Judgment :- 1. These two appeals are by the common plaintiff in two suits for partition, viz. O. S.55 of 1947 of the Ottappalam Sub Court and O. S.204 of 1122 of the Trichur District Court. The Ottapppalam suit which was the earlier of the suits and also led to the earlier appeal concerned properties in Malabar while the Trichur suit concerned properties in Cochin. The appeal A. S.752 of 1952 had been filed before the Madras High Court and was pending on its file and with the passing of the States Re-organisation Act was transferred to this court. A cross-appeal has been taken therein by the 17th respondent -16th defendant. As these appeals involved common question of law and fact they were heard together and are being disposed of by this single judgment. It will be convenient to state the facts with reference to the parties and properties as arrayed in O. S.55 of 1947 to begin with and we will accordingly be doing so. 2. The A Schedule to the plaint in O.S. 55 of 1947 gives the pedigree of the parties as follows: Table:#1 The wife of lyyavu the ancestor is Thandamma, deceased and their children included three more daughters elder to the plaintiff and not shown in the pedigree. The plaintiff Mariam was thus the last of 7 children born to Iyyavu of whom 3 inclusive of the 1st defendant Pathu were males and 4 were females. Iyyavu died on 12-1-1909 leaving behind him his 7 children and his wife and also considerable properties. There is a controversy between the parties as to whether he left also an unregistered will dated 9-1-1908 and filed as Ex. B3, providing for the devolution of his entire estate in favour of his three sons exclusively subject only to their paying certain legacies in favour of their uncle's wife and their mother & sisters inclusive of the plaintiff. Anyhow the brothers did not get the will probated but obtained Ext. B-4 sammathapatrom dated 11-2-1908 from the legatees under the will above mentioned agreeing to the provisions of the will which was practically incorporated in it. The plaintiff who was then a minor about ten years old was represented in Ext. B4 by her mother Thandamma. The brothers did not divide the estate but the eldest of them, Ittoop was allowed to manage it on all their common behalf. 3. The plaintiff who was then a minor about ten years old was represented in Ext. B4 by her mother Thandamma. The brothers did not divide the estate but the eldest of them, Ittoop was allowed to manage it on all their common behalf. 3. Of the three brothers Ikkakku the father of the 6th defendant, died first. Ittoop father of the defendants 2 to 4 and husband of the 5th defendant died next. On 23-4-1936 soon after Ittoop's death, the 1st defendant find defendants 2 to 0 along with Ikkakku's wife, since deceased entered into Ex. B82 karar dated 23-4-1936 for partition into three equal shares of all their common "tarwad" properties through arbitrators named therein. The partition was effected by exchange on 26-7-1936 among the groups, of the schedules of property allotted to each. In the interval however a decree in O. S.34 of 1934 of the Chowghat Munsiff's Court was obtained against Pathu by his creditors Sankara Iyer and Subba Iyer in realisation whereof they obtained court sale on 9-12-1936 of his undivided 1/4 share in certain items. They followed up their court purchase with a suit for partition filed on 4-2-1942 as O. S.5 of 1942 of the Ottapalam Sub-Court. This suit was laid as for partition of 1/3 share of Pathu in the A Schedule.33 items appended to the plaint and alleged to be the common properties of the three brothers, Ittoop, Ikkakku and Pathu or alternatively for possession of 16 items of the B schedule also appended and said to have been allotted to Pathu in partition under Ex. B82. Pathu was made the first defendant, Ittoop's wife and children were defendants 3 to 5 and Ikkakku's son was the 6th defendant as here. Ikkakku's wife was the 7th defendant. The first defendant Pathu contested the suit on the basis that the plaintiff purchaser was not entitled to claim 1/3 share in the A schedule to that suit but only 1/4 share in terms of the court sale. The 6th defendant set up title under the partition among the co-sharers in 1936. During the course of that suit on 16 7 1948 Mariam got herself impleaded as the 8th defendant and put forth her claim for partition of a 1/4 share in all the family properties as one of the heirs of Iyyavu. The 6th defendant set up title under the partition among the co-sharers in 1936. During the course of that suit on 16 7 1948 Mariam got herself impleaded as the 8th defendant and put forth her claim for partition of a 1/4 share in all the family properties as one of the heirs of Iyyavu. According to her the suit was not maintainable without the entire properties of Iyyavu being included and furnished for the purpose as additional list. She questioned the genuineness of Ex. B3 Will and the validity of Ex. B4, sammathapatrom so far as she was concerned and claimed they did not stand in her way. By Ex. B28 judgment dated 13-9 - 1943 the trial court granted in favour of the plaintiffs in the case a preliminary decree for partition in respect of 1/4 share in the A schedule items. The judgment went on to hold that the 9th defendant in the case (present plaintiff) was not entitled to claim any share in the estate so long as the sammathapatrom Ex. B4 had not been set aside but her right to sue for partition of the properties of her father's estate including the suit properties by independent litigation after setting aside Ex. B-4 was left open. This judgment was however set aside "by the High Court in appeal in A. S.456 of 1944 taken by the plaintiff with the finding definitely entered that there was no need for her to set aside the sammathapatrom and further no question of adverse possession or limitation stood against her in her claim to work out her share in that suit. The learned judges of the High Court confirmed the preliminary decree for 1/4 share as granted by the trial court to the plaintiffs in that case and remanded the case for fresh disposal-vide Ex. A-2 judgment dated 4-3-1945. Subsequent to the remand as above the plaintiff applied to include further items and get her share. Ultimately the court granted her a preliminary decree for partition of her 1/4 share in the items involved in that suit except to the extent she had compromised with the defendants 1 and 6 and directed her to file separate suit in respect of all other properties. Ultimately the court granted her a preliminary decree for partition of her 1/4 share in the items involved in that suit except to the extent she had compromised with the defendants 1 and 6 and directed her to file separate suit in respect of all other properties. Hence the two suits herein O. S.55 of 1947 before the Ottapalam Sub-Court as regards Malabar properties and O. S.204 of 1122 before the Trichur District Court as regards Cochin properties, both the two sets of properties being claimed by the plaintiff to be still available for partition between herself and her co-sharers. Mention may at this stage be made of another suit O.S. 69 of 1947 of the Ottapalam Sub-Court filed by an alienee of the plaintiff for partition of particular items against prior alienees thereof from the first defendant. This suit O. S.69 of 1947 was tried and disposed of along with O.S. 55 of 1947. 