Judgment :- 1. Plaintiff in O.S.No.5 of 1976 on the file of the Court of Munsiff, Hosdurg is the appellant in this Second Appeal. This Second Appeal came before us on a reference by Dr.Kochu Thommen J. 2. The appellant filed a suit for partition on the allegation that plaint schedule property belonged in leasehold right to one Veluthambadi, the father of the respondent herein, that by a registered Will Ext.Al dated 30-8-1955, Veluthambadi bequeathed the property along with other items to the thavazhi of his nephew Kannan with a direction that the properties would be held and enjoyed as thavazhi properties of Kannan, that the members of the thavazhi of Kannan assigned their right in favour of the appellant and that Kannan's share was obtained by the respondent herein under a sale deed from Kannan. 3. The suit was resisted by the respondent who contended that as per the terms of the Will Ext. Al the bequest was not in favour of Kannan's thavazhi but Kannan himself, that the thavazhi members had no right in the property and that therefore the appellant had not derived any right to the property by virtue of the alleged purchase. 4. The trial court took the view that the bequest under Ext. Al was in favour of the thavazhi of Kannan and that the appellant was entitled to a decree for partition. In this view of the matter, the trial court passed a preliminary decree for partition. 5. On appeal by respondent, learned Subordinate Judge took the view that in the earlier pan of the Will evidenced by Ext.Al, there was an absolute bequest in favour of Kannan and that in the circumstances, the restriction that the property would be enjoyed by the thavazhi of Kannan was inoperative and invalid in law. He also held that in any event Kannan had prescribed title by adverse possession and limitation. Accordingly the Subordinate Judge allowed the appeal and dismissed the suit. 6. In this Second Appeal, the appellant plaintiff has challenged the finding of the learned Subordinate Judge. He also held that in any event Kannan had prescribed title by adverse possession and limitation. Accordingly the Subordinate Judge allowed the appeal and dismissed the suit. 6. In this Second Appeal, the appellant plaintiff has challenged the finding of the learned Subordinate Judge. Learned single judge felt that the question whether a karanavan can prescribe hostile title against the members of thavazhi is an important question of law and that the dictum laid down in the decision in Paru v. Chiruthai (1985 K.L.T.563) that under no circumstances, a co-owner can claim adverse possession requires to be re-examined and it was under those circumstances that the matter was referred to be heard by a Division Bench. 7. To appreciate the respective contentions of the parties, it is necessary to quote the operative portion of Ext.Al which reads as follows: portion of the document, A schedule properties are described as" 8. Learned counsel for the appellant strongly relied on the recital in the document that A schedule property has to be enjoyed as thavazhi property and also on the description of property as A schedule property to be enjoyed by his nephew Kannan representing the thavazhi 9. Learned counsel for the respondent however contended that there is an absolute disposition in favour of Kannan in the earlier part of the Will and subsequent restriction in the mode of enjoyment by Kannan cannot be operative and is void. Learned counsel on both sides placed before us large number of authorities in support of their respective contentions. 10. In Ramachandra Shenoy and another v. Mrs. Hilda Brite and Others (A.I.R. 1964 S.C.1323), the Supreme Court said: "It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. Of course, if there are two repugnant provisions conferring successive interests if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B." In Navneet Lal v. Gokul & Others (AIR 1976 S.C.794) this position of law has been reiterated. The Supreme Court reviewed the earlier decisions and formulated the following principles as well-established. "(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed, (flam Gopal v. Nand Lal & Others (1950 SCR.766). (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy (42 Indian Appeals 51/72) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha's case supra and Gnanambal Ammal v. T.Raju Ayyar and others (1950 SCR 949/955). (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (1953 SCR.232/240). (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (1953 SCR.232/240). (4) The court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions, would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus (Paerey Lal v. Rameshwar Das (1963 Supp. 2 SCR 834/839/842). 5. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will (Ramachandra Shenoy and another v. Mrs. Hilda Brite and Others (1964 (2) SCR. 722/735).11 A Division Bench of this Court in Krishna Bhatta v. Narayana Bhatta (1962 KLJ 149) considered the question of construction and laid down as follows: "6. The proper rule of construction is that all the parts of a will should be construed in relation to each other and so as, if possible to form one consistent whole, and if any of the parts are absolutely irreconcilable, the latter must prevail (Jarman on Wills, 8th Edition, page 2069). Chapter VI of the Indian Succession Act, 1925, consisting of S.74 and 111 deals with the construction of wills. Chapter VI of the Indian Succession Act, 1925, consisting of S.74 and 111 deals with the construction of wills. S.82 provides that the entire instrument, and that all its parts should be construed with reference to each other, and S.88 that where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail." 11. In Enasu v. Kunjuvareed Antony and others (1968 KLJ 749) it was held that a construction which renders some of the clauses in the will totally ineffective and gives effect only to some others, should as far as possible be avoided and attempt should be made to interpret the provisions in such a manner so that effect could be given to every testamentary intention contained in the will. 12. In Ramakrishorelal and another v. Kamalnarayan (AIR 1963 SC.890), the Supreme Court observed that "The golden rule of construction, it has been said, is to ascertain the intention of the' parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to be trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where is an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible, it is only when this is not possible, eg. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void." It is clear from the principles enunciated in the above rulings that if it is legally possible, effect should be given to every disposition contained in the Will and that Court should adopt such a construction so as to give effect as far as possible to every testamentary intention contained in the Will. The intention as can be gathered from the entire recitals contained in the document has to be given effect to. Interpreted the Will in this case, in the light of the principles enunciated in the above rulings we have no doubt in our mind that the intention of the testator was not to make a disposition in favour of Kannan in his individual capacity, but to make a disposition in favour of thavazhi of Kannan. In the operative portion itself it is made clear that A schedule property is bequeathed to Kannan to be enjoyed as thavazhi property and the position has been further clarified in the Will by description of the property as the property allotted to his nephew Kannan to be enjoyed as thavazhi property. The other legatees are children and wife. It is significant that Kannan is nephew of Veluthambadi. The other legatees are children and wife. It is significant that Kannan is nephew of Veluthambadi. That Veluthambadi wanted the bequest to enure for the benefit of the thavazhi of his nephew Kannan is clearly discernible from a reading of Ext.Al as a whole. We are therefore of the view that really the disposition of A schedule is in favour of thavazhi of Kannan and not to Kannan in his individual capacity. 13. Learned counsel for the defendant next contended that there is no evidence to show that Kannan had a thavazhi. In the written statement filed by the defendant, he had no such case. In Para.2 of the written statement, he stated that the leasehold right over the suit property never belonged to thavazhi of Kannan, that thavazhi of Kannan had never exercised any right over the property and other items given to Kannan as per A schedule attached to the Will, that Kannan dealt with the property and other items as his own and that the assignment deed taken by plaintiff from some of the members of the thavazhi of Kannan is void document, incapable of conferring any right on the plaintiff over the property. In Para.3 of the written statement, it is averred that the leasehold right of the thavazhi of Kannan is barred by limitation and adverse possession and that thavazhi of Kannan was never in possession and enjoyment of the suit property and other items. In view of these averments, the existence of the thavazhi of Kannan cannot be disputed. What is denied in the written statement is, the plaint allegation of bequest in favour of thavazhi of Kannan and not the existence of thavazhi of Kannan. It is also averred in the written statement that the right of thavazhi of Kannan was lost by limitation and adverse possession. That necessarily implies that Kannan had a thavazhi. Other materials in the case also prove that Kannan had a thavazhi. 14. The next question to be considered is whether there was an ouster of members of thavazhi by Kannan and there was an assertion of hostile title by Kannan in respect of suit property to the knowledge of the members of thavazhi and accordingly the right of thavazhi is barred by adverse possession and limitation. Reference made by learned single judge relates to this question. 15. Reference made by learned single judge relates to this question. 