Judgment :- The plaintiff in O.S.No.346/82 on the file of the Additional District Munsif, Padmanabhapuram, is the appellant in the second appeal. The suit is for partition. 2. The plaintiff's case was as follows: The suit properties originally belonged to Bhavathy Amma. On her death, they devolved on her two daughters Valliamma and Ananchi Pillai. Valliamma, the first defendant in the suit, and her sister the said Ananchi Pillai became entitled to one half share in each of the suit properties. Their brother Ramaswamy Pillai was looking after the suit properties. Taking advantage of this position, Ramaswamy Pillai fraudulently created a mortgage in 1099 M.E.in respect of the suit properties behind the back of his sisters. The above mortgage was assigned in favour of one Mohammed Abdul Rahman Alim Sahib and he got possession. Ramaswamy Pillai executed another mortgage in favour of Abdul Rahman Alim Sahib giving credit to and extinguishing the 1099 M.E.mortgage and receiving additional amount. On coming to know about these transactions, the first defendant Valliamma filed a suit against Ramaswamy Pillai and his mortgagee, also impleading Ananchi Pillai as one of the defendants for declaration of title and for recovery of possession of the suit properties with mesne profits in O.S.No.158 of 1119 M.E.in the District Court, Nagercoil. That suit was dismissed by the trial Court. The first defendant preferred an appeal before the Travancore Cochin High Court as A.S.No.94 of 1950. The High Court revised the decree of the trial Court on 9-3-1954 and found that the plaintiff and the second defendant in the suit, viz. Valliamma, the present first defendant, and Ananchi Pillai were entitled to the suit properties in equal shares. But, at the same time, the Court found that they were liable to pay the mortgage amount covered by the 1099 M.E.mortgage before getting recovery of possession of the suit properties from the mortgagee, the third defendant in the suit. The Court also found that the 1119 mortgage given by Ramaswamy Pillai was invalid and not binding on the sisters and they were allowed to recover mesne profits also from the persons in possession. The suit was remanded to the trial Court for ascertaining the amount payable under the 1119 M.E.mortgage as a condition for recovery of possession of the suit properties and also for mesne profits. The suit was remanded to the trial Court for ascertaining the amount payable under the 1119 M.E.mortgage as a condition for recovery of possession of the suit properties and also for mesne profits. The trial Court passed a decree on 10-3-1955 allowing recovery of suit properties on deposit of Rs.3675.65 and also allowing mesne profits and costs. The plaintiff in that suit deposited the amount as directed and got delivery of the suit properties on 17-12-1955. Ananchi Pillai, who was entitled to one half of the suit properties in the above suit, gifted the properties to the three daughters of her brother Ramaswamy Pillai under a gift deed dated 12-3-1954. Under the gift deed Bhagavathy Amma, daughter of Kaliamma, the mother of the plaintiff, became entitled to 1/3 of ½, ie. 1/6th share in the properties. Defendants 2 and 3, who are sisters of Bhagavathy Amma became entitled to 1/6 share each. After the death of Bhagavathy Amma, her husband Chellappan Pillai and their children including the plaintiff effected a registered partition on 30-10-1980 in which the plaintiff was given 1/6th share in the suit properties as B Schedule items 9 and 10 along with other properties. Thus the plaintiff is entitled to 1/6th share in the suit properties. It is known that the first defendant in the present suit gave away her one half share to the fourth defendant reserving some interest for her. Thus defendants 1 and 4 are together entitled to one half share in the suit properties. There was no partition by metes and bounds for the suit properties among its co-sharers. The plaintiff and defendants 2 and 3 as successors in interest in Ananchi Pillai for her one half share, are liable to pay one half of the amount paid by the first defendant Valliamma as per the decree in A.S.No.94 of 1950 for recovery of suit properties and also the one half of the expenses of the litigation. In turn, the plaintiff and defendants 2 and 3 are entitled to realise one half of the mesne profits, if any, recovered by Valliamma, the first defendant in that suit. These accounts are to be settled only at the time of partition. Hence the suit. 3. The second and the third defendants supported the case of the plaintiff and sought passing of preliminary decree in their favour and also for 1/6th share in the suit properties. These accounts are to be settled only at the time of partition. Hence the suit. 3. The second and the third defendants supported the case of the plaintiff and sought passing of preliminary decree in their favour and also for 1/6th share in the suit properties. 