Mohaideen Abdul Kadir and Others vs Mohammad Mohaideen Umma by Agent Habeeb Mohammad Thambi and Others

Venkataraman, J.—Appeal Suit No. 292 of 1962 is an appeal by Defendants 1 to 5 and 8 in a suit for partition (Original Suit No. 43 of 1958) tried by the learned Subordinate Judge of Ramanathapuram at Madurai. The suit concerns the estate of one Mukkani K. Mohammed Mohideen Marakkayar, who admittedly died in 1900, but the exact date of whose death is in dispute. A number of names, figures in the case and it will be convenient to refer to a genealogical tree giving numbers for the various persons besides describing their names. A genealogical tree has been given fairly correctly in the judgment of the Court below. We have, however, appended a fuller genealogical table, handed over to us by the Counsel for the Appellants, giving particulars, and wherever there is dispute we have mentioned it. Mukkani K. Mohammed Mohideen Marakkayar has been noted as No. 1 in the genealogical table. It is common ground that he left him surviving his widow Mohammed Sadak Ammal (No. 2), a son Mukkani K.M. Muthu Ibrahim Marakkayar (No. 3) and a daughter Yusuf Sulaika Ammal (No. 5). He had undoubtedly a daughter, Mohammed Seeni Ammal (No. 4) but one of the points in dispute is when she died. According to the Plaintiff and Defendants 1 to 5 and 8 (Appellants), Mohammed Seeni Ammal had predeceased Mukkani Mohammed Mohideen Marakkayar and was, therefore not entitled to a share in the estate of the said Mohammed Mohideen Marakkayar. But Defendants 10 to 19, who got themselves impleaded, contend that Mohammed Seeni Ammal died about three months after Mohammed Mohideen Marakkayar and was, therefore, entitled to a share (7/32) and they (Defendants 10 to 19) claim a share as heirs of Mohammed Seeni Ammal. The Plaintiff Mohideen Ammal is one of the daughters of Yusuf Sulaika Animal and is thus the daughter''s daughter of the common ancestor Mohammed Mohideen Marakkayar. Yusuff Sulaika Ammal, the Plaintiff�s mother may be taken to have died sometime in 1907. On the footing that Mohammed Seeni Ammal had predeceased the common ancestor, his heirs were his widow Mohammed Sadak Ammal (No. 2), the son Muthu Ibrahim Marakkayar (No. 3) and the daughter Yusuf Sulaika Ammal (No. 5). The widow would get � and the son and daughter would get the residue in the proportion 2:1. Thus the shares would be Mohammad Sadak Ammal--3/24; Muthu Ibrahim Marakkayar--14/24 and Yusuf Sulaika Ammal--7/24. The Plaintiff claims this 7/24 share. The basis of her claim as set out in the plaint has now to be described, though in her deposition (page 63--lines 21 to 23) she is unable to say-how she arrived at the fraction 7/24. According to the plaint, Yusuf Sulaika Animal''s mother Mohammad Sadak Ammal (No. 2) had died prior to Yusuf Sulaika Ammal and she (Sadak Ammal) had gifted her 2/34 share even during her life time to her son Muthu Mohammad Ibrahim (No. 3). According to the plaint, the heirs of Yusuf Sulaika Ammal were her husband Mohammad Ismail Lebbai (No. 6), her daughter Moohideen Amma (Plaintiff) and another daughter Mohammad Seeni Ammal (No. 22). Assuming the share of Yusuf Sulaika Ammal to be 1, the share of the husband was � and the shares of the two daughters were 3/8 each; and, since the share of Yusuf Sulaika Ammal in the estate of the common ancestor was 7/24, the shares were: Mohammed Ismail Lebbai--� � 7/24 ; Plaintiff 3/8 � 7/24; and Mohammad Seeni Ammal 3/8 � 7/24. Mohammad Seeni Ammal, the sister of the Plaintiff was married to Mukkani Mohammed Mohideen Thambi (No. 23), the first son of Muthu Ibrahim Marakkayar and, therefore, the grandson of the common ancestor. The plaint stated that at the time of Mohammad Seeni Ammal''s death about twenty-seven years prior to the plaint (according to the Defendants the actual date of death was 7th March 1982) her heirs were her husband and her sister, namely, the Plaintiff. Further, according to the plaint, Seeni Ammal''s husband had neglected to maintain her and had not paid her mahar, and at the time of Seeni Ammal''s death the Plaintiff pleaded with Seeni Ammal''s husband and in consideration of his not having maintained his wife and not having given her mahar, Mukkani Mohammad Mohideen Thambi (No. 23) (according to the plaint), orally gifted his share as heir of his wife Mohammad Seeni Ammal to the Plantiff. Thus the 3/8 of 7/24 share of Mohammad Seeni Ammal in the estate devolved on the Plaintiff. As regards the share of Mohammad Ismail Lebbai (� � 7/24), the plaint states that Mohammad Ismail Lebbai died about twenty-seven years ago (about 1932), leaving as his heirs the Plaintiff, his second wife Mohammad Ameena Ammal (No. 7) and his children by the second wife (marked as Nos. 26, 27, 28 and 29 in the tree). The plaint further alleges that the second wife and her children made a gift of their share in the estate of the common ancestor by a registered settlement deed, dated 29th January 1957 (exhibit A-8). Thus the Plaintiff became entitled to the � � 7/24 share which her father Mohammad Ismail Lebbai inherited from the Plaintiff�s mother and, adding up to the 3/8 � 7/24 share in her own right and the 3/8 � 7/24 of Seeni Ammal, she became entitled to 7/24 share. We shall see later that this is an over-simplification of the problem.

According to the plaint, the common ancestor left immovable properties, items 1 to 9 of the plaint schedule, 5� (sic) of 16 shares in the melvaram of Dharma-sasanam Palkulam village (an estate under the Estates Land Act, 1908), and also some cash. All these assets of the common ancestor Moham and Mohideen Marakkayar were being enjoyed jointly without division by his heirs, but his son Muthu Ibrahim Marakkayar (No. 3) was in management for the benefit of the co-sharers and he bought item 10 of the suit properties from the cash left by the common ancestor and out o the subsequent income of the properties jointly held namely items 1 to 9 and 5� out of 16 shares in the melvaram in Palkulam village. In paragraph 10, the plaint states that the mother of th.3 Plaintiff and after her, the Plaintiff and the others were given their shares of the income and the Plaintiff also enjoyed the profits from certain properties directly, but the patta for the landsand house tax registry stood in the name of Muthu Ibrahim Marakkayar, as he was the eldest member of the family. Muthu Ibrahim Marakkayar died in 1951 leaving his two sons, Mohammad Mohideen Thambi (No. 23) and Mohideen Abdul Kadar, the first Defendant (No. 25) and his wife Ummusalma (9th Defendant). The Plaintiff was in joint enjoyment with them Mohammed Mohideen Thambi (No. 23) died in 1956, leaving as his heirs Defendants 2 to 5.

The Palkulam estate was abolished and was taken over by the Government in, or about 1957. The Plaintiff claimed 7/24 share of the compensation deposited in respect thereof by the Government, but the first Defendant disputed the Plaintiff�s right. Hence, the Plaintiff brought the suit for partition.

The Plaintiff filed the suit in the first instance in the Court of the District Munsif of Ramanathapuram, but on the objection of the Defendants it was found that the claim was beyond the pecuniary jurisdiction of the District Munsif''s Court. The plaint was returned and filed in the Subordinate Judge''s Court, Ramanathapuram at Madurai.

The suit was originally filed only against Defendants 1 to 9. The first Defendant is the surviving second son of Muthu Ibrahim Marakkayar and therefore, the grandson of the common ancestor by his son. He has been marked as No. 25. Defendants 2 to 5 are the heirs of Mohammad Mohideen Thambi, the deceased first son of Muthu Ibrahim Marakkayar. The ninth Defendant Ummusalma (No. 8) is the widow of Muthu Ibrahim Marakkayar. Defendants 1 to 5 and 9 were admittedly entitled to a share. (The ninth Defendant died in 1959 after the suit was filed). The sixth Defendant Syed Mohammad Hassan (No. 30) is the grandson of Muthu Ibrahim Marakkayar by a deceased daughter. He was impleaded on the ground that the ninth Defendant had made some settlement of her share on him. That was disputed by the ninth Defendant and that question has been left open. The seventh Defendant Sahul Hamid was impleaded as an alienee of item 3 of the plaint property (from the first Defendant and his elder brother), and the eighth Defendant was impleaded as an alienee of item 4.

Defendants 10 to 19 filed an application (Interlocutory Application No. 142 of 1960) for being impleaded in order to assert the share they claimed as heirs of Mohammad Seeni Animal, the daughter of the common ancestor, on the ground that Mohammad Seeni Animal survived the common ancestor and was, therefore, entitled to 7/32 of his estate. This application was dismiss? 1 by the trial Court, but in revision this Court ordered that the suit might disposed of after adding them also as parties, to the suit. Thereupon they were impleaded as Defendants 10 and 19 and the Plaintiff filed an amended plaint adding paragraph 16(a) stating that Mohammad Seeni Animal had died before the com no a ancestor and was not entitled to any share in the estate.

In answer to the original plaint, Defendants 1 and 2 filed a written statement which was adopted by Defendants 3 to 5. Their main contention was that on the death of the common ancestor, his son Muthu Ibrahim Marakkayar began to enjoy the estate exclusively, ousting in particular Yusuf Sulaika Ammal, his sister (mother of the Plaintiff). It is further stated that on 7th June 1906, the Plaintiff�s mother executed an unregistered deed of release (exhibit B-92) in favour of her brother Muthu Ibrahim Marakkayar, releasing her right in her father''s estate. This is the most important document in the case and hence we may state here itself that the case of Defendants 1 to 5 is that in or about 1900, there was a family arrangement to the effect that Muthu Ibrahim Marakkayar (No. 3) should marry Ummusalma (ninth Defendant), who was the sister of Yusuf Sulaika Animal''s husband Mohammad Ismail Lebbai (No. 6), that Mohaiuirad Ismail Lebbai (No. 6) should marry Yusuf Sulaika Ammal (No. 5), that Muthu Ibrahim Marakkayar should receive Rs. 700 in cash as the share of Ummusalma in her father''s estate and similarly Yusuf Sulaika Ammal (Plaintiff''s mother) should receive Rs. 700 from Muthu Ibrahim Marakkayar as the share of father''s estate and release deeds should be executed. The wedding were performed at the same time (in or about 1900) and a sum of Rs. 700 was duly paid on 7th June 1906 by Muthu Ibrahim Marakkayar to Yutuf Sulaika Ammal. The first Defendant in his evidence as D.W. 5 states (page 84 line 4) that similarly his mother Ummusalma (ninth Defendant) received her money and executed a release deed of her father''s estate to her brother in or" about 1935. We may now set out the body of exhibit B-92 (printed at page 5):

Deed of release excuted on the 7th June 1906 in favour of Muthu Ibrahim Marakkayar ,son of Mukkani K.M. Mohammad Mohideen Marakkayar, residing at South street, Kilakkarai, by Usuf Sulaika Ammal, daughter of Mukkani K.M. Mohmmad Mohideen Marakkayar and wife of S.V.K. Mohammad Ismail Lebbai Marakkayar Avergal, is as follows:

As per the family arrangement entered into by our ancestors, you shall marry Mohammad Ummusalmana the blood-sister of my husband and you shall receive Rs. 700 in cash out of the properties belonging to my father-in-law towards the share of properties due to her as his daughter and get a release therefor. In the same manner the aforesaid Mohammad Ismail Lebbai Marakkayar shall marry me and a sum of Rs. 700 shall be paid to me for my share in the properties of my father as his daughter and get a release therefor. Whereas you have paid in cash the sum of Rs. 700 (Rupees seven hundred) in the presence of the undersigned, henceforth neither me nor my heirs shall have any claim or future interest whatsoever in respect of the properties belonging to my father. To this effect is this deed of release executed by me with my consent.

The Plaintiff attacks this exhibit B-92 having been fabricated after the plaint was filed in the Subordinate Judge''s Court.

The written statement of Defendants 1 and 2 further explains that the common ancestor had left no cash, but only some debts and because of the debts and the circumstance that the Plaintiff�s mother had to be married in a respectable family by giving her suitable presents, the Plaintiff�s mother was not entitled to claim any right in her father''s property or any share in the income. Muthu Ibrahim Marakkayar was in exclusive enjoyment, discharged the debts and carried on a separate trade in paddy and with the profits earned therefrom he purchased items 6, 7 the eastern portion of item 9 and item 10. They were his self-acquisition. After Muthu Ibrahim Markkayar his heirs were in exclusive enjoyment, for sometime. Defendants 1 and 2 also deny the specific share of 7/24 claimed by Plaintiff. In particular, they say that when the Plaintiff�s mother Usuf Sulaika Ammal died in 1907, her heirs were not merely her husband and her two daughters as stated in the plaint, but also her mother Mohammad Sadak Ammal who, according to the written statement, died in or about 1927. On that footing the shares of the heirs would not be as claimed in the plaint, but different. During the arguments Sri N.C. Raghavachari Counsel for the Appellants stated relying on Mullas Mohammadan Law (page 64, J) that the shares of the heirs of Yusuf Sulaika Ammal would be : husband Vobammad Ismail Lebbai-- �; mother Mohammad Sadak Ammal--1/6; the two daughters (Plaintiff and Mohammad Seeni Ammal)�2/3. Since � + 1/6 + 2/3 13/12 the denominator would have to be increased and the shares increased by one, and the shares would be 3/13, 2/13 and 8/13.

Next, as a matter of detail, the Defendants state that the Plaintiff�s sister Mohammad Seeni Ammal, when she died, left as heirs not merely her husband Mohammad Mohideen Thambi and her sister (Plaintiff) but also an infant, K. Thiru Naina; that child died one year afterwards. The Defendants deny the oral gift pleaded in the plaint to have been made by seeni Animal''s husband to the Plaintiff; in any case, it would not be valid.

Next the Defendants 1 and 2 also state that the Plaintiff�s father had no manner of right in the estate of the common ancestor and was not in enjoyment thereof at any time and that the settlement deed, dated 29th January 1957 (exhibit A-8) would not be valid.

Defendants 10 to 19 filed a written statement stating that Mohammad Mohideen Marakkyar died on 19th July 1900, and his daughter Mohammad Seeni Ammal (No. 4) died on 5th October 1900, that consequently Mohammad Seeni Ammal inherited 7/32 share in her father''s estate and that it devolved on Defendants 10 to 19. They have exhibited a genealogical table showing the relationship of Defendants 10 to 19 to the said Seeni Ammal.

Defendants 1 and 2 filed an additional written statement supporting the Plaintiff and stating that Mohammad Seani Ammal (No. 4) predeceased her father Mohammad Mohideen Marakkayar and consequently Defendants 10 to 19 could not claim any share.

The findings of the learned Subordinate Judge are these:

Defendants 10 to 19 have not proved that their ancestor Mohammad Seeni Ammal survived her father. Their claim to 7/32 share is, therefore, not valid.

There was no ouster of the Plaintiff�s branch by Muthu Ibrahim Marakkayar or his sons. In particular exhibit B-92 is not genuine and there was no release by the Plaintiff�s mother.

The Plaintiff is entitled to 7/24 share for the reasons set out in the plaint.

The acquisitions by Muthu Ibrahim Marakkayar of items 5, 6, eastern half of item 9 and item 10 would also enure to the benefit of the Plaintiff.

On these findings the learned Subordinate Judge decreed the Plaintiff�s claim for 7/24 share and dismissed the claim of Defendants 10 to 19. Since the Plaintiff herself had subsequently sold her share in item 3 to the seventh Defendant, the Plaintiff was not given a share in that item.

Against the above decree Defendants 1 to 5 and 8 have preferred the appeal, Appeal Suit No. 292 of 1962, and Defendants 10 to 19 have preferred Appeal Suit No. 458 of 1962.

It will be convenient to dispose of first the claim of Defendants 10 to 19. In fact, it is essential to do so even for a satisfactory disposal of the claim of the Plaintiff. [Portions in paragaphs 16, 17 to 21 omitted].

The main criticism of Sri Kesava Iyengar, the learned Counsel is that it has not been proved satisfactorily that exhibit B-78 is the true original death register. That, it does not appear to bear any seal of the Subordinate Judge''s Court, Madurai East, as we would expect in view of the deposition exhibit B-75 showing that the original death register was marked as exhibit N in that suit. There is no doubt some force in this criticism, but that does not really help Defendants 10 to 19 much, because the utmost extent we can go in their favour is to hold that the entries exhibits B-73 (a) and B-73 (6) are relevant under Sections 35 and 76 of the Evidence Act. But it is further necessary for Defendants 10 to 19 to prove that the entries exhibits B-73 (a) and B-73 (6) relate to Mohammad Mohideen Marakkayar and his daughter Mohammad Seeni Ammal. On that point, however, there is no satisfactory proof, apart from the deposition of the village headman. But that deposition is, in our opinion, inadmissible. The section relevant for admitting the prior deposition of a witness, who is dead, at a later trial is Section 33 of the Evidence Act, which says:

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead.

Provided-

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Now, the first requisite is that the prior proceeding, Original Suit No. 17 of 1905, was between the same arties as figure in the present litigation or their representatives in interest. That criterion has not been satisfied. Here the contesting parties on the, question of Seeni Ammal''s death are (i) the Plaintiff and Defendants 1 to 5 on the one hand; and (ii) Seeni Ammal�s descendants Defendants 10 to 15 on the other. It may be taken that Muthu Ibrahim Marakkayar, figuring as the seventh Defendant in Original Suit No. 17 of 1905 represented the present Defendants 1 to 5, and similarly Yusuf Sulaika Animal, the Plaintiff�s mother represented the present Plaintiff. But there was no representation of Defendants 10 to 15 in the prior suit, Original Suit No. 17 of 1905. The third criterion has not been satisfied because the questions in issue were not substantially the same in the first and in the present proceedings. The question at issue here in whether Seeni Ammal predeceased her father, but that was not in issue at all in Original Suit No. 17 of 1905. The question at issue there, as found from the judgments exhibits A-3 and A-4, was whether seeni Ammal''s husband was only a benamidar for his father-in-law. A little reflection will show the wisdom of the Legislature in hedging the admissibility of the prior deposition conferred in the main body of Section 33 by these restrictions. If the question at issue was the same in the prior proceeding and in the later proceeding one could reasonably expect that there would have been cross-examination of the witnesses in the prior proceeding with reference to the question at issue. This explains the reason for the third proviso. The reason for the first proviso is obvious, namely, that unless the party in the second proceeding or his predecessor-in-interest or representative-in-interest was a party in the first proceeding, it would be unreasonable to seek to bind him by the deposition in the prior suit where he was not a party or was not represented at all. These being essential conditions before the section can be invoked, it is clear that exhibit B-75 is not admissible.

Sri R. Kesava Iyengar sought to get over the above difficulty by urging that the deposition in question could be admitted u/s 32(2) of the Evidence Act which says,

When the statement was made by such person in the ordinary course of business'' and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty and he has cited some decisions Abinas Chandra Majhi v. Pratul Chandra Ghose I.L.R.(1928) Cal. 1070; Mrs. Lall v. Rajkishore Narain Singh I.L.R.(1933) Pat. 86 Gadadhar Chowdhury and Others Vs. Sarat Chandra Chakravarty and Others, . But Section 32(2) will help him only to a limited extent, namely that the entries made in the death register could be considered to have been made in the ordinary course of business or duty and, therefore, admissible u/s 32(2), when the person who made the entries is dead. But as already pointed out that will not suffice for Defendants 10 to 19. What is necessary for them to prove is the further fact that the entries in the death register relate to the particular persons Mohammad Mohideen Marakkayar and his daughter Seeni Ammai concerned in this case. The entries themselves do not proclaim that they relate to the particular persons with whom we are concerned. That connection with the particular persons can only be made out by the deposition of the witness. But it cannot be said of a deposition that it would be a statement made by a person in the ordinary course of business; it is not the ordinary course of business of a village munsif to go and depose in Courts. That this point is not merely technical, but is substantial can be realised by comparing Section 32(2) and Section 33. In Section 32(2) the Legislature has permitted the statement made by a person in the ordinary course of business to be admitted when the person is dead, because there is a presumption that the statement made in the ordinary course of business will be true. But when it comes to a deposition made by a person, there is no such presumption. That is why the Legislature has taken care to provide further safeguards in Section 33 of the Evidence Act before a prior deposition can be admitted.

The result of this discussion is, therefore, that even if exhibits B-73 (a) and B-73 (b) can be assumed to be copies of the true original death register that would not suffice to show that the persons mentioned there are Mohammad Mohideen Marakkayar and his daughter Seeni Ammal with whom we are concerned. [Paragraphs 24 to 26 omitted].

