Gopalan Nambiyar, J.
1. This appeal preferred with leave granted by Krishna Iyer J. of this Court, fas he then was) is against the decision of the learned Judge in Second Appeal No. 53 of 1968,and raises an Interesting question of adverse possession and limitation.
2. The suit out of which this appeal arises, was for partition of two items of immovable properties. The legal representatives 01 the 2nd defendant, and the 3rd defendant, are the appellants before us. Item 1 was seven cents in Sy. No. 1479 of a total extent of 10 cents; item 2 was eight cents in Sy. No, 1478, of a total extent of eighteen cents. Both these Sy. Nos. of a total extent of twenty-eight cents, belonged to one Gouri Pillai By Exts. P-3 and P-4 sale-deeds dated 1-2-1108 and 15-9-1106, she conveyed three cents in Sy. No. 1479 and ten cents in Sy. No. 1478 to her brother Narayana Pillai. The remaining extent of the two survey numbers was sought to be partitioned in the suit. Gouri Pillai died in 1114 M. E., leaving as her legal representatives, her two brothers, Govinda Pillai and Narayana Pillai. Narayana Pillai was insane from 1113 M. E. and died on 9-7-1952. Govinda Pillai died in 1963. The plaintiffs are the widow and children of Narayana Pillai. The 1st defendant is the daughter of Govinda Pillai and defendants 2 and 3 are the alienees of the items from Govinda Pillai and his daughter under documents and circumstances to be noticed presently. The defence was that the plaintiffs' rights had been barred by adverse possession and limitation. This was rejected by the Trial Court, which decreed the plaintiffs' suit. The lower appellate court reversed the decree and dismissed the suit. In Second Appeal, Krishna Iyer, J. restored the trial court's decree.
3. Gouri Pillai had a mortgage right over an adjacent property, Sy. No. 1477. This, and the plaint items, had all been improved by Govinda Pillai and a building had been put up by him in Sy. No. 1477 in which Gouri Pillai had only a mortgage right. In view of the insecure nature of the Gouri Pillai's rights, an agreement Ext. D-1 dated 15-12-1111 had been entered into between Gouri Pillai and Govinda Pillai under which it was agreed that in the event of eviction of Gouri Pillai from Sy. No. 1477, the building constructed thereon by Govinda Pillai will be shifted to either of the plaint items, that Govinda Pillai would be allowed to make further improvements in the plaint items, and be paid Rs. 400, for the improvements effected in the mortgaged property which was to be paid by Gouri Pillai, and on default to be realised from her properties. Govinda Pillai was allowed to make further improvements. The value of improvements thus due to Govinda PilLai had not been paid to him and he was in possession of the plaint schedule properties. While so, after thedeath of Gouri Pillai there were lunacy proceedings instituted by the 1st plaintiff in respect of the person and properties of Narayana Pillai and for appointing her as Manager of the Estate of Naraysna Pillai. Ext. P-5 dated 2-5-1116 is a copy of the objections filed by Govinda Pillai in the said petition. He stated therein that Gauri Pillai had agreed that till Rs. 400 due to him for improvements made in the mortgaged item, was paid to him, he could keep possession of the plaint items, and that he was accordingly in possession till the said four hundred rupees and a sum of 700 fanams incurred by him for funeral expenses of Gouri Pillai, were paid. (Ext. P-2 dated 5-9-1114 is an Otti by Govinda Piliai of three cents to Narayana Pillai's daughter Kamalamma for these 700 ianams). Ext. D-2 dated 6-11-1116 is a copy of the order on the Lunacy Petition. The application by the 1st plaintiff was granted in respect of all the properties of Narayana Pillai except those which were claimed by Govinda Pillai under Ext. P-5 written statement. While Govinda Pillai was thus in possession of the plaint items, he gifted these to his daughter (1st defendant) by Ext. D-3 dated 8-11-1119, reserving with him a right of enjoyment till his death. He and his daughter then executed a usufructuary mortgage in 1120 regarding six cents of item 1 in favour of Kanthimathi Ammal (document not produced). They then executed Ext. D-4 sale-deed dated 24-7-1121 regarding the equity of redemption of item 1 to the 2nd defendant. The 2nd defendant took a release of the mortgage right and obtained possession of item 1 on 7-2-1122, under Ext. D-8. Regarding item 2 Govinda Pillai and the 1st defendant executed a usufructuary mortgage Ext. D-7 in 1124 to Kanthumathi Ammal in respect of five cents and in 1961, by Ext. D-5 they sold the equity of redemption regarding the five cents to the 3rd defendant. The 3rd defendant took a release of Ext. D-7 mortgage under Ext. D-6 dated 21-10-1961. The remaining three cents of item 2 are in possession of the 1st defendant as owner under Ext. D-3 gift. It is in the light of these facts, that the plea of adverse possession falls to be examined.
