P. Subramonian Poti, J.
1. Interesting questions of law were urged by counsel for the appellant before me in this second appeal, but after hearing counsel I do not think it is necessary to advert to them in detail, as the questions which are so urged before me are well settled so far as this court is concerned, and I see no reason to doubt the correctness of the view taken by this court in the earlier decisions and refer this matter to a Division Bench as apparently the counsel wants me to.
2. The suit is for partition. Plaint schedule property belonged to one Charu, Plaintiff and first defendant are daughters of Charu by his first wife, who is not alive. Defendants 2 to 6 are children of Charu by his second wife Kutty. The suit property is 1 acre 11 cents in extent. Out of this, 42 cents was put in possession of an usufructuary mortgagee by Charu during his lifetime under Ext. D11 of 1102. This was of the southern 42 cents. Charu died on 17-11-1117. The children by the second wife, namely defendants 2 to 6. claiming to be those entitled to the property on the death of Charu executed Ext. D-13 mortgage on 16-12-1119. whereunder they directed the mortgagee to redeem Ext. D-11 and out the mortgagee in possession of the rest of the property. Apparently nether the plaintiff nor the first defendant were associated in the execution of Ext. D13. Nor did the document purport to be on their behalf also. On the same day as that of Ext. D13. the mortgagee who took Ext. D13 released Ext. D11 mortgage under Ext. D15. Later defendants 2 to 6 are seen to have taken a lease from the mortgagee for the suit items and they are said to be in possession and enjoyment under the lease.
3. The claim of the plaintiff to succeed to 1/7th of the assets of Charu and therefore to 1/7th of the suit property succeeded in the trial court with regard to the 42 cents on the southern portion covered by Ext D11 mortgage. With regard to the rest the plea of adverse possession set up BY defendants 2 to 6 was accepted by the court. An appeal was filed against this by both plaintiff as well as defendants 2 to 6. The appeal by the plaintiff was dismissed, while that by defendants 2 to 6 was allowed, thus holding that the suit was barred by adverse possession in respect of the entire 1 acre 11 cents. It is therefore that this appeal has been filed by the plaintiff.
4. The question urged before me Is one of adverse possession. According to counsel for the plaintiff, the courts below were in error in holding that there was possession by the co-owners or those claiming under them adverse to the interest of the plaintiff,
5. In the case before me a portion of the property had been put into the possession of a stranger by Charu himself during his lifetime. Necessarily therefore in regard to 42 cents plaintiff who was a co-owner along with defendants 1 to 7 was out of possession all along. The position in regard to the rest of the property is different. Charu died in 1117 and thereafter the co-owners must be deemed to have been in possession. Some of them executed Ext. D13 in 1119 without the junction of the other co-owners and the mortgagee who took Ext. P13 was in possession thereafter. Whether under such circumstances the mortgagee's possession should be considered to be adverse to the plaintiff, who did not join in the execution of the mortgage, is the main question for decision.
6. It is well settled that in the Case of co-owners, if any of them is out of possession, that will not by itself amount to adverse possession by the co-owners in possession. Even exclusive possession by some of the co-owners will not operate as possession adverse to those not in possession. Ouster of the co-owners not in possession and notice of such ouster to them will constitute possession by the co-owners adverse and that will be so adverse from, the date of such notice. Though this position is well settled, the dispute concerns a situation where the co-owners in possession induct a stranger into possession of the property by alienation, whether it be a sale or a mortgage. Whether the fact of a stranger having come into possession of the property will operate only as an ouster or whether it would also be read as a circumstance which would be sufficient to fix notice of ouster with the co-owners not in possession, is a question on which there has been considerable controversy.
7. A co-owner of property can transfer his interest to anv 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 trans-free 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. But counsel for the appellant would attempt to qualify this. According to him, though in a transfer by a co-owner of property which is in his exclusive possession, as if he is the sole owner of the property and he is entitled to transfer the same, the possession of the transferee may be with an animus to hold adversely, notice to the non-alienating co-owners must be shown. Such notice is necessary when the co-owner in possession asserts hostile possession. The contention of counsel is that such notice is necessary even when the ouster is by transfer to a stranger by some only of the co-owners. According to him the transfer to a stranger may operate as ouster, but since it could also operate sometimes as merely substituting the transferee in the place of the co-owners effecting the transfer depending on the terms of the document of transfer, in order to fix the co-owner out of possession with notice of ouster it must be shown that he had actual notice of ouster by the transfer. It is on this that, according to counsel, courts In India are not agreed.
