JUDGMENT
Tyabji, J.
1. The question involved in this appeal is whether plaintiffs’ right as against the defendants Nos. 5 to 7 to redeem certain mortgaged properties, is barred by limitation.
2. The plaintiffs and the defendants Nos. 1 and 2 were co-parceners, jointly interested in the property referred to in the plaint. The defendants Nos. 1 and 2 were in possession of the property. Their possession, it is admitted, must in law be considered as the possession of all the co-parceners, as it is not alleged that to the knowledge of the plaintiffs, the defendants Nos. 1 and 2 asserted a title adverse to their co-parceners. The defendants Nos. 1 and 2 sold the property–they could alienate only their own interest in it–to the 5th defendant. The 6th and 7th defendants are the undivded sons of the 5th defendant. The 5th to 7th defendants, who are the appellants before us, claim to have derived title to the whole property from the defendants Nos. 1 and 2 contending that the whole of it, and not merely the rights therein of the defendants Nos. 1 and 2, was purported to be sold to the 5th defendant by the defendants Nos. 1 and 2 in 1890, that the 5th defendant was put into possession of the property and asserted a title in himself adverse to the plaintiffs since 1890, and that when the suit was instituted, the plaintiffs were barred, inasmuch as the title of the 5th defendant had then become perfected by twelve years’ adverse possession. It is not alleged that the plaintiffs had knowledge of* the fact–if it be a fact–that the 5th defendant was asserting title in himself adverse to the plaintiffs. It is alleged, however, that the rights of the 5th defendant, as a stranger who had purchased the property, stood on a higher footing than those of his vendors, the defendants Nos. 1 and 2, that though, if the defendants Nos. 1 and 2 had themselves continued to be in possession, they could not have effectually set up a title adverse to their co-parceners, the plaintiffs, without notice of that claim to the plaintiffs, yet that the defendants Nos. 1 and 2 could transfer rights in favour of a stranger {viz., the 5th defendant) free from this imperfection–so that the possession of the 5th defendant would be adverse to the plaintiffs without such notice. In other words, the argument is ‘that though one coparcener’s possession cannot be considered adverse to the other co-parceners, unless those other co-porceners have knowledge that such possession is being held adversely, yet if the co-parcener in possession purports to transfer the whole of the co-parcenary property to a third party, then that third party’s rights are higher and his possession may be adverse to those other co-parceners without such knowledge.
3. This argument is opposed to principle. A co-parcener holds property under conditions, one of which, for the present purposes, may be described as the disability to claim that his possession is adverse to that of the other co-parceners, unless they have notice of his purporting so to hold the property. It is difficult to understand how a person holding a property with limitations can pass to a transferee a title free from those limitations. If any authority is needed for the proposition that the conditions under which the transferee holds the property must be the same as those under which the transferring co-parcener held it, it seems to me to be furnished by the following words of Sankaran Nair, J., in Peria Aiya Ambalam v. Shunmugasundaram 22 Ind. Cas. 615 : 26 M.L.J. 140 : 1 L.W. 119 : 15 M.L.T. 112:
These decisions also seem to be consistent with principle. When the owner of the property in possession is dispossessed, the trespasser’s possession is clearly adverse to him from its inception, as, to his knowledge, the property is held against his will, and he must assert his right within twelve years of his dispossession. But if his mortgagee, who has been placed in possession by him, is followed by another person, there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage; or he may be an adverse claimant to the mortgage right. Where more than one inference may be drawn, that inference should, not be drawn which imputes a wrongful act to a person. The defendant has, therefore, to show that he took possession of this property as absolute property in contradistinction to, mortgage property. Nor is this sufficient; as his possession may be consistent with the mortgagor’s title, the mortgagor must obviously have notice that he is holding it as absolute property in denial of any right in him. Otherwise no laches can be imputed to him and the possession cannot be said to be adverse.
4. The judgment of Sankaran Nair, J., was delivered when he was sitting in the Full Bench. It was concurred in by the other members forming the Bench and thus deserves special weight. It is true that he was dealing with the case of a person holding possession when a mortgagee was entitled to be in possession, and here we have the case of a person deriving title from a co-parcener. But the principle of the decision is applicable. The principle is alluded to by Sankaran Nair, J., in the passage cited and it is stated in the following striking words by Lord Macnaghten in a case where the assignee of the co-parceners who were out of possession were suing the co-parcener in possession for partition.–It is clear from what Lord Macnaghten says that the principle underlying these rules of law is not based on any narrow reason specifically applicable only to co-parceners and inapplicable to transferees from co-parceners. He says in Corea v. Appuhamy (1912) A.C. 230 at pp. 235, 236 : 81 L.J.P.C. 151 : 105 L.T. 836:
Assuming that the possession of Iseris has been undisturbed and uninterrupted since the date of his entry, the question remains, Has he given proof, as he was bound to do, of adverse or independent title? His title certainly was not independent. The title was common to Iseris and to his three sisters. On the death of Elias, his heirs had unity of title as well as unity of possession. Then comes the question, Was the possession of Iseris adverse? The District Judge held that Iseris ‘entered in the character of sole heir or plunderer’. ‘Which. ever it was’, says the learned Judge, ‘so he continued, and acknowledged no title in any one else. He has acquired a good prescriptive title’. It is difficult to understand why it should be suggested that Iseris may have entered as ‘plunderer’. He was not without his faults. He is described by the learned Judge, who decided in his favour, as a convicted forger and thief and ‘expert not only in crime and incarceration but also in perjury’. But it is perhaps going too far to hold that he was so fond of crooked ways and so bent on doing wrong that he may have scorned to take advantage of a good legal title and may have preferred to masquerade as a robber or a bandit and to drive away the officers of the Court in that character. It is not a likely story. But would such conduct, were it conceivable, have profited him? Entering into possession and having a lawful title to enter, he could- not divest himself of that title by pretending that he had no title at all. His title must have enured for the benefit of his co-proprietors. The principle recognised by Wood, V. C., in Thomas v. Thomas 2 K. and J. 79 at p. 83 : 25 L.J.Ch. 159 : 1 Jur. (N.S.) 1160 : 4 W.R. 135 : 69 E.R. 701 : 110 R.R. 107 holds good. ‘Possession is never considered adverse if it can be referred to a lawful title.
5. Applying these principles there is no reason why the possession of the 5th defendant should be held to have bean adverse: his possession can, and ought, it seems to me, to be referred to a lawful title derived from the defendants Nos. 1 and 2. That title was not adverse to the plaintiffs.
6. The second appeal should, therefore, in my opinion, be dismissed, with costs.
Ayling, J.
7. I agree.
