(1) The parties to this litigation are a Muslim mother and her two daughters. The eldest of the two daughters is the plantiff; the mother is the first defendant and the other daughter figures as the second defendant. In 1928, the first defendant for herself and as guardian of her then minor daughters instituted a suit O.S. No. 148 of 1928, on the file of the District Munsif Court, Madurai town, for partition of their shares in certain properties and secured under the decree in the said suit for herself and her daughters the southern portion of a house and 3.34 acres of nanja land. There have been some alienation of the properties thus obtained. The present suit has been instituted by the elder daughter for partition and separate possession of the remaining properties, the house described as item 1 in the plaint schedule and an extent of 1.20 acres of land described as item 2 in the plaint schedule. The shares of the parties are 16/39 each for the plaintiff and the second defendant and 7/39 for the mother, the first defendant. The plaintiff claims the mother's share in item 1 under a sale deed Ex. A-2 dated 2-4-1942. The plaintiff therefore prays for partition and separate possession of 16/39 share in Item 2 and 23/39th share in the house, Item 1. In defence it is pleaded that there was an oral partition between the parties in or about 1931, wherein the house, item 1, was wholly allotted to the share of the mother, the lands being taken by the plaintiff and the second defendant for their share.
It is stated that the plaintiff had parted with her share of the land, and that she had absolutely no right or interest in the suit properties which belonged to the defendants in titles as aforestated. Exclusive and adverse possession for over 30 years of the house by the first defendant and the suit land by the second defendant is set up. The sale of a portion of the house by the first defendant in favour of the plaintiff, it is stated, is a sham transaction not entitled to pass title. The trial Court upheld the defendant's case of partition in 1931 and their exclusive possession of the suit properties for over the statutory period and non-suited the plaintiff.
(2) On appeal by the plaintiff the learned District Judge has rejected the plea of an oral partition in 1931, put forward by the defendants. On this finding as it followed that the parties were co-owners, the learned District Judge examined the question whether there was ouster of the plaintiff with reference to the suit properties. With reference to the suit property, item 1 of the plaint schedule, it was noticed that apart from the facts that the house stood registered in the name of the first defendant in the Municipal registry, that she paid the house tax and that she had continued in occupation of the property, there was nothing to establish ouster or adverse possession of the co-owner. It was, therefore, held that the plaintiff would be entitled to partition and separate possession of her 23/39th share in the house. The sale by the mother under Ex. A-2 was held as conveying to the plaintiff only the mother's share in the house. Even the trial Court was inclined to accept the reality of the sale deed, but found against the plaintiff holding that the first defendant had exclusive possession of the house for over the statutory period, the house besides having fallen to the share of the first defendant in the oral partition. Coming to the second item, while of the view that the mere fact that the kist for the second item had throughout been paid by the second defendant would not deprive the plaintiff of her rights therein, the learned District Judge thinks that the execution of a duly registered simple mortgage in 1947 by the second defendant in favour of the Co-operative Society of Arumbanur brought about ouster.
The learned District Judge is perfectly conscious that there has been no transfer of possession as inPalania Pillai v. Ibrahim Rowther, ILR 1943 Mad 15 = (AIR 1942 Mad 622) (FB). The learned District Judge is aware that one of the requirements for ouster to be effective is notice of the hostile intent in the cotenant in occupation brought home to the cotenant not in occupation. But then applying the definition of 'notice' in Explanation I to S. 3 of the Transfer of Property Act, and holding that registration of the deed of mortgage was notice of the hostile intent, the plaintiff's rights in item 2 are held barred by adverse possession. The plaintiff in the second appeal challenges this view of the learned District Judge. A memorandum of corss-objections has been preferred by the first defendant in respect of item 1.