4. Looking at the facts, and as a matter of first impression, it appears to us that no question of adverse possession and limitation can arise. On the death of Gouri Pillai in 1114, the property devolved on Govinda Pillai and Narayana Pillai as co-owners. Apart from their relationship of co-owners, Narayana Pillai was insane from 1113 and died in 1992. While, as recognised by the judicial decisions to which our attention was drawn, and which have been referred to by the learned Judge, we do not exclude the possibi-lily of adverse possession running against a lunatic, we cannot subscribe to the theory that lunacy of one of the co-owners will dispense with the requirement of ouster and knowledge essential to establish adverse possession among co-owners. Could it then be said that there was an ouster of Narayana Pillai and his heirs by Govinda Pillai and the 1st defendant? On first blush we should think that there can be no question of adverse possession till the death of Narayana Pillai on 9-7-1952. The suit was laid on 24-9-1963, within twelve years of his death.
5. But we were pressed with the contention that as a result of the alienations effected by Govinda Pillai, the property had passed into the hands of strangers, and that from that moment, possession became adverse, that alienation in assertion of a hostile title was a sufficient act of adverse possession against a quiescent co-owner, and that we would not be justified in looking for the requirement of ouster or knowledge thereafter. The transfer of possession into the hands of strangers came about from 1120 in regard to item 1 when the earliest mortgage to Kanthimathi Ammal (not produced) was executed; and in 1124 regarding item 2 when Ext. D-7 mortgage was executed, again to her. After the sale of the equity of redemption of item 1 by Ext. D-4 of 11:21, and of item 2 (five cents), by Ext. D-5 of 1961, the items were released in favour of the 2nd defendant by Ext. D-8 dated 1122, and to the 3rd defendant by Ext. D-6 dated 21-10-1961, The execution of the mortgages Exts. D-4 and D-7 by Govinda Pillai and daughter is stated to amount to a clear assertion of a hostile claim against Narayana Pillai, and the possession of the mortgagees is claimed to be adverse from the date of their entry into possession; with the result that at the end of the twelve years thereafter, the rights of Narayana Pillai and of the plaintiffs had been lost.
Uncomplicated by authorities, we should have found it difficult to accept this plea. Govinda Pillai's possession of the plaint items was purely a permissive possession, in pursuance of the rights which he had under Ext. D-1 agreement with Gouri Pillai. So long as the amount of Rs. 400 due to him for improvements made in Sy. No. 1477 and. perhaps the additional sum of Rs. 100 incurred for the funeral expenses of Gouri Pillai were not paid, Govinda Pillai could continue in possession of the plaint items and improve the same. That his possession was only in pursuance of such rights and that himself and Naravana Pillai are co-owners, each having a half-share in the plaint items, is clearly recited and acknowledged in his objection, Ext. P-5, filed in the Lunacy Petition. Ext. D-2 order passed thereon, recognised these rights, and excluded the plaint items from the scope of the order appointing the 1st plaintiff as Manager of the Estate of Narayana Pillai. To that order, the 1st plaintiff was a party, and she knew clearly the nature and the character of the possession of Govinda Pillai. Even in Ext. D-3 gift, only the right to improvements and to possession of Govinda Pillai in respect of the plaint items is recited. And the three cents of item 2, not covered by Ext. D-5 and Ext. D-6, were in the direct possession of Govinda Pillai till his death in 1963. By Exts. D-4 and D-7 Govinda Pillai asserted exclusive rights in himself. The properties also passed to the possession of strangers with the execution of these, and of Exts. D-6 and D-8. Would this make any difference? We think, not.