15. Learned counsel for the appellant submitted that since Kannan was the karanavan of a thavazhi and had a fiduciary capacity, he could not prescribe adverse possession against the members of the thavazhi. He invited our attention to the following passage in Para.884 of Mayne's Hindu Law and Usage, 12th Edition: "The position of a karanavan as head of the family comes to him by birth. It cannot be created by contract and it is not analogous to that of a mere trustee, officer of a corporation or the like. So long as the karanavan is capable of acting and has not renounced the position, either directly or by implication, he alone can represent the family and bind it by his acts. He is competent to give a valid discharge on behalf of the tarwad Under Malabar Law the eldest male member of the tarwad is the karanavan. In him is vested actually (though in theory in the females) all the property, movable and immovable, belonging to the tarwad. It is his right and duty to manage alone the property of the tarwad, to take care of it, to invest it in his own name (if it be movable) either on loans on kanom or other security, or by purchasing in his own name, lands, and to receive the rents of lands He is not accountable to any member of the tarwad in respect of the income of it, nor can a suit be sustained for an account of the tarwad property in the absence of fraud on his part " In the words of Holloway, J. "a Malabar family speaks through its head, the karanavan and in Courts of Justice, except in antagonism to that head, can speak in no other way". 16. Learned counsel also invited our attention to the following passage at page 40 of the Malabar and Aliyasanthana Law by P.R. Sundara Aiyar:- "In all the dealings of the family he alone can represent the family. In him is vested the entire executive authority of the family so much so that any restriction on his powers in these matters will not be given effect to against a stranger without notice. In him is vested the entire executive authority of the family so much so that any restriction on his powers in these matters will not be given effect to against a stranger without notice. He is entitled to the possession of family properties as against an anandravan." Our attention was also drawn to a decision of the Cochin High Court in H.H. Kerala Varma Thampuran v. Achutha Marar and Others (XXXIX Cochin Law Reports P.370), where the following passage occurs: "Rules of law or decisions applicable to adverse possession among ordinary co-owners would serve as no safe guide when a karanawan claims to have obtained title to tharwad or thavazhi properties by adverse possession." In Para.14 of the judgment, the Court observed: "In dealing with it the real point for consideration would be whether and under what circumstances a karanavan could obtain title to his tarwad properties by prescription. A karanavan's position with respect to the other members is not that of a mere co-owner in possession. He is the manager of the joint property and entitled to be in sole possession thereof. To say that principles or decisions applicable to ouster among ordinary co-owners, where all are entitled to joint possession, entitled to share profits as and when they arise and to claim partition as and when it suits any one of them, would apply to a Marumakkathayam group where the karanavan alone is entitled to possession of the joint property, where there is no right to claim a share of the profits as such and no right to claim partition is in our view clearly wrong. It is beyond our comprehension how a karanavan could hold adversely to the tarwad while he retains that position." Similarly in Radhakrishna Menon and Others v. Chandrasekhara Menon (A.I.R. 1956 TC 78), A Division Bench of the Travancore Cochin High Court held that a karanavan of a Marumakkattayam tarwad has a birth right to be the Manager and representative of his tarwad for all purposes and that it is not correct to say that there must be some property in existence for a tarwad to come into being and the senior member thereof to be styled a karanavan and Manager. 17. Based on the above decisions, learned counsel for the appellant submitted that Kannan could not have prescribed adverse possession against members of his thavazhi. 17. Based on the above decisions, learned counsel for the appellant submitted that Kannan could not have prescribed adverse possession against members of his thavazhi. Learned counsel also sought support from the following observation in Paddinti Venkatanarasimha Charyulu Paddinti v. Rayasam Gangamma Pantulu and Others (1953(2) MLJ 31): "Turning to point (c) inasmuch as the Archakas were in enjoyment of the lands in a fiduciary capacity as trustees, they could not acquire title by adverse possession against the deity. It is well established that a trustee cannot by setting up his own title to the trust property acquire by adverse possession a title to the property". In Srinivasamoorthy v. Venkatavarada Iyengar (ILR 34 Madras 257 (P.C.), 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". In Sajjad Ali v. Shahid Ali and another (A.I.R. 1950 Allahabad 316), Allahabad High Court took the view that in a case, in which a person in possession is a Manager, or an agent, or stands in some other fiduciary relationship with the owner, such animus will not be readily presumed and, so longer as he does not divest himself of that character, his possession will be attributed to the consent, express or implied of the rightful owner. This is the view taken in Padmanabha Pillai Raman Pillai v. Secretary, Travancore Devaswom Board (ILR 1956 T.C. 684), Sunmonu v. Disu Raphael (AIR 1927 P.C.270) and Mohammed Shah v. Fasihuddin Ansari and Others (AIR 1956 S.C.713). 