For the above reasons it is clear that the claim of Defendants 10 to 19 has not merely not been proved, but can be said to be false. It is true that the learned Subordinate Judge has committed some fundamental mistakes in paragraphs 15 and 16 of his judgment and has missed the real point, but his conclusion is right. We must mention at this stage that after the hearing of the appeal was finished the learned Counsel for Defendants 1 to 5 agreed, as a matter of concession, to give some share to Defendants 10 to 19 and that was accepted by Defendants 10 to 19. Nevertheless we have thought it necessary to discuss the question on the merits, particularly because it is necessary to clear the ground of the claim of Defendants 10 to 19 for a satisfactory disposal of the Plaintiff�s claim.

We shall now turn to Appeal Suit No. 292 of 1962, the appeal of Defendants 1 to 5 and 8, directed against the Plaintiff�s claim. We have no doubt that Defendants 1 to 5 and 8 have made out their case of ouster of the Plaintiff and her branch. The evidence unmistakably shows that for a period of fifty years prior to the suit, Muthu Ibrahim Marakkayar and his sons had been in exclusive enjoyment of the properties, paying no portion of the income to the Plaintiff or her branch. Further, he usufructuarily mortgaged some of the items to strangers and they were redeemed by his sons. He built shops in items 1 and 2 in 1944. He sold item 4 to a stranger (eighth Defendant) in 1950. All this must necessarily have been within the knowledge of the Plaintiff and her husband. Yet, the Plaintiff did not assert her title to her share till the Palkulam estate was taken over and compensation was deposited by the Government in 1957. This evidence is sufficient by itself in this case to prove ouster. But an explanation is also forthcoming for the ouster in this case in the fact of the release by the Plaintiff�s mother of her share in her father''s estate. The release deed, exhibit B-92 is, in our opinion, genuine, and, though on account of its not being registered, it could not operate as a release it could nevertheless be used in law to prove that with effect from the date thereof, the previous limited possession of Muthu Ibrahim as a co-sharer became enlarged into a possession of a full owner. On the facts of this case the best method of dealing with the evidence is, in our opinion, to start with a discussion of the unmistakable conduct of Muthu Ibrahim as exclusive owner of the properties to the knowledge of the Plaintiff for a period of fifty years, because once that is proved, it will be easy to accept the explanation therefore in the release by the Plaintiff�s mother. However, we may point out at this stage itself that more than fifty per cent of the battle has been won by Defendants 1 to 5 regarding the genuineness of exhibit B-92 by the admission of the Plaintiff in cross-examination (at page 60) that her father''s sister Ummusalma, the ninth Defendant was married to Muthu Ibrahim and in view of that, her mother was married to her father, that the marriage might have taken place at the same time, that after the marriage, the ninth Defendant got Rs. 700 and executed a release deed in respect of her share in her father''s property and that this might have been given about fifteen or twenty years ago. That fits in with the evidence of the first Defendant as D.W. 5 (at page 84) that his mother the ninth Defendant gave a release to her brother in or about 1935. We have also got the evidence of D.Ws. 6, 7 and 8 to prove the attestations in exhibit B-92.

The scribe and the attesters are all dead and that is the only mode available to the first Defendant to prove it. We shall, of course, discuss this aspect of the evidence in detail later.

[Paragraphs 29 to 55 omitted.]

Our findings arrived at so far may be summed up thus. Confining ourselves to the ancestral properties, the conduct of Muthu Ibrahim regarding items 5, 1, 2 and 4 clearly shows that he asserted exclusive title ousting the Plaintiff. Further the Plaintiff did not get any share of the income at all in respect of the ancestral properties from Muthu Ibrahim or his sons. The explanation for this, according to Defendants 1 to 5, is that there was an arrangement, when Muthu Ibrahim married Mohammad Ismail Lebba''s sister and Mohammad Ismail Lebbai married Muthu Ibrahim''s sister (the Plaintiff�s mother) in or about 1900, that Muthu Ibrahim''s wife (ninth Defendant) should give up her right in her father''s estate and similarly the Plaintiff�s mother should give up her right in her father''s estate and that the actual release deed, exhibit B-92, was executed on 7th June 1906 by the Plaintiff�s mother in favour of Muthu Ibrahim for Rs. 700. We have no hesitation in accepting this explanation for, otherwise, there does not appear to have been any reason why the Plaintiff�s branch should have been excluded. The Plaintiff has made an important admission on this question.

[portions omitted.]

The admission of the Plaintiff that the ninth Defendant got Rs. 700 and executed a release deed in respect of her share in her father''s property fits in remarkably with the case of Defendants 1 to 5 that the Plaintiff�s mother received Rs. 700 from Muthu Ibrahim and executed the release deed exhibit B-92, dated 7th June 1906. We are also satisfied with the evidence of D.Ws. 6, 7 and 8 who have proved the signatures of the attesting witnesses. Since all the attesting witnesses and the scribe are dead, proof of the signatures of the attesters is practically the only method left to Defendants 1 to 5 to prove the genuineness of the document, especially when the Plaintiff has chosen to bring forward a suit to assert her claim long after the date of the document. See the decision in Ponnuswami Goundan v. Kalyanasundara Ayyar I.L.R.(1934) Mad. 662 (Beasley C.J., and Butler J.), affirming the decision of Anantakrishna Ayyar J. in Ponnuswami Goundan v. Kalyanasundara Ayyar AIR 1930 Mad. 771. In that case the decision turned upon the genuineness of a document exhibit M, executed by the first Defendant acknowledging that he was a tenant under the Plaintiff�s vendor. He was a marksman. He denied the execution exhibit M. Besides the scribe, there were two attesting witnesses, Subbaraya Iyer and Srinivasa Iyer. Subbraya Iyer (P.W. 10) admitted the attestation, but stated that the document had not been executed in his presence. This evidence was false, because of a prior deposition, where he had admitted that the document was executed in his presence. But the prior deposition could not use as substantive evidence and could be used only to contradict the witness and to discredit him. The other attesting witness, Srinivasa Iyer was dead and the whereabouts of the scribe were not known. The Plaintiff examined witnesses to prove the signatures of Srinivasa Iyer and the scribe and that evidence was accepted and it was held sufficient by Anantakrishna Ayyar J., to prove the execution of exhibit M, by the first Defendant. Several decisions and text books were quoted by Anantakrishna Ayyar J., and the Bench approved of the decision. The Bench points out that Section 67 of the Evidence Act which requires the signature of the executants to be proved does not prescribe the mode of proof. Where the executants is a marksman, the facility of comparing the disputed signature with the admitted signature would not be available. Normally, the best evidence would be to examine the attesting witnesses. But in that particular case, the attesting witnesses Srinivasa Iyer and the scribe could not be called. The Bench pointed out that, therefore, secondary evidence with regard to their attestation was admissible. The Bench proceeded to observe:

What is secondary evidence? The evidence of somebody who either saw them attest or is familiar with their signatures. We have that evidence here, because, as already stated, there is a witness (P.W. 3) whose evidence has been accepted. He states that the signature of one of the attesting witnesses is his signature. What follows from that? It follows that it is proved that that attesting witness attested the document. What follows from that? A passage from Mr. Sarkar in his Law of Evidence, Fourth Edition, page 519, is set out in the judgment of our learned brother as follows: The signature of the attesting witness, when proved is evidence of everything upon the face of the instrument, since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place.

Therefore, the signature of the attesting witness, having been proved, is evidence of everything, on the face of the document and that he saw the executants make his mark.

[Paragraphs 58 to 63 omitted.]

Thus, from the admission of the Plaintiff and the evidence of D.Ws. 6, 7 and 8, it has been established that there was an arrangement that the wife of Muthu Ibrahim should release her right in her father''s properties and that the Plaintiff�s mother should release her right in her father''s properties in due course. The evidence of D.Ws. 6, 7 and 8 clearly proves the signatures of the first, third, fourth and fifth attestors. In addition, we find that the signature of the scribe in exhibit B-7 and B-8 resembles that of the scribe in exhibit B-92 (one Subbiah Pillai), and the handwriting in the body of the three documents is also similar, and, since the genuineness of exhibits B-7 and B-8 is not in dispute, this is a further circumstance to prove the genuineness of exhibit B-92. All this is ample to establish the genuineness of exhibit B-92 and it is further confirmed by the conduct of Muthu Ibrahim ousting the Plaintiff and the Plaintiff�s conduct which could be explicable only on the basis of ouster to her knowledge.

[Paragraphs 65 to 68 omitted.]

For the above reasons, differing from the finding of the learned Subordinate Judge in paragraphs 17 to 19, we hold that exhibit B-92 is genuine. He has not considered the valuable admission of the Plaintiff about the truth of the family arrangement which enables us to accept the genuineness of exhibit B-92. He has similarly overlooked the evidence of D.Ws. 6, 7 and 8 about the family arrangement. In judging of their evidence, he has failed to note that they are disinterested witnesses and no reason has been established as to why they should give false evidence. The learned Judge has proceeded solely on a comparison of the signature. The genuineness of a disputed document like exhibit B-92 must primarily be considered in the light of the background and the surrounding circumstances, and the criterion of comparison of signatures cannot be a safe guide and surely cannot be the sole guide.

Having thus held that exhibit B-92 is genuine, we shall now consider how far it is admissible. Since thereby Yusuf Sulaika Ammal purported to extinguish her rights in immovable property of more than Rs. 100 in value, it required registration u/s 17(6) of the Registration Act of 1877 which was in the same terms as Section 17(6) of the present Registration Act of 1908. Section 49 of the Registration Act of 1908 says:

No document required by Section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall:

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any central transaction not required to be effected by registered instrument.

The words within brackets were inserted in 1929 by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. It is clear that, not having been registered as required by Section 17, the document could not operate as a release straightaway in view of Section 49(a) and (c). But the document could be used to show that with effect therefrom, the nature of possession of Muthu Ibrahim became enlarged from that of a co-owner into that of a full owner, and hence adverse to the co-ownership of Yusuf Sulaika Ammal, and, if Muthu Ibrahim continued in such adverse possession for over 12 years, his title as full owner became perfect u/s 28 of the Limitation Act of 1908. The reason for this is that the use of the document for this purpose does not offend Section 49 Clause (a) or Clause (c). This use of the document did not affect the share of Yusuf Sulaika Ammal, because the word affect would mean an extinguishment straightaway of the interest of Yusuf Sulaika Ammal. But before the period of twelve years, subject to other equities, between her and Muthu Ibrahim, Yusuf Sulaika Ammal could have asserted her title against Muthu Ibrahim and it was because she failed to do so for twelve years that Muthu Ibrahim''s title became perfect. In other words, it was not the document by itself that extinguished Yusuf Sulaika''s right in the property, but her inaction for a period of twelve years which extinguished her right and from that point of view, we are not contravening Section 49 Clause (a) or Clause (c) when we use the document to prove that from its date the nature of the possession of Muthu Ibrahim was adverse to Yusuf Sulaika Ammal and as full owner and not merely as a limited co-sharer.

There are several decisions which have taken this view. It is enough at this stage to refer to the more important of them Appanna v. Venkatasami I.L.R.(1923) Mad. 203 Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, ; Subbu Naidu v. Varadarajulu Naidu ILR (1947) Mad. 694 and Padma Viihoba v. Mohd. Multani AIR 1963 S.C. 70. The leading case relied on in these decisions is the decision of the Privy Council in Varada Pillai v. Jeevarathnammal (1919) I.L.B. 43 Mad. 244 (P.C.). The facts there were briefly these. A mitta belonged to two brothers, Gopalakrishna and Parthasarathi and after them to their two widows Rajammal and Alangarammal (alias Thayammal). On 8th October 1895 the widows made an oral stridhanam gift of their respective half shares to Duraisani alias Alamelu, the daughter of Rajammal. On 10th October 1895 the two widows presented a petition to the Collector reciting the above gift to Duraisani Ammal and praying for transfer of the registry to her name. The Collector made an order accordingly on 8th August 1896 registering the mitta in the name of Duraisani. Duraisani entered into possession and enjoyed the income absolutely; In 1901 Rajammal died leaving a Will in favour of her daughter thereby confirming the oral gift of her half share. Duraisani died in 1911 and was succeeded by her daughter Jeevarathnammal. Alangarammal died in 1912. The grandsons of Varada Pillai, the brother of Gopalakrishna and Parthasarathi, instituted the suit out of which the appeal to the Privy Council arose, claiming the half share of Alangarammal as reversioners on the death of Alangarammal. The defence was that from 8th May 1896 Duraisani had been in possession adversely to Alangarammal for over twelve years and consequently had become absolutely entitled to the property. The defence was upheld. Their Lordships of the Privy Council pointed out that the oral gift of 8th October 1895 and the petition of the two widows on 10th October 1895 to the Collector and the registry by the Collector were not valid to effect the gift because a gift must be made by a registered deed u/s 123 of the Transfer of Property Act. But they observed that the transaction could be referred to as explaining the character of the possession thenceforth held by Duraisani. In a passage which has become classic they observed (page 251):

It should be added that although the petitions of 1895 and the change of names made in the register in consequence of those petitions are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani. In other words, although the petitions and order do not amount to a gift of the land they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land and therefore in her own right and not as trustee or manager for her mother and aunt.

It will be seen that the gift was oral and though the petitions of 10th October 1895 concluded with the words:

The said Alamelu Ammal shall hold and enjoy with power to alienate them by way of gift, mortgage, sale, etc.

It was not contended that the petition of 10th October 1895 to the Collector itself required registration. It was, therefore, not a case of a document requiring registration being used for a purpose not prohibited by Section 49(a) and (c). Nevertheless, the decision has been uniformly understood by the different High Courts and also by the Supreme Court as an authority for the proposition that a deed requiring registration could be used for a purpose not prohibited by Section 49(c) and (c) of the Registration Act, and in particular to prove the alteration in the nature of the possession of the transferee or the beneficiary under the document. Indeed, an attempt was made before a Bench of this Court in Subbu Naidu v. Vdradarajulu Naidu ILR (1947) Mad. 694 to canvas the correctness of these decisions on the ground that the proposition laid down in these decisions did not follow from a close examination of the decision of the Privy, Council, but the Bench repelled this attempt and observed that, as pointed by Sir Dinsha Mulla in his commentaries on the Registration Act, that view had been accepted by almost all the High Courts in India and that the Bench did not feel disposed to refer the point to a Full Bench. The document in Subbu Naidv v. Varadarajulu Naidu ILR (1947) Mad. 694 was an unregistered koorchit or partition. The learned District Judge who had tried the suit had held that it was completely inadmissible for want of registration. In appeal it was contended on behalf of the first Defendant Appellant that the document was admissible to prove the adverse character of the first Defendant�s possession of the lands which were allotted to him under the koorchit, though such allotment was ineffectual for want of registration. The Bench observed that that contention must be accepted as it was supported by numerous authorities and among them they quoted Appanna v. Venkatasami I.L.R.(1923) Mad. 203 and Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, . Actually in the further discussion it was held that the possession of the first Defendant was not really adverse, but that is a different matter.

Appanna v. Venkatasami I.L.R.(1923) Mad. 203 was a case of an unregistered usufructuary mortgage deed and it was held that it could be used to prove that the possession of the Defendants was that of usufructuary mortgagees.

Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, was a decision of Jackson and Ananthakkishna Ayyar JJ., where it was held that an unregistered sale to the usufructuary mortgagee by the mortgagor was sufficient to change the possession of the mortgagee from that date as owner and that it would ripen into full ownership after a period of twelve years of adverse possession. They observed (page 18):

It is clear that no unilateral declaration by the mortgagee alone that he is the owner of the properties would be effective to convert the character of the mortgagee''s possession from that of a mortgagee to that of an absolute owner. But it does not follow that the equity of redemption would not be lost to the mortgagors by reason of subsequent acts on their part. The Privy Council Khiarajmal v. Daim ILR (1904) Cal. 296 expressly say that while mere acquiescence by the mortgagors would not be enough, acts amounting to a release of the equity of redemption would be a bar or defence to a suit for redemption. Section 60 of the Tran for of Property Act expressly enacts that mortgagors have got the right to redeem unless such right had been extinguished by act of the parties or by order of Court. It is thus clear that such a right could be extinguished by act of the parties subsequent to the mortgage. If the subsequent acts are evidenced by proper documents, then the equity of redemption would be affected directly on the execution of these documents. If, however, the documents are inadmissible for want of registration or in case the subsequent transaction between the mortgagor and the mortgagee be not evidenced by any writing at all but simply be oral, then the result would be that the mortgagors equity of redemption would not be put an end to at once but the subsequent possession on the part of the mortgagee would not be that of a mortgagee but that of an absolute owner. As against parties entered into such transactions the mortgagee would acquire an absolute title to the property after the expiry of 12 years from the date of those transactions.

Apart from Varada Pillai v. Jeevarathnammal ILR (1919) Mod. 244 the learned Judges refer to numerous cases where unregistered deeds were used to show the nature of adverse possession of the transferee. One of them in Jhamplu v. Kutramani I.L.R.(1917) All. 696, which is of interest to us, because it was also a case similar to ours, namely, a release deed by a co-owner in favour of the other co-owner (actually brothers). It was observed at page 698:

The document in question is clearly admissible in evidence, not for the purpose of proving the transfer, but for showing the nature of the Plaintiff�s possession from the year 1901 onwards : that, coupled with the other evidence in the case, is sufficient lo show that the Plaintiff has been holding adversely to his brother Balku. It is not correct to say that a co-owner can never hold adversely to the other co-owner.

It is interesting to note that this decision was rendered before the decision of the Privy Council in Varada Pillai v. Jeevarathnammal I.L.R.(1919) Mad. 244 . The decision followed an earlier Privy Council case in Mahomed Musa v. Aghore Kumar Ganguli I.L.R.(1914) Cal. 801 but it is unnecessary to make a detailed reference to the latter case, because the decision laid more insistence on the subsequent acting�s of the parties and the equities Bowing therefrom and pointed out that those subsequent actings cured any defect of non-registration.

Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, , followed inter alia an earlier Bench decision of this Court in Kawdaswami Pillai v. Chinnabba I.L.R (1920) Mad. 253 which was a similar case of a usufructuary mortgage, but there was an oral sale to the mortgagee of a part of the hypothec in extinguishment of the mortgage right. It was held that after twelve years his right as full owner became perfect. We are referring to this case because it has been expressly approved by the Supreme Court in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 to which we shall immediately refer, because, in our opinion that conclusively shows that an unregistered deed could be used to prove that the possession of the usufructuary mortgagee could ripen into that of an owner after twelve years.

There some property was sold on 21st December 1923 by Rams Rao, the second Defendant to one Rajanna. But there was difficulty in Rajanna getting possession because the properties had been previously usufructuarily mortgaged in 1916 to the first Defendant. Hence Rajanna cancelled the sale by an endorsement on the sale deed. But the endorsement was not registered. Thereafter the second Defendant executed a sale deed in favour of the first Defendant. The Plaintiff filed the suit on 14th February 1943, for recovery of possession of the properties on the footing that the sale to Rajanna was on behalf of the joint family which included the Plaintiff who was a minor then, that the property devolved in due course on the Plaintiff and that the cancellation of the sale deed of 21st December 1923 was invalid. It was found that the suit was brought more than three years after the Plaintiff had attained majority and, therefore, the suit for recovery of possession as such was time-barred. But their Lordships permitted the suit to be converted into one for redemption of the usufructuary mortgage of 1916. The question arose whether the Plaintiff had a right to redeem. To start with, the Plaintiff had a right to redeem, because the cancellation of the sale deed of 21st December 1923 was not valid, on account of non-registration of the endorsement of cancellation and, therefore, the title under the sale deed of 21st December 1923 still remained with the Plaintiff; it would give him a right to redeem. The answer of the first Defendant to this was that Rajanna received back the consideration which he had paid for the sale of 21st December 1923 and willingly cancelled the sale deed, that though the cancellation might not be valid immediately, the cancellation and the subsequent sale deed by the second Defendant to the first Defendant were enough to make the possession of the first Defendant thenceforth as that of owner, that his previous possession was only that of a usufructuary mortgagee and that the adverse possession as owner having lasted for more than 12 years, the} right to redeem became extinguished. Their Lordships deal with this contention thus (page 78):

This contention, in our opinion, is well-founded. Though there was at one time a body of judicial opinion that when a person enters into possession as mortgagee, he cannot under any circumstance acquire a little by prescription against the owner, the law is now fairly well settled that he could do so when there is a change in the character of his possession under an agreement with the owner; vide Kandaswami Pillai v. Chinnabba I.L.R.(1920) Mad. 253. Now the question is was there such arrangement? The contention of the Respondent is that the agreement between Rajanna and the two Defendants under which Rajanna received back the sale consideration and made an endorsement canceling the sale followed as part of the transaction by the sale of the properties by the second Defendant to the first Defendant would be sufficient to start adverse possession.