6. Counsel for the appellant stressed the recitals in paragraphs 4 and 6 of the plaint that after Narayana Pillai's death, Govinda Pillai had taken forcible possession of the property. We agree with the learned Judge that these allegations in the plaint, cannot by themselves, preclude or estop the plaintiffs in the light of proved facts, which belie those recitals.
7. The learned Judge was of the view that the possession of Govinda Pillai in pursuance of Ext. D-l agreement was that of a 'tenant' under the Kerala Compensation for Tenants Improvements' Act, 1958. We doubt if this would be altogether right having regard to Govinda Pillai's possession as a co-owner in regard to common property, in pursuance of an agreement. For the purpose of deciding this appeal, we need not venture a final opinion on this point, and wish to express none. As noticed by the learned Judge, the decision of the Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314) has stressed the need to prove knowledge and ouster before adverse possession can be established among co-heirs. In Freeman on 'Co-tenancy and Partition', IInd Edition, it is stated that each co-tenant may convey his moiety at pleasure without the consent or knowledge of either of his companions in interest, and that in the case of tenants-in-common, the grantee is substituted as a tenant-in-common having the same rights and subiect to the same obligations as his grantor (See page 270. Article 194). This passage and the other relevant authorities were noticed by one of us in the judgment of a Division Bench of this Court in Muthu Rowther v. Muhammed Ali Rowther (1970 Ker LT 1043) where, the question raised was the court-fee payable by an assignee of the rights of two Mohammedan Co-sharers who sought partition, against the assignee of the rights of the third. The judgment noticed the provisions of Section 44 of the Transfer of Property Act, under which the transferee from a co-owner in India acquires, as to the share transferred, the transferor's right to joint possession. In the light of these principles, it is difficult to posit that the possession of Govinda Pil-lai or the transferees became adverse to Narayana Pillai and the plaintiffs.
8. But the strongest reliance was placed upon the decision of a learned Judge of this Court in Joseph v. John 1959 Ker LT 630 = (AIR 1960 Ker 27), affirmed on appeal by a Division Bench of this Court in John v. Joseph (ILR 1964 Ker 211). On the actual facts, the decision is distinguishable. In execution of a decree against the widow and one of the sons of one deceased Thommen. Thom-man's entire property of thirty cents had been purchased in court-auction and taken possession of, in 1112 M. E. by the 1st defendant, a stranger. Plaintiff and defendants 2 to 6 were the other children of the deceased Thommen who sued in 1127 for recovery of possession of the property. It was held that the plaintiffs' right was barred by adverse possession. This was clearly a case where the entire body of co-owners had been ousted by a stranger who got into possession through process of court in 1112 and continued for over the statutory period of twelve years.
The possession of the court-auction purchaser could not, in any sense, be regarded as possession on behalf of the co-owners. The decision could be safely rested on this ground. Indeed, it was so rested by the Division Bench on appeal, in ILR (1964) Ker 211 (See the last paragraph). But the learned Judge in the first instance ,and the Division Bench on appeal noticed certain cases, and, the learned Judge of first instance, in particular, made certain observations, which have been strongly relied on before us In 1959 Ker LT 630 = (AIR 1960 Ker 27) the learned Judge observed that the possession of a transferee of a co-owner of the whole property is adverse to the other co-owners from the moment of his entry. Earlier, while noticing the principle that the sole possession of a co-owner, though of the entire property, is referrable to the lawful title, the learned Judge stated that this principle has no application to the sole possession of one, who is not in fact a co-owner, but one who has obtained poesession of the whole property from a co-owner by a transfer or otherwise. For this purpose, the learned Judge was of the view, that the transferee must really be treated as a stranger to the other co-owners; and adverse possession as between strangers does not fall to be tested in the light of ouster or knowledge.
