The applicable law for intestacy opened in 1940 under the Christian Succession Act, 1092, and the principles of ouster and adverse possession were clarified to protect co-owners' rights.

JUDGMENT :

EASWARAN S., J.

This appeal raises certain multifaceted questions regarding the interpretation of the CHRISTIAN SUCCESSION ACT , 1092 (TC) and the Indian SUCCESSION ACT , 1925. The defendants 2 to 4, who resisted a suit for partition successfully, were visited with reversal of the judgment by the first appellate court and have come up in the present second appeal.

2. The brief facts necessary for the disposal of the appeal are as follows:

One Sri.Kurian Varghese had extensive properties. Item No.1 of the plaint schedule property consists of 25 Ares in resurvey No.148/12 of Kaviyoor Village, Thiruvalla Taluk, Pathanamthitta District. Item No.2 consists of 44.80 Ares in resurvey No.180/14 of the same village. Mr.Kurian Varghese married Smt.Sosamma and in the wedlock, they had five children, Sri.Varghese Kurian, Sri.Thomas Kurian, Smt.Annamma Mathew, Smt.Aleyamma Thomas and Smt.Saramma Oommen. Sri.Kurian Varghese inherited the plaint schedule property from his father through partition deed No.634/1111 M.E. In the year 1940, Sri.Kurian Varghese died and Smt.Sosamma Kurian died in the year 1999. The plaintiff instituted the suit for partition on 03.10.2011 as O.S.No.439/2011 contending that he is entitled to 4/5^th share of the plaint schedule property. During the pendency of the suit, it appears that the daughters of Sri.Kurian Varghese and Smt.Sosamma executed a release deed in favour of the plaintiff and therefore, an amendment was sought for partition of the plaint schedule property to 4/5^th share. The basis of the execution of the release deed was, the declaration of law by the Hon’ble Supreme Court in Mary Roy and Ors. v. State of Kerala and Ors. [ (1986) 2 SCC 209 ].

3. The defendants resisted the claim, contending that the provisions of the Indian SUCCESSION ACT , 1925 will not apply, since the succession opened in the year 1940 on the death of Mr.Kurian Varghese and hence the provisions of the CHRISTIAN SUCCESSION ACT , 1092 (TC), will apply. It was further contended that, even if the plaintiff had any resemblance of share over the plaint schedule property, the same was hit by the principles of ouster. On behalf of the plaintiff, Exts.A1 to A4 were marked and PW1 and PW2 were examined. On behalf of the defendants, Exts.X1 and X2 were marked through third party and DW1 to DW3 were examined. Exts.C1 and C2 are the reports of the Advocate Commissioner. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the provisions of the Indian SUCCESSION ACT , 1925, will not apply and that going by the principles of ouster, the defendants had with the knowledge of the plaintiff opened an unequivocal denial of title from 1989 onwards, which was not disputed till 2011 and hence, defendants 1 to 4 had perfected title by ouster and the plaintiff is not entitled to get any relief as prayed for.

4. Aggrieved, the plaintiff took up the matter before the Sub Court, Thiruvalla, in A.S.No.15/2020. The first appellate court, on reappreciation of evidence, came to the conclusion that the plaintiff had made out a case for partition and that, going by the principles laid down by the Hon’ble Supreme Court in Mary Roy (supra), he is entitled for a decree for partition. Therefore, the first appellate court reversed the decision of the trial court and decreed the suit upholding the release deed executed between the plaintiff and his sisters during the pendency of the suit and allowed the appeal. Aggrieved by the judgment and decree of the first appellate court, the