4. O.S. 55 of 1947 is for partition of B schedule immovables consisting of 107 items and C schedule movables of the plaintiff's alleged 1/4 share as against her co-sharers and their alienees. These co-charers are represented by defendants 1 to 6 and with the death of the first defendant pending suit, his legal representatives the defendants 32 to 35 as well. Defendants 7 to 31 and 36 to 43 are the alienees from one or other of the co-sharer groups, of their share in some of the B schedule items but all subsequent to the institution of the prior suit O. S.5 of 1942 for partition. The suit was contested by defendants 9,12,14,16, 17,18, 20, 21, 22 & 23 on various grounds some common to all & others peculiar to each. These common grounds comprised the questions, (1) whether the plaintiff was an heir at all of Iyyavu in the light of Ex. B-3 Will left by him in favour of the three sons only, (ii) whether the plaintiff's rights, if any, were not barred by limitation and adverse possession, and (iii) whether the plaintiff could in any event claim more than 1/8 share, the seven other children and widow of Iyyavu being also co-heirs with her under the Indian Succession Act. B-3 Will left by him in favour of the three sons only, (ii) whether the plaintiff's rights, if any, were not barred by limitation and adverse possession, and (iii) whether the plaintiff could in any event claim more than 1/8 share, the seven other children and widow of Iyyavu being also co-heirs with her under the Indian Succession Act. The plaintiff countered the first ground by the averment that the Will was not true and genuine and had to be ignored anyhow for want of probate under S.213 of the Indian Succession Act. She denied the plea of limitation and adverse possession raised by the second ground. And as regards the third ground she set up a discharge of the claims of her sisters and mother from out of the estate so as to leave as co-owners only her brothers and herself. According to the plaintiff all the matters covered by the three grounds had been found in her favour in the prior partition suit 0. S.5 of 1942 and those findings were res judicata as against the alienee defendants here notwithstanding they were not parties to that suit. The grounds raised by the defendants but as peculiar to each of them involved also the fact that Ittoop was the acquirer of the properties concerned and Iyyavu's estate had accordingly no title thereto. The plaintiff met this ground by saying that Ittoop made the acquisitions as common manager with estate funds and for the benefit of the estate and further that Itoop had not only not claimed the acquisitions as his own, but had treated them as appertaining to the estate. On these contentions the court below held that the findings in the plaintiff's favour as against the defendants 1 to 6 in O. S.5 of 1942 were not binding on the present contesting defendants for the reason that all the essential conditions for the application of the rule of res judicata between co-defendants were not satisfied in the case. On the merits it found (i) that Ex. On the merits it found (i) that Ex. B-3 Will was true and valid but the defendants were precluded from putting it forward for want of probate under S.213 of the Indian Succession Act; (ii) that the plaintiff's share was only an 1/8 share and not a 1/4 and lastly (iii) that there was no bar of limitation or adverse possession against the plaintiff in respect of her rights over the properties of the deceased Iyyavu. Dealing with the availability for partition of particular items in the hands of the contesting defendants the court below held that except in the case of the 15th defendant 17th respondent, the plaintiff had failed to establish her case that such of the items as stood in the name of Ittoop were acquired with common funds or with the income of the common properties so as to be included in the partition. In the result the court below granted a preliminary decree in the plaintiff's favour for partition of 1/8 share in the properties in the hands of the ex parte defendants and also in items 1, 2 part, 8 to 10, 12,14,15,16 part and 17 part in the hands of the 16th defendant and dismissed the suit as against the defendants 9,12,14,17, 21, 22 and 23 alienees and the items 26, 63, 27 & 28;18,19, 23, 24 & 57; 79 & 126/83 & 98; and 64 in their respective hands. On similar basis it dismissed the suit O. S.69 of 1947. Hence the appeal in A. S.752 of 1952 by the plaintiff and the cross appeal therein by the 16th defendant. 5. O.S. 204 of 1122 of the Trichur District Court is concerned with 91 items of immovable properties. After several settlements with various defendants pending suit the plaintiff laid claim to only 31 items, of which items Nos. 1, 2, and part of 3 and 4;10 & part of 3 & 4;16, 76 and 77 were with the contesting defendants 11, 18, 22, 26 and 27 respectively. The contentions of the plaintiff were the same as in the Ottapalam suit except as regards the question of res judicata which in the nature of the differing jurisdictions could not be and was not raised. According to the contesting defendants the devolution of the properties left by Iyyavu was governed by the Will of 9-1-1908 filed in the Ottapalam suit as Ex. According to the contesting defendants the devolution of the properties left by Iyyavu was governed by the Will of 9-1-1908 filed in the Ottapalam suit as Ex. B 3 and copy of which was filed as Ex II in the case. Anyhow under special custom which they alleged was being followed by Jacobite Syrian Christians of Cochin, daughters were not entitled to any share in their father's estate and this effectively shut out the plaintiff. They also set up adverse possession and limitation and waiver. The general questions that thus arose for consideration in the Trichur suit were (i) the genuineness of the Will; (ii) the law governing the devolution of deceased Iyyavu's properties; and (iii) limitation and adverse possession and waiver. There was also the particular question in respect of some of the items as to whether they appertained to Jyyavu's estates. Ultimately the trial court held that it was not any special custom but the Indian Succession Act that governed the devolution but the plaintiff had to fail because firstly the Will in question was genuine (particularly in the light of the samma-thapatrom of 11-2-1908), copy of which was filed as Ex. XIII) and could also be proved by the defendants in the absence in Cochin of any rule corresponding to S.213 of the Indian Succession Act, and secondly the suit was barred by limitation, adverse possession, abandonment, ouster and laches. The court below also entered finding that in case the plaintiff was entitled to a share she could get only 1/8 share in the items, items 4, 16, 76 and 77 in the possession of the contesting defendants and also in such of those items as were in the possession of the ex parte defendants. In the result the court below dismissed the suit. Hence the appeal by the plaintiff in A. S.82 of 1955. A. S.752 of 1952 6. Before we deal with the various contentions raised by the parties we have to notice that it is conceded for the respondents that S.213 of the Indian Succession Act does forbid reliance by them on Ex. B-3Will in disproof of the plaintiff's claims to share in Iyyavu's estate. Even otherwise the question is now well settled that a defendant can rely on an unprobated will provided only he does not do so in order to establish a right under the will. B-3Will in disproof of the plaintiff's claims to share in Iyyavu's estate. Even otherwise the question is now well settled that a defendant can rely on an unprobated will provided only he does not do so in order to establish a right under the will. So where plaintiff sued as an heir at law but he was resisted by the defendants who claimed under a will of which no probate had been taken, it was held in Ganshamdoss v. Gulab Bi Bai, A. I. R.1927 Mad. 1054 F. B. overruling Churna Cunniah v. Mammelwariah I. L. R.33 Mad. 91 that as the mere existence of the will does not necessarily displace the plaintiff's title and as it is necessary for the defendant to go further and prove that some one other than the plaintiff has title under the will which he cannot prove by virtue of the provisions of S.213 he cannot use the unprobated will as a defence. See also the recent case in Babulal Mandal v. Abala Bala, A.I.R. 1955 Patna 126. This renders it unnecessary for us in this appeal to deal with the genuineness of Ex. B-3 will found upon by the lower court. Learned counsel for the respondents however asked for and obtained leave from us to raise the question that Ex. B-4 sammatha-patrom, to the extent it had not been set aside stood as a bar to the plaintiff in this suit. This point it may be recalled was accepted in the first trial court's judgment in O. S.5 of 1942 but was overruled in appeal by the Madras High Court. 