Judgment : The legal representatives of the plaintiff in O.S.No.157 of 1987 on the file of the Court of the Munsiff-Magistrate of Perambra, whose suit for partition was decreed by the trial court, but, which was reversed by the appellate court in AS No.35 of 1993, Sub Court, Quilandy, have filed this Second Appeal. 2. For a better understanding of the facts of the case, the genealogy of the parties is relevant. Nangeli had a son by name Madhavan. Madhavan married Chirutheyi. On that wed lock, son Sankaran was born. Madhavan predeceased Nangeli. After the death of Madhavan, Cherutheyi got re- married to Neelakantan. Chandu, the plaintiff is the son born in the wed lock of Chirutheyi and Neelakantan. According to the plaintiffs, Sankaran died in 1956. His legal representatives are the defendants. Chirutheyi died, as per the averments in the plaint, in 1966 and as stated by the plaintiff in evidence, in 1964. The parties belong to Malayala- kamala community. They follow Mithakshara law as modified by custom. 3. The case of the plaintiff is that the plaint schedule property was acquired by Chirutheyi and one Kuttiperavan as per Ext.A1 Verumpattam deed dated 14.07.1910 from Othayoth Cheriya Amma Thamburatti for a period of 12 years with a stipulation to pay pattam of Rs.5/- per year. Kuttiperavan relinquished his rights in favour of Chirutheyi and Sankaran as per Ext.A2 registered document dated 14.07.1925. Chirutheyi and Sankaran were enjoying the property in common. Sankaran died in 1956 and thereafter in 1966 Chirutheyi also died. 1/4th right of Sankaran devolved on the defendants, (widow and children of Sankaran) and his mother Chirutheyi. Thus Chirutheyi got 1/20 shares and together with her 15/20 shares, she became entitled to 16/20 shares. On the death of Chirutheyi, her rights devolved on the plaintiff and the defendants. Thus the plaintiff claimed 8/20 shares in the plaint schedule property. 4. The defendants contended in the written statement, inter alia, that the plaint schedule property belonged to Madhavan. On the death of Madhavan before 1910, his rights devolved on Sankaran and thus Sankaran alone became entitled to the property. Chirutheyi and Kuttiperavan did not get any rights as per document No.2329/1910 (Ext.A1). Cheriya Amma Thamburatti, who executed Ext.A1, had no right to grant such a lease. On the death of Madhavan before 1910, his rights devolved on Sankaran and thus Sankaran alone became entitled to the property. Chirutheyi and Kuttiperavan did not get any rights as per document No.2329/1910 (Ext.A1). Cheriya Amma Thamburatti, who executed Ext.A1, had no right to grant such a lease. So also, Nangeli and others, who demised the property in favour of Cheriya Amma Thamburatti, had no right to execute such a document. The documents were created stating that the executants had rights in the property while, in fact, they had no such rights. Exhibit A2 does not confer any right on Chirutheyi or Sankaran as Kuttiparavan and Chirutheyi were not holding the property at the time of execution of Ext.A2. 5. The trial court, after considering Exts.A1, A20 and B1, held that the plaintiff has co-ownership right in the property. It was held by the trial court that Exts.A1 and A20 were executed more than 30 years ago and, therefore, Section 90 of the Indian Evidence Act would get attracted. The trial court also noticed that no oral evidence was adduced by the defendants and the evidence of the plaintiff as PW1 stands unchallenged. The contention raised by the defendants that the right, if any, of the plaintiff was lost by ouster and a adverse possession was negatived by the trial court on the ground that no evidence was adduced by the defendants to prove that contention. The lower Appellate Court reversed the finding of the trial court and dismissed the suit. The Appellate Court held that the plaintiff is not a co-owner and that Sankaran alone inherited the property left by his father Madhavan. The case of the plaintiff on the basis of Exts.A1 and A20 was rejected by the court below holding that Exts.A1 and A20 are "strange transactions" and that they are not genuine and legally sustainable. This finding was arrived at without any pleading or evidence to find the same. There is no case for the defendants that Exts.A1 and A20 did not come into existence or that the executants of the same did not execute the documents. There is no case that these documents are not genuine documents. The only case put forward by the defendants is that Exts.A1 and A20 were created by persons claiming rights while, in fact, they had no such rights. There is no case that these documents are not genuine documents. The only case