The endorsement of cancellation on the back of the sale deed in favour of Rajanna, dated December 21, 1923 has been held, as already stated, to be inadmissible in evidence as it is not registered. The result of it is only that there was no transfer of title by Rajanna to the second Defendant and the family would in consequence be the owner and that is why the Appellant is entitled to redeem. But the endorsement, taken along with the sale deed by the second Defendant in favour of the first Defendant is admissible in evidence to show the character of possession of the latter vide--Varada Pillai v. Jeevarathnammal I.L.R.(1919) Mad. 244 and that was clearly adverse to the owners. The answer of the Appellant to this contention is that Rajanna himself was a minor at the time when this arrangement is said to have taken place and that in consequence no title by adverse possession can be founded on it. We agree that if Rajanna was a minor when he entered into this arrangement that would not operate to alter the character of possession of the first Defendant as mortgagee. The Respondent contended that there could be adverse possession against a minor in other circumstances and relied on the decision in Sitharama Raju v. Subba Raju I.L.R.(1921) Mad. 361, in support of this position. That is not questioned, but the point for decision in whether possession lawful at the inception can become adverse under an agreement entered into by a minor. Now a minor is in law incapable of giving consent and there being no consent there could be no change in the character of possession which could only be by consent and not by any unilateral act. Therefore the crucial point for determination is whether at the time of the cancellation of the sale deed dated December 21, 1923, Rajanna was a minor or major. According to the Respondent he was a major and there is evidence also on record in support of this contention. According to the Appellant Rajanna was a minor at that time and he died a minor in 1930. In this disputed question of fact, there has been neither an issue framed nor evidence adduced. Under the circumstances we think it desirable that the matter should be remanded to the Court of District Munsif for a fresh enquiry on this question...If it is held that he was a major, that the possession of the first Defendant thereafter would be adverse and on the findings given by the courts below, the suit will have to be dismissed as barred by limitation. But if it is held that Rajanna was then a minor, then there would be no question of adverse possession and the Plaintiff would be entitled to redeem the mortgage.

Corresponding to the unregistered endorsement of cancellation of the sale deed, dated 21st December 1923 in that case, we have in the present case the unregistered release deed, exhibit B-92. Further, just as the unregistered endorsement by Rajanna was sufficient to enable the usufructuary mortgagee to plead that his possession from that date changed to that of a full owner, so too here exhibit B-92 enabled Muthu Ibrahim to show that his possession from that date was as full owner. It may be pointed out that the possession of a co-owner is in one respect stronger than that of a usufructuary mortgagee, because, whereas the usufructuary mortgagee is precluded in law from asserting unilaterally that the character of his possession has changed from that of a usufructuary mortgagee to that of an owner, there is no such prohibition against a co-owner because the law permits a co-owner to oust the other co-owner by adverse possession and the law only insists that the adverse possession must be to the knowledge of the other co-owner. Obviously, if co-sharer A can oust co-sharer B by unilateral ascertain of hostile title, a fortiori it should be possible for A to assert that the nature of his possession has changed to that of full owner where the other co-sharer B expressly consents to such arrangement. (See Rustomji--Commentaries on the Limitation Act of 1908, Articles 142 to 144 under the heading Adverse possession obtained by consent of owner token adverse; pages 1371 and 1372 of 1938 edition and pages 827 and 828 of the 1958 edition).

We have already observed that such use of exhibit B-92 to show that the nature of the possession of Muthu Ibrahim changed to that of full owner would not offend the provisions of Section 49 Clause (a) and Clause (c) of the Registration Act. Considerable light is thrown on this aspect of the matter by the decision of the majority of the Judges in Muruga Mttdaliar v. Subba Reddiar I.L.R.(1951) Mad. 473 (F.B.). There the Defendant agreed to lease certain leads to the Plaintiff. The deed required registration, but it was not registered. The Plaintiff sued for damages for breach of the agreement of lease. Objection was taken that it could not be used for the purpose, because it was not registered. Rajamannar C.J., Satyanarayana Rao J., Viswanatha Sastbi J., and Somasukdaram J., (agreeing with Satyanarayaka Rao J.) held that the document could be used for the purpose. Panohapagksa Sastry J., however, said that it could not be. The question turned on the interpretation of Section 49(c) of the Registration Act, namely, No document required by Section 17 to be registered shall be received as evidence of any transaction affecting such property unless it has been registered.

As early as in 1883 a Full Bench of the Calcutta High Court in Ulfatunnissa Elahijan Bibi v. Hosain Khan I.L.R.(1883) Cal. 520 (F.B.), had construed the words as meaning shall be received as evidence of any transaction so far as it affects land.

This interpretation was accepted by the majority of the Judges in view of the decision of the Privy Council in M.E. Moolla Sons, Limited v. Burjorjee ILR (1932) Rang. 242 It was pointed out particularly by Rajamajsnar C.J., and Satyanarayana RAO J., that the Plaintiff did not seek to use the unregistered deed as conveying any title to him as lessee, but only wanted to prove the contract to sustain his suit for damages. Rajamajsnar C.J., emphasized that the decision of the Calcutta High Court was given at a time when there was no proviso to Section 49 like the proviso inserted by Act XXI of 1929. He further observed, at the end (page 485):

It is true that the proviso to Section 49 of the Indian Registration Act, inserted by Act XXI of 1929, does not in terms apply to a suit for damages, But I fail to see any principle or policy which justifies the admission of an unregistered document as evidence of a contract in a suit for specific performance, but at the same time requires its rejection as evidence of a contract in a suit for breach of that contract. I venture to think that the omission to provide for the reception of such a document in r a suit for damages was due to the fact that such a provision was unnecessary as a suit for damages was not concerned in any manner with a right, title or interest to or in immovable property; that is to say, was not one affecting immovable property.

It will be noted that the reasoning of Raja-Mannar C.J., was not based on the ground that the admissibility of the unregistered deed was saved by the proviso. The views of Satvanaeayana RAO J., Viswanatha Sastei J., and Somasttndaram J., were similar. We are stressing this here, because, in our view, the same reasoning would apply to exhibit B-92 as well. In other words the reason why we say that exhibit B-92 could be used to prove that from that time the nature of Muthu Ibrahim''s possession became that of a full owner (to be perfected after twelve years) is that such use of exhibit B-92 would not contravene Section 49(a) or (c). The important point to remember is that we are using exhibit B-92 only to show that the nature of possession of Muthu Ibrahim became that of a full owner and that by itself would not be sufficient to make him full owner, because he had to be in such possession for twelve years and only after the completion of twelve years his title as full owner could become perfect. Thus there were two essential steps to be completed by Muthu Ibrahim in order to become full owner: (i) he must show that the nature of his possession altered to that of full owner with effect from the date of exhibit B-92; and (ii) he continued in such possession for twelve years. It was only the combination of the two requisites that would clothe him with perfect title, but we are using exhibit B-92 only for purpose (i). That by itself would not clothe him with title. In other words, during the period of twelve years, the title was still outstanding with Yusuf Sulaika Ammal in law. Hence, using exhibit B-92 for purpose (i) we would not be receiving it as evidence of any transaction so as to affect the property comprised therein, which is the interpretation put upon Section 49(c) by the Full Bench.

It may also be remembered that the Bench decision in Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, , and the other decisions referred to therein were all rendered before the proviso to Section 49 was introduced.

In view of our decision that by using exhibit B-92 to prove that from that time the nature of Muthu Ibrahim''s possession became that of full owner (to be perfected after twelve years) we are not contravening Section 49(a) or (c), it is unnecessary to justify the use of exhibit B-92 for that limited purpose by invoking the portion of the proviso, namely, as evidence of any collateral transaction not required to be effected by registered instrument. If that portion of the proviso could be invoked to justify such limited use of exhibit B-92, it would mean that that portion of the proviso is really an explanation to Section 49(a) and (c) and is supplemental to our main reason that such limited use of exhibit B-92 does not offend Section 49(a) or (c). This may be possible view to take of that portion of the proviso, but, for my part, I do not wish to rest our decision on the proviso to Section 49. The reason for my hesitancy to invoke the proviso has to be explained in some detail.

The transaction evidenced by exhibit B-92 may be split up into two limbs : (i) Yusuf Sulaika Animal made a declaration that in consideration of the sum of Rs. 700 she released her right in her father''s properties in favour of her brother Muthu Ibrahim, and (ii) there was an implied undertaking by her that she would consent to the deed being registered in order that it may have effect immediately in law, and corresponding to this undertaking, there was the right of Muthu Ibrahim to get it registered. We shall call this a regular transaction (R) for the sake of convenience. Somehow, the document was not registered. Still the document would be admissible to prove the first aspect. But, in order that the title might become perfect, Muthu Ibrahim had to continue in possession for twelve years. For the sake of convenience again, let us call this as a prescriptive transaction (P). The question is whether we can call the prescriptive transaction (P) as a collateral transaction not required to be effected by a registered instrument, within the meaning of the proviso to Section 49. I hesitate to answer the question in the affirmative. It will be noted that just as in the regular transaction (R) there are two limbs, the prescriptive transaction (P) may be split up into aspects : (i) the declaration by Yusuf Sulaika Ammal that thenceforth Muthu Ibrahim''s possession changed into that of owner, and (ii) the possession of Muthu Ibrahim for a period of twelve years thereafter. Now the first limb of the prescriptive transaction (P) is the same as the first limb of the regular transaction (R) and it is in view of this circumstance I hesitate to say that transaction (P) is a transaction collateral to the regular transaction (R). The meanings given to the word collateral in the Concise Oxford Dictionary are these:

Side by side parallel; subordinate, but from same source; contributory; connected but aside from main subject, course, etc., of common descent but by different line.

Stroud''s Judicial Dictonary says:

Collateral is that which cometh in or adhereth to the side of anything; as collateral assurance is that which is made over and beside the deed itself.

The word collateral, e.g., collateral security, means, side by side, parallel, and taken by itself, has no such meaning as secondary, auxiliary, subsidiary or only to be made use of in aid.

Thus the primary meaning which is given is parallel. Parallelism implies that the two lines which are parallel do not meet at all. But here there is something in common between the regular transaction (R) and the prescriptive transaction (P). Hence, I hesitate to call transaction (P) as a transaction collateral to the regular transaction (R).

We have seen that the principle in Varada Pillai v. Jeevarathnammal ILR (1919) Mad. 244 has been extended to the case of usufructuary mortgagee in possession becoming full owner by adverse possession after twelve years on the strength of an oral sale or an unregistered sale by the mortgagor. But it has been urged on the supposed authority of the decision of the Supreme Court itself in Mst. Kirpal Kaur Vs. Bachan Singh and Others, that the principle of the Privy Council decision cannot be so extended and must be confined to a case whole the transferee under the unregistered deed was not previously in possession but gets into possession as a result of the unregistered deed. This argument can no doubt be summarily dismissed on the ground that the later Supreme Court decision in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 in authority for the position that the principle of the Privy Council decision can be extended to a case where the usufructuary mortgagee''s possession becomes enlarged into that of full owner by an unregistered sale deed by the mortgagor, perfected after twelve years possession thereafter. But we think it is desirable not to leave the matter at that, and that we should indicate how the two decisions of the Supreme Court are not inconsistent, particularly since the decision in Mst. Kirpal Kaur Vs. Bachan Singh and Others, has not been specifically referred to in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70.

The facts in Mst. Kirpal Kaur Vs. Bachan Singh and Others, were these. Ram Ditta was a Hindu Jat of a village in Patiala. He died in April or May 1920 y leaving certain lands. He had a son Jeena who predeceased him leaving a widow Harnam Kaur. Harnam Kaur had a daughter Kirpal Kaur, who was the Appellant before the Supreme Court. On Bam Ditta''s death, Harnam Kaur took possession of the lands and obtained a mutation of the settlement records showing her as the owner of the lands in the place of Bam Ditta. From that time she acted as if she was the absolute owner of the lands and in particular in 1929, she made a gift of half the lands to her daughter Kirpal Kaur on the occasion of the latter''s marriage. This led to litigation between Harnam Kaur and Kripal Kaur on the one hand and the collaterals of Bam Ditta on the other. Mutual friends intervened and on 6th February 1932 a document was executed by Harnam Kaur by which she agreed that the lands would belong to her for her life and after her death to Kirpal Kaur for the latter''s life and that they would not be entitled to sell or mortgage the lands except to pay off some specified debts. The documents was, however, not registered. In 1936 Harnam Kaur created a mortgage not permitted by the agreement of 6th February 1932. In 1939 she made a gift of the entire lands to Kirpal Kaur. The collaterals filed the suit in March 1945 for a declaration that the mortgage and the gift were illegal and not binding on them.

The trial proceeded on the common ground that according to the general custom governing the parties, the widow of predeceased son, as Harnam Kaur was, was only entitled to maintenance when there were collaterals of the prescribed degree and that consequently Harnam Kaur was not entitled to inherit the properties of Ram Ditta. In view of this the learned trial Judge held that the possession of Harnam Kaur was adverse to the collaterals from 1920 itself.

It was contended before him that the agreement of 6th February, 1932, though not admissible in evidence, in the absence of registration, to prove that Harnam Kaur and Kripal Kaur had only life estates, was admissible to show the nature of Harnam Kaur''s possession and that it showed that her possession was adverse.

The trial Judge rejected this contention and dismissed the suit on the ground that the widow perfected her title by adverse possession from April or May, 1920. The appeal of the collaterals to the District Judge was dismissed. The High Court allowed their further appeal. Firstly, the High Court held that there was a special custom by which the widow of a predeceased son, like Harnam Kaur, could be a heir, that actually Harnam Kaur entered into possession as an heir and that consequently her possession from 1920 was not adverse to the collaterals. The High Court also held that the agreement of 6th February, 1932 was admissible to prove the nature of Harnam Kaur''s possession from that date, though it was not admissible to prove title as it had not been registered The High Court was of the view that the agreement showed that since its execution the nature of Harnam Kaur''s possession was permissive and not adverse, and, as on the date of the agreement, she had not been in possession for the requisite period (the period being from April or May 1920 to 6th February, 1932 fell short of twelve years by a few months), she never acquired title by adverse possession, whatever might have been the character of her possession prior to it,--that is to say, even if her possession was adverse till 6th February 1932. Lastly, the High Court held that Harnam Kaur had entered into possession only as an heir of her father-in-law and could only prescribe for a Hindu widow''s estate. On further appeal by Kirpal Kaur, their Lordships of the Supreme Court reversed the decision of the High Court and observed, in the first place, that in view of the fact that the trial took place on the footing that Harnam Kaur was not an heir, it was not permissible for the High Court to hold that she was an heir. In other words, their Lordships of the Supreme Court found that the possession of Harnam Kaur from April or May 1920 itself was without title and adverse to the collaterals. Thereupon the collaterals repeated the contention, which had been rejected by the trial Court but which found favour with the High Court, namely, that though the possession from April or May 1920 till 6th February 1932 might be adverse, Harnam Kaur''s possession after 6th February 1932 was permissive. They invoked the authority of Varada Pillai''s case I.L.R.(1912) Mad. 244 for this contention. Their Lordships of the Supreme Court rejected this contention and observed,

We cannot agree that on the authority of Yarada Pillai''s case I.L.R.(1912) Mad. 244 the agreement of 6th February 1932 can be admitted in evidence in the case in hand to show the nature of Harnam Kaur''s possession of the lands subsequent to its date. In Varada Pillai''a case I.L.R.(1919) Mad. 244 Duraisami had got into possession only under the gift mentioned in it. The petition was therefore admissible in evidence to show the nature of her possession. In the present case Harnam Kaur had been in possession before the date of the document and to admit it in. evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession, and, therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act.

Finally their Lordships held that Harnam Kaur had acquired by adverse possession an absolute title and not merely a limited Hindu widow''s estate.

The crux of the decision in Mst. Kirpal Kaur Vs. Bachan Singh and Others, is that previous to 4th February 1932 the possession of Harnam Kaur was adverse to the collaterals and the decision was that the document of 6th february 1932 being unregistered could not be used to prove that the nature of Harnam Kaur''s possession was curtailed and ceased to be adverse to the collaterals after 6th February 1932. In other words the collaterals sought to use the unregistered document as having a legal effect straightaway. That was clearly contrary to Section 49(c) of the Registration Act, interpreted in the way it has been interpreted by the Calcutta High Court in Ulfatunnissa ElaMjan Bibi v. Hosain Khan ILR 1883) Cal. 520 (F.B.) and by the Full Bench of the Madras High Court in Muruga Mudaliar v. Smhba Reddiar ILR (1951) Mad. 473 (F.B.). But the case in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 was a converse case. The possession of the first Defendant therein was that of a usufructuary mortgagee, but with effect from the cancellation of the sale deed, dated 21st December 1923 the nature of the possession became enlarged. The important point to be noted is that in law the unregistered endorsement of the cancellation of the sale deed was not by itself enough to make the title of the usufructuary mortgagee become perfect. He had to be in such possession for a further period of twelve years and only after the end of that period his title as owner became perfect. But in Mst. Kirpal Kaur Vs. Bachan Singh and Others, the collaterals wanted to use the unregistered document of 6th February 1932 to have effect in law straightaway and unless it had effect straightaway it could not curtail the adverse possession of Harnam Kaur into permissive possession. In order to make the point clear I would emphasise the difference between the two cases from a different aspect. In the case of the usufructuary mortgagee, who gets an unregistered sale deed from the mortgagor, during the period of twelve years, though he may not become full owner, his right as usufructuary mortgagee is not affected in any manner to his disadvantage, and, in that sense the unregistered document does not affect the title to immovable property u/s 49(c). But in Mst. Kirpal Kaur Vs. Bachan Singh and Others, the collaterals wanted the Court to hold that with effect from 6th February 1932 the previous adverse possession of Harnam Kaur became curtailed straightaway into that of permissive possession. It would not do for the collaterals if the Court were to hold that during the period of twelve years from 6th February 1932 the previous adverse possession of Harnam Kaur was not in any way affected, because in such a case the title of Harnam Kaur would have become perfect in April or May 1932 by adverse possession for a period of twelve years. Thus really the collaterals wanted to use the document of 6th February 1932 as curtailing the adverse possession of Harnam Kaur straightaway. In that sense, that would be using the unregistered agreement to affect immovable property straightaway which was not permissible.

In Subramonia Iyer and Another Vs. Kandu and Others, , Madhavan Naib J., pointed out that there was no inconsistency between the two Supreme Court decisions. That was a case where the mortgagor conveyed the equity of redemption in favour of the mortgagees under an unregistered document, dated 17th June 1967. The mortgagees continued in possession for more than twelve years. A suit was thereafter brought for redemption. The Courts below decreed the suit. In second appeal the learned Judge reversed the decision and held, following Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 that the character of the mortgagees'' possession became that of owner and became perfected after twelve years of adverse possession. The argument advanced before him on the basis of Mst. Kirpal Kaur Vs. Bachan Singh and Others, and how the learned Judge dealt with it will be clear from the following passage at page 180:

It was contended that the effect of the latter ruling was that an unregistered conveyance cannot be admitted in proof of a change in the character of possession of a person already in possession of the property, though it may be admissible to prove the character of possession let into for the first time under it. I do not think that this is a correct construction of the dictum of their Lordships. What their Lordships pointed out is that an unregistered conveyance cannot, u/s 49 of the Indian Registration Act, be accepted as evidence of any transfer of title to the property. When an unregistered conveyance is taken by a person already in unlawful possession of the property to recognise that conveyance so as to legalise his possession would be to recognise the title that was purported to be conveyed by it; and that would be an express violation of the provisions of the Registration Act. What is laid down in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 is not in any way inconsistent to that position. When to a mortgagee in possession of the property, the mortgagor executed an unregistered conveyance of the equity of redemption, that conveyance, their Lordships have pointed out, cannot convey title to the property to the mortgagee; but it gives rise to an adverse claim by the mortgagee to hold the property as owner which adverse claim if allowed to continue undisturbed for 12 years, would confer a title to the equity of redemption on the mortgagee, the effect of the consent of the mortgagor involved in the unregistered conveyance being to exempt the mortgagee from the estoppel which would have otherwise debarred him from asserting any claim adverse to the mortgagor during the continuance of the mortgage. In laying down that rule, their Lordships have not recognised the unregistered conveyance at all, for, if they have done so, possession of the mortgagee after its execution would be lawful possession of an owner--not adverse possession as an owner. Adverse possession implies no legal title but only a pretence of what is not in fact. I do not therefore find any inconsistency in the two rulings of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan Singh and Others, and Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70. In the present case also the mortgagor had executed ft conveyance, though unregistered, of the equity of redemption to the mortgagee, thereby giving his consent to the mortgagee to pose himself as the owner of the property. Though that conveyance is ineffective to transfer forthwith the title to the equity of redemption, it can be admitted for the collateral purpose of proving the consent of the mortgagor to the mortgagee to deny the title of the mortgagor thereafter, and to assert ownership in himself against the mortgagor. As the mortgagee had then no lawful title to ownership his assertion of ownership in himself makes his possession adverse to the mortgagor which by prescription may earn a title recognised by law to the feigned ownership for him in the course of 12 years to come.

We respectfully agree with the reasoning but I would add the remark that the use of the words collateral purpose should not be and need not be understood as invoking the proviso to Section 49 of the Registration Act. We have already given our reasons for this.

In Khama Padhan v. Guna Sahu ILR (1966) Ker 284 Misba J., held that an unregistered lease deed could be used for showing that the transferee entered into possession as a lessee, and followed Varada Pillai v. Jeevarathnammal I.L.R.(1919) Mad. 244 and observed:

This decision was followed in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70. Mst. Kirpal Kaur Vs. Bachan Singh and Others, does not purport to lay down any contrary view, though it is distinguishable on facts.