7. The questions that therefore arise for consideration are: (1) what is the share due to the plaintiffs. Is it 1 /8 only as contended by the respondents or is it 1/4 as claimed by the plaintiff. Is the decision in O.S. 5 of 1942 res judicata on this matter as against the defendants (ii) How far Ex. B-4 sam-mathapatrom debars the plaintiff from claiming her share (iii) Is the plaintiff's claim barred by limitation or adverse possession; and (iv) To what extent has the plaintiff made out her right as regards particular items in the possession of the alienee defendants We will take up these questions in their order. 8. B-4 sam-mathapatrom debars the plaintiff from claiming her share (iii) Is the plaintiff's claim barred by limitation or adverse possession; and (iv) To what extent has the plaintiff made out her right as regards particular items in the possession of the alienee defendants We will take up these questions in their order. 8. Taking up the first question as to the share of the plaintiff it is the common case of both parties that on the death of Iyyavu, the plaintiff will, in the absence of anything else, be entitled only to an equal share with the sons, other daughters and widow of the deceased, viz., an 1/8 share in his estate. However according to the plaintiff the mother and sisters had got their share whatever it was, paid out so that the plaintiff and her three brothers alone were left as co-heirs for the future and she placed reliance on Ex. B-4 sammatha-patrom. But there is hardly evidence as to any such payment nor do the terms of Ex. B-4 justify the contention. And even assuming there was a surrender under Ex. B-4 of the rights of the mother and sisters those rights could be deemed to have passed only to the 3 brothers who were the apparent beneficiaries under it. For there is no evidence that the other daughters or widow were paid off or satisfied by the brothers with a view to benefit the plaintiff also along with themselves. In O. S.5 of 1942 the plaintiff was held entitled no doubt to 1/4 share-vide Ext. A21 judgment dated 30-1-1947 but the precise basis of the grant is not clear. The question then is can the plaintiff rely on that judgment by application of the doctrine of res judicata. The argument addressed on her behalf in this connection is that the finding in the former suit as to the plaintiff's share being 1/4, was res judicata against the defendants 1 to 6 in that suit, so it must be res judicata even as against the contesting defendants here, who were only claiming through those defendants 1 to 6 after the institution of that suit though in respect of properties not comprised in that suit. The court below met this contention by saying that all the conditions essential for the application of the rule of res judicata as between the co-defendants were not present in the case because for one thing the resolution of the conflict as to quantum of share between the defendants inter se was unnecessary to grant relief to the plaintiffs in O. S.5 of 1942 and secondly there was no hearing and no final decision in the earlier suit of the issue for the suit had been practically disposed of so far as the plaintiffs in that suit were concerned, even before remand and the defendants 1 and 6 who alone of the co-sharers were contesting the suit after remand left off their contest just before final judgment by virtue of plaintiff's compromise with them. Learned Counsel for the appellant sought to get over the first of the above two reasons by the plea that though normally it was so the fact that 0. S.5 of 1942 was a partition suit where the defendant co-sharer had asked for separation of his share made the reason inapplicable and he referred to Harihar Prasad v. Narsingh Prasad, AIR 1941 Patna 83 at 88 where the learned judge quoted the following observation in Ejaz Ahmad v. Saghir Bano AIR 1930 All. 287: "The decree passed in partition suit, in which for the purpose of giving relief to the plaintiff if a question has to be decided as between the different parties whether they are arrayed as plaintiff or defendant must in our opinion, be binding on all the parties. 287: "The decree passed in partition suit, in which for the purpose of giving relief to the plaintiff if a question has to be decided as between the different parties whether they are arrayed as plaintiff or defendant must in our opinion, be binding on all the parties. No doubt in an ordinary case a finding on an issue as between co-defendants is not binding unless it is necessary to give relief to the plaintiff and if there is a conflict between the defendants, but the decree in a partition suit stands on a different footing" and went on to say "Where defendants in a partition suit pray for a partition of their share, then before such relief can be given to them their share must be ascertained In such a case there is obviously a conflict of interest between the defendants and between that particular defendant and the plaintiff A defendant who asks for partition of his share is entitled to such relief and when a decree is drawn up he can take steps to enforce such a decree in much the same manner as if he was a plaintiff." But it must be remembered that the learned judges had themselves earlier in the judgment classified partition suits into two categories (i) for perfect partition, and (ii) for imperfect partition, and were enunciating the principle applicable to the first of the categories as above. They had referred accordingly to 0.20, R.18, C.P.C, and observed: - "The rule undoubtedly gives the Court in a proper case power to separate not only the plaintiff's share but also the shares of other defendants interested in the property. In practice defendants in a partition suit frequently ask that their share should be partitioned In such a case each of the defendants stands in very much the same position as the plaintiff He is a defendant vis-a-vis the plaintiff in the suit, but he is also a plaintiff vis-a-vis the plaintiff and his co-defendants in so far as he asks for the ascertainment of his share and the ranting of a patti proportionate to it In this respect a partition suit differs very materially from an ordinary title or money suit." O.S. 5 of 1942 as we saw was filed by a stranger as purchaser of the rights of a co-sharer in some items only of the common estate. The suit was no doubt maintainable and also was utilised as the occasion for granting the plaintiff her share in those items without objection on ground of partial partition. But the suit it is clear was in no sense a suit for perfect partition under the first category above. It is difficult therefore to hold on the authority of the case just cited that the normal rule of res judicata as between co-defendants, should not be applied to the instant case. The decision in Gandharp Singh v. Nirmal Singh, 54, I. C 385 next referred to by learned counsel does not carry the matter further. For all that is laid down in that case is: Where in a suit for partition of a joint property the decree declares the shares of every one of the parties interested in the property, the declaration as to the extent of the shares of the defendant is as binding between the co-defendants themselves as between the defendants and the plaintiffs." and the learned judges of the Oudh Judicial Commissioner's Court founded themselves for this proposition on 0.20, R.18, C.P.C. We have to make the same comment in respect of the cases in Ramamani v. Basavayya A.I.R. 1947 Madras 170 and Soorayya v. Soornna, A.I.R. 1936 Mad. 252 further cited by learned counsel in this connection. Learned counsel referred to Pittapur Raja v. Buchi Sitayya, 6 Mad. 219 P. C. for the proposition that res judicata in respect of an issue will apply although the later suit related to different property. But the ruling was concerned with the finality of a declaration in