P.C. Balakrishna Menon, J.
1. The plaintiff is the appellant. The suit is for partition of his 2/11 shares in the three items of properties mentioned in the plaint. The properties belonged to Thupran who died in the year 1121. His legal heirs under the Cochin Makkathayam Thiyya Act were his wife deceased Kurumba and children the plaintiff, defendants 1, 2, 3, 9 and deceased Cheeru. Cheeru's children are defendants 4 to 8. Kurumba died after the Hindu Succession Act. Defendants 10 and 11 are impleaded as alienees of the properties and defendants 13 to 20 are those residing with defendants 10 and 11. All the legal heirs of Thupran except the plaintiff and the 4th defendant have purported to assign the properties to defendants 10 and 11 as per a registered sale deed Ext. B-l dated 27-11-1952. This document recognises the title of the plaintiff and the 4th defendant to their respective shares in the suit properties and a provision is made to pay off these two co-sharers who did not join in its execution. About ten years thereafter, defendants 10 and 11 have assigned another property to the 1st defendant as per Ext. B-19 dated 25-7-1962. Part of the consideration for the sale deed Ext. B-19 is the amount fixed for payment to the plaintiff and 4th defendant as per Ext. B-l and interest accrued up to the date of Ext. B-19. The 1st defendant alienee himself is directed to pay off the plaintiff and the 4th defendant and in case the plaintiff claims a share in property itself there is a direction in Ext. B-19 that the 1st defendant should convey 1/4th share in Ext. B-19 property to the plaintiff. Defendants 10 aad 11in their written statement filed on 30-3-1970 in para S have practically admitted the plaintiff's title to a share in the suit property which according to them should be satisfied as per the provision made in Ext. B-19. In the additional written statement filed on 18-12-1971, the contesting defendants have raised a plea of adverse possession.
2. Both the Courts below have dismissed the suit on the ground that the plaintiffs title to the suit-properties is barred by adverse possession of defendants 10 and 11.
3. Learned counsel for the plaintiff-appellant Sri K.P. Radhakrishna Menon challenges the correctness of the decision of the Courts below that the plaintiff's title to the share claimed is lost by adverse possession of defendants 10 and 11. It is pointed out that even the document of assignment Exhibit BI recognises the title of the plaintiff to a share in the properties and the parties to the document had without the consent of the plaintiff devised a method of paying him off for the value of his share. This is reinforced by the subsequent document Ext. B-19 as per which the 1st defendant himself is directed to pay off the plaintiff or if he insists on a share in property itself, there is a direction that 1/4 share in Ext. B-19 property should be conveyed to him. Both these documents recognise the plaintiff's title to the suit properties and without his being a party to either of these documents, the defendants have devised a method for payment of the value of his share to him or to satisfy his claim from other properties. Under these circumstances, whether it can be said that the plaintiffs title is lost by adverse possession of defendants 10 and 11, is the only question arising for consideration in this Second Appeal.
4. In P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314), it is stated atpage 317 thus:
'4. Now, the ordinary classical requirement of adverse possession is that it should be nee vi neo clam nee precario. (See Secretary of State for India v. Debendra Lal Khan, (1934) 61 Ind App 78 at p. 82 : (AIR 1934 PC 23 at p. 25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, (1900) 27 Ind App 136 at p. 140 (PC) (B). But it is well-settled that in order to establish adverse possession of one co-heir at against another it it not enough to show that one out of them is in sole possession and enjoyment of the profitsof the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be .nade out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other coheir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appahamy, 1912 AC 230 (C'. It is a settled rule of law that as between co-heirs there most be evidence of open assertion of hostile litle, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeeverathnammal, AIR 1919 PC 44 at p. 47 (D) quotes, apparently with approval, a passage from Culley v. Doe d. Taylerson, (1840)3 P&D; 539 : 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster 'if other circumstances concur. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F)). It may be further mentioned that it is well-setlled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.'