4. The fourth defendant, who is the contesting defendant, raised the following defence: The right of Ananchi Pillai and her successors or persons claiming through her is lost by the law of limitation. It is seen from the records that the plaintiff Valliamma, the decree holder in O.S.No.158 of 1119 got delivery through Court on 15-12-1955. From the date of delivery she alone was in possession and enjoyment till she executed a gift in favour of the fourth defendant on 17.10.1972. From 17-10-1972 the fourth defendant was in exclusive possession and enjoyment getting resurvey patta and paying tax. The right of the plaintiff and that of defendants 2 and 3, the donees from Ananchi Pillai is lost by adverse possession from 15-12-1955. The inclusion of the property in the 1981 partition by limitation will not confer any right or title. The gift deed executed by Ananchi Pillai also will not convey title as the same was executed before the date of the decree and delivery in O.S.No.158 of 1119 M.E. The donees have lost their right by not getting possession within 12 years of the document. The gift is dated 17-10-1972 and on and from that day, i.e.from 16.12.1967, she has become the absolute owner of the whole area and she has executed the gift for the whole area of the plaint items. There is no unity of title and unity of possession. The alleged gift of 1954 itself directs payment and as no tender was made within 12 years, the plaintiff and the other donees have lost their right. The allegation of joint possession is denied. There is no joint right or joint possession. 5. On the above pleadings, the trial Court framed the following issues: "(1) Whether the plaintiff is entitled to partition of his 1/6 share? (2) Whether the right of Ananchi Pillai and persons in claiming under her has been lost due to adverse possession and law of limitation? (3) Whether the fourth defendant has got possession over the suit property? (4) Whether the suit is maintainable? (5) Reliefs and costs." 6. (2) Whether the right of Ananchi Pillai and persons in claiming under her has been lost due to adverse possession and law of limitation? (3) Whether the fourth defendant has got possession over the suit property? (4) Whether the suit is maintainable? (5) Reliefs and costs." 6. The trial Court on the oral and the documentary evidence found as follows: The plaintiff cannot be considered as a co-owner along with the first defendant being in joint possession of the suit property. Ananchi Pillai was a party in the earlier suit and it should be deemed that she was aware of the decree under Ex.B-1 in that suit. Ananchi Pillai and the persons claiming under her should have been also aware of the delivery under Ex.B-5 dated 15-12-1955 in the present suit, which was in favour of the first defendant. From 1955 the plaintiff ought to have come forward to claim possession of his share after paying the amount due for his share in the entire liability under the prior mortgage of 1099 M.E., which was paid by Valliamma Pillai. This has not been done and the plaintiff not having come forward to file the suit within 12 years from Ex.B-5 delivery, the suit is barred by limitation. The fourth defendant having obtained the right over the property under Ex.B-2, it must be held that the fourth defendant is in possession of the suit property claiming under Valliamma on the basis of Ex.B-2. So holding by judgment and decree dated 5-10-1983 the trial Court dismissed the suit. This was confirmed in the appeal filed by the plaintiff in A.S.No.2/84 by the learned subordinate Judge, Padmanabhapuram on 27-3-1989. 7. It is as against that, the present second appeal has been filed. At the time of admission, the following substantial questions of law were raised for decision in the second appeal: "(1) When there is no co-mortgagor relationship between Valliamma and Ananchi Pillai, whether the Courts below are right in applying the principles of co-mortgagor redeeming the mortgage under Section 95 of the Transfer of Property Act? (2) When admittedly O.S.No.158 of 1119 M.E.has been filed by Valliamma with the pleading that she has filed a suit, for and on behalf of Ananchi Pillai also, whether the Courts below are right in applying the principles of 12 years adverse possession from the date of recovery of the suit property from the void mortgagee? (2) When admittedly O.S.No.158 of 1119 M.E.has been filed by Valliamma with the pleading that she has filed a suit, for and on behalf of Ananchi Pillai also, whether the Courts below are right in applying the principles of 12 years adverse possession from the date of recovery of the suit property from the void mortgagee? Whether the Courts below are right in applying the ratio decidendi laid down in VALLIAMMA CHAMPAKA VS. SIVATHANU PILLAI AND OTHERS (1964(1) MLJ 161 (FB)) and VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS ( AIR 1979 SC 1937 )? (3) Whether the Courts below are right in not considering Ex.B=4 wherein another suit also has been filed by Valliamma alleging joint right? (4) Whether the courts below are right when there is no evidence on the side of the defendants that when actually the animus possendi changed from one co-owner to absolute owner? (5) Whether the Courts below are right in rejecting a decree for partition when there is a co-ownership and joint possession? 