put forward by the defendants is that Exts.A1 and A20 were created by persons claiming rights while, in fact, they had no such rights. At this juncture, I hasten to add that the judgment of the court below contains several; factual mistakes. The judgment of the court below was read in full and the counsel on both sides stated that several facts stated in the judgment are erroneous. Conclusion has been arrived at by the court below the basis of those wrong facts and wrong understanding of the facts. It is not proper to point out in this judgment each and every wrong statement of facts in the judgment of the lower appellate Court, since the number of such errors are many. When confronted with his situation, counsel on both sides submitted that the case could be considered on the basis of the pleadings, documents and evidence. Accordingly, the case is considered with reference to the substantial questions of law involved in the Second Appeal. On consideration of the pleadings, documents and evidence, the following substantial questions of law arise for consideration: (a) Was the court below justified in holding that Exts.A1 and A20 transactions are not genuine in the absence of any pleadings and evidence to arrive at such a finding? (b) Was the interpretation placed the court below on Exts.A1.A2,A20, and B1 correct and proper? (c) Was the court below justified in relying on Exts.A1 and A20, which are not the original documents, on the ground that Section 90 of the Indian Evidence Act would apply? (d) Are the defendants entitled to question the validity of the transactions covered by Exts.A1 and A20, without the same being challenged in properly constituted suit? (e) Was the court below justified in upholding the plea of ouster and adverse possession, without any evidence on the side of the defendants to prove the same? 6. It is fairly clear that the property was dealt with as per three document. The first among them was Exts.B1 dated 7.5.1900 executed by Madhavan and his mother Nangeli in favour of Ananthan Kammal, son of Cheriya Amma Thamburatti. Ext.B1 is a mortgage deed, wherein it is stated that possession of the property was not given to the mortgagee. The next document which came into existence was Ext.A20 dated 14.7.1910. The first among them was Exts.B1 dated 7.5.1900 executed by Madhavan and his mother Nangeli in favour of Ananthan Kammal, son of Cheriya Amma Thamburatti. Ext.B1 is a mortgage deed, wherein it is stated that possession of the property was not given to the mortgagee. The next document which came into existence was Ext.A20 dated 14.7.1910. Ext.A20 Kanam Kuzhikanam deed was executed by Chirutheyi (wife of Madhavan), Nangeli (mother of Madhavan) and Sankaran (son of Madhavan), who was a minor at that time and who was represented by his mother Chirutheyi. Ext.A20 was executed in favour of Cheriya Amma Thamburatti and her son, Achuthan (minor). On the same dated on which Ext.A20 was executed. Cheriya Amma Thamburatti executed a Verumpattam deed in favour of Chirutheyi and Kuttiparavan in 1925, as per Ext.A2 dated 14.7.1925, Kuttiparavan surrendered his rights to Chirutheyi and Snakaran. In Ext.A20, reference is made to Ext.B1 mortgage deed. The consideration in Ext.A2 deed is stated to be for the purpose of paying the mortgage debt under Ext.B1. in Ext.A2 surrender deed executed by Kuttiparavan, there is a reference to a suit filed for realization of the rent on the basis of Ext.A1 lease deed executed by Cheriya Amma Thamburatti. It is stated in Ext.A2 that the consideration is reserved with the demisees (Chirutheyi and Sankaran) for discharging the arrears of rent payable under that decree. Ext.A1 and A20 came into existence in 1910. They are registered documents. It is true that the originals of Exts.A1,A2 and A20 were not produced. It is also true that that the plaintiff did not offer any explanation for the non-production of the originals of Exts.A1, A2 and A20. These documents were marked while the plaintiff was examined as PW1. No objection was raised by the defendants against marking of these documents in evidence. Having not objected to the marking of the documents in evidence, I am of the view that the defendants are not entitled to raise such a contention as respondents in the Second Appeal. I am fortified in this view by the decision in Anandan Nambiar v. Rajalakshmi (1988 (1) KLT 536), wherein it was held thus: "The question of proof of a document is a question of procedure and definitely it can be waived. Whether a document is relevant or not could be raised in the appellate stage. I am fortified in this view by the decision in Anandan Nambiar v. Rajalakshmi (1988 (1) KLT 536), wherein