Judgment :- 1. The plaintiff in O.S. No. 95 of 1973 of the Munsiff's Court, Taliparamba is the appellant. He died pending the appeal. His legal heirs have been impleaded as additional appellants 2 to 5. The defendants 1 to 3 and 5 and 6 in the suit are the respondents. Pending the second appeal, respondents 1 and 2 died. Their legal representatives have been impleaded as additional respondents 2 to 5 and 6 to 9. The plaint schedule has got six items of properties. They belonged to one Kutty. Kutty had five children Paru (plaintiff), Chirutha (1st defendant), Mathi (2nd defendant), Cheeru and Panchali. The last two are dead. The 3rd defendant is the son of the 1st defendant. The 6th defendant is the son of 2nd defendant and 5th defendant is the daughter of Cheeru. The 4th defendant is an assignee of item No. 6 from Kutty. As stated, the property belonged to Kutty. He died in 1936. He was holding that property under Trichambaram Devaswom as per a 'marupat' of the year 1930. According to the plaintiff on Kutty's death the property devolved on plaintiff and defendants 1 and 2. Defendants are not agreeable for partition in spite of demand and hence the suit. The defendants contested the suit. It was contended that items 1 to 5 were assigned by Kutty as per Ext B2 (unregistered document) dated 15-8-1937 to defendants 2 and 3 and they alone are entitled to the properties. On the basis of that document Kunhambu was having 1/4 share and the 2nd defendant 1/4 share. The plaintiff has no right in the suit properties. The suit is not sustainable. Even if the plaintiffs have got any rights, they are barred by adverse possession and limitation. 2. The controversy between the parties covered a wide range in the beginning. The trial court found Ext. B2, unregistered deed of assignment, to be genuine and denied relief to the plaintiff. It was also held that the plaintiff's right, if any, is lost by adverse possession and limitation. The suit was dismissed. The plaintiff appealed to the Subordinate Judge's Court, Tellicherry. That exclusive rights were claimed by defendants 2 and 3 on the basis of Ext. B2 unregistered assignment deed executed by deceased Kutty, was adverted to. In Para.4 of the judgment, the lower appellate court was perilously near, in holding against the genuineness of Ext. The suit was dismissed. The plaintiff appealed to the Subordinate Judge's Court, Tellicherry. That exclusive rights were claimed by defendants 2 and 3 on the basis of Ext. B2 unregistered assignment deed executed by deceased Kutty, was adverted to. In Para.4 of the judgment, the lower appellate court was perilously near, in holding against the genuineness of Ext. B2 document. It also held that the rights, if any, of the plaintiff are barred by adverse possession and limitation. The plaintiff has come up in appeal. 3. At the time of admission, the following three questions of law have been Formulated as substantial questions of law arising in the appeal: "A. Whether mere possession by a co-heir and her son and payment of rent by them to the jenmi sufficient to constitute ouster of another co-heir? B. Has not the lower appellate court gone wrong in law in accepting the case of adverse possession set up by the respondents especially in the light of finding against the basis of the claim of their so called exclusive possession? C. Is not the finding that there is an ouster of the appellant erroneous and unsustainable in law?" 4. Counsel for the appellants Mr. Balasubramanyam assailed the reasoning and conclusion of the lower appellate court dismissing the plaintiff's suit. It should be stated that the learned Subordinate Judge did not express any definite opinion regarding the genuineness of Ext. B2 and as to whether defendants 2 and 3 obtained any right thereunder. The learned Subordinate Judge held that there is room for suspicion regarding the genuineness of the document. No concluded finding was entered thereon. The lower appellate court felt that the appeal can be disposed of on other grounds. 5. But the plaintiff was non-suited, on the basis of adverse possession and limitation. In the absence of a finding regarding Ext. B2, we have to proceed on the basis that the plaintiff will be one of the legal heirs of Kutty as regards plaint schedule properties. He will be a co-owner. In view of the recent decision of the Supreme Court in Karbalai Begum v. Mohd. Sayeed (AIR 1981 SC 77), a co-owner in possession is a constructive trustee on behalf of the co-owner, who is not in possession. He will be a co-owner. In view of the recent decision of the Supreme Court in Karbalai Begum v. Mohd. Sayeed (AIR 1981 SC 77), a co-owner in possession is a constructive trustee on behalf of the co-owner, who is not in possession. In the aforesaid decision, the Supreme Court held in Para.7 of the judgment as follows: "It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, heing co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff." The plaintiff is a co-owner of the properties along with defendants 2 and 3, who are in possession. Since the co-owner in possession is a trustee, he cannot acquire title by adverse possession to the plaint property. The law on this point is clear. In A I.R. Commentaries on the Limitation Act, Vol. 2, 6th Edn. at page 239, it is stated as follows: "A trustee cannot, by setting up his own title to the trust property, acquire by adverse possession a title to the property. Until he has renounced his possession and re-entered on the property claiming a hostile title. In Srinivasa Moorthy v. Venkatavarada Iyengar ((1911) 11 Ind Cas. 447 (448) 34 Mad. 257 38 Ind App. 129 (PC)), their Lordships of the Privy Council observed as follows: "No person who has accepted the position of a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself." The principle above stated, namely, that a trustee cannot acquire title by adverse possession of the trust property, applies, equally to quasi or constructive trustees (5) to the managers of religious endowments (6). and in fact to all persons who stand in a fiduciary relation to others (7)." In U. N. Mitra's Law of Limitation and Prescription, 9th Edn., Vol. II, at page 1574, Para.66, law is stated as follows: "The possession of a trustee has its foundation in a fiduciary obligation resulting from a confidence reposed in and accepted by him. So long as he does not renounce his position and as such he is under an obligation to protect the interests of the trust. Hence no person who has accepted the position of a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself. Even an ex-trustee, till he discharges his obligation to hand over all the trust properties to the trust or to the subsequent trustees will be deemed to be in possession as and for the trust itself." In Venkatanarasimha Charyulu Peddinti v. Rayasam Gangamma Pantulu (AIR 1954 Mad. 258) Ramaswamy J. specking for himself and Subba Rao J. (as he then was) after referring exhaustively to the decisions said at page 261 as follows: "The principle above stated, namely, that a trustee cannot acquire title by adverse possession of the trust property, applies equally to 'quasi' or constructive trustees, the managers of religious endowments and in fact to all persons who stand in a fiduciary relation to others." Since a co-sharer in possession is a trustee for a co-sharer not in possession, there can be no question of any adverse possession, by any co-owner in possession. In this view of the matter, the lower appellate court committed a serious error in holding that defendants 2 and 3 have acquired title by adverse possession. They are incompetent to do so. The rights of the plaintiff are not and cannot be lost by adverse possession. 6. Even on the merits, I do not think that the lower appellate court was justified in finding that the rights of the plaintiff and other co-sharers are lost by adverse possession, limitation and ouster. It is true that the plaintiff has not been examined in the case. The lower appellate court placed reliance on Exts. B4 and B5 registered notices issued by Devaswom to defendants 3 and 4. They were not sent to the 2nd defendant. It is true that the plaintiff has not been examined in the case. The lower appellate court placed reliance on Exts. B4 and B5 registered notices issued by Devaswom to defendants 3 and 4. They were not sent to the 2nd defendant. This is a vital factor. Apart from the registered notices, the rent receipts produced by the defendants from 1949 were relied on. It may be that the Devaswom looked to defendants 3 and 4 for payment of rent. It may also be that the defendants were paying rent from 1949. But how can such facts amount to assertion of a hostile title to the knowledge of the plaintiff and the other co-sharers? There is no material to say so. The lower appellate court has not applied its mind to this crucial factor. Mere non-participation in the profits or non-payment of rent by themselves cannot amount to ouster. The finding of the lower appellate court that defendants 2 and 3 have succeeded in showing that they have been in exclusive possession of items 1 to 5 for more than 12 years before suit and that they have asserted a hostile title to the knowledge of the real owners is based on no material. The said finding is, therefore, liable to be vacated. I hereby do so. 7. In meeting the plea of adverse possession, raised by the defence, the plaintiff, appellant before the lower appellate court, filed and marked Ext. A4. That was a document executed by Kutty in favour of a stranger the 4th defendant with respect to item No. 6 of the plaint schedule property. It was two years after Ext. B2. It is specifically mentioned in Ext. A4 that the property assigned as per Ext. A4 forms part of the properties possessed by him. A reason is mentioned in Ext. A4 as to why the basic documents were not handed over. It was because the other properties were also included in the basic documents. This aspect was highlighted before the lower appellate court. But the lower appellate court explained away the above recitals by stating that Ext. A4 does not say that the assignor was keeping possession of these properties. I should say that the distinction sought to be drawn, that Ext. This aspect was highlighted before the lower appellate court. But the lower appellate court explained away the above recitals by stating that Ext. A4 does not say that the assignor was keeping possession of these properties. I should say that the distinction sought to be drawn, that Ext. A4 only states that the property assigned forms part of the properties possessed by him and that it did not state that Kutty was keeping possession of those properties, is, in the circumstances of this case, without any difference. On a fair reading of Ext. A4, it does not appear that Ext. A4 can be explained away in the manner it was done by the lower appellate court. 8. I have already found that the defendants are not entitled to raise the plea of adverse possession. The only remaining question is whether the plea of defendants 2 and 3 that they have obtained a valid assignment as per Ext. B2 dated 16-8-1937 of the rights with respect to items 1 to 5 is tenable. The trial court found Ext. B2 to be genuine and valid. The lower appellate court in Para.4 of the judgment has left open the question. This is a question of fact. Since the lower appellate court has not entered any definite finding, the matter has to go back to the lower appellate court. In the circumstances, the judgment and decree of the lower appellate court are set aside. This appeal is allowed. The lower appellate court is directed to consider and find as to whether defendants 2 and 3 obtained a valid assignment of the rights of Kutty with respect to items 1 to 5, afresh, on the basis of materials available in the case and in the light of the observations contained hereinabove. The Second Appeal is allowed. There shall be no order as to costs. The case is posted in the lower appellate court for appearance on 15-7-85. Allowed.