prior suit between the same parties as to the status of the one in relation to the other and is hardly helpful in this case. The other cases cited by learned counsel for the appellant in this connection are Kochu Varki v. Thirumala A. I. R.1932 I.C. 333, Abdul Gani v. Narendra Kishore A. I. R.1930 Cal. 47, Kadar Nath Singh v. Sheo Shanker A. I. R.1923 All. 613. But these lay down the same rule that "matter in issue" in S.11 of the Civil Procedure Code is distinct from subject matter and the object of the suit as well as from the relief that may be asked for and the cause of action on which it is based. This aspect, as we have said already, does not arise in this case. This aspect, as we have said already, does not arise in this case. 9. Of more relevancy in the context is the case in Chandu Lal v. Khalilar Rahaman, A. I. R.1930 P. C.17 cited by learned counsel for the respondents claiming title through the defendants 2 to 3 who were throughout ex parte in O.S. 5 of 1942. Their Lordships of the Privy Council after laying down the conditions for the application of the doctrine of res judicata as between parties who have been co-defendants in the previous suit: "there must be a conflict of interest between the co-defendants, the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and a decision of that question between the co-defendants." went on to say: "It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he bad or must be deemed to have had notice that the relevant question was in issue and would have to be decided. Burden to prove this lies on the party who alleges that the decision operated as res judicata." And in the light of their finding that the appellants had by no means discharged the burden which rested on them of showing that the respondent had or must be deemed to have notice of the conflict, their Lordships dismissed the appeal. In this case except the fact that O. S.5 of 1942 was filed on 4-2-1942 the order for impleading the 9th defendant (Plaintiff herein) was passed on 16-7-1942; the 9th defendant's written statement was filed on 29-7-1942 and the defendants 2 to 5 were ex parte throughout. We have no evidence of any other relevant fact. The plaintiff must in the circumstances be held to have failed to discharge the burden which rested on her to show that the defendants 2 to 5 were or must be deemed to be aware of the conflict between themselves and their co-defendants. Mention may also be made in this connection of the pithy observations of Jackson, J. in Gopala v. Gopalakrishnan, . I. R.1928 Mad. Mention may also be made in this connection of the pithy observations of Jackson, J. in Gopala v. Gopalakrishnan, . I. R.1928 Mad. 630: "If a plaintiff raises an issue in his plaint, and a defendant runs away from it by remaining ex parte, that defendant gives up his case and the Court will finally decide it against him. But if, apart from the plaint which has been served upon such defendant, new matter is brought in, either by way of amending the plaint or by way of written statements from other defendants, the defendant who has remained ex parte cannot be said to be running away from issues of which he has never heard. It would be odd to say that such matter had been directly and substantially in issue between the parties, when it is perfectly obvious as a matter of fact that between those parties it has never been in issue at all. The contrary position can only be established by assuming that a party once he is given notice of a suit must keep himself informed of every subsequent development, even though the plaint apprised him of nothing that he need contest. No case, and certainly no rule of procedure, has ever laid such a duty upon parties, and were this the law, it would follow as a natural corollary that every party must be served with every written statement and every amendment of the plaint." 10. The second reason for avoiding res judicata, viz. want of hearing or final decision relied on by the learned judge below is equally substantial. For we see that during the pendency of the appeal in the High Court, the plaintiff in O. S.5 of 1942 applied for and obtained a final decree and also got possession in execution under it. Of the defendants 1 to 7 who were interested in contesting the present plaintiff's claim, defendants 2 to 5 heirs of Ittoop and the 7th defendant wife of Ikkakku were already ex parte. On 27-1-1947 when the suit came on for final hearing the plaintiff filed statement as to compromise with defendants 1 & 6,- vide Ex. B-59 and there was practically none to contest the plaintiff's claim. And "because there was no adjustment with defendants 2 to 5" the court entered finding on all the issues. On 27-1-1947 when the suit came on for final hearing the plaintiff filed statement as to compromise with defendants 1 & 6,- vide Ex. B-59 and there was practically none to contest the plaintiff's claim. And "because there was no adjustment with defendants 2 to 5" the court entered finding on all the issues. We therefore hold that the plaintiff is entitled only to an 1/8 share in the estate of Iyyavu deceased, and notl/4 as claimed by her or as held in O. S.5 of 1942. 11. The next question is as to bar of suit by virtue of Ex. B-4 samma-thapathrom. This contension though not raised in the court below is sought to be pressed before us on behalf of the respondents. But we can say at once there is no substance in it. Now it may be recalled that Ex. B-4 was executed by the widow and daughters in favour of the three sons of Iyyavu the widow representing her minor daughter, the plaintiff as well. It states to begin with that the executants had no manner of right in the properties, that Iyyavu had a desire to give something to the executants because of his love and affection, that he therefore executed a will on 9-1-1908. Then the relevant provisions of the will are set out and the final portion follows. "As the said Iyyavu died before the will which he had executed out of his free and full will on the aforesaid date could be registered, we whole-heartedly agree to the stipulations contained in the said will and we have signed in this in the presence of under signing persons to witness." It is clear that there is no transfer of any property under this document. Nor is there a release by the mother as guardian of the properties of the minor plaintiff. As long ago found by the learned judges of the Madras High Court in A. S.456 of 1944, it is nothing more than a mere admission on the part of the guardian that a will in the terms mentioned in the document was executed by Iyyavu. There is nothing therefore in the document for the plaintiff to set aside and Art.44 of the Limitation Act has accordingly no scope for application. So in Gulam Md. There is nothing therefore in the document for the plaintiff to set aside and Art.44 of the Limitation Act has accordingly no scope for application. So in Gulam Md. v. Gulam Husain A. I. R.1932 P. C. 81 the Privy Council found no scope for applying the article once they accepted the construction of the document favoured by the trial judge, in preference to that of the High Court that there was no "transfer" by the deed in question. Similarly a surrender by a guardian of a minor widow under the Hindu Law was held not to operate as a transfer of property from the point of view of the surrenderee and therefore Art.44 had no application. See Ethilavulu Ammal v. Pathakkal. A.I.R. 1950 Mad. 390. In an almost parallel case recently decided by the Supreme Court Wall Singh v. Sohan Singh. A.I.R. 1954 S.C. 263, mutations were made on certain statements made by K as guardian of W and these statements were relied upon by the other party as constituting a transfer by K as guardian of W. The recitals in statements did not purport however to be based on any transfer or relinquishment by K as the guardian of W. Held that in the absence of anything by way of release by K on behalf of W, no case for the application of Art.44 arose. 