it was held thus: "The question of proof of a document is a question of procedure and definitely it can be waived. Whether a document is relevant or not could be raised in the appellate stage. Where the objection to be taken is not that the document is in itself inadmissible, but that the mode of proof put forward is irregular of insufficient, it is essential that the objection should be taken at the trial stage before it is marked as an exhibit and admitted. A party cannot lie by until the case comes in appeal. If no objection was taken to the mode of proof of a relevant fact at the time evidence in proof of it was give, the party neglecting to object or abstaining from objecting to it will not, on principles akin to these of estoppel, be permitted to object to it at a later stage. Thus where secondary evidence has been adduced, and received in the Court without objection and without a foundation for its reception having been laid, or where secondary evidence of a wrong kind has been given and received without objection, the party omitting to object at the time the evidence is given will not be permitted to question it subsequently." It is relevant to note that Ext.B1 dated 7.5.1900 relied on by the defendants is also a registration copy of the original document. It was marked in evidence during the cross examination of PW1. 7. The finding that Exts.A1 and A20 are "strange transaction" is unsustainable. As per Ext.B1, Madhavan and his mother Nangeli created a mortgage in favour of Anandan Kammal. Possession remained with the mortgagors. The mortgagors had jenm right as well. It is stated in Ext.B1 itself that possession was not given to the mortgagee. To discharge Ext.B1 mortgage debt, funds were raised executing Ext.A20, going by the recitals in Ext.A20. Ext.A20 is a Kanam Kuzhikanam deed, in which one of the executants is Sankaran, father of the defendants. On the basis of Ext.A20, Cheriya Amma Thamburatti granted Verumpattam lease in favour of Chirutheyi and Kuttiparavan. Kuttiparavan surrendered his rights in favour of Chirutheyi and Sankaran. That surrender was in 1925. Exts.A1,A2 and A20 were not challenged by Sankaran or by the defendants at any point of time earlier. On the basis of Ext.A20, Cheriya Amma Thamburatti granted Verumpattam lease in favour of Chirutheyi and Kuttiparavan. Kuttiparavan surrendered his rights in favour of Chirutheyi and Sankaran. That surrender was in 1925. Exts.A1,A2 and A20 were not challenged by Sankaran or by the defendants at any point of time earlier. Even in the present case, there is no case that these documents were not executed. The only case is that Exts.A1 and A20 are "strange transactions." I am of the view that unless and until Ext.A20, in which Sankaran is a party, is challenged in a properly constituted suit, the defendants being the legal representatives of Sankaran are not entitled to challenge the demise made as per Ext.A20 and the transactions which took place on the basis of the rights acquired under Ext.A20. 8. The learned counsel for the respondents submitted that the court below proceeded on a wrong assumption that Section 90 of the Indian Evidence Act is applicable in respect of Ext.A1, A20 and B1. The counsel relied on the decision in Kamalakshy v. Madhavi Amma (1980 KLT 493), wherein it was held as follows: "For the presumption under S.90 of the Evidence Act to come into play, it is not enough that the document is purported or proved to be thirty years old and it is found to be produced from proper custody, but it is also shown to be the original document, purported to contain the handwriting and/or the signature, which other wise would require proof for admitting in evidence. Ext.P6 admittedly being not the original document, but only a copy thereof the plaintiff respondent is not entitled to seek shelter under S.90 of the Evidence Act." I respectfully follow the decision in Kamalakshy v. Madhavi Amma (1980 KLT 493) and hold that the view taken by the court below in this regard is not correct. However, the registration copies of the documents in question were marked without objection and as stated earlier, the defendants are not entitled to challenge in appeal the admissibility of those documents. But the probative value of the documents could be the subject matter of challenge though registration copies of the documents were marked in evidence. Execution being not specifically denied, it is not necessary to render a finding as to whether Exts.A1 and A20 were executed by the respective executants therein. Exhibits A1 and A20 are registered documents. But the probative value of the documents could be the subject matter of challenge though