The main legal point established in the judgment is the interpretation of adverse possession in the context of co-ownership and the impact of an alienee's possession on other co-owners.

M. Madhavan Nair, J.

1. This appeal is against the decision of Velu Pillai, J., reported in Joseph v. John 1959 K.L.J. 725.

2. The suit property belonged to the late Thommen. Plaintiffs 1 and 2 and defendants 2 to 6 are his children. Eliswa, his widow, and Joseph, his eldest son are not parties to the suit, and in their place is impleaded the 1st defendant who had, in execution of a money decree against them, purchased the suit property and taken possession thereof on the 3rd Kanni 1112. According to the plaintiffs, that purchase bound only the share of Eliswa and Joseph but not of the plaintiffs who were no parties to the proceedings. Treating the 1st defendant as their co-sharer, the plaintiffs claim their share in the property to be divided out and given to them with past profits. The 1st defendant resists that claim on the ground, inter alia, of limitation on account of his having been in possession of the entire property in his own right as a court-auction-purchaser for 15 years before the institution of the suit in 1127 (1952). That the plaintiffs, who were co-heirs with eliswa and joseph, were no parties to the 1st defendant suit and court-purchase is not in dispute. The Munsiff dismissed the suit as barred by limitation finding the possession of the 1st defendant since 1112 to have been adverse to the plaintiffs; but the District Judge, on appeal, found that possession to have been that of a co-owner and therefore not adverse to the other co-owners, the plaintiffs, and decreed the suit. In second appeal, Velu Pillai, J., reversed the District Judge and restored the Munsiff, but gave leave to the plaintiffs to appeal under section 5 of the High Court Act, 1959.

3. The learned Judge, after referring to the conflict of views on the status of an alienee of co-sharer in relation to the other co-sharers, has come to the conclusion that the possession of a transferee from a co-owner, of the whole property, is adverse to the other co-owners from the moment of his entry.

Rajamannar, C. J. and Rajagopala Ayyangar, J. in V. C. Thami Chettiar v. Dakshinamurthy Mudaliar A.I.R. 1955 Mad. 288 had to examine the position and the rights of persons who purchase a share of some of the co-parceners of a Hindu family. Their Lordships held:

The purchaser cannot claim to be put in possession of any definite piece of family property.... He does not become a tenant in-common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor shoes.

and that dictum has been approved recently by a Full Bench in Ramaganesan Pillai v. Rajah Ayyar 1963-II M.L.J. 162.

In Palania Pillai v. Amjath Ibrahim Rowther A.I.R. 1942 Mad. 622 F.B., the question before the Full Bench was:

Where some co-owners usufructuarily mortgage specific items of property held by the members of a Mahomedan 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, Limitation Act, at the end of 12 years of such possession or does adverse possession begin as against the other members only from the date of ouster to their knowledge?t

It was held:

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 a