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. 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 defendants 2 to 4 have come up in the present second appeal and this Court, while admitting the appeal on 13.02.2025, framed the following substantial questions of law: i. Whether the First Appellate Court is justified in holding that succession of the father of the parties to the suit is governed by the provisions of the Indian Succession Act, 1925 when his death was before the Part B States (Laws) Act, 1951? ii. Whether the First Appellate Court is justified in holding that the Travancore Christian Succession Act, 1092 will not be applicable to succession of the father of the parties opened in the year 1940, since no dowry was paid to defendants 5 to 7 as per the provisions of the said Statute? ii. Whether the First Appellate Court is justified in holding that the Travancore Christian Succession Act, 1092 will not be applicable to succession of the father of the parties opened in the year 1940, since no dowry was paid to defendants 5 to 7 as per the provisions of the said Statute? iii.Whether the marriage of the daughters/defendants 5 to7 happened after the enactment of the Part B States (Laws) Act, 1951 has got any relevance for application of Travancore Succession Act, 1092 to the succession of the father of the parties who died in the year 1940? iv.Whether there is any perversity on the part of the First Appellate Court in the matter of appreciation of evidence with respect to ouster pleaded by the defendants 1 to 4? 5. Heard Sri.M.P.Sreekrishnan – learned counsel appearing for the appellants and Sri.Varghese C.Kuriakose – learned counsel appearing for the 1 st respondent. Submissions on behalf of the appellants 6. Sri.M.P.Sreekrishnan – learned counsel appearing for the appellants, contended that the judgment of the first appellate court is vitiated by material irregularity and perverse appreciation of the evidence adduced by the parties. According to him, the succession in this case opened on the death of Mr.Kurian Varghese in the year 1940. At that point of time, the law prevailing in the State of Travancore was the Travancore Christian Succession Act, 1092. The provisions of the Indian Succession Act, 1925, were made applicable to the Part B States only from the year 1951 on the promulgation of the Part B States (Laws) Act, 1951, with effect from 22.02.1951. He further pointed out that, the finding of the first appellate court that, the principles laid down by the Hon’ble Supreme Court in Mary Roy (supra) will apply is completely unsustainable. The first appellate court failed miserably to consider the crucial fact that, the decision of the Supreme Court in Mary Roy (supra) was rendered since, the succession in that case opened after 1951. In support of his contention, he extensively relied on the decision in Mary Roy and Ors v. State of Kerala and Ors. [ 1986 (2) SCC 209 ] . In support of his contention, he extensively relied on the decision in Mary Roy and Ors v. State of Kerala and Ors. [ 1986 (2) SCC 209 ] . He further pointed out that in Mary Roy v. Susie Issac [2002 KHC 634] , this Court had considered the subsequent suit filed by Mary Roy for partition, from which it is evident that the succession in the above case opened only on 18.12.1960 and therefore, the ratio decidendi in Mary Roy ( 1986 (2) SCC 209 ) will not apply to the facts of the present case. It is further argued that if the provisions of the Christian Succession Act, 1092 (TC) are applied in the present case, then the daughters of Mr.Kurian Varghese are not entitled to inherit any share in the estate of late Sri.Kurian Varghese. The point of opening of the intestacy being the death of late Kurian Varghese, the succession will have to be, in the order provided under Section 25 of the Christian Succession Act, 1092 (TC) and therefore, the provisions of the Indian Succession Act, 1925, cannot apply in this case. He further pointed out that going by the dictum laid down by this Court in ], the claim for streedhanom if any, can only be a claim for money and not a claim for share in the property. It is further pointed out that going by the Division Bench decision of this Court in Aley v. Skaria [1955 KHC 133] , the Christian Succession Act, 1092 (TC) must be applied to all cases in which the succession opened after the commencement of the Act. It is further pointed out that even if it is found that the plaintiff had any claim over the plaint schedule property dehors the claim of the daughters, such claim has since been lost by ouster. There is sufficient pleading as well as evidence to substantiate the claim of the appellants that the right of the plaintiff over Item Nos.1 and 2 