12. We now come to the third question as to how far the plaintiff's claim is barred by limitation and adverse possession. It will be recalled that this plea was set up in bar of the plaintiff's claim in O. S.5 of 1942 and was over-ruled in the light of the evidence accepted by the court that the plaintiff "used to go and live in the family house at least till the time of the death of Ittoop (in 1112 Thulam corresponding to 1936 October-November) less than 12 years prior to the date of the suit. The learned judge had not failed to notice that she had not joined in any documents executed in respect of the properties but in the absence of an actual ouster for starting point of limitation there was according to the learned judge nothing to say about the plaintiff on the ground of limitation or adverse possession. Nor was there any bar against the plaintiff by estoppel, waiver or acquiescence. Nor was there any bar against the plaintiff by estoppel, waiver or acquiescence. The court below dealing with the question has accepted the definite evidence of the plaintiff as Pw.1 and of her husband as Pw. 2 that even after her marriage she used to go and live in her father's house. Pw. 2 had no doubt gone to the extent of saying that the plaintiff was getting her share of profits from Ittoop till his death and from the 1st defendant thereafter. This according to the court below might be an exaggeration. But even so, the worst that could be said against the plaintiff was that she was not in enjoyment of the income of the property but that was not to so that she had been excluded from the profits of the property or that she acquiesced in such exclusion at any time. The learned judge was willing to accept the evidence of Dw. 9 Ramaswamy Iyer who had been engaged by the brother's groups under the karar Ex. B-82 to divide the properties among them, that he met Pw. 2 at the family house and that Pw. 2 must then have come to know that he was doing the partition work. But even assuming that this private partition effected by Dw.9 and the subsequent alienations by defendants 1 to 6 were taken as assertions by the defendants 1 to 6 of their right to hold the property exclusively and in derogation of the plaintiff's right, still they were all within 12 years of this suit and could not affect the plaintiff to any extent. We do not think there is anything wrong in this approach. But learned counsel for the respondents says that long continuous non-receipt of income by a co-sharer may be presumptive of ouster and he contends that in the circumstances of the non-receipt in this case ouster should be held to be established and he cited a number of rulings. 13. Now the leading case usually referred to on this question is Culley v. Doed (1840) 11 A & E. 1008, where it is observed: "Generally speaking one tenant-in-common cannot maintain an ejectment against another tenant-incommon, because of the possession of the other tenant; 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 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, and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety." Commenting on the passage during the course of the leading judgment in Nirmal Chandra Das v. Mohitosh Das A.I.R.1936 Cal. 106, D.N. Mitter, J. observed: "This case does not support the broad proposition formulated that dispossession or non-possession for a considerable length of time is sufficient to give rise to an inference of ouster. The words which have been italicised, namely'other circumstances concur,' are of very great materiality. It is somewhat dangerous doctrine to propose that mere non-participation of rents and profits of joint property by a co-sharer for a very long period would be sufficient to give rise to the inference of ouster." And the learned judge laid down that it is only when along with non-participation of rents and profits for a considerable length of time other circumstances concur an inference of exclusion or adverse possession under hostile title might be drawn. That is to say the court must be satisfied that the taking of profits is an indication of the denial of rights in the other co-tenants to receive them. 14. The case in Lekshminarasamma v. Rama Brahmam, A.I.R. 1950 Mad. 680 referred to by learned counsel for the respondent does not take the matter further for it only lays down: "Possession is never considered adverse if it can be referred to a lawful title. Mere non-participation in the profits of the property by one-co-owner and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a co-owner, there must be an open and unequivocal denial of the title of the other co-parcener to the knowledge of the latter. Mere non-participation in the profits of the property by one-co-owner and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a co-owner, there must be an open and unequivocal denial of the title of the other co-parcener to the knowledge of the latter. Uninterrupted sole occupation of common property without more must be referred to the lawful title possessed by the joint holder to use the joint estate and cannot be regarded as an assertion of right to hold it as separate." In this case even assuming that the plaintiff was not participating in the profits of the estate and that continuously from the date of her marriage in or about 1910, still there are no circumstances on which to find an ouster, viz., that she had to her knowledge been hostilely kept out of enjoyment. Such assertions as they are, fall within the 12 years before this suit. If so, there is no scope for the plea of adverse possession and limitation. We therefore overrule it. 15. We now take up the last question how far the particular items claimed by the contesting respondents are available for partition in favour of the plaintiff. The complication here arises by virtue of the fact that the properties concerned were acquired by Ittoop at various times subsequent to the death of Iyyavu and in his sole name. Ittoop had his own properties though not vast when he took up the management of the properties left by Iyyavu vide Ex. B.19 encumbrance certificate for the period March 1902 to February 1907. At the same time the word 'tarwad' was freely used by the parties when they talked of themselves and their joint properties and they had joint and common residence besides. B.19 encumbrance certificate for the period March 1902 to February 1907. At the same time the word 'tarwad' was freely used by the parties when they talked of themselves and their joint properties and they had joint and common residence besides. According to the plaintiff the parties constituted a joint family, akin to the mitakshara Hindu families, of which Ittoop was the manager and he purchased properties only "with the income realised from the joint properties of the family and also the outstandings due to the family." The court below in dealing with this question was not willing to give Ittoop a higher status than that of a co-owner in management when according to it there was no legal presumption that the acquisitions made by him in his own name were for the benefit of all the co-owners in the absence of evidence to that effect. In the court's opinion it was for the plaintiff who set up such a claim to prove the affirmative and more so because the evidence on record disclosed that even when Iyyavu was alive Ittoop had independent dealings and was possessed of properties. The court below therefore analysed the purchases individually with a view to find whether common funds or income of the common properties had gone in for the purchases concerned with the result that it held against the plaintiff except as regards the properties with which 16th defendant was concerned. Learned counsel for the appellant urges that this approach by the court below is fundamentally wrong and that Itoop was in the position of a fiduciary so far as the rest of the co-sharers were concerned and the burden was therefore on him to show that particular investment was made with his separate funds for himself and so was his own. Even on the premise of co-owner in management there was according to learned counsel, evidence to show that Ittoop had never at any stage intended to reserve even to the least extent the benefit of the acquisitions made by him to himself but on the other hand he and after him, his personal representatives had treated them as 'tarwad properties,' viz., as available for division along with the properties left by Iyyavu among all the co-owners equally and he referred to the partition arrangement under Ex. B-82 karar. 