With respect, we feel that the propo-sitions underlined have been too widely stated, and fail to take note of the principles stated in Freeman on 'Co-Tenancy and Partition' referred to earlier, and noticed in the Division Bench iudgment in 1970 Ker LT 1043. The observations were also unnecessary, on the actual facts. The learned Judge strongly relied on the decision of a Full Bench of the Madras High Court in Palania Pillai's case (AIR 1942 Mad 622) (FB). There, a suit for partition was filed by the widow and son of one of two Mohammedan co-owners against the legal representatives of the other co-owner. One of the questions was whether a usufructuary mortgage executed by defendants 1 and 3 (some of the legal representatives) in favour of the 8th defendant (a stranger) was binding on the plaintiffs. The mortgage was of 1920, and the mortgagors purported to charge the whole of items 10 to 13 and part of item 9 of Schedcle II to the plaint for Rs. 7,250. The suit was filed only on 9th October, 1937 on the allegation that defendants 1 and 3 had no right to charge the plaintiffs' share in the properties and on the footing that the plaintiffs had knowledge of this mortgage only within twelve years of the suit. The Full Bench observed that when one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other co-sharers must, unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the consequences. The Court observed
'Where a person who is in possession under a usufructuary mortgage granted by one of several co-parceners remains in possession of the land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with..... In order that there may be no isunderstanding we will add that the interest which the appellant has acquired is the interest of a usufructuary mort-gagee. He has not acquired a full title to the property. As a matter of fact the learned Advocate for the appellant has not suggested otherwise.' The observations that we have underlined above, are significant, and appear to have been missed by the learned Judge in 1059 Ker LT 630 = (AIR 1960 Ker 27). Palania Pillai's case. AIR 1942 Mad 632 (FB) was therefore authority only for the limited view that the transferee will, in such circumstances, acquire the right of a mortgagee in the entire property mortgaged. How far this can be squared with the principle in 1970 Ker LT 1043. we need not pause to consider. Perhaps the view can be explained on the ground that open and continuous possession is treated as sufficient evidence of knowledge and ouster as far as the limited mortgage right is concerned. In Konnan Sanku v. Kalyani Parvathy Animal, 1962 Ker LT 881 = (AIR 1963 Ker 249), the same learned Judge who decided 1959 Ker LT 630 = (AIR 1960 Ker 27) held that the execution of a mortgage of the whole property under which the mortgagee enters into possession, operates as an ouster of the other co-owners, and to their knowledge; and that where some co-owners usufructuarily mortgage an item of property and the mortgagee enters into possession, a suit to recover the share therein by the other co-owners is barred by Article 144 at the end of the fourteen years of such possession. It was contended before the learned Judge that the mortgagee could prescribe only for a mortgage right and that the equity of redemption would not be barred. The learned Judge observed that the argument appeared plausible, and was assumed without contest in Palania Pillai's case, AIR 1942 Mad 622 (PB) but had arisen for decision before a Full Bench of the Cochin High Court in Matheis v. Kunhi-kavu Varassyar (39 Cochin 97). There, it was held that by reason of the execution of a mortgage by some of the co-owners, on the footing that they were exclusively entitled, and the continuance of possession of the mortgagee, the rights of the other co-owners were barred by adverse possession. The learned Judge in 1962 Ker LT 881 = (AIR 1963 Ker 249) followed this view. We cannot accept the Cochin decision, or the decision in 1962 Ker LT 881 = (AIR 1963 Ker 249) as laying down correct law. We are of the opinion that a transfer of the common property by one of the co-owners in assertion of exclusive right in himself, followed merely by possession by the transferee for over twelve years, without knowledge or ouster of the other co-owner(s) cannot operate to bar altogether the rights of such other(s). Whether the transferee can prescribe for the limited right transferred, such as a mortgage, is a point on which we wish to express no opinion.
