JUDGMENT George Vadakkel, J. 1. The plaintiffs suit for partition of the plaint schedule property and for separate possession of 2/7 shares was decreed by the trial court but dismissed by the lower appellate court and the plaintiffs have come up in appeal. The short facts are: The suit property was taken on lease by the father of the plaintiff and the 2nd defendant in 1099 M.E. from the 1st defendants husband's tarwad. He thereafter assigned his leasehold rights to his wife Kalliani her sister the 1st defendant, and their mother Karinchi Kalliani died sometime before 1936 and thereafter Karinchi executed Ext. B-2 assignment deed on 20th, November 1936 whereby she relinquished her own share in the leasehold and also, acting as guardian of plaintiffs and the 2nd defendant, their share, which they inherited on Kalliani's death to the 1st defendant and her children, defendant Nos. 3 to 6. It appears that the 1st defendant and the 3rd defendant thereafter obtained renewal of the lease, Ext. B-3 dated 14th August 1937, from the 1st defendant's husband who at that time was the karnavan of the lessor tarwad. Ext. B-5 dated 25th November 1949 is a further renewal, but in favour of the 1st defendant and defendant Nos. 3 to 6. It is the case of the plaintiffs that Karinchi was incompetent to execute Ext. B-2 so as to relinquish their 1 /3 share in the leasehold property. It is on that basis that the plaintiffs seek partition and recovery of 2/7 share; according to them plaintiffs who are six in number and the 2nd defendant together would be entitled to 1/3 or in other words 7/21 shares in the leasehold and since the 2nd defendant has not joined the plaintiffs they are seeking partition and recovery of possession of 6/21 share or in other words 2/7 share in the suit property. This claim is met by the defendants on the ground that Ext. B-2 assignment deed was competently executed by Karinchi, the grandmother, who was the de facto guardian of the plaintiffs and the 2nd defendant, and that therefore the plaintiffs are eo nomine parties to the same for which reason without setting aside Ext. B-2 assignment deed the plaintiffs will not be entitled to the reliefs prayed for; it is the defendants further contention on this part of the case that a suit to set aside Ext. B-2 assignment deed the plaintiffs will not be entitled to the reliefs prayed for; it is the defendants further contention on this part of the case that a suit to set aside Ext. B-2 is barred under Article 44 of the Indian Limitation Act, 1908. Alternatively it is contended that there has been an ouster and therefore the defendants have prescribed title to the plaintiffs share also. On both these contentions the trial court found in favour of the plaintiffs and passed a preliminary decree holding that the plaintiffs are entitled to 6/21 shares and that they are entitled to recover separate possession of the same with future profits from the date of suit; the quantum of profits was directed to be determined in the final decree. The lower appellate court reversed the above said preliminary decree holding that the plaintiffs have been ousted from joint possession and that the defendants have prescribed title to their share also; the other question does not appear to have been adverted to or discussed by the lower appellate court. 2. The first question that irises for consideration is whether Ext, B-2 assignment deed is only a voidable transaction and not void as pleaded by the plaintiffs. On behalf of the respondents it is argued that the 1/3 share Kalliani had in the leasehold property became tavazhi property in the hands of the plaintiffs and the 2nd defendant, that therefore the proviso to section 14 of the Madras Marumakkathayam Act, 1933 governs the guardianship of plaintiffs and the 2nd defendant, and that since their grandmother Karinchi was their de facto guardian she was competent to deal with the plaintiffs share in the leasehold. The next step in the argument is that the plaintiffs and 2nd defendant are, through their de facto guardian Karinchi, eo nomine parties to Ext. B-2 and since possession was transferred by Karinchi in favour of the 1st defendant and defendant Nos. 3 to 6 under Ext. B-2 without setting aside the same plaintiffs are not entitled to recover possession of any portion of the suit property. It is pointed out that there is no prayer for setting aside Ext. B-2. B-2 and since possession was transferred by Karinchi in favour of the 1st defendant and defendant Nos. 3 to 6 under Ext. B-2 without setting aside the same plaintiffs are not entitled to recover possession of any portion of the suit property. It is pointed out that there is no prayer for setting aside Ext. B-2. Reliance is made on the Full Bench decision in Mathew v. Ayyappankutty, 1962 K.L.T. 61 The learned counsel laid particular stress on paragraph 73 of the decision wherein the Full Bench said that:- "The cause of action is not the transfer of possession; it is the alienation that passed the possession; and therefore the suit must be to set aside the alienation itself with a prayer for possession as a consequential or accessory relief."