16. B-82 karar. 16. Now there can be no doubt that the principles governing a joint Hindu family are not applicable to a Christian family. The presumption which may be raised in the case of the acquisitions by the manager of a Hindu family are not strictly applicable to acquisitions by the senior most member of a Christian undivided family. For the representative character of the manager of a Hindu family or of the karanavan of a Malabar tarwad is a conception which is quite foreign to a Christian family. As observed in Lazar v. Chakkunni, 34 Cochin L. R.306: "Among Christians there is no joint family as such. The members of a Christian family have in the common property no joint tenancy. The principle of the continuity of the family as a legal unit which gives it almost the character of a corporation is foreign to Christian family law. The members of the family are tenants-in-common in respect of the common property and no member has a right to act on behalf of others, or is presumed to act on behalf of others, except on the basis of an agency in this behalf expressly created or implied from the conduct of the members or the other circumstances in the case." So it can be proved that there was an implied agreement between all the members of the family that the members carrying on the management should carry on for the benefit of all the members and on the understanding that all the sharers shall be entitled to the properties acquired during the course of the management. Reference may in this connection be made to Aminaddin v. Tajaddin A.I.R. 1932 Cal. 538, which was a case where the members of a Mohammadan family lived in commensality possessing the family property in common and jointness. Mahammedan Law also did not recognise the system of holding property as under Hindu Law. It did not recognise a joint family as a legal entity. Nevertheless it was held that the acquisition made by one of the members occupying the position of a managing member, during the jointness of the family will be presumed to be for the benefit of the members of the family. It did not recognise a joint family as a legal entity. Nevertheless it was held that the acquisition made by one of the members occupying the position of a managing member, during the jointness of the family will be presumed to be for the benefit of the members of the family. The learned judges held that the presumption arose not because of any presumption regarding acquisition akin to the joint Hindu family, but because such person is in fiduciary relationship with other members and has an obligation to discharge towards other members, and if any property as acquired stand in the name of such person, the burden of proving that it was his self-acquired and not the property of the joint family will be on him. So it was held possible in Hussan v. Hassan, A.I.R. 1918 Mad. 595 for the descendant of a Mohammadan trader to live and trade together for more than one generation and to acquire property in the names of one or other male members of the family and in such a case the property is understood to be held for the several members of the family, in the shares to which they are entitled under Mohammadan Law in succession to the common ancestor. To the same effect are Arokia v. Sowriyaru, A.I.R. 1953 T.C. 305 and Ittyannan v. Mannayi 23 Cochin L. R.780, referred to by learned counsel for the appellant. In the former case the properties of a Christian were inherited by his children as tenants-in-common and were left in the exclusive possession and management of the eldest of them who accordingly dealt with them and acquired fresh properties. It was held that the co-owners were entitled to share in the newly acquired properties. In the former case the properties of a Christian were inherited by his children as tenants-in-common and were left in the exclusive possession and management of the eldest of them who accordingly dealt with them and acquired fresh properties. It was held that the co-owners were entitled to share in the newly acquired properties. The learned judges referred to Jai Indar Bahadur v. Sheo Indar Bahadur A.I.R. 1924 Oudh 218 for the proposition: "Where a party acquires certain property with the help of the funds which belong to him jointly with others, the co-owners are entitled in equity to their proportionate interest in the newly acquired properties." In the second case Ittyannam v. Mannayi 23 Cochin L. R.780 learned judges while refuting the assumption that a purchase made by a co-owner in management without anything more should be presumed to be for the benefit of the entire group of co-owners, laid down: "Even as amongst tenants-in-common it would be competent to the acquirer of property to throw it into the common stock with the intention of abandoning all separate claims upon it In such a case the property would be the property of all the co-tenants Where a co-owner in possession and management of joint property intermingles his acquisitions with the joint property to such an extent that the whole individuality of the self-acquisitions is lost the inference is irresistible that he did not want to preserve the separate character of those acquisitions and that he really intended to treat them by such mingling as the common property of all co-sharers'. It is no doubt true that under S.88 of the Trusts Act an accounting alone can be had against the defaulting person bound in a fiduciary character to protect the interests of another person and under illustration (b) to S.63 if the fiduciary has mixed his own moneys with trust moneys and made a single purchase, there is no right in the beneficiary to elect for the property but only to take a charge. But the plea hero is different. For Ittop the co-owner fiduciary in management is said to have treated the properties purchased as themselves co-ownership properties and never his own. See for example Ittoop's will Ex. A 12 dated 27-6-1935 followed by Ex. B-82 karar after his death dated 23-4-1936. Then the question is raised that to Ex. But the plea hero is different. For Ittop the co-owner fiduciary in management is said to have treated the properties purchased as themselves co-ownership properties and never his own. See for example Ittoop's will Ex. A 12 dated 27-6-1935 followed by Ex. B-82 karar after his death dated 23-4-1936. Then the question is raised that to Ex. B-82 karar the plaintiff was not a party; therefore any disclaimer by the acquirer's personal representatives cannot enure in her favour. But the question for the alienees here is only whether Ittoop the acquirer evinced any interest to keep the properties in himself subject possibly to a charge. Anything otherwise is only a matter between the co-sharers. And to the extent that plaintiff's rights as a co-sharer have been held by us to be intact, the co-sharer's group has necessarily to be viewed as inclusive of her. 17. Analysing the acquisitions in the above view we find that items 63, 79 and 64 claimed by the defendants 12, 21 and 23 respectively were acquired by Ittoop after the death of Iyyavu. They were also included in the partition among the defendants 1 to 16 under Ex. B-82 karar. These items must therefore be held to be partible for purposes of this suit. We direct accordingly. On the same basis items 18, 19, 23, 24 and 27 claimed by the 17th defendant should also be held to be partible. But these items would appear to be already the subject of O.S.5 of 1942 and the decretal direction there-vide Ex A21 judgment, that the partition to be effected in favour of the plaintiff will not affect the equities claimed by the