9. It was argued by counsel for the appellant that knowledge and ouster can well be presumed or inferred on the facts of this case, as, by Exts. P-3 and P-4, portions of the same survey numbers as the plaint items, had been sold by Gouri Pillai to Narayana Pillai himself.
In the circumstances, it was said that it is inconceivable that Narayana Pillai and the plaintiffs would not have known of the nature and character of the possession of the plaint items. But Narayan Pillai was a lunatic from 1113 till his death in 1952. The earliest transfer of possession to a stranger is only in 1120. Knowledge cannot be imputed to Narayana Pillai or assumed against him. As far as his wife, the 1st plaintiff is concerned, she had definite knowledge in the lunacy proceedings under Exts. P-5 and D-2 of the nature and character of the rights asserted by Govinda Pillai. These were in no sense adverse to her or to Narayana Pillai.
10. There is another aspect of the matter. We do not know the terms of the earliest mortgage of 1120 to Kanthi-mathi Ammal; nor whether anything was payable by the mortgagee to the mortgagor under the same. There is no proof that the mortgagees were not performing their duties and obligations under the terms of the mortgages Exts. D-4 and D-7; so that there was no infraction of the rights of the mortgagor by the mortgagees. This aspect of the matter has been examined in a recent Full Bench judgment of this Court in Kochappi v. Vela-yudhan. 1970 Ker LT 610 = (AIR 1971 Ker 38) (FiB). Besides, as pointed out by Krishna lyer J. in the judgment under appeal, a Full Bench of this Court in Kunjamma Cicily v. Sulaikha Beevi, ILR, (1968) ,2 Ker 366 = (AIR 1969 Ker 293) (PB) has considered the question of adverse possession of co-ownership property, outstanding on usufructuary mortgage. It was observed by the Full Bench (vide paragraph 19) that the mere execution of documents by two of the co-owners on the footing that they are full owners of the property, cannot deprive the plaintiff co-owner of his rights so long as be was not party to the documents, and it had not been shown by other circumstances, that he had knowledge of these transactions, and hostile assertion. This was what the Full Bench observed :
'19. It is no doubt true that Exts. D-3 and D-4 contain recitals to the effect that Asanaru and Abdul Kader are the jenmis of the property and that they have full right; to deal with the same. The plaintiff was not a party to these documents nor has our attention been drawn to any circumstances from which it may be legitimately inferred that the plaintiff had knowledge of these transactions and the hostile assertions or was at least under a duty to enquire about them. The following observations of Niamatullah J. in Subah Lal v. Fateh Mohammed (AIR 1932 All 393 at p. 397) may be usefully extracted in this context : It was contended on behalf of the appellant that Ewaz Ali and others might have been co-sharers of the plaintiffs; but their mortgagee (the appellant) was not. Assuming this is so, the appellant's possession has to be pronounced to be adverse before limitation for the plaintiffs' suit is reckoned from the date of the mortgage. To be adverse, it must be such as to be in open denial of the plaintiffs' right. This principle is not peculiar to co-sharers, but is applicable to all persons claiming adverse possession. It is true oossession is prima facie adverse, but if the apparent circumstances suggest a lawful title in the possessor, his denial of the right of the mortgagor's co-sharer, implied in a transaction, not coming to his knowledge cannot set limitation running against him, registration cannot in such a case give rise to the presumption of notice nor can knowledge of the transaction be imputed to the rightful claimant where there is nothing to put him to inquiry'. We are in respectful agreement with the view expressed by the learned Judge that merely by the reason of the registration of a document knowledge of the transaction or of the recitals therein cannot be imputed to a third party so as to set limitation running against him.' In the light of the above Full Bench rulings also, we are of the opinion, that the rights of the plaintiffs have not been barred by adverse possession and limitation. The conclusion of the learned Judge to that effect is correct. The judgment and decree passed by him do not call for interference in other respects; and no arguments were advanced before us in regard to these aspects. We dismiss this appeal with costs.