8. Mr.K.V. Subramanian, learned Counsel for the appellant, submitted that this is a case where the provisions of Section 90 of the Trusts Act have to be invoked, that the possession of Valliamma is only that of a trustee or co-sharer and the decision by the Courts below that the first defendant and the fourth defendant have prescribed for title by adverse possession cannot be sustained. The learned Counsel further submitted that the principle of co-mortgagor redeeming the mortgage under Section 97 of the Transfer of Property Act will not apply to the facts of the present case and consequently, the ratio decidendi laid down in VALLIAMMA CHAMPAKA VS. SIVATHANU PILLAI AND OTHERS (1964(1) MLJ 161) and VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS ( AIR 1979 SC 1937 )cannot be applied. It has not been shown that the co-owner had the necessary animus to prescribe for title by adverse possession. 9. Per contra, Mr. Sreekumaran Nair, learned Counsel for the contesting respondent, submitted that the case is directly covered by the decisions already referred to, viz. VALLIAMMA CHAMPAKA VS. SIVATHANU PILLAI AND OTHERS (1964(1) MLJ 161) and VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS ( AIR 1979 SC 1937 ) and the principles of Section 90 of the Trusts Act will not apply to the facts of the present case. VALLIAMMA CHAMPAKA VS. SIVATHANU PILLAI AND OTHERS (1964(1) MLJ 161) and VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS ( AIR 1979 SC 1937 ) and the principles of Section 90 of the Trusts Act will not apply to the facts of the present case. The learned Counsel also relied on the decision in NADAPENA APPANNA AND OTHERS VS. SARIPILLI VENKATASAMI AND OTHERS (ILR 47 Madras 203). 10. The facts are not disputed. Pursuant to the judgment by the High Court of Travancore-Cochin in A.S.No.94 of 1950 the first defendant in the present suit obtained delivery of the suit property as plaintiff in that suit on 15-12-1955. This is evidenced by Ex.B-5 delivery list. Ex.A-4 is the judgment by the Travancore-Cochin High Court in A.S.No.94/50. In Ex.A-2 dated 12-3-1954, which is a gift deed by Ananchi Pillai in favour of her brother's children, which is prior to the judgment in A.S.No.94/50. There is a reference to the mortgagee being in possession. The donee under Ex.A-2 Bhagavathy Amma is the mother of the plaintiff. There is a specific recital in that document about the mortgagee being in possession. That apart, Ananchi Pillai was a party to the earlier suit. She was the second defendant. She cannot plead ignorance of Ex.B-1 decree in A.S.No.94/50. Ex.B-5 is the delivery athatchi obtained by the present first defendant on 15-12-1955. The plaintiff ought to have taken steps to claim possession of his share after paying the amount due for his share and the entire amount on prior mortgage in 1094 ME, which was paid by the first defendant in the present suit. 11. Mr.K.V. Subramanian relied on paragraph 5 of the judgment Ex.A-4 in the appeal decided by the Travancore-Cochin High Court and submitted that this is not a case of co-mortgagor redeeming the mortgage under Section 95 of the Transfer of Property Act and when once this position is accepted, then there is no question of the co-owner prescribing for title by adverse possession as Section 90 of the Trusts Act would operate. A reading of the judgment of the Kerala High Court does not give scope for this contention raised by the learned Counsel. A reading of the judgment of the Kerala High Court does not give scope for this contention raised by the learned Counsel. The ultimate finding is that the decree of the lower Court is set aside and a preliminary decree has been passed in favour of the plaintiff, the present first defendant, declaring that the title to the plaint properties is with her and the second defendant (Ananchi Pillai) and that the plaintiff is entitled to recover possession of the properties from the first defendant. The plaintiff could recover possession of the properties from the heirs of the third defendant, the mortgagee, only after payment of the amount that may be found due to the mortgagee. According to Mr. Sreekumaran Nair, it is only a decree for redemption that has been granted by the Travancore-Cochin High Court. Though the argument of Mr.K.V. Subramanian looks attractive, on a closer scrutiny, I have to hold that it cannot be accepted having regard to the decree passed by the Travancore-Cochin High Court. If it is a case of co-mortgagor redeeming the mortgage, the principle enunciated in VALLIAMMA CHAMPAKA VS. SIVATHANU PILLAI AND OTHERS (1964(1) MLJ 161) and VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS ( AIR 1979 SC 1937 ) will squarely apply to the facts of the present case. 12. Mr.K.V. Subramanian has relied on the following decisions: In NALLATHAMPI CHELLAYYAN AND OTHERS VS. GOVINDA PILLAI NARAYANA PILLAI AND ANOTHER (AIR 1971 Kerala 9 (FB)) it has been held that, "when a mortgagee in possession of an udukoor or undivided half share of a property obtains an assignment of a adjoining property belonging to the Government on the strength of his possession of the former property, under Section 90 of the Indian Trusts Act, he holds the latter property for the benefit not merely of his mortgagor, but of all persons interested in the former property including those interested in the other half share and that it is hardly a case of an accession to the mortgaged property coming within Section 63 of the Transfer of Property Act." In C.V. RAMASWAMI NAIDU AND OTHERS VS. C.S. SHYAMALA DEVI AND OTHERS ( 1978(1) MLJ 505 ) dealing