There is no further discussion.

These are the only two cases in which the two decisions of the Supreme Court were considered together. There are, however, two other cases which purported to follow the decision in Mst. Kirpal Kaur Vs. Bachan Singh and Others, . We shall refer to them briefly. They are Gerua Biswal Vs. Kshyama Biswal, and Kuriakose v. Mariam ILR (1963) Ker. 65. In the Orissa case the Appellant and the Respondent were brothers. In 1936, the Appellant wrote a letter exhibit-A stating that the Respondent would get the movable and immovable properties in their native village Dhulunda and the Respondent would not get any movable or immovable properties existing at two other places, Chalta and Surguja. The Appellant stated that he had no right to the Dhulunda lands and properties. Subsequently (the date is not clear), a portion of the Dhulunda lands was acquired by the State Government. The Appellant claimed a share in the compensation. The Respondent resisted it on the basis of exhibit-A. The case proceeded on the footing that exhibit-A required registration. It was contended on behalf of the Respondent that exhibit-A could be used for the purpose of showing that with effect from that date the Respondent�s possession of the lands at Dhulunda was on his own behalf exclusively. The Bench held that such use of exhibit-A was prohibited by Section 49 of the Registration Act and cited the authority of Mst. Kirpal Kaur Vs. Bachan Singh and Others, . It is not explicitly stated whether the possession of the Respondent was for more than twelve years after 1936, though it appears that it should have been the case. If so, we would respectfully dissent from the decision and would observe that twelve years adverse possession of the Respondent sufficed to make his title perfect even in respect of the lands at Dhulunda.

That is the effect of the decisions in Appanna v. Venkatasami I.L.R.(1923) Mad. 203 and Subbu Naidu v. Varadarajulu Naidu ILR (1947) Mad. 694, though as we have observed earlier, in the last mentioned case it was found that the nature of the'' possession of the first Defendant was not adverse (See also Rustomji-Commentaries on the Limitation Act of 1908, Article 142 to 144 under the heading Adverse possession obtained by consent of owner, when adverse; pages 1371 and 1372 of 1938 edition and pages 827 and 828 of the 1958 edition, which we have already referred to).

It need hardly be added that, if the possession of the Respondent in the Orissa case was for less than twelve years after 1936, his title would not have become perfect and the Appellant would be entitled to a share in the compensation on the principle of the Full Bench decision in Ramayya v. Achamma ILR (1945) Mad. 160 (F.B.).

In Kuriakose v. Mariam ILR (1963) Ker. 65 which arose under proceedings u/s 145 of the Code of Criminal Procedure, the B party wanted to use an unregistered gift deed to prove that he was entitled to possession by virtue of the deed. In other words, he claimed a right to the property on the basis of the unregistered gift deed, though twelve years of possession had not expired. That is why it was held that he was not entitled to use the document.

Hari Pratap and Another Vs. Ramgopal and Another, was a case where the decision in Mst. Kirpal Kaur Vs. Bachan Singh and Others, was distinguished with the observation that the facts were entirely different. In that case a shop jointly owned by three persons in undivided shares was taken on lease by a tenant. Then the tenant purchased the share of one. The factum of sale was admitted. It was held that it did not matter that the deed of sale was unregistered and that since the factum of sale was admitted the tenant became a co-owner in respect of 1/3 and remained as a tenant in respect of the remaining 2/3.

Besides the decisions cited by us, there are numerous decisions of this Court and the other High Courts which have held that an unregistered deed could be used to prove the nature of the possession of the transferee or change in the nature of the possession of the transferee. These may be found collected in Mullet''s Commentaries on the Registration Act, Section 49 under the head Collateral transaction, collateral purpose, pages 188 to 192, to which we would add Badri Singh and Others Vs. Baldeo Singh and Others, .

The learned Subordinate Judge, in paragraphs 20 and 21, having found that exhibit B-92 was not genuine, proceeds to observe that it could not be used for any purpose, and in particular, to show that thenceforth the possession of Muthu Ibrahim as a co-owner became adverse to the co-owner. That is how he has interpreted the decision in Mst. Kirpal Kaur v. Bachan Singh AIR 1963 S.C. 70. The later decision in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 was not available to him, but even the other decisions which had taken the view that exhibit B-92 could be used to prove the alteration in the character of the possession of Muthu Ibrahim do not appear to have been brought to the notice of the learned Subordinate Judge.

The true position, however, is, as we have pointed out that from 7th June 1906 the date of exhibit B-92, the possession of Muthu Ibrahim was adverse to Yusuf Sulaika and consequently after twelve years the title of Muthu Ibrahim became perfect. But even if, for the sake of argument, we ignore exhibit B-92 as not having been proved, it is clear that the remaining evidence is ample to prove ouster of Yusuf Sulaika atleast from the year 1916 (date of exhibit B-9) by Muthu Ibrahim. We have given our findings in great detail already and it is sufficient to recapitulate the main features, and is enough if we confine ourselves to the ancestral properties as distinguished from the later acquisition made by Muthu Ibrahim. Under exhibit B-9, dated 7th June 1916 he usufructuarily mortgaged item 5 (as well as item 6) in favour of two persons, Mohammed Abdul Kader and his brother Syed Ibrahim Sahib and that was conduct indicating ouster of Yusuf Sulaika. On 1st September 1933 under exhibit B-10 the Plaintiff�s husband Mohammad Hasan Pichai took an assignment of exhibit B-9 from Shaik Dawood (to whom the mortgage right had been assigned) and on 8th January 1943 the Plaintiff�s husband received a sum of Rs. 1,900 after looking into the accounts and made an endorsement of discharge, exhibit B-10 (a) in favour of Muthu Ibrahim''s sons, Mohideen Marakkayar and Mohideen Abdul Kader (first Defendant). The Plaintiff�s husband did not get it recited that exhibit B-9, B-10 and B-10 (a) related only to 17/24 share of Muthu Ibrahim and that the Plaintiff�s share was still subsisting. The Plaintiff has no satisfactory explanation for these facts and would simply deny knowledge of the mortgage executed by Muthu Ibrahim.

Again, in or about 1944 Muthu Ibrahim constructed shops in items 1 and 2 and in his own name, and the shops have been yielding a substantial income of Rs. 105 per month.

Again, Muthu Ibrahim sold item 4 under exhibit B-86, dated 16th March 1950 to the eighth Defendant, and the eighth Defendant has also made improvements. The Plaintiff was not in receipt of any income in respect of the ancestral properties at any time. She did not make any demand for her share of the income. She did not question the conduct of Muthu Ibrahim in effecting mortgages and constructing shops and in selling item 4. Her first assertion of title was made only in 1957, when the Government paid an appreciable amount as compensation for the Palkulam estate. This evidence is ample to show ouster of the Plaintiff.

The law relating to ouster is well settled and the difficulty, if at all, will only lie in its application to the facts and the proper inference to be drawn in any particular case. Since there is unity of possession among co-owners (vide Freeman on Co-tenancy and Partition, Article 86, at page 150), the possession of one co-owner is in law deemed to be on behalf of the other co-owner. But this does not prevent ouster of a co-owner. Vide Govindarao v. Rajabai (1930) 60 M.L.J. 386 . Ouster must be by exclusive possession of the co-owner in denial of the right of the other co-owner and it must be brought home to the knowledge of the latter. The law on the point has been summed up by their Lordships of the Supreme Court in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, thus:

Now, the ordinary classical requirement of adverse possession is that it should be nee vi nee clam nee precario. see Secretary of State for India v. Debendralal Khan ILR (1933) Cal. 262 . The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. See C. Radhamoni Debi v. Collector of Khulna I.L.R.(1900) Cal. 943 . 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 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 co-heir, 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. Appuhamy (1912) A.C. 230. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, 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 Varada Pillai v. Jeevarathnammal I.L.R.(1919) Mad. 244 quotes, apparently with approval, a passage from Culley v. Doe 113 E.R. 697 which indicates that such a situation may well lead to an inference of ouster if other circumstances concur. see also Govindarao v. Rajabai (1930) 60 M.L.J. 386 . It may be further mentioned that it is well-settled 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.

The substantive law is thus that to bring about ouster the co-owner''s exclusive possession must be in denial of the title of the other co-owner and must be brought home to the knowledge of the latter. In this respect there is a difference of the co-owners'' adverse possession from the adverse possession on the part of a stranger. In the latter case it is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercise due vigilance, to be aware of what is happening. Vide Secretary of State for India v. Debendralal Khan ILR (1933) Cal. 262 and also Palania Pillai v. Ibrahim Rowther ILR (1943) Mad. 21 (F.B).

The question whether the evidence in a particular case is sufficient to infer ouster is a different matter and related to the branch of the law of evidence. Obviously it will depend on the facts of each case and no hard and fast rule can be laid down. But the following factors will be relevant : (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation (12 years in India); (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may, however, be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume jouster as an explanation of the long peaceful possession of the co-owner in possession. There is obvious good sense and justice, in the reluctance of the law to unsettle quiet and undisturbed posses Jon for a long number of years. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Thus in Magniram Sitaram v. Kasturbhai Manibhai I.L.R(1921) 46 Bom. 481 their Lordships of the Privy Council observed:

At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made," it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.

These observations were followed by their Lordships in Mohammad Mazaffar-al-Musavi v. Jabeda Khatun I.L.R.(1930) Cal. 1293 There the Defendants were in possession for a very long time paying only a fixed rent for property belonging to a wakf and they contended that a lawful origin must be presumed, namely, that leave of the kazi had been obtained for the mutawalli granting such a tenancy. Their Lordships accepted this contention and observed:

The presumption of an origin in some lawful title, which the courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming, is one which is not a mere branch of the law of evidence. It is resorted to because of the failure of actual evidence. Hence their Lordships cannot accept the Appellant�s contention that the provisions of the Indian Evidence Act, Section 114, prevent the inference of a consent by the kazi in the absence of any evidence of an application to the kazi for leave, or some other proved fact of that kind. The matter 13 one of presumption, based on the policy of the law, but even considered as an inference from proved facts, the leave presumed is a thing which may well be regarded as likely to have happened.

It is on the same principle that the presumption of last grant is made, Vide Ramranjan Chakerbati v. Ram Narain Singh I.L.R.(1984) Cal. 533 and Pothukutchi Appa Rao and Others Vs. Secretary of State for India in Council, .

The same principle can well be applied and has been applied to ouster of a co-owner. Thus as early as in 1774 in Doe v. Prosser 98 E.R. 1052 the exclusive enjoyment was for a period of thirty-six years and there was no demand or claim by the other co-owner. Lord Mansfield directed the jury to presume ouster. Upon a rule for new trial, all the Judges including Lord Mansfield confirmed that the direction was proper. Lord Mansfield said:

It is a possession of near 40 years, which is more than quadruple the time given by the statute for tenants in common to bring their action of account if they think proper; namely, six years; But in this case no evidence whatsoever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the Plaintiff, of any acknowledgment of the title in them, or in those under whom they would now set up a right. Therefore, I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that they did right in so doing.

After J., held:

What is adverse possession or ouster, if the uninterrupted receipt of the rents and profits without account for near 40 years is not?

Willes J., said:

The possession is a possession of 16 years above the 20 prescribed by the statute of limitations, without any claim, demand or interruption whatsoever; end therefore, after a peaceful possession for such a length of time, I think it would be dangerous now to admit a claim to defeat such possession. However strict the notion of actual ouster may formerly have been, I think adverse possession is now evidence of actual ouster.

Ashtjrst J., said:

After so long an acquiescence I think the jury were well warranted to presume any thing in support, of the Defendant�s title and they might presume, either an actual ouster or a conveyance.

Again, in Culley v. Doe 113 E.R. 697 Lord Denman C.J., observed:

But, where the claimant tenant-in-common has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the judge will direct the jury to take into consideration whether they will presume that there has been an ouster.

He quotes Doe v. Prosser 98 E.R. 1052 and two other cases.

In Gangadhar v. Parashram ILR (1905) 29 Bom. 300 the predecessors of the Plaintiffs left the family home in or about 1857 and there was no participation by them in the profits of the property till 1901, the date of the suit; there was no account rendered or demand made in respect of the properties. It was held, quoting the above two cases of Doe v. Prosser 98 E.R. and Culley v. Doe 113 E.R. 697 that there was ouster of the Plaintiffs.

The above case was quoted with approval in Ayenenussa Bibi v. Sheikh Isuf 14 I.C. 772. Jenkins C.J. observed:

The law on the subject I take to be well settled. In order to establish adverse possession by one tenant-in-common against his co-tenants there must be exclusion or ouster and the possession subsequent to that exclusion or ouster must be for the statutory period...

Accepting this statement as the legal position, the only other question that arises is what is sufficient evidence of exclusion? To my mind this must depend upon the circumstances of each case. I am prepared to repeat what I have said in a previous case that mere non-participation in rents and profits would not necessarily of itself amount to an adverse possession, but such non-participation or non-possession may in the circumstances of a particular case amount to an adverse possession. Regard must be had to all the circumstances, and a most important element is the length of time. In this connection I cannot do better than refer to what was said by Lord Mansfield and the other Judges in Doe v. Prosser 98 E.R. 1052 and the statement of the law by Lord Denman in Culley v. Doe 113 E.R. 697. For convenience of reference I may say that quotations from these cases may be found in Gangadhar v. Parashram (1905) 5 Bom. L.R. 743 and Bandacharya v. Shrinivasacharya (1903) 5 Bom. L.R. 743 The circumstances that have to be taken into consideration appear to me to be these among others; the relationship of the parties, their position, the mode of life in the particular community to which the parties belong, the character of the property and other circumstances of a similar character.

The case was remanded for decision in the light of the principles thus laid down. It is pertinent to emphasise that the learned Chief Justice stressed the length of time as the most important element.

In Padma Pande v. Bam Sarup Pande AIR 1920 Pat. 260, Ad Ami J., of the Patna High Court held that ouster was established after an exclusive possession for a period of twenty-five years. The special circumstances of the case were that the parties all lived in one village and were agriculturists.

In Bapatla Venkata Row Vs. Bapatla Venkoba Row and Others, ouster was held established from the circumstances (i) that the Defendant and his father treated the property as their own from 1867 till 1922; (ii) that Defendant 1 spent a very large sum in raiding the main house by another storey and building godowns on the site taking the income from those godowns entirely for himself; and (iii) that the members of the other two branches, when they were in great need, were not taken into the house and did not attempt to enforce their rights. It was observed:

In a case like this, even when there is no evidence of ouster at a particular time, it is not unreasonable that we should infer an ouster as an explanation of the facts as we find them.

Reference was, of course, made to the previous decisions.

In Govindarao v. Bajabai (1930) 60 M.L.J. 386 the Defendants� predecessors had been in sole possession and perception of the profits of the village at least from 1880 till 1916 to the exclusion of the Plaintiffs and it was held that there was ouster, the article applicable being Article 144 of the Limitation Act providing for twelve years adverse possession.

In Maddela Krishnayya Vs. Maddela Udayalakshmamma and Others, Venkatarama Ayyar J., (as he then was) assembled most of the relevant decisions and observed:

These cases do not mark any departure from the well settled principle that to establish adverse possession against co-owners there must be denial of the title to their knowledge and that it is not sufficient merely to prove non-participation by them in profits. When possession dates back to a time beyond living memory and it becomes impossible to prove by direct evidence that the original co-owners had knowledge of the denial of their title and the attendant circumstances are in accord therewith a presumption of ouster can be made. In Doe v. Prosser 98 E.R. 1052 Ashukst J., put the matter thus.

''After so long an acquiescence I think the Jury were well warranted to presume anything in support of the Defendant�s t tie, and they might presume, either an actual ouster or a conveyance.'' The presumption is thus analogous to one of a lost grant and is not to be applied when the transactions are recent and the primary parties are alive.

In that particular case, the learned Judge refused to draw the presumption because the action was between the original co-owners and the period of non-participation was only 18 years.

The same principle was reiterated by Stoba Rao C.J., and Manohar Peeshad J., in Peeran Sahib v. Jamaluddin Sahib AIR 1958 A.P. 48 though the circumstances of that particular case were not sufficient to infer ouster.

It is also permissible to observe that in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, their Lordships of the Supreme Court seem inclined to adopt the observations of the Privy Council in Varada Pillai''s case I.L.R (1919) Mad. 244 quoting the passage from Culley v. Doe 113 E.R. 697, namely,

Where, the claimant, tenant-in-common, has not been in the participation of the rents and profits for a considerable length of time, and either circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster.

In Phul Kumari Devi Vs. Sambhu Prasad Singh and Others, a Bench of the Patna High Court held ouster to be established from exclusive possession for a period of 34 years and the other circumstances of the case.

There are of course several cases where the evidence has been held to be insufficient to infer ouster. Some of them are : Fardosjahan Begum v. Shfiudin ILR (1942) Nag. 781; Lakshmi Narasamma v. Rama Brdhmam I.L.R.(1950) Mad. 1084; Maddela Krishnayya Vs. Maddela Udayalakshmamma and Others, ; Peeran Sahib v. Jamaluddin Sahib AIR 1958 A.P. 48; Valliammai Achi Vs. Velu Servai and Others, ; and Ramdeo Jha and Others Vs. Narendra Narayan Mishra and Others, ; Sri Kesava Iyengar also referred to Kumarappa Chettiar v. Saminatha Chettiar I.L.R (1918) Mad. 431 Guru Narain Das v. Our Thahal Das (1952) 2 M.L.J. 251 SC. Mohammad Baqar and Others Vs. Naim-un-Nisa Bibi and Others, , Kaliba v. Abdulla ILR [1963] Mad. 101; Midnapore Zamindari Company, Ltd. v. Naresh Narayan Roy I.L.R.(1924) Cal. 681 and Nirman Singh v. Lal Mudra Pratab Narain Singh ILR(1926) All 529 .

These cases are distinguishable. We have no doubt that the facts of this case will fall within those cases where ouster has been held to be established. We have no hesitation in differing from the findings of the learned Subordinate Judge in paragraphs 22 to 28 on the question of ouster.

We now turn to the contention of the first Defendant that items 6, 7, eastern half of item 9 and item 10 were the self-acquisitions of Muthu Ibrahim Marakkayar.

[Portions in paragraphs 121, 122 to 129 omitted.]

Even assuming for the sake of argument, and argument only, that the purchase of the eastern half of item 9, item 10 and item 7 and the discharge in 1943 under exhibit B-10 (a) were out of the income received by Muthu Ibrahim from the properties admittedly left by Mohammed Mohideen Marakkayar, it is not the law that the Plaintiff would be entitled to a share in those acquisitions. Muthu Ibrahim was only a co-sharer with the Plaintiff and it is settled law that a co-sharer is not a trustee for the other co-sharer and, therefore, Section 88 of the Trusts Act, 1882, will not apply so as to impress the property purchased by Muthu Ibrahim from the income from the ancestral properties with the character of property belonging to both Muthu Ibrahim and the other co-sharer (Yusuf Sulaika or her heirs). In Kennedy v. De Trafford (1897) A.C. 180 it was pointed out that no authority was cited in support of the proposition that a co-owner purchasing property was a trustee for the other co-owner.

The above case was followed in Abdul Samad Khan Khiladar and Another Vs. Bibijan alias Hanifa Khathu and Others, .

There are three Bench decisions of this Court which are instructive on this point. They are : Abdul Rahim v. Abdul Hakim I.L.R(1930) Mad. 543; Kathoom Bi Vs. Abdul Wahab Sahib and Others, and Sahul Hamid v. Sulthan ILR (1947) Mad. 574. The last mentioned decision was followed by the Andhra Pradesh High Court in Peeran Sahib v. Jamaluddin Sahib A.I.R 1958 A.P. 48.

In Abdul Rahim v. Abdul Hakim I.L.R.(1930) Mad. 543 one Abdul Karim Baig died in 1912, leaving a widow, two major sons, two minor sons and three minor daughters. The cloth business conducted by Abdul Karim Baig was carried on by the two major sons (Defendants 1 and 2) and they utilised in the business the shares of the other members of the family. The other members of the family were living with the major sons and were looked after by them. The first Defendant, in fact regarded himself as the guardian of the minors. This went on till 1915 when one of the minor sisters attained majority and demanded her share. Then the accounts were looked into and some sort of arrangement was made. The learned Judges proceeded on the footing that a co-owner did not stand in a fiduciary capacity to another co-owner, but in respect of the period between 1912 and 1915 they pointed out that the first Defendant and along with him the second Defendant assumed a position much more of trust than of a mere co-owner and that they came into possession of the assets of the other members not because of their co-ownership but because of the fiduciary relationship they adopted towards the other members. Hence Defendants 1 and 2 were made liable to disgorge the profits earned in the business by the utilisation of the shares of the other members. But the position from 1915 to 1918 was different, because the fiduciary relationship ceased thereafter. In respect of that period the relief awarded to the Plaintiffs was merely on the basis that their share was treated as capital lent to the business of Defendants 1 and 2 and they had to repay that with interest. The case is, therefore, instructive, because it deals with both kinds of situations in respect of the two periods.

