a sharer to the estate of Kandaswami Gounder. The plaintiffs' contention is that after the death of Kandaswami Gounder in 1955, the only persons entitled to share the estate of late Kandaswami Gounder was the 1st plaintiff and his branch, Nanjappa Gounder and his branch and Subba Gounder. Subba Gounder died in 1959. Prior to his death, it is the case of the plaintiffs, that the family properties which were situate in two different villages were being enjoyed by the sons of late Kandaswami Gounder independently for the purpose of convenience and pursuant to the said arrangement, the 1st plaintiff was in charge of lands situate in Thalakarai village and the other lands situate in Ramapatnam were in the possession and convenient enjoyment of the father Kandaswami Gounder when he was alive and Nanjappa Gounder and Subba Gounder. Such convenient enjoyment of those properties having been acceeded to and worked upon by the parties out of their own will and volition, continued till the death of Kandasami Gounder in 1955, and Subba Gounder in 1959. On the death of Subba Gounder the specific case of the first plaintiff is that there was a re-adjustment about the lands and their enjoyment by each of the surviving members of the family. As a result of such re-allocation, if that expression could be used, the first plaintiff was also entrusted with certain areas of lands in Ramapatnam village besides the lands in Thalakarai, but the first defendant continued to be in charge of the lands in Ramapatnam village. Apparently this recasting of the extent of the lands in the possession of the two surviving brothers was made consequent upon the death of Subba Gounder who was by then a third sharer in the family. In this context, therefore, the plaintiffs' case is that the 1st plaintiff and his branch would be entitled to one-half of the estate of late Kandaswami Gounder and to the other half the 1st defendant and his branch would be entitled. It is to secure independent and separate possession of such a half share the plaintiffs came to court. The 1st defendant's case is that Kandaswami Gounder died on 2-8-1956 and not in 1955 and that the date of death was after the induction of the Hindu Succession Act of 1956 and, that therefore, Palaniammal, his sister as a daughter of Kandaswami Gounder would also be a statutory heir under the Act and that her share should be allotted to her. The 1st defendant's further case is that the plaintiffs have failed to include in the partible estate, a house which was constructed by the 1st plaintiff in the lands (at) Thalakarai which were in his enjoyment and as such a construction was only possible because the 1st plaintiff and his branch were solely enjoying the income from the lands in their convenient enjoyment and as no partition by metes and bounds of the family properties ever took place, it should be presumed that th