8. Sulaiman, J. in the decision in Subah Lal v. Fateh Mohamed. (AIR 1932 All 393) has ably presented the view canvassed by the counsel for the appellant, To quote the words of the learned Judge:
'It cannot be disputed that the underlying principle is that the possession by one co-owner of the entire joint property is perfectly lawful as he has the title not only to his undivided share but to the whole of the property, and has possession of the whole property as well as of every undivided part. An owner of an undivided share in a property can be rightly in possession of the whole. The possession by him of the entire common property is therefore referable to his legal title and is not adverse to the other co-sharers.
It would, follow that there can be no difference in principle whether a person is the original co-owner, or has become a co-owner by virtue of a transfer. From the moment of his acquiring a share in the common property he becomes a co-owner and has the same legal title as his predecessor to enjoy the whole. His pos-session of the whole is equally referable to his legal title and his possession need not necessarily be adverse. The other co-owners, if they have actually no knowledge of the extent of the share transferred, are entitled to presume that their co-owner has transferred his own interest only and that the transferee by virtue of his right to that share is enjoying possession of the whole property. The mere fact that a transferee is in possession would not put them on enquiry. for the transferee has just as much right to enjoy the whole property as his transferor had. The principle of law based on the mere fact of co-ownership would apply with equal force to a transferee from a co-owner, who steps into the shoes of his vendor. A co-owner has no duty cast upon him to watch the conduct of another co-owner and be on the look-out to find out the extent of the share purported to be transferred by him. and to intervene if more than the real share has been transferred. He is entitled to assume that the permissive nature of the possession has passed on to his co-owner's transferee who has now become the co-owner in place of the original co-owner. Of course, if the assertion of title to the whole is brought to his knowledge and it is accompanied by his ouster and exclusion, adverse possession would then commence as against him. The burden therefore would be on the transferee to establish that the denial of title and ouster were brought to the knowledge of the other co-owner and in the absence of such proof he would not be able to perfect his adverse possession.'
The authority for the other view can be found in the Full Bench decision of the Madras High Court in Palania Pillai v. Amjath Ibrahim. (AIR 1942 Mad 622). Leach C. J. expressed this view emphatically in the following terms:
'When one of several cosharers 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 eves, know of what is going on. but if they arc so regardless of their own interests they must take the consequences. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners 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.'
I need not refer to the decisions of various High Courts following one or other of these views, in view of the fact that this Court has consistently followed the view expressed by the Madras High Court. But I have referred to the two different views only because according to counsel this court has taken a different view later. That question I will examine here.
9. Stated as a simple proposition the reasoning of Sulaiman J. is certainly logical. So long as a transferee has under law all the rights of the transferor a transferee from a co-owner would get whatever rights the co-owner in posses-sion has and nothing more. Sulaiman J. is apparently of the view that there is no reason why when the transferee comes into possession in place of the transferor the co-owner not in possession should be deemed to have notice of ouster. According to the learned Judge, if a co-owner Can put a transferee in possession and substitute him in his own place, there is no reason why the co-owner not in pos-session should immediately be put on enquiry on such a transferee coming into possession in place of the transferor. The same view as that of Allahabad High Court was expressed by Sarjoo Prasad C. J, in the decision of the Assam High Court in Sarju Kairi v. Pauchananda Sarma. (AIR 1959 Assam 15). My learned borther Velu Pillai J. in considering this in the decision in Joseph v. John 1959 Ker LT 630 - (AIR 1960 Ker 27) did not agree with this view. The learned Judge held that:--
'the possession of a stranger on the land must import such knowledge.'
This decision of Velu Pillai J. was confirmed in an appeal by a Division Bench of this Court in John v. Joseph. ILR (1964) 1 Ker 211. Reference was made to the Full Bench decision of the Madras High Court in AIR 1942 Mad 622 (FB) and the view expressed therein was accepted by this Court in Sanku v. Parvathi Amma (1962 Ker LT 881) = (AIR 1963 Ker 249). Raman Navar J. (as hp then was) considered the same Question in Kunju Mohammed v. Kochunina (1967 Ker LT 1113) and the learned Judge said that-
'The true test, it seems to me. in the case of a purchaser from a co-owner getting into sole possession, is whether his animus is to hold the property as a full owner or merely as a co-owner and that will depend on whether his purchase, whatever it was in truth, purports to be of the entire property or only of the share of the alienating co-owner. It is true that the purchase. Whatever it purports to be can, in effect, be only of the share of the alienating co-owner. But if it purports to be of the entire property and not merely of a share. the alienating co-owner professing to be the sole owner, the animus of the purchaser would be to hold the property as a sole owner and not as a co-owner.'
I refer to these decisions of this Court only to indicate that the view taken by this Court has been very clearly expressed in these pronouncements.