18. Learned counsel for respondent however submitted that even if it be held that disposition is in favour of Thavazhi, Kannan prescribed title by adverse possession and limitation. According to him the wide contention that under no circumstances a person in a fiduciary capacity can prescribe title by adverse possession is not sound in law. 19. In P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 S.C. 314), the question of adverse possession by a co-owner came up for consideration. Supreme Court held: "Now the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind. 19. In P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 S.C. 314), the question of adverse possession by a co-owner came up for consideration. Supreme Court held: "Now the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind. App.78 at p.82; (AIR 1934 PC 23 at p.25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi V. Collector of Khulna, 27 Ind.App 136 at p. 140 (PC) (B). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should he made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy,1912 AC 230). The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy,1912 AC 230). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other so as to constitute ouster." A Division Bench of this Court in Sooppi v. Moosa (1968 KLT 121) after considering the case law on the question of adverse possession among co-owners stated: "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." A Full Bench of this Court in Kunjamma Cicily v. Kasim Beevi (1968 KLT 779 = AIR 1969 Ker. 293) considering the question of adverse possession among co-owners stated: "The legal position is now well-settled that one co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title, (See Corea v. Apphamy (1912 AC 230 and P. Lakshmi Reddy v. L. Lakshmi Reddy, (AIR 1957 SC. 314). In order to establish adverse possession on the, part of one co-heir as against another it is not sufficient to show that one of them is in sole possession and enjoyment of the profits of the property. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse should be made out. For this there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one co-heir to the knowledge of the other, the burden of making out such ouster being on the person claiming to displace the lawful title, of a co-heir by his adverse possession." A Similar view has been taken in Kalariyadutha Madukkandy Muhammed and 3 others v. Kannangat Elambilat Muhammed Kunhi and 2 Others (1983 KLJ. 639 =1983 KLT SN 64 P.39). The learned judge held: "In para.3 of the written statement, the 1st defendant has pleaded adverse possession against the other co-heirs for the reason of their non-participation in the rents and profits of the property. There is no plea of ouster of the other co-heirs nor is there any plea that the possession of the 1st defendant is adverse to the other co-heirs to their knowledge. Even though it has been proved that the 1st defendant had been in possession for a considerably long period of time, there is nothing on record to lead to an inference of ouster as there are no other circumstances to concur to draw such an inference. The renewal of kanam as per Ext.B2 cannot be accepted as a circumstance to infer an ouster of the non-possessing co-heir. Such renewal under Ext.B32 as was obtained by the 1st defendant can only be on account of his possession as a co-owner and the benefit that he has gained taking advantage of his position as co-owner enures for the benefit of all the co-owners and he should be deemed to be holding under S.9 of the Trust Act." In Konnan Sanku of Moothedathu and another v. Kalyani Parvathi Amma & Others (AIR 1963 Ker.249), a learned single judge of this Court considered the legal effect of possession by a mortgagee pursuant to a mortgage of whole property created by one of the co-owners and held: "The preponderance of authority is in favour of the view, that the execution of a mortgage of the whole property under which the mortgagee enters possession operates as an ouster of the other co-owners and to their knowledge." This is the view expressed in the decision in T.P.R. Palania Pillai and Others v. Amjath Ibrahim Rowther and Another (AIR 1942 (29) Mad. 622) and in Joseph v. John (AIR 1960 Ker.27). 20. The Supreme Court in Karbalai Begum v. Mohd. Sayeed and another (AIR 1981 SC 77), considered the question and held: "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. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being 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." 21.Based on the above dictum laid down by the Supreme Court our learned brother Paripoornan, J. in Paru v. Chiruthai (1985 KLT 563) took the view that a co-owner is in the position of a trustee and that therefore no question of any adverse possession by ouster can arise in a case where a co-owner is in possession. In the reference order in this case the learned judge doubted the correctness of the dictum laid down in Paru v. Chiruthai (supra). The correctness of the law so widely stated in the above decision, came up for consideration before a Division Bench in which one of us was a party (Shansuddin, J.) in Sainaba Umma v. Moideenkutty (1987 (2) KLT 59). The Division Bench held: "It is not, therefore, correct to say that in no circumstances there can be adverse possession by one co-owner against another. Even if a co-owner in possession is a constructive trustee of the co-owner not in possession, an open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of the other co-owners constitute ouster and such ouster on assertion of hostile title openly to the knowledge of the other co-owners can be taken, as held by