(3) The question whether on facts found there is ouster or not is a question of law on which a second appeal could lie. As regards the second item, the law as aforestated the only ground on which the plaintiff has been non-suited is the mortgage transaction evidenced by Ex. B-17 in the case dated 13-3-1947. This mortgage is certainly over 12 years before the suit, the plaint having been presented on 3-8-1960. No other hostile act can be relied upon. The patta for the land has continued in the name of the mother. No doubt the second defendant alone has been paying kist for the land and enjoying the profits therefrom. Properly the learned District Judge has not rested his decision on the payment of kist and the enjoyment of the income by the second defendant as amounting to ouster of the plaintiff. The parties are tenants-in-common. It has to be taken as established beyond challenge in second appeal, that the second defendant has been in exclusive occupation of the land and enjoying the profits therefrom. The question is whether this coupled with the execution of the simple mortgage in 1947 whereby the second defendant raised loans for herself on the security of the second item, amounts to adverse possession and hostile enjoyment. The execution of the simple mortgage is a solitary act of assertion of exclusive title. There is no evidence that the execution of the mortgage and the title asserted therein was otherwise brought home to the knowledge of the plaintiff. The learned District Judge relies only on the doctrine of constructive notice in Explanation I to S. 3 of the Transfer of Property Act. it is not, as it cannot be seriously contended before me that one must import this equitable doctrine of constructive notice into the provisions of the Limitation Act. The Indian Registration Act itself does not make registration notice for all purposes, when specifying the effects of registration and non-registration. In Tilakdharilal v. Khedanlal, ILR 48 Cal 1 at p. 20 = (AIR 1921 PC 112 at p. 117), Lord Buckmaster observed:--
"That notice cannot in all cases be imputed from the mere fact that a document is to be founded upon the Indian Register of Deeds." Even under Explanation I to S. 3 of the Transfer of Property Act, registration is made notice only to transferees subsequent to the registration. Registration of a subsequent transaction is not notice of the transaction to prior transferees. How in the circumstances the registration of a deed of simple mortgage by the second defendant would amount to notice of the mortgage to the plaintiff who is not a subsequent transferee, I am unable to comprehend. To make mere registration of any transaction by a tenant-in-common itself notice to the other tenants-in-common of the transaction is to impose on tenants-in-common a duty to be on the watch and make frequent search of registration records, let their rights get barred by overt acts and deeds of one of themselves. The article of limitation applicable among co-tenants is the residuary Art. 144 of the Limitation Act of 1908. The starting point of limitation is when possession becomes adverse. Possession is generally adverse, it is the indicia of title. But where the parties are co-owners, there is unity of possession, possession of a co-owner is possession of all the co-owners and for possession to become adverse, there must be something more than mere exclusive occupation by one of the co-owners. This exclusive occupation by one of the co-owners, with added features which would amount to adverse possession that would bar a co-owner must be such that one can infer from it an intention by the co-owner in occupation to keep out the other co-owners in assertion of exclusive and hostile title in himself to the property.
(4) The law as to what amounts to adverse possession or ouster between co-owners is now well settled. In Jogendra Nath Roy v. Baldeo Das, (1908) ILR 35 Cal 961, at pp. 968 and 969, the position is thus stated:--
"The fundamental rule is that the entry and possession of land, under the common title of the one co-owner, will not be presumed to be adverse to the others, but will ordinarily be held to be for the benefit of all. The obvious reason for this rule is that the possession of one co-owner is in itself rightful and does not imply hostility as would the possession of a mere stranger. To use the language of Mr. Justice Story in Ricard v. William, (1822) 7 Wheaton 59 (107) 'the law will never construe a possession tortious unless from necessity; on the other hand, it will consider every possession lawful the commencement and continuance of which is not proved to be wrongful, and thus upon the plain principle that every man shall be presumed to act in obedience to his duty until the contrary appears...a co-tenant will not be permitted to claim the protection of the statute of limitation, unless it clearly appears that he has repudiated the title of his co-tenant and is holding adversely to him; it must further be established that the fact of adverse holding was brought home to the co-owner, either by information to that effect given by the tenant-in-common asserting the adverse right, or there must be outward acts of exclusive ownership of such a nature as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted, in other words, in the language of Chief Justice Marshall in Mc Lung v. Ross, (1820) 5 Wheaton 116 'a silent possession accompanied with no act, which can amount to an ouster or give notice to his co-tenant that his possession is adverse ought not to be construed into an adverse possession".