alienee from the defendants 2 to 5 therein. That is to say, in case of partition the property will be allotted to the share of Ittoop's heirs by way of equity. The 17th defendant in this case is an assignee of the 14th defendant in O. S.5 of 1942 who himself was an assignee of the 8th defendant in that case, viz., A. S. D. Krishna Iyer, the original alienee as against the defendants 2 to 5 above said. There can be no doubt that the equity so allowed should prevail. We provide accordingly. There can be no doubt that the equity so allowed should prevail. We provide accordingly. As regards item 26 in the hands of the 9th defendant, it is no doubt true that it is comprised in a kanom renewal of 1926 in Ittoop's name along with the admitted properties of Iyyavu-vide Ex. B-12 and it was also dealt with under Ex. fi-82 karar. But it would appear that Ittoop had obtained the kanom right even as early as 1900-vide Ex. B-11 that is long after he became manager in 1908. There can therefore be uo equity in making it available for partition in the case. We therefore exclude it. As regards item 23 and items 83 and 98 the respective claimants defendants 14 and 22 trace their title to separate court sales in execution of the decrees in O. S.216 of 1933 and O. S.433 of 1J37 both on the file of the Chowghat Mun-siff's Court obtained by the respective jenmies for michavaram arrears. It may be that the plaintiff was not a party to those suits and as such the decrees therein may not be binding on her but in our judgment it is not open to her to question the representative character of the judgment-debtors particularly in view to the general position taken by the plaintiff so far, in regard to the management of the common properties. The result is that the plaintiff cannot now challenge the title of the defendants 14 and 62 in respect of items 23, 83 and 98. Finally as regards items 87 and 89 in the hands of the 28th defendant the court below has itself remarked that the plaintiff did not seriously press her case. We therefore do not deal with these items.. 18. Before closing we should not omit to notice an argument of Mr. Sundara Iyer, learned counsel for the respondents, that, the suit was ill constituted in that the plaintiff had rendered it difficult if not impossible to adjust the equities of the alienees, firstly by getting partition in regard to some items in O.S.5 of 1942 and secondly by compromising with various defendants- alienees during the course of this suit and striking out these defendants and their properties in question. But this is not in the nature of a legal objection. For the only consideration is, are the co-owners on record. We therefore overrule it. 19. But this is not in the nature of a legal objection. For the only consideration is, are the co-owners on record. We therefore overrule it. 19. In the result we allow the appeal only in respect of B schedule items 63, 79 and 84 as against the defendants 12,21 and 23. These items will also be included in the preliminary decree for partition as granted by the court below. The decree of the court below will stand modified to the above extent and will be confirmed in other respects. The defendants 12, 18, 21 and 23 will suffer their costs throughout. The plaintiff will get her costs of this appeal from out of the estate and pay the costs of the defendants 9, 14,17 and 22. 20. Taking up the cross appeal filed by the 16th defendant-17th respondent, the court below found from the document of acquisition in the name of Ittoop filed as Ex. All dated 17-2-1909 that the major portion of the consideration represented moneys due to Iyyavu's estate and so that ground the property must necessarily belong thereto and as was partible without doubt. Learned counsel for the 17th respondent disputes this finding. But it is unnecessary to pronounce on this contention because we find that the properties concerned were included in the partition arrangement under Ex. B 82 allotted to the first defendant. There is therefore no substance in the cross appeal It is accordingly dismissed with costs. 21. A. S. No. 82 of 1955 Before we go into the merits of this appeal we have to notice that in the Cochin jurisdiction wherefrom the suit herein arises there is no question of proof of will by probate alone as required by S.213 of the Indian Succession Act. The question of the truth and validity of the will alleged to be executed by Iyyavu has necessarily to be considered. There is again no legislation in Cochin like the Indian Succession Act including daughters along with sons and widow as heirs of a Christian intestate. The contesting defendants set up on the other hand a special custom excluding daughters from succession to their father. The question of the plaintiff's right to claim a share at all in the estate of Iyyavu even in the absence of a will also therefore arises for consideration. The contesting defendants set up on the other hand a special custom excluding daughters from succession to their father. The question of the plaintiff's right to claim a share at all in the estate of Iyyavu even in the absence of a will also therefore arises for consideration. The question of adverse possession and limitation raised in O.S. 55 of 1947 is also raised here. And finally we have to consider the contention of the alienees that the properties with which they are concerned do not appertain to the estate of Iyyavu. 22. The first question is thus whether Ext. II will is true and valid. The original will is not produced in the case and Ext. II is only an attested copy thereof. The original was produced by the 6th defendant in O. S.5 of 1942 and marked there as Ext. B-1. From O.S. 5 of 1942 it was later incorporated in the Ottapalam suit O.S. 55 of 1947 and marked as Ext. B-3. Now the will discloses that it is written by one Poulose and attested by six witnesses. During the trial stage in O.S. 5 of 1942 it would seem to have been reported that some of these attestors were alive. None of them were however examined in that case in proof of the will. There was on the other hand the evidence of Chummar who was a cousin of the parties and also a neighbour as D.W. 3 to the effect that Iyyavu was ill in bed for 20 days before date of the will and during the last 4 days he was actually unconscious and no will was in fact executed by him. There was also the evidence of Raman Nair, Kariasthan of Iyyavu examined as D.W. 6 and of the plaintiff as D. W. 4 to the same effect. Indeed in that case the proponents of the will set reliance solely on the presumption available under S.90 of the Evidence Act not only also as to its actual execution and attestation but also as to the testamentary capacity of the deceased. Vide Munnalal v. Kashi Bai,A.I.R.1947 P.C.15. But the presumption under S.90 was only discretionary. So the learned trial judge in O.S. 5 of 1942 in the exercise of his discretion refused to invoke the presumption and in the suspicious circumstances attending its execution found the will to be not genuine. Vide Munnalal v. Kashi Bai,A.I.R.1947 P.C.15. But the presumption under S.90 was only discretionary. So the learned trial judge in O.S. 5 of 1942 in the exercise of his discretion refused to invoke the presumption and in the suspicious circumstances attending its execution found the will to be not genuine. In the latter suit O. S.55 of 1947 the learned trial judge was willing to say that if it were to rely solely on the testimony of the witnesses examined in the ease in proof of the will he would have no hesitation to hold that there was no sufficient or satisfactory evidence. For even two of the attestors who were said to be alive had not been examined "as their whereabouts were unknown" and the evidence actually let in disclosed contradictions in vital matters. Nevertheless he thought there were enough circumstances in the case particularly the execution and registration of Ex, B-4 sammathapatrom by the widow and adult daughters of Iyyavu practically embodying the operative portion of the will on which to hold that the