5. A Division Bench of this Court hi the decision in Ramachandran Nair v. Gouri Pillai (1975 Ker LT 269): (AIR 1975 Ker 39), after considering the earlier decisions of this Court, on the point, has stated the law at page 274 (of Ker LT) : (at p. 43 of AIR) thus:
'We are of the opinion that a transfer of the common property by one of the co-owners in assertion of exclusive right in him-self, followed merely by possession by the iransferee 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).'
Subramonian Poti, J. (as he then was) in the decision in Karthiyayani v. Utu Kallyani (AIR 1972 Ker 229), stated at para 7 thus:
'7. A co-owner of property can transfer his interest to any stranger and if he purports to transfer only his interest, the transferee coming into possession would not be holding adverse to the other co-owners. That is because in such a case it will be difficult to read an animus adverse to the co-owners not in possession. But where the co-owner purports to be entitled to transfer the property as if he is the sole owner and the transferee comes into possession, though the transfer will legally operate as a conveyance only of the interest of the alienating co-owner, possession of the transferee from the moment of transfer will be adverse to the other co-owners because it is with an animus to hold adversely that the transferee would come into possession of the property and would therefore be holding the property with a hostile animus thereafter. This position also seems to be not one which would call for a controversy.' the latter part of the observation does not appear to exclude the requirement of knowledge or ouster of the non-alienating co-owner.
6. From the documentary evidence in the case adverted to above, there is clear recognition by the alienees of the plaintiff's title to a share in the suit properties. The methods devised to satisfy his claim to a share have failed because the plaintiff is not prepared to abide by the terms of Ext. B1 or Ext. B19. That is a positive indication that the possession of the suit properties by defendants 10 and 11 is not hostile to the title of the plaintiff.
7. Learned counsel for the respondents Sri C.S. Ananthakrishna Iyer has raised a contention that the assignment Ext. B1 is in relation to the entirety of the rights of all the legal heirs of Thupran in the suit properties and what has been reserved for payment to the plaintiff and the 4th defendant is only the value of their respective shares in the properties. It should therefore be taken as an assignment in assertion of a hostile title of the non-alienating co-sharers namely the plaintiff and the 4th defendant. It is not possible to accept this argument. Even on the terms of the document as earlier found there is clear recognition of the title of those non-alienating co-sharers which requires to be satisfied by the alienees. On a reading of Ext. B19 also there cannot be any doubt that it is a subsequent recognitionof the plaintiff's title to a share in the suit properties which was still subsisting and required to be satisfied.
8. In the original written statement there was not even a plea of adverse possession by the defendants. A plea of adverse possession is raised in the additional written statement. There is no plea of ouster or knowledge of the non-alienating co-sharers. Under these circumstances, there can hardly be any doubt that the title of the plaintiff to claim his share in the suit properties is not lost by adverse possession of defendants 10 and 11.
9. Learned counsel for the respondents brings to my notice that the alienation Exhibit B1 was also for the benefit of the non-alienating co-sharers as it had been as recited in the document for the discharge of debts and liabilities charged on the suit properties and other properties, that the sharers had inherited from their father Thupran.I need hardly state hat defendants 10 and11 are entitled to restoration of such benefits that would have accrued to the plaintiff on account of the discharge by them of debts and liabilities of the co-sharers mentioned in Ext. B1. There is no dispute before me regarding the share claimed in the plaint
10. The result is I set aside the judgment and decree of the Courts below and pass a preliminary decree for partition of the suit properties into eleven shares and for allotment of two shares to the plaintiff, as prayed for in the plaint. He will also be entitled to the aforesaid share of profits from the date of the suit the quantum of which will be determined in the final decree. Any benefit that would have accrued to the plaintiff on account of the discharge of liabilities mentioned in Ext. Bl assignment will be restored to defendants 10 and 11. The quantum of such benefits to be restored will also be determined and provided for in the final decree.
11. Counsel for the respondents submits that the alienees have effected considerable improvements in the property. The improvements so effected in equity will be allotted to their share without valuing the same as far as possible and without prejudice to the rights of the plaintiff to have his share separately allotted to him.
12. On the question of law formulated on admission of the Second Appeal my answer is that the plaintiff's title to the suit properties is not lost by adverse possession and limitation.
The Second Appeal is allowed. There will be no order as to costs.