� 3. I am afraid that the argument advanced is unsustainable. Generally speaking, barring instances of blending and lapse, members of a marumakkathayam community cannot be said to be holding property as a tarwad or tavazhi unless they have by birth rights in the property (or in the funds with which the property is acquired). There is no case before me that the plaintiffs and the 2nd defendant had any rights in the 1 /3 share in the suit property during the lifetime of their mother Kalliani and possibly there could not be any such case because that was Kalliani's separate acquisition, she along with the 1st defendant, her sister, and Karinchi, her mother, having purchased the leasehold right from her husband. Such separate property devolved on the plaintiffs and the 2nd defendant by inheritance. Under section 25 of the Madras Marumakkathayam Act (Madras Act XII of 1933) on the death intestate of a marumakkathayee female her self-acquired or separate property devolves in the order and according to the rules contained in sections 26 to 29 both inclusive. The proviso to section 26 makes explanation 1 to section 20 applicable to such a case. Looking at explanation 1 to section 20 I find that descendants of a daughter, daughter's daughter or other female descandants in the female line shall not be entitled to any share if the daughter, daughters daughter, or other descendant is alive at the time of the death of the intestate. This means that they inherited property not as tavazhi property but as tenants-in-common. This means that they inherited property not as tavazhi property but as tenants-in-common. The result is that the very foundation of the argument viz., that the property in the hands of the plaintiffs and the 2nd defendant was tavazhi property goes. 4. It is also doubtful whether the theory of de facto guardianship is applicable to Marumakkathayam law. In Punnoose v. Korathu 1951 K.L.T. 223 (F.B.) considering the question whether the theory is applicable to Christians, the Travancore-Cochin High Court laid down the general proposition to be: "It is the prerogative of the Crown (the State) as Parent Patriae to protect subjects who cannot protect themselves Chartered High Courts in India as representatives of the Crown used to confer authority on persons as guardians of minors before the enactment of the Guardians and Wards Act which confers the power to appoint guardians on other courts as well. The personal law, if any, whether written as in the case of the Hindu and Mohammedan Law or unwritten as in the case of custom whether of a family, of a locality or of a community authorising particular persons to deal with the property of minors as guardians would be recognised except where even the proof of custom is prohibited as in the case of the Indian Shariat Act (36 of 1937). Right to guardianship of the property of a minor must therefore be rested on an order of court or on some personal law. A person deriving authority in this manner would be a de jure guardian". This decision was referred to and followed by a Division Bench of the same High Court in Vasu Pillai v. Prabhakaran Nair 1955 K.L.T. 270 a case governed by the Travancore Nair Act (II of 1100). Sankaran, J. (as he then was) said: "No more arguments are necessary to repel the contention urged on behalf of the appellant that the position of the minors governed by the Nair Act should be assimilated to that of the minors, under the Hindu Law. Nairs are governed by the principles of Marumakkathayam law as modified by the provisions embodied in the Nair Act which contains special provisions specifying the persons who should represent minors as their legal guardians in respect of their separate property. Self-imposed guardianship or management by other persons will not confer on them any legal authority to deal with the minor's property. Self-imposed guardianship or management by other persons will not confer on them any legal authority to deal with the minor's property. Such dealings will be absolutely void and will not in any way affect the minor's interest in such property."� The above decision was followed by this court in Sreedharan v. Chellappan 1959 K.L.T. 897. The question that arose in that case was as to whether an Ezhava Minor's Property can be dealt with by a person who has no legal authority to represent the minor, and it was held that such a person cannot deal with the minor's property and that dealings by such a person would be absolutely void and will not in any way affect the minor's interest in such property. This court again spoke on the matter in Mathukutty v. Rugmini Amma and others 1971 K.L.J. 137. In that case Poti, J. said: "In view of what I have stated above, it is clear that the rule as regards Hindus governed by the Hindu Mitakshara Law in regard to the question before me is different from the rule applicable to minors of other communities."� This case again was with reference to a Nair minor's property. The same learned Judge in Ramachandran Nair v. Rugmini Amma S. A .1230 of 1966 decided a few months earlier to decision in Mathukutty's case 1971 K.L.J.137 exhaustively reviewed the whole case law on the point and said: "From a series of decisions of the various High Courts and the Supreme Court it appears to be well settled that when a property of a minor is alienated by a person acting as a de facto guardian of the minor such alienation would be void if the de facto guardian does not happen to be the de jure guardian also. A guardian under the personal law of the minor or in his absence a guardian appointed by the court can alienate the properties of a minor if circumstances justifying such alienation exists. But even if such circumstances do exist any alienation by a person who is a de facto guardian but is not a guardian declared to be such under law or appointed under the relevant provisions of law would be incompetent and the alienee cannot get any rights under the transfer. But even if such circumstances do exist any alienation by a person who is a de facto guardian but is not a guardian declared to be such under law or appointed under the relevant provisions of law would be incompetent and the alienee cannot get any rights under the transfer. Exception to this rule has been recognised in the case of minors governed by the Hindu Mitakshara Law where the authority of a mere de facto guardian to alienate the properties of minor under certain circumstances is recognised."