The above decision was followed, in similar circumstances, by Leach C.J., and Abdur Rahman J., in Kathoom Bi Vs. Abdul Wahab Sahib and Others, .

In Sahul Hamid v. Sulthan ILR (1947) Mad. 574, 588 it was observed:

No doubt they are co-sharers along with the children of Alliyar and subsequently with the Plaintiff. But it has been held that there is no fiduciary relationship between co-heirs or co-owners under the Muhammadan law as such...

The decision in Kathoom Bi v. Abdul Wahab Sahib ILR (1947) Mad. 574, 588 was distinguished and it was pointed out that Mukuthi (one of the sharers) was married to the Plaintiff in 1913 and from that date she could not be said to be under the guardianship and control of her father''s brothers. Similarly, the Plaintiff was a major and was not under the care and protection of the contesting Defendants.

The same would be the position in the present case also, because Yusuf Sulaika was married even during the lifetime of her father (see the evidence of D.Ws. 7 and 8) and was, therefore, not under the guardianship of Muthu Ibrahim. The normal rule will apply; which means that Muthu Ibrahim was not in a fiduciary relationship to Yusuf Sulaika or to the Plaintiff. The Plaintiff was evidently under the care of her parents and it is not suggested that she was under the guardianship of Muthu Ibrahim till her marriage and thereafter.

Thus, no basis has been made out for the Explication of Section 88 or Section 90 of the Trusts Act, and consequently the purchase by Muthu Ibrthim of items 6, 7, eastern half of item 9 and item 10 must be held to be his self-acquisitions. We have no hesitation in differing from the learned Subordinate Judge''s findings on the point in paragraph 29 of his judgment.

It would follow from our findings that the Plaintiff has been ousted by Muthu Ibrahim and that, in any case, even if she was not ousted, she would not be entitled to any share in items 6, 7, eastern half of item 9, item 10 and in the shops, items 1 and 2. Assuming, however, for the sake of argument that she would be entitled to a share, her share would not be 7/24 as claimed by her. In the first place, we are not prepared to accept the averment in the plaint that Mohammed Sadakammal, the widow of Mohammed Mohideen Marakkayar, the common ancestor died prior to her daughter Yusuf Sulaika Ammal. Exhibit A-4 is the judgment in Appeal Suit No. 302 of 1907, on the file of the District Judge of Madurai, preferred by Mohideen Abdul Kader Marakkayar, the son-in-law of Mohammed Mohideen Marakkayar against the dismissal of his suit Original Suit No. 17 of 1905. The cause title of exhibit A-4 (see page 34 of the printed papers) mentions that Mohammed Yusuf Sulaika Ammal the eighth Defendant was then dead, but it shows that Mohammed Sadak Ammal was still alive. If Mohammed Sadak Ammal was alive when Yusuf Sulaika Ammal died, Mohammed Sadak Ammal would also be an heir to the 7/24 share of Yusuf Sulaika Ammal and the calculation of the shares in the plaint on the basis that Mohammed Sadak Ammal had predeceased her daughter is wrong.

Secondly, we are not impressed by the evidence of the Plaintiff that her sister Mohammed Seeni Ammal�s husband Mohideen Thambi Marakkayar made an oral gift of the share which he inherited from his wife iii in favour of the Plaintiff. It is significant that in the suit notice exhibit A-10 no reference is made at all to Seeni Ammal and to this alleged oral gift. Exhibit A-10 proceeds on the footing that on the death of Yusuf Sulaika Ammal her only heirs were the Plaintiff and her husband. It is easy to allege such an oral gift, but obviously it requires to be proved by reliable evidence. We have also seen that the Plaintiff had no subsisting share in her grandfather''s estate at the time of the alleged death of Mohammed Seeni Ammal in 1932, and that again makes the oral gift in favour of the Plaintiff improbable, because the oral gift proceeds on the assumption that Seeni Ammal had a subsisting share in her grandfather''s estate.

Another point which has to be made in respect of the Plaintiff�s share is that it appears from the Plaintiff''s evidence that she had a brother by name Sadakathullah but that he died issueless. This is also borne out by the fact that in the cause title in exhibit A-4 one Mohammed Sadakathullah was impleaded as the 13th Respondent as one of the legal representatives of the deceased Mohammed Yusuf Sulaika Ammal. Mohammed Sadakathullah mentioned therein was evidently the brother of the Plaintiff. Thus on Yusuf Sulaika Animal''s death Sadakathullah had also a share and that again would render incorrect the quantum of the shares according to the plaint which does not make mention of him as an heir of Yusuf Sulaika Ammal.

Lastly we have to make reference to the contention of Defendants 1 to 5 that the gift under exhibit A-8 by the step-mother of the Plaintiff and the stepmother''s children would be invalid as offending the doctrine of musha. It is not correct, because one of the exceptions against the prohibition of undivided share is when a gift is made in favour of a sharer and the Plaintiff, on the assumption that she was not ousted, would be a sharer. (Vide Mulla''s Muhammedan Law, Section 160, exception 1--page 151 of the sixteenth edition). It is unnecessary to calculate the share to which the Plaintiff would be entitled, on our findings recorded above, namely, that Mohammed Sadakammal survived Yusuf Sulaika Ammal, that the oral gift in favour of the Plaintiff by Seeni Animal''s husband is not true and that the Plaintiff had a brother Sadakathullah, who, however, died issueless.

In the result, we set aside the preliminary-decree for partition in favour of the Plaintiff made by the learned Subordinate Judge, and dismiss the suit with costs of the contesting Defendants 1 to 5 and 8 in both the Courts. The appeal is allowed.

Ramamurti J.

I have perused the judgment of my learned brother and I entirely agree with his reasonings and conclusion. In view of the points raised, I wish to add this separate judgment dealing with some of the aspects.

I shall first deal with the genuineness of exhibit B-92, the unregistered release deed, executed by the Plaintiff�s mother in favour of her brother. This is covered by issue 5 and is dealt with in paragraphs 17, 18 and 19 of the judgment of the learned trial Judge. Apart from the scribe, there are five attesters to this document. As exhibit B-92 evidences a very ancient transaction, about sixty years old at the time of the trial, and as all the attesters and the scribe are deed, the Defendants sought to prove the genuineness of exhibit B-92 by examining D.Ws. 6, 7 and 8 who gave evidence proving the attestation of some of its attestors. For purposes of comparison of the signatures of the attesting witnesses in the course of the evidence, the attention of these witnesses, D. Ws. 6, 7 and 8, was also drawn to some documents, exhibits A-11, A-14, A-17, B-7, and B-8. In establishing the genuineness of exhibit B-92, the:

Defendants 1 to 5 relied upon a family arrangement according to which Muthu Ibrahim married Ummu Salima Ammal, 9th Defendant (the sister of Mohammad Ismail Lebbai) and Mohammad Ismail Lebbai married Muthu Ibrahim''s sister (the Plaintiff�s mother) YusufSulaikaUmmal, and both the marriages took place at the same time and it was agreed to between the parties, that Muthu Ibrahim''s sister, the Plaintiff�s mother, should give up her rights in the estate of her father and similarly Muhammed Ismail Lebbai''s sister, Ummu Salima Ammal should give up her rights in her father''s estate. The Defendants� further case was that this family arrangement was acted upon and that the 9th Defendant executed a document of release in favour of Mohammad Ismail Lebbai and for the same reason a similar deed of release exhibit B-92, was executed by the Plaintiff�s mother. This essential background of a family arrangement culminating in the execution of the release deed/ exhibit B-92 was sought to be established by the Defendants by the evidence of the first Defendant, D.W. 5, as well as from the important admissions and answers elicited in the Plaintiff�s cross-examination. The contesting Defendants also relied upon the evidence of D.Ws. 7 and 8 who are aged 76 and 85 respectively and are common near relations of all the parties, Plaintiff and Defendants.

As I understand the reasonings of the learned trial Judge, he has attached almost decisive importance to the impressions which he had formed upon his comparison of the admitted signatures of the attesting witnesses in some of the documents and the signatures in exhibit B-92. Independent of exhibit B-92, the learned Judge has not bestowed any attention nor applied his mind to the crucial question whether the contesting Defendants have proved their case of the family arrangement which took place at the time of the two marriages and the mutual releases by the two daughters in the respective families. The learned Judge has not assessed the evidence adduced by the Defendants dehors exhibit B-92, which fully corroborates the execution of the release deed. In my opinion, this wrong perspective of approach completely vitiates the finding of the learned Judge. Whenever the execution of a deed, i.e., its genuineness, is disputed, the Judge must first examine the truth of the rival versions of the contending parties as to the background, purpose or object, to achieve which, the deed in question came to be executed ; the Judge should consider the probabilities of the case, the direct evidence touching the transaction and the other corroborative circumstances, for or against the truth of the deed, and it is only in the light of these considerations, the Judge should determine what degree of significance, he should attach to the light thrown by the comparison of handwritings and signatures either by the Judge himself or by an handwriting expert. For instance, in a suit on a promissory note, which is attacked as a forgery denying execution, if the Plaintiff adduces evidence of consideration for the note, consisting of entries in his account books, bank pass book and cheque counterfoil as well as oral evidence of a witness who is alleged to have been present at an earlier point of time when the debtor approached the creditor for the loan, the Judge will be completely misdirecting himself if he brushes aside the value of this evidence j and rests his decision upon his impressions of the comparison of the signatures. It is only very rarely, that, in the total absence of any other corroborative feature in the case that the Judge, ought to, and will be obliged to rest his judgment upon mere comparison of handwritings or signatures. In the instant case, a reading of the judgment of the learned Subordinate Judge shows that he has completely reversed the position and his perspective of approach is clearly wrong.

Though u/s 73 of the Evidence Act, it is open to the Court to compare the signature or writing in a disputed document with Mi at in admitted documents, it is necessary to advert to the note of caution repeatedly stressed in judicial decisions as to the value of the evidence of such comparison of signatures and writings. As observed by Jenkens C.J., in the leading decision in Barindra Kumar Ghose v. Emperor (1909) I.L.B. 37 Cal. 4067:

A comparison of handwriting is at all times as a mode of proof, hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts and a comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution.

Lawson in his book on Expert and Opinion Evidence has observed that:

it is of the lowest order of evidence or of the most unsatisfactory character.

I may also refer to the following observations of Lord Atkin in Kesarbai v. Jethabai Jivan AIR 1928 P.C. 277, 281:

They (their Lordships) would have thought it unsatisfactory and dangerous in any event to stake a decision in such a case as this, on the correct determination of the genuineness of a signature by mere comparison with admitted signatures, especially without the aid in evidence of microscopic enlargements or any expert advice.

In Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat and Others, the Supreme Court has pointed out that conclusions based on mere comparison of handwriting must at best be indecisive, and yield to positive evidence in the case. Again the Supreme Court emphasised in the decision reported in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, that evidence of comparison of handwriting and signature (even in the case of experts) is inconclusive and cannot take the place of substantive evidence and that the Court before acting on such evidence of comparison must consider whether such evidence is corroborated either by clear direct evidence or circumstantial evidence or the probabilities of the case. That such comparison of writings and signatures is permissible cannot be doubted in view of Section 73, but this should not be lightly resorted to, for the Judge, to stake his decision on mere comparison without considering other cogent evidence. If there is no other evidence or the other evidence is very meagre, unreliable or untrustworthy, the Court has of necessity to compare handwritings by using its own eyes or rely upon the assistance of handwriting experts. Vide statement of the law in Sirkarls evidence, pages 682 to 683 (1964, 11th edition.)

I shall, therefore, first consider the other corroborative evidence adduced by the Defendants on the question of the family arrangement.

[Portions in paragraphs 146, 147 to 151 omitted.]

There is yet another aspect which the trial Court has overlooked. While resting his judgment on comparison of signatures and writings, the Judge should have applied his mind to the numerous aspects mentioned above which have a bearing and he should not have concentrated upon any single aspect in isolation, upon one letter or a mark here or there. He should have applied his mind to the general pattern of the signature and the striking features in general. Naturally, for this, one must necessarily have a number of documents written or signed by the same person. This is totally lacking in the instant case. Further we have seen that in the case of Naina Mohammad, he has been signing differently in different documents. Without that data about striking similarities and a set pattern, there is no justification for the Judge to summarily reject the evidence of respectable witnesses related to the members of the family and who have given evidence in an impartial manner and rendered to the Court such assistance as they can, in arriving at the truth. The trial Judge has overlooked another important aspect, that, if such evidence is discarded lightly it will be almost impossible for parties to prove the genuineness of signatures in ancient documents which came into existence several decades back. We have not the slightest hesitation in holding that in this case, the Judge has not applied his mind to any of the important aspects mentioned above and his findings are wrong and cannot be accepted. We have perused the documents with care and we are satisfied that the evidence of D.Ws. 6, 7 and 8 should be accepted as proving beyond doubt the signatures of some of the attesting witnesses. We may also add that even if there should be any doubt in the matter, the corroborative evidence of the background of the family arrangement adduced by the Defendants is more than ample to hold that exhibit B-92 is genuine. [Paragraphs 153 to 157 omitted.]

For all these reasons, we are clear in our minds that the Defendants have established the genuineness of exhibit B-92 beyond all doubt.

I shall next deal with the question of ouster and exclusion of the Plaintiff assuming that exhibit B-92 is not genuine or is otherwise inadmissible for want of registration. The principles of law as to what amounts to ouster and exclusion of one co-owner by the other co-owners are well-settled and there is no need to refer to the wealth of case law, particularly after the clear exposition of the legal principles in the recent decisions of the Supreme Court. Vide the following observations of the Supreme Court in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, :

Now, the ordinary classical requirement of adverse possession is that it should be nee vi nee clam nee precario. See Secretary of State for India v. Debendralal Khan I.L.R (1933) Cal. 262. The possession required must be adequate in continuity in publicity and in extent to show that it is possession adverse to the competitor. See Badhamoni Debi v. Collector of Khelna (1900) I.L.B. 27 Cal. 943 . 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 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 co-heir 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. Appuhamy (1913) A.C. 230. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, 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 Varada Pillai v. Jeevarathnammal I.L.R.(1919) Mad. 244 quotes, apparently with approval a passage from Cidley v. Doe 113 E.R. 697, which indicates that such a situation may well lead to an inference of ouster if other circumstances concur. See also Dovindarao v. Rajabai (1930) 60 M.L.J. 386 (P.C.). It may be further mentioned that it is well-settled 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.

Even so, there is one aspect of the case law to which reference has to be made in view of the reliance placed by learned Counsel for the Plaintiff upon some decisions in which the law was stated in general terms that the sole and exclusive possession of one co-owner and the non-receipt of income by the other co-owner or his inaction in respect thereof for any length of time (note the adjective any) could not be regarded as amounting to ouster. It was further urged by learned Counsel for the Plaintiff that even if the Defendants� branch had been in sole and exclusive possession for about 60 years and there was no participation in the enjoyment of the properties and the receipt of their income by the members of the Plaintiffs branch that would not amount to ouster or exclusion. Learned Counsel relied upon the following observations of Vberaswami J., in a recent Bench decision reported in Kaliba v. Abdullah ILR (1963) Mad. 101:

It is well settled that possession in the hands of co-sharer of a property owned in common is possession on behalf of all the co-sharers. Implicit in this proposition is the further position in law that non-participation in the receipts from such immovable property or mere inaction in respect of it for any length of time on the part of one or more of the co-sharers is not regarded as amounting to ouster or as investing the possession in the hands of one of the co-sharers. It is only when acts are clearly proved on the part of the co-sharer in possession which would be inconsistent with any other co-sharer being entitled to any possession or interest in any part of the property, it can be said that any question of ouster of the co-sharers not in possession can arise. In the absence of such ouster there will be no room for adverse possession or prescription in favour of the co-sharer in possession.

It is necessary to notice the basic distinction between adverse possession as between strangers and ouster and exclusion of co-owners. In the case of adverse possession by a stranger, it is not necessary that the adverse possession should have been brought home to the knowledge of the owner. It is sufficient if the adverse possession be overt and without and attempt at concealment so that the person against whom time is running, ought, with the exercise of due vigilance be aware of what is happening. If his rights have been openly usurped, he cannot be heard to complain that that fact was not brought to his notice. If the possession is open, visible and notorious that the right of the true owner is invaded or the possession is so patent that the owner could not be deceived, and even then, if the owner remains ignorant or indifferent, it is his own fault. Observations in general turns in some of the cases to the effect that actual knowledge on the part of the true owner whose rights are invaded is an essential element of adverse possession are too widely expressed and do not represent the correct legal position. Reference may be made to the following observations of Lord MACMILLAN at page 266 in Secretary of State for India v. Debendralal Khan I.L.R.(1933) Cal. 262 :

As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord ROBERTSON in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna I.L.R.(1930) Cal. 943 where his Lordship said that:

the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

The classical requirement is that the possession should be nee vi nee clam nee precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships'' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.

Vide also Palania Pillai v. Ibrahim Bowther ILR (1943) Mad. 15 (F.B.) following the abovesaid observations of the Privy Council.

In the case of an ouster of a co-owner, the position is essentially different. It must be brought to the knowledge of the co-owner concerned, that his rights are invaded in open assertion of a hostile title. As amongst co-owners, there is unity of possession. Possession of one co-owner is presumed to be on behalf of all the co-owners. To constitute ouster, there must be something more than mere exclusive possession and a receipt of income. There must be, for an ouster, a hostile open denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners. This does not necessarily mean that the co-owner sought to be ousted or excluded should be informed or told as such by the other co-owners. Courts in proper cases may legitimately infer from the facts established that the excluded co-sharer had knowledge that bis title had been denied and repudiated by the hostile assertion of the other co-owner. I may refer to the following observations of Natesan J., in Ameer Bibi v. Ghinnammal (1967) 1 M.L.J. 461 where the learned Judge has observed that the Court can infer ouster if acts of adverse possession are sufficiently overt and from the attendant circumstances impute knowledge of hostile possession:

All the authorities make one 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.

This decision has been followed and referred to with approval in the latest Bench decision of this Court in Sinnaraj Pillai and Others Vs. Ramayee Ammal and Another, .

In evolving the aforesaid principles, the Indian Courts and the Privy Council have from very early times followed and applied the principles laid down in the decisions in England, that to constitute ouster, there should be proof of assertion of an exclusive hostile title and a denial or repudiation of the other co-owner''s right brought home to the latter''s knowledge and that mere exclusive possession would be insufficient. While the English Courts insisted upon this essential test of an actual ouster, they had at the same time, to deal with the situation of exclusive possession, for a considerable length of time, taking back to a time, beyond living memory, when it was impossible to prove by direct evidence, as to when the adverse possession started and when knowledge of assertion of hostile title was brought home to the other co-owner. The other principle of law and justice equally well-established, that no greater obligation lies upon a Court of justice than that of supporting long continued enjoyment by every means and by every legal presumption and the great reluctance of Courts to interfere with long established possession, had also to be taken note of. It is in this context of these two theories that eminent Judges in England, held, that ouster can well be presumed from exclusive possession of one co-owner and non-participation in the profits of the property by the other co-owner for a considerable length of time, for several decades or several generations, as, after such a length of time, hostile assertion and repudiation to the knowledge of the co-owner concerned cannot be proved but can only be inferred. English decisions, side by side, while insisting upon knowledge of ouster, have laid down, that an English jury can properly be directed to presume or infer an ouster from long continued possession without any claim or demand by the other co-owner. A presumption analogous to the theory of a lost grant, was invoked in such cases and knowledge and ouster presumed, in the view that, it would be dangerous to disturb or defeat the party''s long undisturbed possession for several decades. Courts in India have also uniformly applied the same principle, and presumed ouster, taking into account the attendant circumstances of the case, arid the long exclusive possession for a considerable length of time.

I shall first refer to the leading English decision of the year 1774 in Dog v. Prosser 98 E.R 1052. In that case the Defendant, a tenant in common, was in sole and exclusive possession of the land from the year 1734 and the action by the Plaintiff, the other co-tenant, was brought nearly 40 years later, i.e., in 1774. On behalf of the Plaintiff, it was urged that the mere exclusive reception of rents and profits by the Defendant for any length of time would not constitute ouster and this argument was not accepted and Lord MANSFIELD left it to the jury observing that it is for the jury to presume an ouster in the case of an uninterrupted possession and receipt of the rents and profits for over 40 years. Lord Mansfield observed as follows at page 1053:

It is very true that I told the jury, they were warranted by the length of time in this case, to presume an adverse possession and ouster by one of the tenants in common, of his companion; and I continue still of the same opinion--Some ambiguity seems to have arisen from the term "actual ouster", as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in by a rightful possession, and yet hold over adversely without a title. If he does, such holding over, under circumstances, will be equivalent to an actual ouster.

* * * *

It is a possession of near 40 years, which is more than quadruple the time given by the statute for tenants in common to bring their action of account if they think proper; namely; six years, but in this case no evidence whatsoever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the Plaintiff, or of any acknowledgment of the title in them, or in those under whom they would now set up a right. Therefore, I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that they did right in so doing.

