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Judgment
Alfred Henry Lionel Leach, C.J.—One A. A. Mohamed Madar Rowther and his brother A. A. Mohamed Meeran Rowther held their
properties in common. Mohamed Madar was married twice. His first wife predeceased him. By her he had a son and a daughter, who are the 1st
and 2nd defendants respectively. His second wife is the 2nd plaintiff and by her he had a son, the 1st plaintiff. Mohamed Madar died on the 18th
June, 1916. The date of the death of his brother Mohamed Meeran is not known, but it is known that he died before his elder brother. Mohamed
Meeran was survived by his wife (the 5th defendant) and two sons (the 3rd and 4th defendants). The widow and the son of Mohamed Madar filed
this suit for partition of the properties of the two brothers and for their shares in Mohamed Madar''s properties. One of the questions in the suit
was whether a usufructuary mortgage created by the 1st and 3rd defendants in favour of the 8th defendant was binding'' on the plaintiffs. This
mortgage was created on the 28th August, 1920,, and the mortgagors purported to charge the whole of items 10 to 13 and part of item 9 of the
second schedule to the plaint. The amount which had been advanced on the security of these properties was Rs. 7,250. The plaintiffs'' case was
that they were co-sharers and the 1st and 3rd defendants had no right to charge their interests in these properties. The suit was not filed until the
9th October, 1937 and the 8th defendant pleaded that so far as his mortgage was concerned the. suit was barred by the law of limitation. The
plaintiffs maintained that they had no knowledge of this mortgage and that limitation could not commence to run until they had acquired knowledge
of it. It is common ground that they acquired knowledge within twelve years of the suit.
There is a conflict of authority in this Court on the question whether it is necessary in order to support a plea of adverse possession that
knowledge of adverse possession must be proved. The appeal came in the first instance before King, J., and in view of this conflict he has referred
to a Full Bench the following question:
Where some co-owners usufruetuarily mortgage specific items of property held by the members of a Mohammadan family and the mortgagee
enters into possession of the mortgaged items under his mortgage deed, is a suit to recover the share therein by other members of the same family
barred by article 144 of the Limitation Act at the end of twelve years of such possession or does adverse possession begin as against the other
members only from the date of ouster to their knowledge?
The weight of authority in this Court is in favour of an affirmative answer being given to the first part of the question. There are decisions of the
Calcutta and Bombay High Courts to the same effect, and support for the majority view is also to be obtained from the decision of the Privy
Council in Secretary of State for India in Council v. Debmdra Lal Khan (1933) 66 M.L.J. 134 : L.R. 61 IndAp 78 : ILR 61 Cal. 262 (P.C.).
In Sheik Abdul Gagur v. Ashamath Bibi (1919) 11 L.W. 31. a Bench of this Court (Seshagiri Aiyar and Moore, JJ.) held that possession of an
alienee from one of several co-tenants becomes adverse as against the other co-tenants from the moment of the entry into-possession by the
alienee. This judgment was based on the decisions of this Court in Secretary of State v. Vira Rayan ILR (1885) Mad. 175. and Muthusami v.
Ramakrishnal ILR (1889) Mad. 292. and the judgment of the Full Bench of the Bombay High Court which decided Bhavrao v. Rakhmin ILR
(1898) Bom. 137. and the judgment of the Bench of the Calcutta High Court which decided Jogendra Nath Rai v. Baladeo Das ILR (1907) Cal.
In Secretary of State v. Vira Rayan, ILR (1885) Mad. 175. Turner, C.J. and Muttuswami Aiyar, J., held that the ignorance of the owner
would not prevent the accrual of title by prescription and in Muttusami v. Ramakrishna ILR (1889) Mad. 292. Muttuswami Aiyar, J., sitting with
Wilkinson,, J., held"" that the contention that the possession of one coparcener was the possession of all for purposes of limitation could have no
application as between a purchaser from one coparcener and the other-members of the family. The plaintiffs in that case were members of a joint
Hindu family, who alleged that there had been a partition and a sale to them by the other members of a share in the family properties more than
twelve years before the suit, and they claimed to eject a more recent purchaser. The plaintiffs did not prove that there had been a partition and it
was held that the suit was barred. Decisions of this Court to the same effect were given in Linga Munisami Reddi v. Govindaswami Naicken
(1921) 42 M.L.J. 364. and Palaniappa Chetty v. Raman Chetty (1933) 39 L.W. 161.
In the Bombay case, Bhavrao v. Bakhmin ILR (1898) Bom. 137. the question was asked what was the purchaser''s position with reference to a
coparcener''s vendor or mortgagor and the answer given was:
As he enters, as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the coparceners, though for
the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the
alienated portion. It may be and indeed is the case that such a purchaser by his purchase does not get a good title to the land conveyed to him by a
single coparcener, but only the qualified right laid down in Pandrang v. Bhaskar (1871) 11 Bom.H.C.R. 72. and he is liable under some
circumstances even to be evicted if the coparceners take the requisite steps within the statutory period. Nevertheless his exclusive possession does
not on that account cease to be adverse. He, entering as owner, his possession must, we think, necessarily be adverse to the true owners. Adverse
possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true
ownership is vested whether in a single person or in many jointly.