� These latter two decisions make it abundantly clear that the exception to the rule is not with reference to the character or nature of the property but an exception particularly with reference to followers of Hindu Mitakshara Law. I have therefore no doubt that the theory of de facto guardianship is not available so far as Marumakkathayam law is concerned. 5. The third premise upon which the learned counsel advanced the above contention is also in my view unsustainable. So far as co-owners are concerned, possession of one is possession of all; relinquishment by one co-owner would not in my view amount to a transfer of possession unless it be to a stranger. But then it is argued that defendants Nos. 3 to 6 were strangers and, therefore, I should proceed on the basis that there was a transfer of possession by Karinchi to these defendants. But defendants Nos. 3 to 6 are children of the 1st defendant, a co-owner, and the transfer was of the undivided co-ownership rights by one without authority to another undivided co-owner and her children. The 1st defendant was by herself entitled to be in possession of the whole of the property before and after Ext. B-2; and she should be deemed to have been and to have continued to be in possession of the whole of the property as a co-owner. At any rate there is no evidence in this case of defendants Nos. 3 to 6 having been in possession to the exclusion of the 1st defendant. I do not think that joint possession, if any, of defendants Nos. 3 to 6 along with their mother, the 1st defendant, a co-owner, would be adverse to the plaintiffs and the 2nd defendant, the other co-owners. 3 to 6 having been in possession to the exclusion of the 1st defendant. I do not think that joint possession, if any, of defendants Nos. 3 to 6 along with their mother, the 1st defendant, a co-owner, would be adverse to the plaintiffs and the 2nd defendant, the other co-owners. The extent of such possession is not adequate to show that it is possession adverse to the plaintiffs and 2nd defendant, for at the worst, defendants Nos. 3 to 6 are only in joint possession with another undivided co-owner who is their mother. Such possession can be treated only as possession by entreaty if not by stealth. 6. The first contention raised by the defendants arid found against them by the trial court is without any basis. I hold that Ext. B-2 assignment deed was ineffective in anyway to affect the interests of the plaintiffs and the 2nd defendant in the suit property. Ext. B-2 is a void transaction. 7. Coming to the question of ouster it was urged before me that in view of the long exclusive possession by the 1st defendant and her children I should presume that there had been an ouster of the plaintiffs. In Soopi v. Moosa 1969 K.LT. 121 a Division Bench of this court clearly laid down the proposition that to constitute ouster hostile animus is necessary. This court further said that it is a matter involving action and not a matter of mere inaction. Shortly, this court said that ouster is a positive matter. This court also said: "When one co-owner takes possession and continues in possession for a long time enjoying the income of the property without sharing it with the other co-owners, it is, in our opinion, a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this, courts will be justified in inferring ouster or exclusion."� To the same effect is the decision of the Supreme Court in P. Lakshmi Reddy v. Lakshmi Reddy A.I.R. 1957 S.C. 314 paragraph 4 whereof had been fully extracted by the learned Judges in Soopi v. Moosa 1969 K.L.T. 121. In that case the Supreme Court referring to N. Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 and Culley v. Deod Taylerson (1840) 3 P. and D. 539: 52 R.R.566 said: "There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, (A.I.R. 1919 P. C. 44 at p. 47) quotes, apparently with approval, a passage from Culley v. Deod Taylerson [(1840) 3 P. and D. 539: 52 R.R. 566] which indicates that such a situation may well lead to an inference of ouster if other circumstances concur."� The question is what are the other circumstances. It is interesting to notice that in Culley v. Deod Taylerson (1840) 3 P. and D. 539: 52 R.R. 566 Lord Denman, Ch. J. considering the common law on the point said: "Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-in-common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining."