Venkatasubba Rao, J.

1. The question that arises in this appeal is, whether defendant ls liability is to be determined with reference to Section 90, Trusts Act (2 of 1882). Mr. Bajah Ayyar contends that the heirs of a deceased Mohammedan take as tenants-in-common, and that one co-tenant does not stand in fiduciary relation to his other co-tenants. The learned Counsel relies upon Kennedy v. De Drafford (1897) A.C. 180, and my judgment in Ramaswami Ayyar v. Subramania Ayyar 1923 Mad. 147, for the position that the relationship of one co-owner towards another is not of a fiduciary character. The question here however is not whether the mere fact that defendant 1 was a co-tenant, could render him liable to be treated as a fiduciary owner, but the point to decide is, whether by reason of his dealings with his co-owners share and the responsibilities he assumed in regard to it he did not beyond being a bare tenant-in-common, also put himself in fiduciary relationship.

2. At the death of Meera Masthan, his son Nagoor Meeran (the plaintiffs husband) was a minor, and defendant 1 (the elder brother of Nagoor Meeran) was much his senior in age. The minor, after his fathers death, lived