properties was lost by ouster. Submissions on behalf of the 1 st respondent/plaintiff 7. Per contra, Sri.Varghese C.Kuriakose – learned counsel appearing for the 1 st respondent/plaintiff, pointed out that the judgment of the first appellate court does not suffer from any infirmities as contended by the appellants. According to him, the principles laid down in Mary Roy (supra) will squarely apply in the present case. Per contra, Sri.Varghese C.Kuriakose – learned counsel appearing for the 1 st respondent/plaintiff, pointed out that the judgment of the first appellate court does not suffer from any infirmities as contended by the appellants. According to him, the principles laid down in Mary Roy (supra) will squarely apply in the present case. He further pointed out that, from the pleadings in the written statement filed on behalf of the defendants, no case of ouster has been made out. It is the specific case that a co-sharer cannot plead adverse possession against the other co-sharer. Admittedly, the plaintiff being the 2 nd son of late Sri.Kurian Varghese, was entitled to share on the property. Since the other daughters of late Sri.Kurien Varghese had executed a release deed, the plaintiff is entitled for 4/5 th share over the plaint schedule property. It is further contended that going by the provisions of Section 29 of the Indian Succession Act, 1925, the provisions of the Christian Succession Act, 1092 (TC) will not apply to the present case. It is further contended that under Section 29(1) of the Indian Succession Act, 1925 the provisions of the Succession Act will not apply to any intestacy occurring before 01.01.1866. He further pointed out that the plea of the appellants/defendants that a portion of the plaint schedule property was sold and that the plaintiff did not question the said sale by itself will not amount to ouster. In support of his contention, he relied on the decision of the Single Bench of this Court in Mandothingal Kalyani v. Mandothinkal Chami and Ors [2018 KHC 4641] . He further pointed out that no case of adverse possession can be set up in respect of a co-owner of the property. In support of his contention, he relied on the decisions of the Supreme Court in Syed Shah Ghulam Ghouse Mohiuddin and Ors. v. Syed Shah Ahmed Mohiuddin Kamisul Quadri (died) by his legal representatives and Ors. [ (1971) 1 SCC 597 ] , Krishnamurthy S. Setlur (Dead) by Lrs. v. O.V. Narasimha Setty and Ors. [ (2007) 3 SCC 569 ] , Karnataka Board of Wakf v. Government of India and Ors. v. Syed Shah Ahmed Mohiuddin Kamisul Quadri (died) by his legal representatives and Ors. [ (1971) 1 SCC 597 ] , Krishnamurthy S. Setlur (Dead) by Lrs. v. O.V. Narasimha Setty and Ors. [ (2007) 3 SCC 569 ] , Karnataka Board of Wakf v. Government of India and Ors. [ (2004) 10 SCC 779 ] Nagabhushanammal (Dead) by legal representatives v. C.Chandikeswaralingam [ (2016) 4 SCC 434 ] and Neelam Gupta v. Rajendra Kumar Gupta [2024 KHC 6555], and a Division Bench decision of this Court in John P.J. (dead) v. P.J.George (dead) [2024 KHC 7176]. 8 I have considered the rival submissions raised across the Bar and have perused the judgments of the courts below and also the records of the case. JUDICIAL VALUATION OF THE SUBMISSIONS Applicability of the Christian Succession Act, 1092 (TC) qua the Indian Succession Act, 1925. 9. The consideration on this intricate question revolves around the interpretation of the Christian Succession Act, 1092 (TC) as well as the provisions of the Indian Succession Act, 1925. The conclusion of this Court on this question will answer the first three questions of law framed in the present appeal. Before delving into the questions, this Court needs to address one pivotal issue raised by the learned counsel for the appellants. According to Sri.M.P.Sreekrishnan – learned counsel appearing for the appellants, the principles laid down by the Hon’ble Supreme Court in Mary Roy (supra) will not apply to the facts of the present case. To appreciate the said contention, one needs to determine when the succession opened in Mary Roy (supra). A reading of the decision of the Hon’ble Supreme Court in Mary Roy (supra) would not throw any light on the issue as to when the succession opened. No doubt, the Supreme Court interpreted the provisions of the Part B States (Laws) Act, 1951 and its impact on the Christian Succession Act, 1092 (TC). However, a considerate reading of the decision of the Supreme Court shows that it was rendered on a writ petition filed under Article 32 of the Constitution of India. Therefore, based on the declaration of law, Mary Roy had to necessarily file a suit for partition. In fact, a suit for partition was filed before the Sub Court, Kottayam as O.S.No.323/1988. The