With these observations we find ourselves in complete agreement.
In Jogendra Nath Rai v. Baladeo Das ILR (1907) Cal. 961. it was said:
Much stronger evidence, however, is required to show an adverse possession held by a tenant in common than by a stranger; a co-tenant will not
be permitted to claim the protection of the Statute of Limitations, unless it clearly appears, that he has repudiated the title of his co-tenant and is
holding adversely to him; it must further be established that the fact of adverse holding was brought home to the co-owner either by information to
that effect given by the tenant in common asserting the adverse right, ox there must be outward acts of exclusive ownership of such a nature as to
give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted.
But it was also pointed out that while the possession, of one co-owner is, in itself, rightful, and does not imply hostility the possession is different
when a stranger is in possession. The possession of a stranger in itself indicates that his possession is adverse to the true owners.
The decisions of this Court which are in conflict with the decisions already cited are Muthukrishniengar and Others Vs. Sankara Narayana Aiyar
and Another, . Govindasami Chettiar v. Kothandapani Chettiar (1926) 52 M.L.J. 203. Ramachandra Deo Vs. Kamoju Balaji and Others, .
Venkatarama Aiyar v. Subramania Sastri (1923) 20 L.W. 122. and Moidin v. Kunhalikutti (1935) 42 L.W. 798. In Muthukrishniengar and Others
Vs. Sankara Narayana Aiyar and Another, . Ayling and Tyabji, JJ., held that before possession could be adverse to co-sharers knowledge of the
adverse possession must be brought home to them. The learned Judges did not consider the earlier decisions of this Court where contrary opinions
wore expressed and their judgment was criticised by the Bench of this Court which decided Linga Munisami Reddi V. Govindaswami Naicken
(1921) 42 M.L.J. 364. The decision in Govindasami Chettiar v. Kothandapani Chettiar (1926) 52 M.L.J. 203 was given by Odgers, J. He
certainly referred to the conflict in authority, but as he had already expressed an opinion in favour of the necessity of proving knowledge he
adhered to it. Ramachandra Deo Vs. Kamoju Balaji and Others, . was decided by Burn and Stodart, JJ., but they did not consider the other cases
and contented themselves with a bare statement that adverse possession must be brought to the knowledge of the owner. Moidin v. Kunhalikutti
(1935) 42 L.W. 798. was decided by Pandrang Row., J., and his judgment is open to the same criticism as the judgment in Ramachandra Deo
Vs. Kamoju Balaji and Others, . The judgment in Venkatarama Aiyar v. Subramania Sastri (1923)20 L.W. 122 is not easy to follow.
Notwithstanding that the learned Judges quoted with approval Bhavrao v. Rakhmin ILR (1898) Bom. 137 they seem to indicate that knowledge
should be proved.
Possession to be adverse must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor, as the
Privy Council pointed out in Secretary of State for India in Council v. Debendra Lal Khan (1933) 66 M.L.J. 134 : L.R. 61 IndAp 78 : ILR 61
Cal. 262 (P.C.). As already indicated we are of the opinion that the judgment lends strong support for the majority opinion of this Court. In that
case a zamindar claimed against the Crown title to a fishery in a navigable river by reason of adverse possession. The learned Counsel who
appeared for the Crown advanced the argument that adverse possession should be shown to have been brought to the knowledge of the Crown,
but in their Lordships'' opinion there was no authority for this requirement. It was sufficient that possession was overt and without any attempt at
concealment so that the person against whom time was running ought if he exercised due vigilance to be aware of what Was happening.
When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other co-sharers must,
unless they deliberately close their eyes, know of what is going on., but if they are so regardless of their own interests they must take the
consequences. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession
of the land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent
for adverse possession are fully complied with. Consequently we would answer the first part of the question referred in the affirmative and the latter
part in the negative. It follows that the decisions in Muthukrishniengar and Others Vs. Sankara Narayana Aiyar and Another, , Ramachandra Deo
Vs. Kamoju Balaji and Others, . Venkatarama Aiyar v. Subramania Sastri (1923) 20 L.W. 122. Moidin v. Kunhalikutti (1935) 42 L.W. 798. and
Govindaswami Chettiar v. Kothandapani Chettiar (1926) 52 M.L.J. 203. must so far as they indicate a contrary opinion be deemed to be
overruled.
In order that there may be no misunderstanding we will add that the interest which the appellant has acquired is the interest of a usufructuary
mortgagee. He has not acquired a full title to the property. As a matter of fact the learned advocate for the appellant has not suggested otherwise.
The costs of this reference will be made costs in the appeal.