will was really executed by Iyyavu. It is practically on these considerations that the learned trial judge here has found the will to be true and valid. Now we have looked at the original will Ex. B-3 and we find that it consists of two sheets of paper of uneven thickness with the scrip in the second page comparatively bigger when it comes to the close of the writ-being adjusted. It is possible therefore as suggested on behalf of the plaintiff that papers signed but blank for the rest and obtained apparently for the purpose of some litigation in which Iyyavu was interested was utilised for the purpose of framing the will. There is again one curious wording in one place in the second page of the will describing the daughters of the deceased as (our sisters) instead of (your sisters) suggestive of the sons, rather than the father's authorship In our judgment the execution of the sammathapatrom by the widow and the adult daughters does not by itself carry the matter far. For all that we know they might have been deluded into the belief that there was a will. And it is rather strange that instead of seeking to get the will directly registered, the sons got the will incorporated into sammathapatrom and got that registered. For all that we know they might have been deluded into the belief that there was a will. And it is rather strange that instead of seeking to get the will directly registered, the sons got the will incorporated into sammathapatrom and got that registered. The only person examined in the case here in proof of the will was D. W. 6 Gopalan Nair who had been examined in O. S.55 of 1952 as D. W.11 and there totally discredited. No doubt, he was a kariasthan of Iyyavu and he spoke to his having seen the execution of the original will by Iyyavu and of the sammathapatrom by Iyyavu's widow and daughters. But as against this evidence there was Ex 4 deposition in O.S. 5 of 1042 of Raman Nair also kariasthan that Iyyavu was in such bad state of health that no will could at all be executed. On the whole we have come to the conclusion that the will is not genuine and we hold accordingly. 23. On the second question as to the law of succession governing the parties, we have to ascertain what exactly is the lex situs,viz., the law as prevailed in Cochin where the immovable properties scheduled to the plaint are situated and in 1083 or 1908 when' the succession opened on the death of Iyyavu. We are not therefore concerned with Act VI of 1097 (Cochin), paragraph I of S.4 of which enacted: " Succession to immovable property situated in Cochin and belonging to a Christian is regulated by this Act wherever he may have had his domicile at the time of his death," but which came into force on 20-4-1097 corresponding to 5-12-1921. "We are not also concerned with the law as stated in Acha v. Mariam, (28 Cochin LR. 333 as regards a succession which opened in 1088 in recognition of existence of a custom whereby "the son or sons take the inheritance to the entire exclusion of the daughter or daughters". "We are not also concerned with the law as stated in Acha v. Mariam, (28 Cochin LR. 333 as regards a succession which opened in 1088 in recognition of existence of a custom whereby "the son or sons take the inheritance to the entire exclusion of the daughter or daughters". It is rather the law as laid in Mathamma v. Pyli 26 Cochin L. R.54, where the succession opened in 1085 that governs us viz., "Daughters of a Christian dying intestate are entitled to share equally with the sons in the estate left by their father in the absence of proof of a custom to the contrary." The learned judge arrived at the same result though by a wrong reasoning (i.e.) that in the absence at the relevant time of a statutory law as Act VI of 1097, it was the law of the domicile, viz., the Indian Succession Act, that governed the matter. We therefore hold that the plaintiff is, just as in O. S.55 of 1947, entitled to share 1/8 in the properties appertaining to Iyyavu's estate and situate in Cochin. 24. The next question of adverse possession and limitation has been already found in the connected case in favour of the plaintiff and we have only to say that the court below misled itself to considerable extent by its finding on the genuineness of Ex. II will and the implications which it thought arose from the execution of the sammathapatrom Ex. XIII. The court below has also found that the plaintiff had lost her rights by waiver, abandonment, ouster and latches. But a part from the criticism of an indiscriminate clubbing which this finding may be legitimately subject to, there is in reality nothing in the case to support it. Indeed learned counsel for the respondents did not also attempt to support this finding before us. 25. We finally come to the question of partiality of particular items. Of the items 1 to 4,10,16, 76 and 77 in the possession of the contesting defendants, the court below itself found that in case the plaintiff was to succeed otherwise she was entitled to a share in items 4,16, 76 and 77. This finding has not been disputed on behalf of the respondents. We therefore accept it. Of the items 1 to 4,10,16, 76 and 77 in the possession of the contesting defendants, the court below itself found that in case the plaintiff was to succeed otherwise she was entitled to a share in items 4,16, 76 and 77. This finding has not been disputed on behalf of the respondents. We therefore accept it. Learned counsel for the plaintiff-appellant presses her claim to a share in items 1 to 3 and 10 as well The original title in respect of items 1 to 3 is Ex. 38 assignment deed dated 12-7-1083, in the name of Ittoop. These items 1 to 3 were mortgaged on 14 - 3-1103 along with other properties admittedly belonging to Iyyavu by Ittoop and his two brothers to the Catholic Syrian Bank as per Ex. 16 chitty security bond. Ex. 16 specifically mentions that all the properties without an exception are owned jointly by the executants & the chitty prize moneys obtained under the document are being received for the benefit of the 'tarwad' of the parties. The Bank filed a suit O.S. 26 of 1112, Trichur District Court, obtained a decree and in execution purchased the property, Ex. 17 being the sale certificate. The Bank sold the sale certificate right in respect of items 1 & 2 and part of 3 and 4 as per Ex. 16. Ex. 16 purchaser sold it to defendant 11 as per Ex. 30. We have therefore no hesitation in finding in favour of the plaintiff in respect of these items. Defendant 18 claims item 10 and portion of items 3 and 4. Item 10 was purchased in the name of Ittoop as per Ex. 9 assignment deed on 31-11-1085 after the death of Iyyavu. Ex. 9 itself mentioned a prior document of 1085 in the name of Ittoop. No evidence has been obtained on the side of the plaintiff to show that item 10 was dealt with as the joint property of Ittoop and his brothers. We have therefore to refuse relief of the plaintiff in respect of item 10. 26. It follows that the suit has to succeed in respect of the items 1 to 4, 16, 76 and 77 alone of the properties in the possession of the contesting defendants and in respect of the items in the hands of the ex parte defendants. 27. 26. It follows that the suit has to succeed in respect of the items 1 to 4, 16, 76 and 77 alone of the properties in the possession of the contesting defendants and in respect of the items in the hands of the ex parte defendants. 27. In the result the plaintiff is granted a preliminary decree for partition and separate possession of her 1/8 share in the plaint schedule items 1 to 4, 6, 9, 11, 13, 15, 16, 29 to 36, 39, 69, 72, 76, 77, 78 to 83, 87 & 91 Plaintiff's costs in both courts will come out of the estate. The Plaintiff will pay the costs of defendant 15 in both courts. Defendants 11, 22, 26 and 27 will suffer their costs throughout. Plaintiff is at liberty to apply for a final decree when a commission will issue to divide the aforesaid items by metes and bounds and assess mesne profits. The appeal is allowed to the above extent and dismissed otherwise.