ASTEN J., stated the law in these terms:

There have been frequent disputes as to how far the possession of one tenant in common shall be said to be the possession of the other, and what acts of the one shall amount to an actual ouster of his companion. As to the first, I think it is only where the one holds possession as such, and receives the rents and profits on account of both. With respect to the second, if no actual ouster is proved, yet it may be inferred from circumstances, which circumstances are matter of evidence to be left to a jury. Now in this case, there has been a sole and quiet possession for 40 years, by one tenant in common only, without any demand or claim of any account by the other, and without any payment to him during that time. What is adverse possession or ouster, if the uninterrupted receipt of the rents and profits without account for near 40 years is not?

Willes J. while emphasising the strict insistence of actual ouster, observed, with reference to the effect of long continuous possession, for several decades thus:

This case must be determined upon its own circumstances. The possession is a possession of 16 years above the 20 prescribed by the Statute of Limitations, without any claim demand, or interruption whatsoever; and therefore after a peaceable possession for such a length of time, I think it would be dangerous now to admit a claim to defeat such possession. However, strict the notion of actual ouster may formerly have been, I think adverse possession is now evidence of actual ouster and therefore entirely agree that under the circumstances which appears at the trial, it was very property left to the jury to presume an actual ouster in this case.

Ashhtjkt J., also made the following observations to the same effect:

I am entirely of the same opinion. Here is a possession of near 40 years, without any claim by the lessors of the Plaintiff to a share of the rents and profits, and without any acknowledgment of his right, by the other tenant in common.

After so long an acquiescence I think the jury were well warranted to presume anything in support of the Defendant�s title and they might presume, either an actual ouster or a conveyance.

* * * * *

But here it was left to the jury, and the jury have presumed an actual ouster; and I think that after a quiet uninterrupted and undisturbed possession of 40 years they were warranted in so doing.

The same rule was followed and presumption of ouster was inferred from continued exclusive possession for a very long period in a decision of the year 1840 in Culley v. Doe 113 E.R. 697. In that case the action in ejectment was brought by the Plaintiff, co-tenant, after an interval of about 35 years. On the question of long continued possession, Lord Denman C.J., observed at page 700 as follows:

Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant in common, has not been in participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster: as to which see the cases of Doe v. Proaser 98 E.R. 1052 Doe Dent Hellings v. Bird 11 East 49 and Doe Dem White v. Cuff 1 Campb. 173.

The principle of the aforesaid English decisions was applied from early times by all the Courts in India and even though there was no express evidence of the fact of ouster, ouster was presumed from long uninterrupted exclusive possession, after a long lapse of time. The leading decision which has been followed in all the subsequent cases is the early judgment of Jenkins C.J. in the Bench decision of the Bombay High Court in Gangadhar v. Par ashram I.L.R(1905) 29 Bom. 300. In that case, the lower Court upheld the plea of ouster on the ground that the Defendant, ever since the Plaintiff�s predecessor left the family house in 1857 was in sole possession of the property and there has been no participation by the Plaintiffs in the profits of the property and that no account was rendered to the Plaintiffs nor any demand was made by them for a period of 43 years till the suit was filed in the year 1901. It was held that after such long acquiescence, it was right to presume ouster. This view has been uniformly taken by the Bombay High Court-Vide Chandbhai Mahamadbhai v. Hasanbhai Bakimtoola I.L.R.(1921) 46 Bom. 213 and Mulji Narotam v. Hiralal AIR 1929 Bom. 424.

The same view was taken in the Calcutta High Court. In a Bench decision reported in Ayenenussa Bibi v. Sheikh Isuf 16 C W.N. 849 : 14 I.C. 772 the principle of the aforesaid English decisions and the decision in Gangadhar v. Parashram (1905) ILR 29 Bom. 300 was followed. SIR Lawrence Jenkins C.J., delivered the judgment of the Bench and after observing that there must be exclusion and that mere non participation in rents and profits would not by itself necessarily amount to ouster, observed as follows:

Accepting this statement as the legal position the only other question that arises is what is sufficient evidence of exclusion. To my mind, this must depend upon the circumstances of each case. I am prepared to repeat what I have said in a previous case that mere non-participation in rents and profits would not necessarily of itself amount to an adverse possession, but such non-participation or non-possession may, in the circumstances of a particular case, amount to an adverse possession. Regard must be had to all the circumstances a most important element is the length of time. In this connection, I cannot do better than refer to what was said by Lord Mansfield and the other Judges in Doe v. Prosser 98 E.B. 1052 and the statement of the law by Lord Denman in Culley v. Doe 113 E.B. 697. For convenience of reference, I may say that quotations from these cases may be found in Gangadhar v. Parashram (1905) I.L.B. 29 Bom. 300, Bandacharya v. Shrinivasa Charya (1903) 5 Bom. L.R. 743. The circumstances that have to be taken into consideration appear to me to be these, among others, the relationship of the parties, their position the mode of life in the particular community to which the parties belong, the character of the property and other circumstances of a similar character.

It is important to notice that the learned Chief Justice has stressed that the most important element is the length of time. The aforesaid Bench decision of the Calcutta High Court was followed in all the subsequent decisions--vide Gobinda Chandra Bhattacharjee v. Upendra Chandra Bhattacharjee I.L.R.(1919) Cal. 274 and Jogendranath v. Rajendranath AIR 1922 Cal. 54. Reference may also be made to the Bench decision of the Calcutta High Court in Mahendra Nath Biswas Vs. Charu Chandra Bose and Another, where following the decision in Ayenenussa Bibi v. Sheikh Isuf 16 C.W.N. 849 : 14 I.C. 772 ouster was presumed, when the Defendants were in possession from 1892 and the suit was filed 32 years later, in the year 1924.

The same view was taken in the Patna High Court, following the principle of the aforesaid cases. � Vide : Padma Pande v. Ram Sarup Pande AIR 1920 Pat. 260 in which ouster was presumed in the case of exclusive possession for over 25 years. The Court observed that the sole possession and enjoyment of profits by one co-owner continuously for along period without any claim or demand by the other co-owner is evidence from which on actual ouster of the other co-owner may be presumed. Reference may be made to a Bench decision of the same Court in Ramlakhan Singh Vs. Bhaia Chathu Sahi and Another, , in which it is observed that even though possession of one co-owner is on behalf of all, if the claimant owner has been out of possession and had not been in participation of rents and profits for a long lapse of time, the Court may draw the presumption of ouster from such long lapse of time in the light of the attendant circumstances of the case.

The same view was taken by the Rangoon High Court. In Maung Hla Po v. Manika AIR 1940 Rang. 141 while observing that regard must be had to all the circumstances, and the most important element is the length of time, it was held that the sole possession of a co-owner for over a period ranging between 30 and 40 years during which time that co-owner enjoyed all the benefits arising out of the property and he alone paid taxes, the other co-owner not being in participation of any income, it was right to presume and infer ouster--(ride observations page 143).

The principle laid down in Doe v. Prosser 98 E.R. 1052 and in Gangadhar v. Parashram I.L.R.(1905) 29 Bom. 300 was followed and the same rule of presumption applied in the Madras High Court. In a Bench decision in Bapatla Venkata Row Vs. Bapatla Venkoba Row and Others, , from 1857, the other co-tenant and his late father have been treating the property as their own, putting up buildings, effecting improvements and the Plaintiff, co-tenant was not in participation of the rents and income during this long lapse of time despite the need for the same. The Bench observed as follows.

All this goes back a long way and appears to indicate a regular course of conduct. In a case like this, even when there is no evidence of ouster at a particular time it is not unreasonable that we should infer an ouster as an explanation of the facts as we find them. That that may be done was laid down in Gangadhar v. Parashram ILR (1905)29 Bom. 300 it is based upon a very old authority relating to tenants in common which may be applied in a case like this, namely Doe v. Prosser 98 E.R 1052 a case heard by Lord Mansfield in 1774 and that principle has also been recognised in Ahmuddin Tamijuddin v. Amiruddin (1918) 44 I.C. 216, a case of the Calcutta High Court and Padme Pande v. Bam Sarup Pande AIR 1920 Pat. 260, a case of the Patna High Court.

So far as this Court is concerned, it is sufficient to refer to the decision of Venkatarama Iyer J., as a Judge, of this Court, reported in Maddela Krishnayya Vs. Maddela Udayalakshmamma and Others, In that case, the exclusive possession and non-participation was only for a period of 18 years and in the light of the attendant circumstances of the case it was held ouster had not been established. The learned Judge has adverted to the English decisions as well as the decisions of several High Courts in India in which it was held that ouster can be presumed from long lapse of time. It is necessary to extract the following observations at pages 246 and 247, where reference to the theory of lost grant is made:

These cases do not mark any departure from the well-settled principle that to establish adverse possession against co-owners there must be denial of their title to their knowledge and that it is not sufficient merely to prove non-participation by them in profits. When possession dates back to a time beyond living memory and it becomes impossible to prove by direct evidence that the original co-owners had knowledge of the denial of their title and the attendant circumstances are in accord therewith a presumption of ouster can be made. In Doe v. Prosser 98 E.R. 1052, Ashhurt J., put the matter thus:

After so long an acquiescence I think the jury were well warranted to presume anything in support of the Defendant�s title, and they might presume, either an actual ouster or a conveyance.

The Presumption is thus analogous to one of a lost grant and is not to be applied when the transactions are recent and the primary parties are alive. No case has been cited where the presumption has been drawn when the action was between the orignal co-owners and when period of non-participation was only 18years. In Chandhai Mahamadbhai v. Hasaribhai Rahim-toola (1921) I.L.B. 46 Bom. 213, where the non-participation was for a period longer than in the present case the Court refused to draw this presumption and distinguished the case in Gangadhar v. Parashram I.L.R.(1905) 29 Bom. 300 on the ground that the exclusion there was for a period of 50 years.

I may next refer to the Bench decision of the Andhra Pradesh High Court reported in Peeran Sahib v. Jamaluddin Sahib AIR 1958 A.P. 48. Subba Rao as Chief Justice of that Court has delivered the judgment of the Bench and applied and followed the principle laid down in Fishar''s Case 98 E.R. 1052 and Gangadhar v. Parashram I.L.R.(1905) 29 Bom. 300. After examining the case law, the learned Chief Justice stated the law in these terms at page 53:

It is not necessary to multiply cases as the law is well settled. The possession of one co-owner is the possession of all co-owners. 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 but could only be inferred.

It may be convenient at this stage to refer to the decision of the Privy Council in Varada Pillai''s case Varada Pillai v. Jeevarathnammal (1919) ILR Mad. 244 where also Viscount Cave, has, at page 252, referred to with approval the observations of Lord Dbnman C.J., in Culley''s case 113 E.R. 697.

I have already extracted the relevant passage in the statement of the law by the Supreme Court in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, . There too, the Supreme Court has emphasised that proof of ouster does not necessarily mean that there should be express demand by one a ad denial by the other and that adverse possession and ouster can well be inferred from exclusive possession for a very considerable length of time, the excluded co-sharer taking no steps to assert his right. It is important to notice that the Supreme Court has referred to with approval the observations of the Privy Council in Varada Pillai''s case I.L.R.(1919) Mad. 244 where Viscount Cave has quoted the observations of Lord Denman C.J., with approval.

From this analysis of the case law (English and Indian), it is seen that a presumption of ouster may be drawn from long continuous exclusive possession by a co-owner in the light of the attendant circumstances of the case, i.e., other circumstances concur. In other words, knowledge of ouster is imputed to the other co-owner in the light of the other circumstances of the case coupled with long continuous exclusive possession by one co-owner. The principle underlying this rule is that if the Plaintiff sleeps over to assert his rights for a long interval of time, the Defendant should not suffer or be handicapped on account of the disappearance of evidence; necessarily, every presumption should be made to support the right or title of the Defendant to possession, which means, title acquired by adverse possession consequent upon ouster of the other co-tenant. The attention of the Bench deciding the case in Kaliba v. Abdulla (sic) was not drawn to this line of decisions dealing with the presumption of ouster resting upon long lapse of time and we are not inclined to treat this decision as laying down a contrary rule, that exclusive possession, for any length of time, will have the same significance or consequence as ouster for a shorter period, though exceeding 12 years. In that case ouster, if at all could have commenced only in 1945 and the suit itself was filed in 1958. It was a case of assertion of a co-owner of his rights just beyond 12 years and the Bench had no occasion to consider the question of long exclusive possession giving rise to presumption of ouster. Indeed, the facts of that case rule out any scope for any such argument. It is unnecessary to examine the other decisions, in which too, the law was stated in these general terms, that exclusive possession for any length of time would not constitute ouster as in all those cases, the question came up for consideration within a short time after the expiry of 12 years.

In the instant case, in addition to lapse of a long period of 60 years, what are the other attendant circumstances [Portions in Paras 173 and 174 omitted.] It is only in 1957, that the Plaintiff had filed this action at the time of the payment of the compensation of the Palkulam estate. The aforesaid course of conduct of the rest of the members of the family for about six decades constitutes compelling attendant circumstances so as to lead to the irresistible inference of ouster and exclusion.

No useful purpose would be served by dealing with individual cases, in which, on the facts, a particular inference (for or against) was drawn on the question of ouster. It is, however, necessary to refer to the Bench decision of the Nagpur High Court in Fardosjahan Begum v. Shafiuddin ILR (1942) Nag. 781 relied upon by Counsel for the Plaintiff as lying down a very strict standard of proof in the case of a Mahomedan family consisting of pardanashin women. In that case, the dispute arose in the year 1926, concerning the claims to the estate of one Babar Ali who died in 1882. The fact in that case showed that the sister became a widow when she was very young and she was throughout residing with her brothers who were looking after and maintaining her, thus ruling out any theory of exclusion. It was also found that she was not aware of the acts that were done by her brothers affecting the estate, like leases, mortgages, etc. The Bench took the view that considerations on the basis of which Courts refused to recognise a custom excluding females in their right of inheritance would equally apply to the question of ouster. The Bench adverted to the practice in India of women in a Mahomedan family leaving to the males, the whole management of the family property including their (the women''s) share and being content not to demand what they are entitled to but receive only such maintenance as the males would give and also receive provision for the expenses of the marriage. The Bench quoted with approval the observations in Mirabivi v. Vellayanna I.L.R (1885) Mad. 464 and observed at page 788:

In our opinion, one can no more prove ouster than one can prove custom to exclude by merely showing that in fact the women have been content to be looked after and have not inquired and have not been told what is being done by the males as regards the shares.

In the same way we are satisfied that such evidence as the acts of granting leases or mortgages. amounts to nothing as against a Mohammedan female co-owner; that she would not know of any of these things; and it would indeed, in our opinion, be strange if the law were such as to say to a purdah woman, who had never had the slightest suggestion made to her that she was being excluded, You have waited for 12 years in ignorance and now you and your children are paupers.

These observations support the Plaintiff only to the limited extent that the standard of proof of ouster in the case of a Mohammedan family where pardanashin females solely depend upon the male co-sharers and this environment of dependency is an attendant circumstance reacting against the plea of ouster. But this decision does not mean that no inference of ouster can be drawn in the case of a Mohammedan family consisting of males and pardanashin females regardless of circumstances of the case. In the instant case, the Plaintiff�s mother and later on the Plaintiff, had long ago been married; she was living with her husband and her own family; the Plaintiff claimed to have been receiving her share of the income (which was found to be totally false) her father, in fact, made an attempt to obtain possession of some properties in which he failed; the Plaintiff�s husband by taking an assignment in 1933, acknowledged the exclusive right asserted by Muthu Ibrahim, etc., etc.,--all of which show that the instant case is not such a timid affair as in the Nagpur case.

It only remains for me to deal with the contention of Mr. Gopalaswami Iyengar that the unregistered release deed, exhibit B-92, cannot be used by the Defendants to show that from the date of exhibit B-92, the possession of Muthu Ibrahim was sole and exclusive possession on his own behalf and not a joint possession on behalf of his sister or her children as well. He urged that after the decision of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan Singh and Others, an unregistered deed concerning immovable properties exceeding the value of Rs. 100 cannot be relied upon to show that a change had taken place, with regard to the character or nature of possession as between the parties concerned. He urged that a careful examination of the observations in the Supreme Court decision requires a restricted application of the ratio decidendi of the decision of the Privy Council in Varada Pillai''s case Varda Pillai v. Jeevarathnammal ILR (1919) Mad. 244 and the decision therein should be strictly confined to the facts of that case. Learned Counsel also urged, that the Defendants, by using this document to make out that from 1906, the character and nature of possession of Muthu Ibrahim changed, (from that of co-owner into one as sole and exclusive owner) are not using the document as evidence of any collaterial transaction within the meaning of the proviso to Section 49 Registration Act but the Defendants are trying to use exhibit B-92 as evidence of the very transaction. According to learned Counsel, the Defendants would be establishing the change in the character of possession only by proving the release deed, exhibit B-92, i.e., that from 1906, onwards, the Plaintiff�s mother relinquished or gave up her rights and walked out of the picture thereby agreeing that Muthu Ibrahim was the sole owner. In other words proof of this change in the nature or the character of possession, inseparably and necessarily involves proof of the transaction of the release in a substantial measure. My learned brother has dealt with all the aspects of this argument and I entirely agree with him. However, on the scope of the proviso to Section 49 of the Registration Act, I desire to express my views.

It is true that in the Privy Council case Varada Pillai''s case I.L.R.(1919) Mad. 244 the gift was oral and there was, therefore, no question of the recitals in an unregistered deed of gift being used to show the character of possession of the donee or even being used as evidence of any collateral transaction within the meaning of the proviso to Section 49 (assuming the proviso was in the statute at that time in 1919). It should be borne in mind that in that case, the statements contained in the petition to the Collector of Chingleput for transfer were relied upon to show the change in the character of possession in pursuance of the oral gift. Even so, this decision has been uniformly understood for over four decades and applied by all the subsequent decisions (whether of the High Courts or the Privy Council or the Supreme Court) as authority for the position that an unregistered document creating or transferring an interest in immovable property would be admissible and could be looked into for the purpose of showing that in pursuance of that unregistered document there had been a change in the character or the nature of the possession.

Section 49 of the Registration Act (hereinafter called the Act) is on these terms:

No document required by Section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall:

(a) affect any immovable property comprised therein, or

[Sub-section (b) omitted as not relevant and further discussion herein as though there are only two sub-sections to Section 49].

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.

No elaborate discussion of the proper interpretation of the scope of Sub-sections (a) and (c) of Section 49 is necessary in view of the exposition of the law in the Full Bench case reported in Muruga Mudaliar v. Subba Reddiar ILR (1951) Mad. 473 (F.B.), in which the majority held that an unregistered agreement of lease could be used in evidence to prove the extent of damages sustained by the Plaintiff. The prohibition against the admissibility, of the unregistered document enacted by Section 49 is not an absolute one; this prohibition renders the unregistered document inadmissible only for the (sic) purposes specified in the Section, (i) for the p pose of affecting any immovable property comprised therein, or, (ii) for being received as evidence of any transaction affecting such property. The restriction against admissibility must be strictly confined to situations envisaged by Sub-sections (a) and (c) and ought not to be extended beyond those limits. Sub-section (a) enact the substantive law that the document shall no have any effect on immoveable property and Sub-section (c) deals with the law of procedure as to the admissibility of this document as evidence of any transaction affecting such property. In order to hold that the use of the document is as evidence of any transaction affecting immovable property, it is necessary that the document should form the foundation of the suit of the Plaintiff and the Plaintiff�s title and rights should be established under that document. To put it negatively, if the document is not the foundation of the suit of the Plaintiff and if the Plaintiff does not seek to establish his right or title under that document, the prohibition in Sub-section (c) would not be attracted. In the Full Bench case, the majority took the view that using the document for determining the measure of damages, the document is not used in evidence in any manner affecting the immovable property, i.e., the document is used for some purpose other than the one prohibited by Sub-section (c). Before I proceed further, it is necessary to advert to the vital change that was effected in the Registration Act, Act III of 1877, consequent upon the hardship which the Privy Council in Futteh Chund Sahoo v. Leelumber Singh Doss (1871) 14 M.I.A. 129 pointed out on account of the wide language in the earlier Act, Act XX of 1868. In the earlier Act, Section 49 declared that no instrument required by Section 17 to be registered shall be received in evidence in any civil proceeding in any Court unless it had been registered. The prohibition against the reception of the document was absolute. It could not be received in evidence altogether for any purpose. The injustice or hardship arising out of the absolute prohibition was mitigated by a vital change in the language in the later Act of 1877 (which is retained in the present Act). The prohibition under the present law is not against the document being received in evidence, but against the document being received as evidence of any transaction affecting such property. Under the present section, the restriction against the admissibility of the document in evidence is very limited and narrow ; the restriction is the admissibility of the document in evidence of any transaction affecting immovable property, i.e., it can be used in evidence for purposes other than that mentioned in Sub-section (c). In appreciating the reasonings constituting the majority view in the Full Bench case it is necessary to bear in mind that both Rajamannak C.J., and Satyanarayana Rao J., held that the document is admissible in the view that Sub-section (c) did not apply. Though in their judgments, there is some reference to the proviso to Section 49, they did not hold that the unregistered document would become admissible under the proviso. They rested their decision on the scope of Sub-section (c). Pan-Chapakesa Sastky J., in his dissenting judgment took the view that the unregistered document would come u/s 49(c) of the Act in the view that the relief of damages could be awarded only after finding out the scope of the agreement which binds or concerns or touches the lands, i.e., as affecting immovable property within the meaning of Sub-section (c). He too rested his judgment only on the operation of Sub-section (c). In that case, Counsel for the Plaintiff (the Appellant) conceded that the Plaintiff cannot invoke the benefit of the proviso; even so, after recording that concession, Panchapa-Kesa Sastry J., went on to discuss the scope of the proviso and expressed his view that there was no collateral transaction as evidence of which the un registered agreement could be used within the mean in of the proviso--wide observations at pages 514 and 515. Viswanatha Sastry J., in a major portion of his reasoning was inclined to hold that the prohibition in Section 49(c) would apply on the ground that the document was sought to be used in evidence as affecting immovable property. But the learned Judge, in view of the decision of the Full Bench of this Court in Rajah of Venkatagiri v. Narayana Reddi I.L.R (1894) Mad. 456 (F.B.), and the observations of the Judicial Committee in M.E. Moolla Son''s case I.L.R.1932) Rang. 242 agreed with the conclusion of the majority view. He also held that the proviso would not apply.