with the concept of co-ownership, a Division Bench of this Court has observed as follows: "Co-ownership is a relationship which springs and slopes from consensus and contract, Legislation has only imprinted on the concept of co-ownership certain rights which have a supervening effect which are declaratory of the rights inter se as between co-owners. The legal relationship is always knitted in a framework of jointness and no one therein can predicate with certainty as to what portion of the property held in common is his; and an element of inseparability is inhered in the doctrine of co-ownership. What can be predicated by reason of Section 45 of the Transfer of Property Act and by invoking the principle of quasi trust in the Indian Trusts Act is the quantum of rights of such co-owners in the entirety of the property. Such quantification of rights of each of the co-owners in a given property depends on the facts and circumstances of each case. It is for the purpose of providing a just rule for weighing and appreciating the value or interest of a co-owner in joint property that the rule of equity is evolved in Section 45 of the Transfer of Property Act, which runs as follows: "Where immovable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as early as may be with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interest in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property." Therefore, if the source of the purchase price or the consideration for the investment in a joint enterprise emanates from a common fund, then the shares of each of the co-owners or co-entrepreneurs would be the same as their interest in that common fund. This equitable adjustment of rights is subject to a contract to the contrary. If, therefore, there is evidence that two or more persons purchased the property or an interest in the property, then the rule in Section 45 of the Transfer of Property Act would be automatically attracted, unless the parties have contributed otherwise in the matter of their quantum of interest in the joint property. The fact that the property was purchased in the name of one of the co-owners, would not make a serious dent on the above rule of good conscience, provided however it is established by acceptable evidence that such purchase in the name of co-owner was by accident or by consent and that the consideration for such purchase emanates from a common fund. It is this rule of justice-equity and good conscience which is reiterated in the Indian Trusts Act by the provisions which deal with quasi trusts as they are styled in legal parlance. In Section 94 of the Indian Trusts Act, which is residuary in character, a provision is made to cover cases where the legal and equitable interest are not united in the same person. Section 94 of the Indian Trusts Act provides that the person having possession of property in which he has not the whole beneficial interest must hold the property for the benefit of the other persons having such interest to the extent necessary to satisfy their just demands. Section 95 of the Indian Trusts Act makes the position more clear and highlights the obligations, duties, liabilities and disabilities of such a person holding the property in his name but not having both the legal and the equitable interests united in him. Section 95 of the Indian Trusts Act makes the position more clear and highlights the obligations, duties, liabilities and disabilities of such a person holding the property in his name but not having both the legal and the equitable interests united in him. In a proved case of such a holding of property by an individual in his own name, but for the benefit of others, who are also interested in it, the individual has accepted his position as a constructive trustee of such property and he has to hold the same for and on behalf of the person for whom and for whose benefit he holds it. Excepting for certain rights which he has to deal with the said property for the conjoint benefit of himself and other co-owners, he cannot project in himself a title which is inconsistent with or derogatory to the other title of the co-owner. Section 90 of the Trusts Act says "where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing thereof of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner on representing all persons interested in such property, gains any advantage he must hold for the benefit of all persons so interested the advantage so gained, but subject to ".......". It therefore follows that the concept of co-ownership has certain peculiar rights and liabilities attached to it and that is why it is accepted law that a co-owner cannot even by the mere possessory title of the property in him claim the same by adverse possession. One can be said to hold a property adversely to the other, provided it is open, continuous and public possession which is to the prejudice of the other co-owner. Since such continuous and open and adverse possession by one co-owner against the other is not possible, having regard to the indivisible and well-knit rights of all co-owners of the totality of the property,one co-owner cannot set up an adverse title to the prejudice of the other co-owner, though he may be for all physical purposes incorporeal possession of the concerned