a learned judge of this Court in Krishnan V. Rama (1986 KLT. SN 63) as a renouncement of possession by the constructive trustee and a re-entry with an open and hostile animus to constitute adverse possession. It is true that the burden of proving ouster is on the co-owner who claims adverse possession." In taking this view, the Division Bench relied on the following observations contained in Karbalai Begum v. Mohd. SN 63) as a renouncement of possession by the constructive trustee and a re-entry with an open and hostile animus to constitute adverse possession. It is true that the burden of proving ouster is on the co-owner who claims adverse possession." In taking this view, the Division Bench relied on the following observations contained in Karbalai Begum v. Mohd. Sayeed (AIR 1981 S.C. 77): "Even if no share was given to the plaintiff by the defendants, as the defendants were co-sharers, unless a clear ouster was pleaded or proved the possession of the defendants as co-sharers would be deemed in law to be the possession of the plaintiff". Reliance also was placed on the decision in P. Lakshmi Reddy v. L Lakshmi Reddy (AIR 1957 S.C. 314), where the nature of the evidence required to be adduced to prove adverse possession on the part of a co-owner has been clearly explained. 22. In the case of a karanavan, who stands in a fiduciary capacity to the members of thavazhi, the assertion of assertion of hostile title or ouster cannot readily be assumed. However, it is not possible to accept the wide proposition argued by the learned counsel for the respondent that since a karanavan is in a fiduciary capacity and is in the position of a trustee or constructive trustee, under no circumstances, a karanavan of tavazhi or assignee from him can assert adverse possession and ouster. So long as the karanavan is in possession of the property, it will be difficult unless otherwise shown to assume that he had necessary animus to prescribe hostile title . But when he transfers property in favour of strangers asserting right thereby transferred exclusively in himself to the knowledge of other members of tavazhi, we do not find any reason to hold that it will not constitute assertion of adverse possession and ouster and that limitation will not run against tavazhi members from the date of sale. Such an assertion of hostile title openly to the knowledge of other co-owners or members of tavazhi can be taken as a renouncement of possession by the trustee and re-entry with an open and hostile animus to constitute adverse possession. The burden of proving such ouster on the person who claims such possession with an open and hostile animus is indeed very heavy, having regard to the position of a karanavan as head of the tavazhi. The burden of proving such ouster on the person who claims such possession with an open and hostile animus is indeed very heavy, having regard to the position of a karanavan as head of the tavazhi. We are fully justified in our conclusion in this regard in view of the observations of the Supreme Court in Karbalai Begum's case (supra) that unless a clear ouster is pleaded or proved, the possession of a co-sharer would be deemed in law to be the possession of the other co-owners after holding that a co-sharer would be in the position of constructive trustee. 23. We shall now examine whether the respondent has succeeded in discharging the burden so heavily cast on him by law and establishing ouster as required by law in the instant case. Ext.Bl dated 17-5-1966 is registration copy of assignment deed executed by Kannan in favour of the respondent herein in relation to a portion of Sy.No.302 which was bequeathed to Kannan by Veluthambadi to be enjoyed as thavazhi property under Ext; Al. Ext.Bl traces title of Kannan to Ext. Al and there is assertion that it was bequeathed to him by his karanavan Veluthambadi who was the father of the assignee. This suit was filed on 2-1-1976 well within a period of 12 years from the date of Ext.Bl. In the circumstances, Ext.Bl will not help the appellant to contend that the suit was barred by adverse possession and limitation. 24. Learned counsel for the respondent however relied on Ext.B4 dated 16-10-1961, which is a registration copy of assignment deed executed by Kannan in favour of Meethala Purayil Kunhiraman in support of his contention that the suit was barred by adverse possession and limitation. This document takes in Sy.No.299/1 which is also an item of property included in A. schedule to Ext.Al Will. However, in Ext.B4, Kannan does not trace his title to Ext.Al. The document proceeds on the basis that Kannan was holding the property on the basis of an oral lease from Arayi Cherikkallu family. It was brought to our notice that Tharambayil Ambunhi is an attestor to this document and on the strength of this it was contended that Ext.B4 was executed to the knowledge of members of tavazhi. By reason of mere attestation of a document, it is not possible to attribute to an attestor the knowledge of the contents of a document. It was brought to our notice that Tharambayil Ambunhi is an attestor to this document and on the strength of this it was contended that Ext.B4 was executed to the knowledge of members of tavazhi. By reason of mere attestation of a document, it is not possible to attribute to an attestor the knowledge of the contents of a