10. Reliance is placed by counsel for the appellant on the Full Bench decision in Cicily v. Sulaikha Beevi (1968 Ker LT 779) = (AIR 1969 Ker 293). It is necessary to refer to the facts of the case in brief to understand the argument of Counsel. In regard to the suit property which was the subject-matter of that case Exts. P3 and P4 mortgages had been executed by some of the co-owners for the discharge of debts binding on the other co-owners also. It was found on the evidence in that case that in executing Exts. P3 and P4 they did not purport to act in derogation of the interest of the other co-owners and on this the Court came to hold that in executing these documents they were acting on behalf of all the co-owners by raising money to meet a common necessity. While the property was thus in the possession of mortgagees a release. Ext. P3 was obtained of a portion of that property by one of the co-owners and on the same day a fresh mortgage Ext D4 was executed. In executing Ext. D3 as well as Ext. D4 the co-owners who were parties thereto claimed to have been entitled to the property to the exclusion of the others. A direction was made in Ext. D4 to redeem that portion of the property which was still outstanding on mortgage. In regard to Exts. P3 and P4 the Court found that the transactions were validly entered into by one of the co-owners on behalf of all the co-owners and had been accepted as such by them. The court further found that if Exts. P3 and P4 were binding on all the co-owners, the property being one outstanding with mortgagees under a mortgage binding on all of them. Exts D3 and D4 entered into at a time when the property was so outstanding with strangers could not he said to be such an, to alert the plaintiff or to nut the plaintiff to notice of the hostile claim in regard to the equity of redemption. Though by taking Ext. D3 a portion of the property came into the possession of the co-owners executing the documents and strangers were put into possession under Ext D4 all these were at a time when so far as the other co-owners were concerned, they would not be bothered about change of possession, as admittedly possession was not with the co-owners at that time but was with the mortgagees. The court found that there is no scope for the plea of adverse possession based on either Ext. P3 and Ext. P4 or on Ext. D3. and Ext. D4 I fail to see any authority for the principle canvassed by counsel for the appellant in this decision. It is not as if the decisions of this court to which I have adverted have been doubted by the Full Bench or that the Full Bench has in any way expressed on the correctness of the view. In fact the ratio of the decision does not in any way go against the view taken by this Court following the view of the Full Bench of the Madras Court
11. As regards the property other than that Covered by Ext. D11 the co-owners were in possession ever since Charu died in 1117 and in regard to such property a stranger was put in possession under Ext D13 mortgage in 1119. The suit is filed more than 12 years of that date. The very fact that a stranger has been inducted into possession and consequently possession of the original co-owners terminated would be sufficient to out the other co-owners to notice of the conduct of the alienating co-owners. Therefore ouster would be to their notice and possession of the transferee would be adverse from the date of Ext. D13 as regards the property which the mortgagee was put in possession of under Ext. D13. Hence I must agree with the courts below in finding that the claim of the plaintiff in regard to the area of the suit pro-perty excluding that covered by Ext. D11 is barred by limitation.
12. Different considerations must prevail in determining the question of adverse possession in regard to the property covered by Ext. D11 mortgage. The property had gone out of possession of Charu himself in 1102. Therefore what plaintiff inherited as the daughter of Charu along with defendants 1 to 7 in 1117 was only the right to the equity of redemption over this property and normally the period available for exercising the right to redeem would be the period for redeeming a mortgage. In regard to such equity of redemption any dealing by the other co-owners would not be deemed to be ouster as pertinently observed in the decision of the Full Bench in (1968 Ker LT 779) = (AIR 1969 Ker 293) relied on by counsel. In that case in spite of the fact that under Ext. D3 one of the co-owners redeemed the mortgage in regard to portion of the property and executed a fresh mortgage on the same day. the court held that this will not amount to ouster and it will not be deemed that the co-owners who were not parties to those documents had notice of such ouster. That is because the co-owners had no right to immediate possession. If that be the rule. I see no justification to find that In regard to the 42 cents covered by Ext. D11 the suit is barred by limitation or adverse possession.
13. In fact there is no plea in the written statement that in regard to a property which was held under a mort-gage originally, possession became adverse because there was a hostile assertion by some of the co-owners while executing a superior mortgage in regard to Ext. D11 property. A plea of adverse possession is necessarily a plea founded on a question of fact. The plea must necessarily indicate how and when possession became adverse. In regard to the 42 cents what the plaintiff is entitled to is only the equity of redemption and if in regard to that a plea of adverse possession is intended to be set up. necessarily defendants must state how in regard to such equity of redemption possession became adverse and how the plaintiff would therefore lose her title.
14. In view of what I have stated plaintiff is found entitled to succeed in regard to Ext. D11 property which is 42 cents on the southern portion of the suit property. Plaintiff will be entitled 3/28th share in that item, as found in the trial court judgment.
In the result, the Second Appeal is partly allowed and the decree of the trial court will stand restored. In the circumstances. I direct parties to suffer costs in this Second Appeal as well as in the courts below.