registration copies of the documents were marked in evidence. Execution being not specifically denied, it is not necessary to render a finding as to whether Exts.A1 and A20 were executed by the respective executants therein. Exhibits A1 and A20 are registered documents. In Sumathi Amma v. Kunjulekshmi Amma (1964 KLT 945) it was held thus: "In case where S.68 of the Evidence Act has no application, the certificate of registration in the light of the presumption in S.114, illustration (e) of the Evidence Act is evidence of execution, and can, in fit cases, be accepted as proof thereof. The facts required to be proved under S.67 can be proved by any kind of evidence and there is nothing in the section to indicate that the evidence furnished by the registration certificate and the presumption in illustration (e) of S.114 of the Evidence Act, is be excluded. The court is not bound to accept the certificate as sufficient proof, and where better evidence is available, can insist on better evidence, drawing the presumption in illustration (g) of S.114 of the Evidence Act." In Ponnan V. Kuttippennu: 1987 (2) KLT 455, it was held that the factum of registration cannot by itself amount to proof of execution where the executants denies execution. 9. The learned counsel for the appellant submitted that the court below did not correctly interpret the terms of Exts.A1, A20 and B1. On a careful consideration of these documents in the light of the pleading and evidence, it is clear that many facts stated by the court below in the judgment are wrong and the findings are based on those erroneous facts. That there are errors in the judgment on very many essential facts is not in dispute. Learned Counsel for the respondent submitted that Exts.A1 and A20 were executed on the same date, namely, 14.7.1910. As per Ext.A20, Cheriya Amma Thamburatti got Kanam rights. On the same date, a lease is created only in favour of Chirutheyi and a stranger. There is no lease in favour of Sankaran, son of Madhavan, or Nangeli, mother of Madhavan. It submitted by the counsel for the respondents that this was a clever attempt to exclude Sankaran from getting rights over the property which otherwise he had as per Ext.B1. There is no lease in favour of Sankaran, son of Madhavan, or Nangeli, mother of Madhavan. It submitted by the counsel for the respondents that this was a clever attempt to exclude Sankaran from getting rights over the property which otherwise he had as per Ext.B1. Madhavan and Nangeli had jenm rights and possessory rights. Their possessory rights were dealt with under Ext.A20 and by the execution of the Kanam document, Cheriya Amma Thamburatti came into possession. By Ext.A1 executed on the same date of Ext.A20, possession passed on to chirutheyi and Kuttiparavan. In the year 1910, the leasehold rights was not so valuable because the land Reforms legislation came into existence much later. Even if Ext.A1 was not there, Sankaran, had lost possession by the execution of Ext.A20. Unless and until Sankaran, Chirutheyi and Nangeli regained possession by any method known to law, they could not claim any possessory title or right in view of the existence of Ext.A20 in favour of Cheriya Amma Thamburatti. They lost possession, not by the execution of Ext.A1, but the execution of Ext.A20 itself. Sankaran being an eo nominee party to Ext.A20, his successors in interest are not entitled to question the genuineness or correctness of Ext.A20 without instituting a suit to set aside the document. 10. Learned counsel for the respondent submitted that on Madhavan's death, which was evidently before 1910, his rights devolved on Sankaran. Chirutheyi would not get any rights on Madhavan's death as per the personal law applicable to the parties. The right of a widow to hold the property was recognised by the Hindu Women's Right to Property Act. 1937. It is submitted that before 1937, Chirutheyi had re-married Neelkantan and, therefore, her right, if any had lost by Section 2 of the Hindu Widows Re-marriage Act, 1856. The counsel relied on the decisions in Sivaprasad v. Venkateswaralu :2000 (1) KLT SN 11 (SC) and Dharmarajan V. Narayanan : 2000 (2) KLT 895. I do not think that the contention put forward by the learned counsel for the respondents deserves acceptance. This is not a case where the rights of parties are to be ascertained as if no document was executed and as if the property remained undivided. Exhibits A1 and A20 came into existence in 1910, by which the predecessor in interest of the defendants, Sankaran, and his mother, who admittedly were having rights, lost possessory title. This is not a case where the rights of parties are to be ascertained