I shall next take up the question of the proper interpretation of the words or as evidence of any collateral transaction not required to be effected by registered instrument in the concluding portion of the proviso. If these words are unambiguous, clear and explicit, the plain language will have to be given effect to and there is no need to invoke any rules of interpretation of statutes. If the words are susceptible of more than one meaning, rules of interpretation will come into play and it is here that some preliminary observations require to be made. It must be borne in mind that the words extracted above form part of a proviso and rules which apply to the proper interpretation of a proviso will have an important bearing. Again, the proviso itself did not exist originally as part and parcel of Section 49. It was introduced by way of a distinct amendment which has got a prior legislative history. The true interpretation of the proviso and its scope will have to be determined as an amendatory law. Thus, in arriving at the proper interpretation of the words two aspects have to be borne in mind, (i) the words are found in a proviso; and (ii) the proviso itself came in by way of an amendment to a section in the Act.

It is well established rule of law that in the case of an amendment of an existing statutory law, there is a presumption that the Legislature does not intend to make violent or substantial changes in the law beyond what the Legislature declares either by express words or by clear indication. The statute by way of an amendment should be construed in conformity with the existing scheme and existing principles of the law unless the Legislature has expressed its contrary intentions with irresistible clearness.

An amendatory law is one which operates upon particular defects in an existing law without disturbing the general framework thereof vide volume I American Jurisprudence, page 16. Sir John Romtlly M.R., observed in the leading case in Minet v. Leman 52 E.R. 600:

The general words of the statute are not to be construed as to alter the previous policy of the law unless no sense or meaning can be put upon those words consistently with the intention of preserving the existing policy untouched.

Vide Hewitt v. Hewitt (1952) 2 All E.R. 255 where this principle has been applied. I may also refer to the following statement of the law in Maxwell on Interpretation of Statutes (11th edition, page 78):

One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually intended. Genera words and phrases, therefore, however, wide and comprehensive they may be in their literal sens must usually, be construed as being limited to the actual objects of the Act.

To the same effect is the following statement in Halsbury''s Laws of England, volume XXXVI third edition, page 412, paragraph 625:

Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law, or to alter completely the character of the principal law contained in statutes which they merely amend.

It is convenient at this stage to refer to the rule as to proper interpretation of a proviso. In construing a proviso, it may generally be presumed that, but for the proviso, the subject-matter dealt with by the proviso, would be governed by the main substantive portion of the section. The proviso may generally be presumed to except and carve out, something, which would otherwise be comprehended by the main section. In view of this, the scope of the proviso must always be restricted and related to the ambit of the main enactment. But this is not a uniform inflexible rule. There may be instances in which the proviso in a statute is unrelated to the scope of the main enactment and the proviso may deal with other matters so as to constitute in itself a distinct substantive provision dealing with an independent topic not necessarily carved out from the substantive enactment. Again in certain circumstances, the proviso may consist of two limbs, one portion being an exception or a qualification of something carved out from the main enactment and the other portion constituting a substantive independent provision--Vide Rhondda Urban Council v. Taff Vale Railway Co. (1909) A.C. 253. It cannot be always assumed that what is covered by the proviso would, but for it, come under and be--governed by the main section. It is sufficient to refer to two recent decisions of the Supreme Court. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, , Hidayatullah J., as he then was, stated the rule, at page 1600, thus:

The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the section.

In Ishverlal Thakorelal Almaula Vs. Motibhai Nagjibhai, , dealing with the proper interpretation of a proviso, Shah J., observed as follows:

The proper function of a proviso is to except or, qualify something enacted in the substantive clause which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject matter 6f the proviso. But the question is one of interpretation of the proviso; and there is no rule that the proviso must always be restricted to the ambit of the main enactment. Occasionally in a statute a proviso is unrelated to the subject matter of the preceding section, or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein, and not as qualifying the main or the preceding section.

Whether the proviso is construed as an exception to the main enactment or as a substantive provision, the rule of harmonious construction would still apply. Subba Rao J., as he then was, adverted to this rule in the following terms in Commissioner of Income Tax, Madras Vs. Ajax Products Ltd. through its Liquidator, , at page 1363:

There may be cases in which the language of the statute may be so clear that a proviso may be construed as a substantive clause. But whether a proviso is construed as restricting the main provision or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment.

A brief reference to the historical background of the proviso is necessary. In view of Section 17(2)(v) of the Registration Act read with Section 54, explanation of the Transfer of Property Act, a mere agreement to sell immovable property does not require to be registered. Section 17(2) enumerates transactions which do not require to be in a registered document and an agreement of sale is regarded as coming under the exemption Section 17(2)(v), on the ground that that document by itself does not create any right, title or interest in immovable properties but merely creates a right to obtain the execution of another document, i.e., a sale deed, which alone creates rights in immovable properties. But if in pursuance of the written agreement of sale, a portion of the purchase price had been paid, the buyer becomes entitled to a charge u/s 55(6)(b) of the Transfer of Property Act over the property agreed to be sold in respect of the purchase price pre-paid. There was divergence of judicial opinions on the question that even in the case of an agreement of sale accompanied by a payment of a portion of the purchase price, the document would be exempted by Section 17(2)(v), the Madras High Court however, taking the contrary view that the agreement would require registration and would not be governed by the exception. The Madras decision was rendered under the Act of 1877 Section 17(h) corresponding to the present Section 17(2)(v) of the Act of 1908]. In Dayal Singh''s case, reported in Dayal Singh v. Indar Singh (1926) 51 M.L.J. 788 , the Privy Council preferred the view of the Madras High Court and held that an agreement of sale which recites the receipt of a portion of the pre-paid purchase price would require registration. It is important to notice that Viscount Dunedin specially adverted to the exempting provision Section 17(2)(v) of the Registration Act--emphasising that the document was not a sale but merely an agreement to sell, but nevertheless observed that the document required registration because of Section 55(6)(b) of the Transfer of Property Act which conferred upon the buyer a charge amounting to the creation of a right affecting immovable property within the substantive provision in Section 17(1)(b). In view of this decision of the Privy Council, the Legislature relaxed the rigour of the law by immediately introducing an amendment by way of an explanation to Section 17, by Section 2, Registration (Amendment) Act of 1927. While adverting to the off shoot of the decision of the Privy Council in Dayal Singh''s case (1926) 51 M.L.J. 788 Satyanarayana Rao J. made these observations at page 486:

The proviso was added by the amending Act, Act XXI of 1929. Until the decision of the Judicial Committee in Dayal Singh v. Indar Singh (1926) 51 M.L.J. 788 it was considered that an agreement for the sale of immovable property containing an acknowledgment of receipt of part of the purchase price paid by the buyer as earnest money did not require registration. The decision in Dayal Singh''s case (1926) 51 M.L.J. 788 however, revolutionised the law, notwithstanding the clear provision in Section 54 of the Transfer of Property Act that a contract for the sale of immovable property does not by itself create any interest or charge on such property. This decision was pronounced in 1926. Immediately it was realised by the Legislature that this view was erroneous and caused great hardship, with the result that an Amending Act, Act II of 1927, was passed, by which an explanation was added to Section 17.

Adverting to the same aspect, it was observed by Viswanatha Sastri J. at page 526 as follows:

Courts in India, however, held that a contract for sale of land was merely a document creating a right to obtain another document and was exempted from registration by Section 17(2)(v) of the Act, even though it contained an acknowledgment of earnest money or receipt of part payment of the price. These decisions were upset by the Judicial Committee in Dayal Singh v. Indar Singh (1926) 51 M.L.J. 788 but the Legislature promptly nullified the effect of this decision and restored the previous view of the law by adding an explanation to Section 17 of the Act in 1927.

With great respect to the learned Judges, I am of the view, that the aforesaid observations do not correctly sum up the historical background of the amendment of 1927. On the question whether an agreement of sale containing a recital of the receipt of the part of the purchase price required registration, there was undoubtedly sharp divergence of opinion, Bombay and some Courts taking the view that it did not require registration while Madras and other Courts took a different view. The Privy Council resolved the conflict by holding that such an agreement of sale required registration and would not be exempted u/s 17(2)(v) of the Registration Act. In fact the Privy Council expressly observed that a mere agreement of sale would be exempt from registration u/s 17(2)(v) and that the necessity for registration arose only because of the impact of Section 55(6)(b) of the Transfer of Property Act. The Judicial Committee further referred to the Transfer of Property Act and there is no justification for the aforesaid observations (of Satyanarayana Rao J. Viswanatha Sastri J.), that the Privy Council either overlooked Section 54 of the Transfer of Property Act or the law laid down was contrary to Section 54 of the Transfer of Property Act. In 1927, what the Legislature did was to mitigate the rigour and afford relief against the hardship arising out of two statutory provisions with contrary effect, Section 17(2)(v) of the Registration Act and Section 55(6)(b) of the Transfer of Property Act read with Section 17(1)(b) of the Registration Act. The suggestion in the aforesaid observations that as though [prior to Dayal Singh''s case (1926) 51 M.L.J. 788 all the High Courts had taken a uniform view that an agreement of sale though acknowledging receipt of the part of the purchase price did not require registration is not quite accurate. Vide for the contrary view Ramasami v. Ramasami I.L.R.(1882) Mad. 115 followed in Adakkalam v. Theethan I.L.R.(1889) Mad. 505.

In Skinner''s case James Skinner v. R.H. Skinner I.L.R (1929) All. 771 the Plaintiff claimed specific performance under an unregistered document. The Subordinate Judge dismissed the suit taking the view that the document in respect of which the suit was filed was a sale deed under which an interest in immovable property was created as coming within the meaning of Section 17(1)(b) of the Registration Act. But on appeal, the Allahabad High Court reversed that decision and decreed the suit in the view that the relief of specific performance could be granted treating the document as an agreement of sale. On appeal to the Privy Council, the decision of the High Court was reversed. The Judicial Committee referred with approval, to the view taken in some of the High Courts Satyanarayana v. Chinna Venkata Rao I.L.R.(1925) Mad. 302 and Ramling Parwatayya v. Bhagwant Sambhuappa ILR (1925) 50 Bom. 334, etc. to the effect that an unregistered sale deed which creates a present right in immovable property cannot be construed as a mere agreement to sell for awarding the relief of specific performance. SIR George Lowndes observed as follows at page 778:

In the present case, the document under consideration, in addition to creating an interest in the immovable property concerned, provides as one of the terms, and therefore as an integral part of the transfer, that the vendor should, if the vendee so requires, execute a registrered sale-deed, and it is contended for the first Respondent that, notwithstanding the non-registration, he can sue upon this agreement, putting the document" in evidence as proof of it. Their Lordships are clearly of opinion that this is within the prohibition of the section. They think that an agreement for the sale of immovable property is a transaction "affecting" the, property within the meaning of the section, inasmuch as, if carried out, it will bring About a change of ownership. The intention of the Act is shown by the provision of Section 17(2)(v), which exempts from registration, and therefore frees from the restriction of Section 49, a document which does not itself create an interest in immovable property, but merely creates a right to obtain another document which will do so. In the face of this provision, to allow a document which does itself create such an interest to be used as the foundation of a suit for specific performance appears to their Lordships to be little more than an evasion of the Act.

From the above observations, it is clear, that the Privy Council has specially adverted to the legal position that an agreement of sale though may be a transaction affecting immovable property, does not require registration because of Section 17(2)(v) and that, in that case, the document ought not to be construed as merely creating a right to obtain another document u/s 17(2)(v) but that the document itself created an interest in immovable property in present. Here again, to mitigate the hardship that would arise as a result of this view, the Legislature, in 1929, amended Section 49 by introducing the proviso u/s 10 of the Transfer of Property Act (amendment) Supplementary Act, 1929. A perusal of the relevant portions of the Gazette for the period containing the proposed Bill and the views of the members of the Select Committee shows that there was considerable difference of opinion about the advisability of the relaxation of the provisions of the Registration Act, on the question of accepting the doctrine of part performance and on the question as to how far a document which requires registration could, however be used as involving mere-agreement on which relief of specific performance could be awarded. Ultimately by virtue of the amendments which took place in 1929, Section 53-A of the Transfer of Property Act was enacted and the proviso to Section 49 of the Registration Act was introduced. Here too, the following observations of Satyanarayana Rao J. at page 489 in Muruga Mudaliar v. Subba Reddiar ILR (1951) Mad. 473 (F.B.) in summing up the substance of the Privy Council decisions and the Legislative changes introduced in the Registration Act of 1927 and 1929 is not quite accurate:

Agreements of sale and agreements to lease immovable property do not require to be registered and therefore the prohibition contained in Section 49 of the Registration Act does not apply to such agreements.

In my opinion, Section 49 is not to be applied to leases operating as present demise because at the same time a separate provision has been made by the Legislature by introducing Section 27-A of the Specific Relief Act. With regard to the doctrine of part performance in Section 53-A, Transfer of Property Act, the statute has recognised only a passive equity but in the case of a lease, the Legislature has gone further and even recognised active equity, the lessor or the lessee as the case may be, any, as Plaintiff, seek relief relying upon the unregistered deed of lease. Further, there is a distinction between an agreement of sale, in the context meaning an agreement of sale acknowledging part payment of purchase price, and an agreement of lease of immovable property. In the case of such agreements of sale, the explanation to Section 17 comes in aid but in the case of an agreement to lease, there is no such explanation and even now it requires registration.

The proper meaning of the words" as evidence of any collateral transation not required to be effected by a registered document" will have to be ascertained in this context of the historical background that the proviso was introduce dessentially as an enabling provision. The object of the proviso is only to except certain types of cases which would otherwise fall u/s 49(a) and (c) and it is not the object of the proviso to deal with cases which were and are undoubtedly, outside the scope of Section 49(a) and (c). It is easy to visualise innumerable instances in which unregistered documents could be used without registration, i.e., not being governed by Section 49(a) and (c) and for those cases the proviso to Section 49 is wholly unnecessary. The words any collateral transaction should be interpreted as meaning transaction implicit in and arising out of the unregistered document in a manner that would steer clear of the ratio decided in James Skinner''s case I.L.R.(1929) All. 771. The word transaction is not used in the sense of a purpose. It is used to connote a bilateral arrangement or a business deal between two or more parties and when the unregistered agreement is used under the proviso, the Court is awarding relief on the transaction clearly holding the parties bound by the terms and conditions of the transaction, though not as a direct transaction, but as a collateral transaction. ID this context, what has to be emphasised is that the Court in some measure enforces the terms and conditions of the transaction and relief is granted only in terms thereof and not dehors the transaction. For instance, if a transaction of partition comprising movables and immovables is evidenced by an unregistered deed and if the scheme of division between the movables and immovables is separate and not inseparably connected, the parties may be awarded relief with respect to the division of the movables. If a deed of mortgage is unregistered, relief can be given with regard to the personal liability on the basis of the terms of the deed, i.e., the amount advanced, the period fixed, the rate of interest, default clause, etc., etc. If there is an unregistered deed of lease and a suit is filed for return of the money paid thereunder, relief could be granted in terms of the document by enforcing the collateral transaction. To take another illustration if a person executes a deed of transfer of immovable property in satisfaction of a claim for dower, the party entitled to dower can sue to recover the amount of dower relying upon the recitals in the unregistered deed of transfer as to the exact amount of dower. The document is used for enforcing a collateral transaction viz., a prior agreement by which one party had promised to pay the other certain sum by way of dower. It is unnecessary to multiply instances. Before the James Skinner''s case I.L.R.(1929) All. 771 Courts awarded relief the afore said instance either on the footing that these case did not contravene Section 49(a) and (c) or In the view, that the unregistered documents though ex facie by their own terms operated as transfers in present might yet be used for enforcing other rights of parties unrelated to the property. In the case of a transfer in discharge of a dower claim (referred to above) the recitals in the document operate as a transfer in presenti and do not contain any covenant or obligation to pay the dower. If the principles of James Skinner''s case I.L.R (1929).All. 771 were to be applied, the claimant will not, be allowed to rely upon the unregistered deed of transfer as containing a covenant to pay the dower amount. Now, under the proviso, just as in the case of a sale deed, this deed of transfer can be used as evidence of a collateral transaction, i.e., dower amount due from the husband. Take for instance a possessory mortgage evidenced by an unregistered deed. There may be no personal convenant. For want of registration the document cannot affect the immovable property u/s 49(a), but yet, as the contract of mortgage has become useless, the mortgagee will be entitled to recover back the amount advanced.

The deed of mortgage would merely contain recitals creating rights over the immovable property in favour of the mortgagee and will not contain any covenant by the mortgagor. In such a situation, if the principle of the decision in James Skinner''s case ILR (1929) All. 771 were to be applied, the mortgagee cannot use this unregistered deed of mortgage as implying a covenant by the mortgagor pay the money advanced. But, under the newly added proviso, it will be open to the mortgagee to use this very document though ex facie operating as a transfer in presenti, for working out his rights under the collateral transaction. It is not necessary to multiply instances.

It is necessary to make an important comment with regard to the illustrative cases referred to by me as collateral transactions. If the principle laid down in Muruga Mudaliar v. Subba Reddiar I.L.R.(1951) Mad. 473 (F.B.) following the observations of the Judicial Committee in M.E. Moolla Sons Limited v. Burjorjee I.L.R.(1932) Rang. 242 were to be applied, it is necessary that the Plaintiff�s right and title should be established, the unregistered document forming the foundation of the suit and the adjudication, and it is doubtful whether many of the illustrations would satisfy this test. In all the cases--(a) money decree in a suit on an unregistered mortgage bond; (6) return of the pre-paid lease amount under unregistered lease deed; (c) upholding the partition of the movables alone severed from the immovables; (g) a decree for recovery of the dower debt, etc., etc., no relief is granted affecting immovable property, Section 49(c), Registration Act would not apply and so there will be no need for invoking the proviso. It is here the historical background about the offshoot of James Skinner''s case I.L.R.(1929) All. 771 becomes important. The proviso was introduced in 1929 and Molla Sons'' case I.L.R (1932) Rang. 242 was decided in 1932. About the effect of Section 49(c), Registration Act the position is by no means easy of solution; that sharp divergence of views is possible is seen from the decision in Muruga Mudaliar v. Subba Reddiar ILR (1951) Mad. 473 (F.B.). Panchapakesa Sastry J., and Viswanatha Sastby J., took the view that even when the relief asked for, is recovery of money, Section 49(c), Registration Act would operate as a bar, though Viswanatha Sastey J., concurred-with the ultimate decision of the majority for a different reason. So far as this Court is concerned the Full Bench decision is binding. But what in relevant to consider, is, the problem which the Legislature had to solve arising out of the principle in James Skinner''s case I.L.R.(1929) All. 771 both directly as well as by necessary implication and its repurcussions in varying contexts. The object of the Legislature was to enact an all-embracing provision and permit the party to make use of the document, though not for the very specific purpose as mentioned in its express recitals. To make my meaning clear let me visualise that the majority of the Full Bench in Muruga Mudaliar v. Subba Beddiar ILR (1951) Mad. 473 (F.B.) took the view that even when the document is used for recovery of money Section 49(c), Registration Act would operate as a bar, then the party concerned will have to necessarily invoke the proviso. It is evident that the object of the proviso is to provide for such contingencies by way of abundant caution and to permit the use of the document in all cases where the relief is granted for enforcing the rights of parties, whether in relation to immovable property or movables unhampered by the circumstances that the document is in a particular form and that particular form required registration u/s 17(2), Registration Act. It cannot be postulated how in a situation like the one in Muruga Mudaliar v. Subba Reddiar ILR (1951) Mad. 473 (F.B.) the matter will be viewed by the other High Courts and the Supreme Court. The object of the Legislature was to provide for all cases, i.e., obvious cases and doubtful cases by way of abundant caution. If the view of the minority in Muruga Mudaliar v. Subba Beddiar I.L.R.(1951) Mad. 473 (F.B.) appeals to any other Court, the proviso will necessarily have to be invoked. I have referred to the illustrations to interpret the proviso in general and not with reference to the decision of the Full Bench of this Court. The word transaction is one of large import and it will be impossible to enumerate all the activities which could be termed as a transaction. I am, however, of the view that the word transaction in the proviso is used in a restricted sense, in the ordinary popular sense of the word, i.e., to denote some business deal in the commercial sense as between two or more persons. The word transaction used here is as connected with some subject of action something, which has taken place whereby a cause of action has arisen, and it consists of an action or an agreement or several acts or agreements having some connection with each other in which more than one person is concerned and by which legal relations of such persons, between themselves have been altered. The entire proviso consisting of three limbs (a) the document being used as evidence of a contract in a suit for specific performance, (6) the document being used as evidence of part performance of a contract u/s 53-A of the Transfer of Property Act and (c) as evidence of any collateral transaction as an exception to the substantive provision in Section 49 and there is no difference between the one limb or the other, in its operation or effect. In every one of the three categories, but for the proviso, the document would have been absolutely useless under the principle in James Skinner''s case I.L.R (1920) All. 771 I am not inclined to construe the proviso in the sense that categories (a) and (6) are exceptions to the substantive provision in Section 49 but category (c) being the enactment of a substantive provision by itself, unrelated to the main Section. One category is as much, an exception to the substantive provision in Section 49, or the other. There are innumerable cases not covered by the proviso at all, because they could not be regarded as collateral transactions and it will be absurd to argue that for that very reason the document cannot be used at all. I see no substance in the argument that if the terms of an unregistered deed come u/s 49(c) it cannot be used for any purpose, if it cannot be used as evidence of a collateral transaction under the proviso. The object of the proviso which is an enabling one is only to relax the rigour of the law and not to prohibit the use of the document in other contexts not coming under the proviso. Any such interpretation would completely defeat the purpose of the proviso. The unregistered document may be used for a collateral purpose different and distinct from a collateral transaction. For instance an unregistered document may be used as evidence in proof of plea of alibi that the accused executed a particular document at a particular time and place. It may be used for purpose of comparison of hand writing. It may be used merely as proof of a fact that a particular person asserted rights either as a natural son or as an adopted son or as husband or a wife of a particular person. The document, though unregistered, can be used to prove that a person had committed an offence under the Indian Penal Code. These are all instances in which the document is used for a collateral purpose i.e., not affecting the property--unrelated to the purpose for which the document came into being; for, the document is not used for enforcement of rights and obligations of the parties according to the terms of the agreement implicit in the main contract-- Vide illustrations in Mullas Registration Act (seventh edition) pages 192 to 194. There is a clear distinction between a collateral purpose and a collateral transaction. With respect, it has to be observed that the words collateral purpose and collateral "transaction are used in the decisions without any distinction in the application of the proviso. In some of the decisions of obvious instances of collateral purposes not governed either by the substantive provision or by the proviso are referred to as collateral transactions and the proviso is invoked as though necessary.

