The execution of a mortgage of the whole property by one co-owner, leading to the mortgagee's adverse possession, operates as an ouster of the other co-owners and may result in the loss of their right to the equity of redemption.

1. The suit properties were demised on lease by the jenmi to one Konnan (senior) who died leaving him surviving, four sons, Konnan (junior) who was the deceased husband of the 3rd plaintiff and the father of the plaintiffs 1 and 2, Ravunny who was the father of defendants 6 and 7, Ittaman the 4th defendant and Velayudhan the 5th defendant. Ravunny, and defendants 4 and 5 mortgaged the leasehold by Ext. A in the year 1108 to the first defendant. The jenmi gave a subsequent lease of the properties to the second defendant, the wife of the first defendant, by Ext. B in the year 1118. She sued the first defendant, Ravunny and defendants 4 and 5 in O.S. 350 of 1118 for recovery of possession. Pursuant to the decree therein, the first defendant surrendered the properties to her. The plaintiffs have now sued to redeem Ext. A. The two courts have dismissed the suit on the ground that it is barred by limitation. In this Second Appeal by plaintiffs 1 and 2, the sole question for decision is whether the suit is barred by limitation or not.

2. It was not contested, that the possession of the second defendant from the date of the surrender of possession to her had been adverse to the plaintiffs. But it was contended that the sons of Konnan (senior) being co-owners of the lease-hold, the possession of the first defendant under Ext. A was not adverse to Konnan (junior) the predecessor-in-interest of the plaintiffs and that in any event, the 1st defendant could prescribe only for a mortgagee's estate and the suit for redemption ought to be decreed. The preponderance of authority is in favour of the view, that the execution of a mortgage of the whole property under which the mortgagee enters possession operates as an ouster of the other co-owners and to their knowledge. The cases on the subject have been discussed by a full bench of the Madras High Court, in Palania Pillai v. Amjath Ibrahim, AIR. 1942 Madras 622, which held that "where some co-owners usufructuarily mortgage specific items of property ... and the mortgagee enters into possession ... a suit to recover the share therein" by the other co-owners is barred by Art.144 of the Limitation Act at the end of 12 years of such possession. In Joseph v. John, 1959 KLT. 630, sitting as a single Judge, I have applied the same principle, where a stranger purchaser in execution of a decree against one co-owner was in possession of the whole property for more than 12 years. In my opinion, the rule applies to the possession of a mortgagee of the whole property from a co-owner.

3. The second argument appeared plausible, that the mortgagee could prescribe only for a mortgagee's estate. In fact this was assumed without contest in Palania Pillai's case. But the point arose for decision before a full bench of the former Cochin High Court in Matheis v. Kunhikkavu Varassyar, 39, Cochin 97. In that case, as in the present, though there was no express denial of the rights of the other co-owners, the mortgage deed was executed as if the mortgagors were the sole co-owners. In this sense, there was an assertion of a title hostile to the others. The principle was stated thus:

"A possession of the mortgagee will not during the continuance of the mortgage be adverse to the mortgagor but possession which is not adverse to one person may in law be adverse to another. The mortgagee never recognised Thresia as a co-owner. He accepted the mortgage from Souryar and Mathoo on the footing that full title to the property vested in them. As against Thresia, the possession of the mortgagee was therefore but the continuation of the possession of the mortgagors themselves after their assertion to her knowledge of a title hostile to her."

Applying this, it must follow that the possession of the first defendant as against the plaintiffs cannot be considered to be that of a mortgagee under them. Ravunny and defendants 4 and 5 by letting a stranger into possession, had asserted a hostile title to their knowledge. This amo