document. This is the view taken by the Privy Council in the decision in Banga Chandra Biswas v. Jagat Kishore Achariya Chowdhuri (AIR 1916 PC 110). The Privy Council said: "attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed nor affect him with notice of its provisions. It could, at the best, be used for the purpose of cross-examination, in order to extract from the witness evidence to show that he was, in fact, aware of the character of the transaction effected by the document to which his attestation was affixed." This view has been reiterated by the Privy Council in the decision in Pandurang Krishnaji v. M. Tukaram and others (AIR 1922 P.C.20) in these words: "Before their Lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys neither directly nor by implication any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects." Further, Ext.B4 does not relate to the suit property and therefore it cannot be said that there is assertion of hostile title in respect of the suit property. Ext.B3 is another document relied on to prove assertion of hostile title. It is a document executed by karanavan in favour of Pocker in respect of property in R.S.No.302 of Hosdurg Village. There is no acceptable evidence to show that members of karanavan' tavazhi were aware of the document. In Ext.B3, Kannan has traced his title to an oral lease from Arayicherikkallu family and in this document also there is no reference to Ext.Al. There is no acceptable evidence to show that members of karanavan' tavazhi were aware of the document. In Ext.B3, Kannan has traced his title to an oral lease from Arayicherikkallu family and in this document also there is no reference to Ext.Al. Property covered by Ext.B3 does not relate to the suit property and the document itself was executed only on 28-8-1968. For these reasons, it is not possible to hold on the basis of these documents that Kannan had prescribed title to the suit property. 25. In order to prove possession of the plaint schedule property and the nature of possession there is only the evidence of P.W.1 and D.W.1. P.W.1, stated that Kannan was enjoying the property as his tavazhi property and that Kannan and his nephews were cultivating the property. The defendant in his evidence as DW 1 stated that thavazhi had no tenancy right in the plaint schedule property. That the tavazhi was never in possession of the suit property and that nephews and sisters of Kannan had no manner of right. As the Karanavan of his thavazhi, Kannan was certainly entitled to keep possession of suit property and also to cultivate the property. As indicated above, as karanavan, he represents his thavazhi. Therefore, something more than mere possession or enjoyment is required to constitute ouster and adverse possession against the thavazhi members. We have already discussed the nature of evidence required in this respect. The oral evidence of DW 1 is hardly sufficient to prove hostile title asserted by Kannan or his possession with animus to assert exclusive right in himself to the knowledge of thavazhi members. 26. Ext.A3 is the document under which the plaintiff claimed title. In Ext.A3, the executants are nephews and nieces of Kannan and the children of nieces of Kannan. There is hardly any evidence in the instant case to show that at any point of time, Kannan asserted hostile title to the knowledge of tavazhi members so as to constitute a renouncement of possession as a constructive trustee and re-entry with an open and hostile animus to constitute adverse possession. 25. Learned counsel for the respondent finally contended that the appellant who is an assignee of undivided shares of members of the tavazhi cannot claim partition of the suit property. 25. Learned counsel for the respondent finally contended that the appellant who is an assignee of undivided shares of members of the tavazhi cannot claim partition of the suit property. Based on the decisions in Achutha Menon v. Jaganatha Menon & others (1983 KLT 939), Antherman v. Kannan (1960 KLT 1313) (FB), and also in Ammalu Amma & others v. Lakshmi Amma & others (1966 KLT 32 (FB), it was argued that until partition, no member of a Marumakkathayam tarwad has a definite share in tarwad properties, that undivided share is not alienable, that therefore the alienation is invalid and that the suit filed on the basis of such alienation is not maintainable in law. 26. No such contention has been taken by the defendant in his written statement and no issue was raised on this aspect. No such ground was taken in the Memorandum of Appeal before the appellate court. In the Memorandum of Second Appeal also, no such ground is seen taken. In the circumstances, we will not be justified in permitting the respondent to raise this question at the time of argument for the first time in the Second Appeal. 27. Foregoing discussion would show that the finding of the trial court that the plaintiff is entitled to partition and allotment of 6/7 shares in the plaint schedule property is correct and the dismissal of the suit by the lower appellate court is wrong. We therefore set aside the judgment and decree of the Court of the Subordinate Judge in A.S.No.32 of 1978 and restore the preliminary decree passed by the Court of Munsiff, Hosdrug in O.S. No.5 of 1976. In the result, the Second Appeal is allowed. However, there will be no order as to costs.