as if no document was executed and as if the property remained undivided. Exhibits A1 and A20 came into existence in 1910, by which the predecessor in interest of the defendants, Sankaran, and his mother, who admittedly were having rights, lost possessory title. If Ext.A20 is a valid and binding document, the question as to rights of a widow and the extinguishment of the rights of the widow on re-marriage do not arise for consideration. As stated earlier, the defendants are not entitled to challenge the validity of Ext.A1 and A20 in defence to the suit for partition. The question whether the plaintiff has right to get a share is to be determined with reference to the document in existence, namely, Ext.A1,A2 and A20 and not with reference to what would have been the state of affairs had no document been executed. 11. Learned counsel for the respondent also submitted that in Ext.A20 Chirutheyi is one of the executants. She had no right in the property at that time. She figured as an executant in Ext.A20 as the widow of Madhavan. The presence of Chirutheyi as an executant in Ext.A20 is not quite relevant, since Nangeli and Sankaran, who, according to the defendants, had absolute rights at the relevant time, were parties to Ext.A20 A person who executes a document along with another person conveying an item of immovable property and if the former has really no right in the property, that would not vitiate the transfer, if the other executant had the right to execute the document. 12. The contentions put forward by the defendants were not substantiated by any evidence. In the nature of the contentions put forward by the defendants, they were bound to lead evidence. No oral evidence was adduced by them. The defendants were bound to speak and when they failed speak, adverse inference should be drawn against them. In Ishwar Bhai C. Patel alias Bachu Bhai Patel v.Harihar Bahera and another: AIR 1999 S.C. 1341, the Supreme Court held:' "Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him" 13. As regards the case of ouster, adverse possession and limitation, I am of the view that the court below was not justified in rendering a finding in favour of the defendants. No evidence was adduced by the defendants to substantiate their plea. It is not stated as to when the defendants commenced to assert their hostile animus to possess the property exclusively denying the right of the plaintiff. Mere possession by a co-owner for quite long time does not destroy the rights of the other co-owners and it has to be established that they were ousted from possession and the required to constitute adverse possession exist. To constitute ouster as between co- owners, there must be evidence of to open assertion of hostile title, coupled with exclusive possession and enjoyment by the person who claims ouster to the knowledge of the other or others. See Sharmbhu Prasad Singh v. Mst.Phool Kumari and others: AIR 1971 SC 1337; Maharajadhiraj of Burdwan v. Subodh Gopal Bose and others: AIR 1971 S.C. 376; Syed Shah Gulam Ghouse Mohiuddin and others Vs. Syed Shah Ahmed mohiuddin Kamisul Qadri and others: AIR 1971 S.C. 2184; Mohd. Zainulabudeen Vs. Sayed Ahmed Mohideen and others: AIR 1990 S.C. 507; Darshan Singh V. Gujjar Singh: (2002) 2 S.C.C. 62; P. Lakshmi Reddy V. L. Lakshmi Reddy: A.I.R. 1957 S.C. 314; Saramma lttoop and others V. Kunjamma Kuruvilla and others: ILR 2006 (30 Ker. 272. None of these ingredients have been proved in the case. 14. Learned counsel for the respondents, as a last resort, submitted that an opportunity may be afforded to the defendants to adduce oral evidence and that the case may be remanded to the trial court for fresh disposal. I am not inclined to accept this contention. The trial court disposed of the suit by the judgment dated 15.1.1990. In appeal, as per the judgment dated 20.11.1991, the case was remanded to the trial court for fresh disposal. PW1 was examined before the trial court original. Though opportunity was available to the defendants, they did not adduce any evidence. Even after remand, the defendants did not think it fit to adduce any evidence. At this distance of time, it is not proper to allow the defendants to adduce oral evidence. PW1 was examined before the trial court original. Though opportunity was available to the defendants, they did not adduce any evidence. Even after remand, the defendants did not think it fit to adduce any evidence. At this distance of time, it is not proper to allow the defendants to adduce oral evidence. For the aforesaid reasons, I allow the Second Appeal, set aside the judgment of the lower Appellate Court and restore that of the trial court. No order as to costs.