In Krishnayya v. Udayalakshmamma, 1953-2 Mad LJ 241 (246), Venkatarama Aiyar J. (as he then was of this Court) observed--
"If the law is--and that is not and cannot be disputed--that there is ouster only when the assertion of a hostile title is made to the knowledge of the co-owner, then any secret and unpublished hostile intention of the co-tenant in possession cannot amount to ouster and cannot avail to start limitation against his co-tenant".
Reference also may be made to the observations in Jagannath Marwari v. Smt. Chandni Bibi, 26 Cal WN 65 at pp. 71, 72 = (AIR 1921 Cal 647 at p. 652) :--
"In order to render the possession of one co-tenant adverse to the others, not only must the occupancy be under an exclusive claim of ownership, in denial of the rights of the other co-tenants, but such occupancy must have been made known to the other co-tenants, either by express notice or by such open and notorious acts as must have brought home to the other co-tenants' knowledge of the denial of their rights. The same principle is involved in the familiar statement that to enable on of several co-tenants to acquire title by adverse possession as against the others, his possession must be of such an actual, open, notorious, exclusive and hostile character as to amount to an ouster of the other co-tenants, that is, must have been such as to render him liable to an action of ejectment, at the suit of the co-tenants. No comprehensive formula can be framed to test whether the possession of a co-tenant in a particular case in adverse to the other co-tenants.. But the ouster of the other co-tenants, in order to render the possession adverse, need not be violent, or intimidating expulsion, or repulsion".
All the authorities make on thing clear, that the acts that might constitute acts of adverse possession as between strangers do not necessarily have such effect as between tenants-in-common as their acts of assertion of ownership may be capable of being explained as consistent with the joint title. However a tenant-in-common cannot close his eyes and ears and ignore overt acts of hostile possession and plead absence of knowledge of such acts. If the acts of adverse possession by a co-tenant in occupation are sufficiently overt and the attendant circumstances warrant that a reasonable prudent and attentive man cannot but infer that adverse rights are being asserted against him, the acts would be ouster. While there is no actual notice of the denial of title of the co-tenant not in occupation, the tenant in occupation must make his possession visibly hostile, notoriously and ostensibly exclusive and adverse to impute knowledge of the hostile possession to the co-tenants sought to be ousted. In Peeran Sahib v. Jamaluddin Sahib, AIR 1958 Andh Pra 48 at p. 53, Subba Rao C. J. (as he then was of the Andhra Pradesh High Court) observed--
"A co-owner who pleads ouster must establish that there was a denial of the other co-owner's right to his knowledge and that he continued to enjoy the property exclusively for the statutory period after such unambiguous denial. Ouster in suitable cases can be presumed from non-participation in the profits of the land for a long period of time affecting different generations under such circumstances that denial could not be proved that but could only be inferred".
Again in P. Lakshmi Reddi v. L. Lakshmi Reddi the
principle is enunciated thus--
"But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse should be made out....... The co-heir in possession cannot render his possession adverse should be made out... The co-hair in possession connot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title".