property." In O.R. ABDUL HAMID VS. O.R. ABDUL RAHIM AND ANOTHER ( 1993(2) LW 165 ) wherein it has been held by a Bench of this Court that, "a co-owner taking advantage of joint funds to purchase property in his name holds it in trust for all co-owners, giving rise to a "resulting trust" under Section 90 of the Trusts Act." In JAMAL MOHAMMAD VS. MOHAMAD UNUS AND 11 OTHERS ( 1995(2) LW 209 ) it has been held that, "in order to attract Section 90 of the Indian Trusts Act, the mortgagee must have used his position as mortgagee to gain advantage over the other mortgagees. In the case before the Bench, recitals contained in the sale deed clearly indicated that the first defendant used his position as one of the mortgagees for the purpose of purchasing item No.4 which was mortgaged and was in possession of the first defendant for and on behalf of the other co-mortgagees, including the plaintiff. It was held that he used his position as a co-mortgagee as would be clear from the fact that the mortgage debt had been adjusted towards sale consideration. If only the first defendant had kept aside the shares of the other mortgagees in the mortgage debt, which was due to him towards the sale consideration and pay the balance of the mortgage money to the other co-mortgagees, it could have been different. In as much as he did not do that, it was held that his conduct would go to show that he purchased the mortgaged property to gain an advantage in derogation of the rights of the other co-mortgagees. In such a situation, Sections 90 and 95 of the Trusts Act would apply and the purchase would be held to be for the benefit of all the mortgagees." In NAMDEV SHRIPATI NALE VS. BAPU GANAPATI JAGTAP AND ANOTHER ( 1997(5) SCC 185 ) where also it has been held that, "Section 90 applies where advantage is gained by qualified owner by committing default in performance of statutory or contractual obligation." In that case, the possessory mortgagee by availing of his position as such committed default in payment of occupancy price under Section 4 of Maharashtra Act 60 of 1950 for and on behalf of the mortgagor and obtained regrant in his name by posing himself as tenant. It was held that, "advantage so gained by him in derogation of right of the mortgagor would attract Section 90 and that the benefit derived by the mortgagee would enure for the benefit of the mortgagor and therefore, the right to redeem would subsist notwithstanding any sale or forfeiture of the right of the mortgagor." 13. The principle relating to co-ownership /mortgagee under Section 90 of the Trusts Act as far as it goes is beyond question. However, having regard to the finding that the decree in favour of the present first defendant in the earlier suit was one for redemption, Section 90 of the Trusts Act cannot be pressed into service. 14. In NADAPENA APPANNA AND OTHERS VS. SARIPILLI VENKATASAMI AND OTHERS (ILR 47 Madras 203) the facts were as follows: There was a suit to recover certain lands on redemption of a usufructuary mortgage for Rs.200/-, purported to be created by an unregistered deed in 1902, the defendants some of whom were legal representatives of the original mortgagee who had been put in possession under the deed and the others were persons who got into possession within 12 years of the suit, set up an independent title in themselves and pleaded also that the deed was inadmissible in evidence and that the suit was barred by limitation. It was held that, "the deed, though unregistered, was admissible in evidence to show the character of the defendants' possession, that the defendants could be shown to have acquired only a limited interest as mortgagees by adverse possession, that, to prove the extent of the interest acquired by them by adverse possession, the terms of the mortgage asserted by them may be proved and such proof cannot be regarded as an attempt to prove the unregistered mortgage or to adduce secondary evidence of it and the unregistered deed as well as other evidence was admissible for the purpose." It was further held that, "a suit to redeem is substantially a suit for possession and that even if the defendants had not acquired any interest by adverse possession, the suit was maintainable as one for possession based on title." 15. As pointed out by the Supreme Court in VALLIAMMA's case, the right to the non-redeeming co-owner is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor has as against the other co-mortgagor, amounts to a mortgage or not. 16. In the instant case, the plaintiff cannot be considered as a co-owner along with the first defendant. As pointed out by the Courts below, he is only an alienee, because his mother obtained right only under Ex.A-2 gifted from Ananchi Pillai. As alienee he cannot claim to be in joint possession with the first defendant. It cannot be held that the plaintiff was deemed to have been in joint possession with the first defendant in view of Section 90 of the Trusts Act. Even Ex.B-4 the judgment in O.S.No.348/58 on the file of the Additional District Munsif's Court, Padmanabhapuram, cannot in any way advance the case of the plaintiff. 17. The substantial questions of law are answered against the appellant. The second appeal fails and the same is dismissed. There will, however, be no order as to costs.