� and continued to say in another part of the judgment with reference to the provisions of the statute that was being considered: "If, therefore, in the present case, the possession of Culley was not adverse to that of Taylerson at the time of passing the Act, Taylerson would have five years after the passing of the Act in which he might bring his ejectment, and which five years had not expired when the ejectment was brought. Then, was his possession adverse to that of Taylerson? He and his ancestors had been out of the participation of the rents and profits for above twenty years; and in ordinary cases, it would be to be left to the jury, whether they would presume an ouster. Then, was his possession adverse to that of Taylerson? He and his ancestors had been out of the participation of the rents and profits for above twenty years; and in ordinary cases, it would be to be left to the jury, whether they would presume an ouster. In the present case, it appears, by the bill of exceptions, that the Judge stated that possession was not adverse; and the exceptions taken to the Judge's direction do not point to any objection made to this opinion as expressed by the Judge; nor was he required to leave that fact to the jury."� The former passage extracted from Culley's case was quoted in N. Varada Pillai v. Jeevarathnammal A.I.R.1919 P.C. 44. In that case the Privy Council, with reference to the passage aforementioned, said that on the facts of that case the general principle enunciated in that passage has no application. The second rule stated in Cully's case is:” "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. "� This I suppose to be a rule of evidence, which says that exclusive possession for a considerable length of time is a relevant fact to be taken into account in deciding the existence or otherwise of two out of three factors or elements that are essential to constitute ouster; viz. (1) Exclusive possession and enjoyment by one co-owner, (2) open assertion of hostile title by him and (3) to the knowledge of the co-owner excluded from possession and enjoyment. It is settled law that the burden of proof to establish ouster is on the co-owner pleading the same. (1) Exclusive possession and enjoyment by one co-owner, (2) open assertion of hostile title by him and (3) to the knowledge of the co-owner excluded from possession and enjoyment. It is settled law that the burden of proof to establish ouster is on the co-owner pleading the same. Evidence regarding 'open assertion of hostile title to the knowledge of the excluded co-owner will be more readily accepted by the court, once it is established that the non-possessing co-owner was excluded for a considerable length of time, but this, I think, does not mean that no evidence at all as regards the other two requirements that go to constitute ouster is necessary or that from proof of long exclusive possession alone, court will conclude ouster. It is necessary even in such cases to prove that one co-owner took and maintained notorious exclusive possession in assertion of hostile title and that he continued in such possession for a very considerable time and that the excluded co-owner did not take any step to vindicate his title. Longer the period of his exclusive possession, perhaps, it is easier for the defendant to establish his hostile animus and plaintiff's knowledge of such animus. 8. The lower appellate court came to the conclusion that there was ouster of the plaintiffs only on two grounds, viz., that the plaintiffs do not claim any share in the Karinchi's 1/3 share for which reason the lower appellate court was of the view that the plaintiffs were aware of Ext. B-2 when the plaint was put into court, the lower appellate court also relied on the evidence of D.W.I. who was disbelieved by the trial court, and it disbelieved the evidence of P.W.I, who had been believed by the trial court. Regarding the second ground relied on by the lower appellate court, I may immediately point out that neither D.W.I. nor P.W.I. were competent to speak about Ext. B-2 transaction and the circumstances attending to the execution of the same. P.W.I. has been characterised witness for the reason that he is the 2nd plaintiff. If that be the position so far as P.W.I. is concerned, equally so D.W.I. is an interested witness, for he is the 4th defendant. B-2 transaction and the circumstances attending to the execution of the same. P.W.I. has been characterised witness for the reason that he is the 2nd plaintiff. If that be the position so far as P.W.I. is concerned, equally so D.W.I. is an interested witness, for he is the 4th defendant. The other ground, viz., the plaintiffs' failure to seek a share in the 1/3 share which Karinchi had in the leasehold property and the inference drawn by the lower appellate court that, therefore the plaintiffs would have been aware of Ext. B-2 'when the plaint was put into court', is of no consequence. The question is had the plaintiffs come to know of Ext. B-2 and that the assignees under Ext. B-2 were in possession of the leasehold adversely and with hostile animus at some time 12 years prior to the institution of the suit. If they have come to know of Ext. B-2 within 12 years of the institution of the suit, that would still be within time. There is absolutely no evidence in this case as to the plaintiffs having come to know of Ext. B-2 at a time beyond 12 years of the institution of the suit. The defendant on whom the burden lies to establish the ouster has therefore miserably failed to establish the same. The second appeal therefore succeeds. I set aside the judgment and decree of the lower appellate court and restore those of the trial court. The second appeal is allowed with costs.