(5) in the light of the above principles it is clear that there can be no inference of ouster with reference to the second item even. The execution of a simple mortgage over the property does not by itself bring about a change in the character of the possession of the property; at any rate, there is no overt or visible change in the property to amount to a notice of hostile intent to hold the property as sole owner. The mere assertion of sole ownership in a deed of mortgage cannot therefore without something tangible to taken as commencement of ouster. It may be different if the acts and circumstances attendant on the execution of even a simple mortgage clearly show, that without any effort at concealment the intention of the co-owner in occupation, is to exclude the other co-owners from the property and the acts of exclusive possession are animated by a desire to invade the rights of other co-owners. Even when other co-owners are in actual occupation, one co-owner may execute a simple execute a simple mortgage of the entire property without their knowledge and a co-owner not in occupation may also mortgage the common property as exclusively belonging to him. We are here not concerned with what plea a mortgagee in such circumstances may put forward. I am only pointing out that the execution of a simple mortgage by one co-owner does not by itself bring about disseisin or dispossession of the others. In a non-possessory simple mortgage there is no visible evidence of hostility. Nor is there necessarily and incompatibility with the subsistence of the possessory rights of other co-owners in the property.
(6) The isolated act of execution of the simple mortgage by the second defendant in this case cannot therefore being about ouster from the property of the other co-owners. No doubt, the mortgage has been kept alive. But in the circumstances of the case it can make no difference. In 1953-2 Mad LJ 241, at p. 246, the exclusive possession and enjoyment was about 18 years and there was no participation by the other co-owners in the profits during the entire period. Yet it was held that the defendants had failed to establish ouster.
(7) In the memorandum of cross-objections the defendants challenge the finding of the lower appellate Court on the question of partition. but there was material before the Court for the inference that there was no partition. The transactions relied upon for the defendants in support of the plea of oral partition are consistent with the continuance of the tenancy-in-common. Learned counsel for the defendants next contended that the Courts below erred in applying the principle of ouster as regards item 1. No specific ground has been taken in the Memorandum of cross-objections; but leave of Court was sought to raise the ground and a petition has been presented for the said purpose. The argument now put forward may be summed up thus: The Courts below find that the first defendant had been in exclusive occupation of the house for nearly 30 years. The lower appellate Court in the absence of any hostile act would hold that there has been no ouster. But it has lost sight of the fact that the first defendant has under Ex. A-2 dated 2-4-1942, conveyed the house to the plaintiff for consideration. The first defendant's plea that the sale was a nominal and sham transaction has been found against by both the Courts below and the plaintiff's case of sale for consideration has been accepted. The learned District Judge has in the light of the other evidence and the circumstances of the case inferred that what was conveyed by the first defendant to the plaintiff under Ex. A-2 was the share of the first defendant in item 1. Once the reality of the sale is upheld, the first defendant has ceased to be a co-owner. Her possession of the entirety of the house thereafter ceased to be as a tenant-in-common. She had no right to be in possession thereafter of any part of the house having lost all her interest therein and from the moment of sale her exclusive possession would be adverse to her erst-while tenants-in-common.
The special consideration applied when determining whether there has been adverse possession or not as between tenants-in-common, is no longer applicable to the exclusive possession of the first defendant. While the argument standing by itself is sound, it overlooks the evidence on behalf of the plaintiff that after the sale the mother was permitted to continue to live in the house till her death. The plaintiff has further stated that she used to go and live with her mother in the suit house occasionally though the house was in her mother's sole occupation, till ill-feelings arose between her and her mother about a year prior to the suit. The learned District Judge accepts this evidence, as he observes that the first defendant had been allowed to be in possession of the house. The entire case of the defendants rested on the plea of partition and separate possession thereunder and as regards Ex. A-2 it has never been the case of the first defendant that notwithstanding the sale she intended to remain in possession hostile to the claim of the plaintiff thereunder. Her own case was that it is a sham and nominal transaction. The requisite animus to possess against the rights created under the sale deed is even admittedly wanting. in the circumstances, this defence in respect of Item 1 falls to the ground.
(8) The second appeal succeeds. There will be a preliminary decree for partition of the second item in the plaint also, the plaintiff's share therein being 16/39. The Memorandum of cross-objections fails and is dismissed. In the circumstances of the case the parties will bear their respective costs. No leave.
(9) C. M. P. 11818 of 1966--No order necessary.
(10) Appeal allowed.