I may in this connection refer to the Bench decision of the Boombay High Court in Ramlaxmi Ranchhodlal Vs. The Bank of Baroda Ltd., . A partition evidenced by an unregistered deed had taken place between the Plaintiff�s husband and his brothers and the question arose whether the unregistered partition deed could be relied upon to establish the division in status as well as her (Plaintiff''s) rights to the properties which had been allotted to her husband''s branch and'' which had been enjoyed for over 12 years as belonging to that branch. The High Court held that the partition deed could be used to prove a collateral transaction, namely, a division in status. Bhagwati J., observed at page 350 as follows:

The point, however, which we have got to consider is what is a collateral transaction within the meaning of the proviso to Section 49 of the Indian Registration Act. The expression "collateral" transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word "collateral" is running together or running on parallel, lines. The transaction as recorded would be a specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same. An obvious illustration of this is the transaction which is recorded in the memo of partition before us. The transaction therein recorded was a transaction of partition of the movable and immovable properties belonging to the joint family. These properties were allotted to the shares of the respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the document itself. The memo of partition thus required registration, and not being registered could not be admitted in evidence under the terms of, Section 49, Registration Act. There was, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint status which transaction by itself did not require to be registered by any law for the time being in force. A severance of the joint status could be effected under the Hindu Law in various modes, one of the modes being an unequivocal expression of an intention to separate. A partition could be effected orally as well as by a written document, and it would be open to a party to prove that there was a partition or severance of joint status effected between the parties without its being effected by a registered instrument. A partition, i.e., the severance of joint status, thus would be a collateral transaction and would certainly fall within the proviso to Section 49 of the Registration Act. The partition of immovable property belonging to the joint family which requires to be effected by a registered instrument would be inadmissible in evidence, under the main provisions of Section 49 of the Registration Act, but the partition, i.e., the severance of joint status, which is not required to be effected by a registered instrument, would be a collateral transaction, evidence of which would certainly be admissible under the proviso to the section, and the memo of partition which was inadmissible for want of registration would certainly be admissible to prove the fact of such partition.

Dixit J., observed as follows at page 354:

The question, however, remains whether the unregistered memo of partition cannot be received as evidence of any collateral transaction not required to be effected by a registered instrument. The expression "transaction" is not defined in the Indian Registration Act. I think it would be difficult to give a precise definition of the expression "transaction". But it is to be noted that Section 49 does not say-that an unregistered document which requires to be registered shall not at all be received in evidence. All that it says is that it cannot be received in evidence as affecting immovable property, and as the proviso shows, it can be received as evidence of any collateral transaction not required to be effected by a registered instrument. Now, separation in status does not require to be evidenced by a registered document. Separation in status is a matter of individual volition and can be expressed by a notice given by one member of the family to another, or it can be expressed by conduct. It has not been suggested, so far as I art aware, that transaction in the shape of separation in status is ever required to be effected by a registered instrument.

The aforesaid cause furnishes an illustration as to how an unregistered deed of partition can be used as evidence of either a collateral transaction or a collateral purpose. As thirteen years have lapsed in the Bombay case, with respect, I should think that the principle of Varada Pillai''s case I.L.R(1919) Mad. 244 directly applies and there was no need to invoke the proviso. Even if there was a need to invoke the proviso, I would view the Bombay decision in a slightly different aspect. If there is no other evidence except the partition deed itself about the formal division in status and though the deed of partition contains words creating interest in presentee, the deed can be used as implying in it an agreement for division in status by invoking the proviso in the same manner as the sale deed is used under the proviso as in itself involving an agreement of sale. It is only for that limited purpose the partition deed is used as a collateral transaction. On the further aspect that in pursuance of the partition deed, the widow was in possession for over 12 years and acquired title by adverse possession, the document is used only for a collateral purpose for which, as observed, there is no need to invoke the proviso, not does the use of the document contravane Section 49(a) or (c). If a purchaser under an unregistered deed of sale before the expiry of 12 years uses an unregistered document, he does not contravene Section 49(a), because for want of registration the document will have no effect on the property ; nor Section 49(c) because it cannot be used in evidence as affecting such property. The fact that within twelve years he can only use it to show that he is in possession avails him nothing as against the owner. After the expiry of twelve years, he can use the document, but with different results because by lapse of time the purchaser would have acquired title to the property. In that situation, it is not the document or the user of the document that affects the property in any manner. It is the adverse possession for over twelve years which really affects the property. The same will be the case, in the case of partition by metes and bounds under an unregistered partition deed. The deed would be undoubtedly admissible to prove possession of specific items, but before the expiry of twelve years, it avails the party nothing as against the other co-owners. After twelve years, the possession is entirely different. There too, it is not the document which -affects the property, but it is the exclusive possession of specific items for over twelve years, that really affects. It is important to notice that with regard to immovable properties, if the document is used for a collateral purpose, rights would accrue only after 12 years. But there it is used for a collateral transaction this time limit of twelve years has no relevance. Under the proviso when the document is used as evidence of collateral transaction, the party can obtain relief affecting immovable property even if the suit is filed within twelve years. It is implicit in the proviso that the time factor of twelve years has no relevence. If it is a use of the document for a collateral purpose unrelated to rights over immovable property, like a plea of alibi, proof of hand writing or the relationship of blood, etc., etc., there is no time limit. But if it is a question of using the document for a collateral purpose of establishing rights to immovable property, the requisite period must have expired for acquisition of title by adverse possession.

To sum up, I am of the view that when a party seeks to establish acquisition of title by adverse possession by the application of the principle in Varada Pillai''s case I.L.R (1919) Mad. 244 there is no need for the party to invoke the proviso at all and when the document is used it does not contravene Section 49(a) or (c). The document is used only to prove a fact as to when he obtained possession and how long he continued in possession. The document is not given effect to by the Court as evidence of any collateral transaction in the sense of enforcing the rights and obligations of the parties in any manner as directly arising out of the conveyance, i.e., the transaction, or necessarily implicit or involved therein. The commencement of the transferee''s possession under an unregistered deed of transfer is without legal right and after 12 years when his title is upheld, it is dehors the transaction evidenced by the unregistered deed of transfer. I am not prepared to read the concluding portion of the proviso as covering all conceivable cases in which unregistered documents could be used in proceedings in Courts. For all these reasons it has to be held that there is nothing in the '' historical background or in the language of the proviso (the amending Act) to hold that the rule of presumption that the Legislature has not made any substantial alteration in the existing law beyond what it appears in the amendment, does not apply. On the other hand everything tends to the conclusion that the word collateral transaction must be given as meaning which would apply to situations like James Skinner''s case I.L.R.(1926) All. 771 . Even if the word transaction is given a very wide meaning, I do not see how it helps the contention of the Plaintiff. As the proviso deals with admissibility of the document as evidence of a collateral transaction concerning the law of evidence, it will be legitimate to take note of the fact that under the law of evidence, i.e., the Evidence Act, the Legislature has used the word transaction in a wide comprehensive sense. The precise import of the word transaction has frequently come up for consideration in cases arising u/s 13 of the Evidence Act and the view taken in the early Calcutta case in Gujju Lall v. Fatteh Lall ILR (1880) Cal. 171 (F.B.), that the word transaction must be interpreted, in a restricted narrow sense has not been accepted. A perusal of the subsequent decisions including that of the Privy-Council shows that the word transaction has been liberally interpreted. In this connection reference may be made to the discussion in Sirkar''s Evidence Act, 11th edition, pages 122 to 127, in which reference is made to decisions of several Courts where it was held that reports of police officials and decisions of Courts of law have been regarded as transaction within the meaning of Section 13--vide Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani I.L.R.(1901)Cal. 187 and AIR 1937 69 (Privy Council) The word transaction does not necessarily connote one single event. The word has also been used in the context, of carrying on or completion of an action of course of action, the accomplishment of a result Murray''s New English Dictionary, volume X, Part I page 251. A transaction need not be confined to what is done in one day or at one time. The word transaction would undoubtedly comprehend a series of many occurrences. When a single transaction is analysed, it may involve a series of acts or facts from which a right would spring in favour of a particular person. Transaction has a broader meaning than the word contract and may well include the acquisition of title by purchase, gift release or even by adverse possession. A transaction will include -a series of occurrences extending over a great length of time and may consist of one act or several acts having some connection with each other by which the legal relationship of persons is altered--vide 42 Words and Phrases, West Publishing Co., pages 356 and 352. Thus even if Mr. Gopalaswami Iyengar''s argument is accepted that apart from the proviso an unregistered document cannot be used, the use of the unregistered document B-92 in the instant case would undoubtedly be use of the document as evidence of a collateral transaction, i.e., as evidence of he series of acts which resulted in the transaction of acquisition of title by adverse possession. The result is that on either interpretation of the third limb of the proviso, the unregistered deed of release exhibit B-92, would be admissible in evidence.

I shall briefly deal with the contention touching the ratio decidandi of the decision of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan Singh and Others, . Mr. Gopalaswami Iyengar''s contention is that after the decision, in the aforesaid Supreme Court case, the principle of Varada Pillai''s case ILR (1919) Mad. 244 should be restricted to cases where the transferee had no prior possession at all but for the first time obtained possession in pursuance of a invalid transaction either because it was oral or because it was unregistered. Learned Counsel further urged that if the transferor was already in possession in assertion of a particular right and if under the invalid transaction some different right was created or conferred on the transferee, the unregistered document cannot be used to show that from its date the character or the nature of possession, changed as indicated in the deed. In other words, Varada Pillai''s case (1919) I.L.B. 43 Mad. 244. will not apply if the transferee ad already some kind of prior possession of the property in question. This argument proceeds upon a misunderstanding of the effect of the Supreme Court decision and would further completely upset the established law for over four decades emerging from the principle enunciated by the Privy Council. We see no substance in this argument; in fact the later decision of the Supreme Court in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 shows that there is absolutely no warrant for such an interpretation of Mst. Kirpal Kaur Vs. Bachan Singh and Others, . Before Mst. Kirpal Kaur Vs. Bachan Singh and Others, , the principle of Varada Pillai�s case I.L.R.(1919) Mad. 244 has been applied even where the transferee was in possession of the property long prior to the execution of the unregistered deed of conveyance and the principle therein has been followed. In Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, , a Bench of this Court held that the unregistered deed of sale in favour of a usufructuary mortgagee would be admissible in evidence to prove that after 12 years, the mortgagee acquired title as owner by adverse possession. This Bench decision contains reference to several decisions in which the same view was taken subsequent to Varada Pillai''s case I.L.R.(1919) Mad. 244 . Reference may also be made to Kandasami Pillai v. Chinnabba I.L.R.(1920) Mad. 253, in which there was an oral agreement between a mortgagor and the usufructuary mortgagee that the latter was to retain possession of a portion of the property in discharge of the mortgage debt. After a period of 12 years when a suit for redemption was filed by the mortgagor, it was held, applying the principle of Varada Pillai''s case I.L.R.(1919) Mad. 244 that the mortgagee had acquired absolute title by adverse possession even though the oral arrangement as such was invalid. In In Re: Vadasseri Tharavattil Karnavan and Manager, Ittichathara Valia Mannadiar, a Bench of this Court had held that the compromise which was unregistered and so though inadmissible, could be used, applying the principle of Varada Pillai''s case I.L.R.(1919) Mad. 244 to show that there was a subsequent change (in pursuance of the unregistered compromise) in the character and nature of the possession of the transferee. In innumerable instances the principle of Varada Pillai''s case I.L.R.(1919) Mad. 244. has been applied in the case of unregistered partition deeds where prior to the partition the members of the family were in joint possession but subsequent thereto the nature and character of possession changed as one in severality. It is unnecessary to burden this judgment by referring to the varying context in which the principle in Varada Pillai''s case I.L.R.(1919) Mad. 244 was applied, whether or not the transferee had prior possession of the property in some right or other. (189) In Mst. Kirpal Kaur Vs. Bachan Singh and Others, on the death of one Ram Ditta in 1920, one Harnam Kaur (Ram Dittar''s daughter-in law through a predeceased son) obtained possession of the properties and later on in 1929 she made gifts of a portion of the properties to her daughter Kirpal Kaur. In 1930, disputes arose between the reversionary, i.e., the collaterals of Ram Ditta on the one side and Kirpal Kaur and Harnam Kaur on the other. On 6th February 1932 under an unregistered document, a family arrangement was arrived at by which it was inter alia agreed that the properties would be enjoyed by Harnam Kaur and Kirpal Kaur for their lives, that they would not be entitled to alienate the properties and that on their death the property would go to the collaterals. In 1936, the daughter-in-law, Harnam Kaur, created further mortgages and also made a gift of the entire land to the daughter Kirpal Kaur. Thereupon the collaterals filed a suit in March 1945 to establish their rights under the family arrangement. It is unnecessary to refer in detail to the findings in the trial Court and in the High Court. It is sufficient to state that on the facts, the Supreme Court found that Harnam Kaur, the daughter-in-law was not a heir of Ram Ditta and her obtaining possession of the properties of her father-in-law in 1920 and continuing thereafter was adverse to the estate. The Supreme Court held that the possession of Harnam Kaur from 1920 was not as a customary heir but was clearly adverse against the estate of Ram Ditta. The argument on behalf of the collaterals was that applying the principle of Varada Pillai''s case I.L.R.(1919) Mad. 244 the collaterals must be held to have acquired rights as specified in the family arrangement of February 1932, after the expiry of 12 years therefrom, i.e., this possession of Harnam Kaur was only permissive as a limited heir of Bam Ditta. The Supreme Court rejected this argument and distinguished Varada Pillai''e case I.L.R.(1919) Mad. 244 . It will be seen that in the Supreme Court case, the collaterals could succeed only by showing that throughout and even prior to the family arrangement of 1932, Harnam Kaur was in possession as an heir representing the estate of Ram Ditta. The collaterals had to establish that in pursuance of the family arrangement there was a change in the character and nature of the possession of Harnam Kaur from a period even prior to the family arrangement. A careful analysis of the facts of the case and the discussion shows that the collaterals could not succeed by merely proving what happened subsequent to the family arrangement but that as a necessary part of their case they had to establish that the prior possession of the daughter in-law from 1920 to 1932 was also permissive as a limited heir representing the estate of Ram Ditta. The following observations at the end of the judgment emphasise the continuity of possession of Harnam Kaur from 1920:

As there is no evidence of any arrangement with the Respondents under which Harnam Kaur can be aid to have taken possession of the lands, her possession must be taken to have been adverse to the collaterals. Admittedly such possession commenced in 1920 on the death of Ram Ditta and has continued ever since. So at the date of the mortgage and gift, Harnam Kaur and acquired a title to the lands by adverse possession.

The Supreme Court took the view that to permit the unregistered document being used in such a manner as to break the continuity of adverse possession of Harnam Kaur with retrospective effect would amount to getting round the bar imposed by Section 49, Registration Act, i.e., if the document is used it would operate to destroy the nature of possession prior to 1932 and to convert what had been adverse into permissive.

In the later Supreme Court case in Padma Vithoba v. Mohd. Multani AIR 1963 S.C. 70 the principle of Varada Pillai''t case ILR (1919) Mad. 244 was applied to a situation in which in pursuance of an unregistered document, the character of prior possession of a mortgagee was changed. In that case, the first Defendant entered into possession of the property as usufructuary mortgagee in the year 1916. The second Defendant who was the owner of the property executed a sale deed in favour of one Rajanna in 1923 entitling him to redeem the mortgage. But as there were some difficulties and disputes, the sale deed in favour of Rajanna was cancelled not by an unregistered document, but by reason of an endorsement on the back of the sale deed of 1923 accompanied by the sale in favour of the first Defendant, the mortgagee. The argument was that there was an arrangement by which the possession of the first Defendant, the mortgagee became converted into that of an owner, that the sale deed in favour of Rajanna was cancelled by the endorsement in his sale deed. The Supreme Court accepted the legal position that such a change in the character of possession of the first Defendant from that of a mortgagee into an owner could be proved and his title by adverse possession upheld if Rajanna was a major at the time of that arrangement. As there was some controversy as to whether Rajanna had attained majority at that time, the suit was remanded to the trial Court for fresh disposal It is important to note that the Supreme Court has referred to with approval the Bench decision of this Court reported in Kandaswami Pillai v. Chinnabba I.L.R.(1920) Mad. 253 in which it was held that an oral sale acted upon for a period of 12 years could be relied upon to prove that there has been a change in the character and nature of a prior possession of a usufructuary mortgagee into that of �n owner from the date of the earlier arrangement-In other words, the reasoning of the decision of the Supreme Court in this case, shows that the principle in Varada Pillai''s case I.L.R (1919) Mad. 244 could be invoked even where the transferee under the invalid transaction was in possession prior thereto, under a different right. In Subramonia Iyer and Another Vs. Kandu and Others, , after referring to both the Supreme Court decisions, Madhavan Nair J., has held that there is no inconsistency between the two Supreme Court decisions and that the unregistered conveyance would be admissible to prove the character of possession of a person who was already in possession of the property prior to the deed. In Hari Pratap and Another Vs. Ramgopal and Another, a similar argument based upon Mst. Kirpal Kaur Vs. Bachan Singh and Others, was rejected. There, one of the three lessors sold his share to the lessee under an unregistered document. It was held that so far as the 1/3 share was concerned, it will be open to the lessee to rely upon the unregistered deed to show that he had become the owner and that the change in the character of prior possession had taken place in pursuance of the unregistered deed of sale. My learned brother has referred to the other decisions which have considered the scope of the decision of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan Singh and Others, . I entirely agree with him. I have, therefore, no hesitation in holding that the principle of Varada Pillai''s case ILR (1919) Mad. 244 is applicable to the instant case and it will be open to the Defendants to rely upon exhibit B-92 to prove that Muthu Ibrahim''s possession as to co-owner changed into that of an absolute owner from 1906, at any rate, and that after 12 years he had acquired exclusive title. In all other respects including the order as to cost I agree.

It is represented to us by Sri N.C. Raghavachari, learned Counsel for the sixth Respondent in Appeal Suit No. 458 of 1963, i.e., the fifth Defendant in the suit that he has since become a major. The fact is recorded and the fifth Defendant is declared a major. He has also signed the compromise as a major and hence no further vakalat from him is necessary.

The compromise is recorded and a decree will be passed in terms of the compromise as between the parties to the compromise.