litigation between Mary Roy and her siblings reached this Court in Mary Roy v. Susie Issac [2002 KHC 634] . Therefore, based on the declaration of law, Mary Roy had to necessarily file a suit for partition. In fact, a suit for partition was filed before the Sub Court, Kottayam as O.S.No.323/1988. The litigation between Mary Roy and her siblings reached this Court in Mary Roy v. Susie Issac [2002 KHC 634] . A reading of the decision of the Division Bench clearly shows that the succession opened on the death of P.V.Issac, the father of Mary Roy on 18.12.1960. Therefore, based on the decision of the Hon’ble Supreme Court, the judgments of the courts below were set aside and a preliminary decree for partition was passed. 10. If in a case where intestacy opened prior to 22.02.1951, the date on which Part B States (Laws) Act, 1951, was promulgated, what will be the consequence? The answer of this Court to this question would ultimately depend upon the fate of this appeal. 11. To consider the question, one needs to understand how a succession opens under the provisions of the Christian Succession Act, 1092 (TC). The Christian Succession Act, 1092 (TC) is a regulation to consolidate and amend the rules of law applicable to intestate succession among the Indian Christians in Travancore passed by His Highness the Maharaja of Travancore on 21.12.1916 corresponding to the 7 th Dhanu 1092, under Section 13 of Regulation V of 1073. Section 14 of the Christian Succession Act, 1092 (TC) reads as under: “14. As to what property deceased considered to have died intestate – A man is considered to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.” Section 16 provides that the widow co-existing with deceased’s children is also lineal descendants. Section 16 reads as under: “ 16. Widow co-existing with the deceased’s children – Where the intestate has left a widow, if he has also left lineal descendants, a share equal to that of a son shall be allotted to her. Provided, however, when the lineal descendants of the deceased consist only of his daughters or the descendants of any deceased daughter or daughters, the widow’s share shall be equal to that of a daughter.” The order of succession is provided under Section 25, which reads as under: “25. Order of succession. Provided, however, when the lineal descendants of the deceased consist only of his daughters or the descendants of any deceased daughter or daughters, the widow’s share shall be equal to that of a daughter.” The order of succession is provided under Section 25, which reads as under: “25. Order of succession. - When person dies intestate, his next of kin in the order set forth below shall be entitled to succeed to the residue, if any, of his property that may be-left after deducting the widow's share, if he has left a widow, and also the mother's share, if he has left a mother, under circumstances which will, according to Sections 21 to 23, entitle her to any share, The next of kin mentioned in the first group shall always be preferred to those standing second, the second to the third, and so on, in succession. Group (1) Sons and daughters and the lineal descendants of such sons or daughters as shall have predeceased the intestate. Group (2) Father. Group (3) Brothers and sisters (whether of the full-blood or by the same father only) and the lineal descendants of such of them as shall have predeceased the intestate. Group (4) Paternal grandfather . Group (5) Paternal grandmother and paternal grandfather's children including such of the latter as shall have predeceased the intestate, leaving lineal descendants. Group (6). Brothers and sisters of the half-blood on the mother's side and the lineal descendants of such of them as shall have died in the intestate's life-time. Group (7). Maternal grandfather. Group (8). Maternal grandmother and the maternal grandfather's children including the lineal descendants of such of them as shall have died in the intestate's life-time.” Going forward, the share of the sons in group (1) of Section 25 is provided under Section 28, which reads as under: “ 28. The Shares of sons in group (1) of Section 25.- Without prejudice to the provisions of Section 16, the male heirs mentioned in group (1) of Section 25 shall be entitled to have the the whole of the intestate's property divided equally among themselves, subject to the claims of the daughter for Streedhanom. Daughter's Streedhanom and its value. - The Streedhanom due to a daughter shall be fixed at one-fourth the value of the share of a son, or Rs. 5,000 whichever is less. Daughter's Streedhanom and its value. - The Streedhanom due to a daughter shall be fixed at one-fourth the value of the share of a son, or Rs. 5,000 whichever is less. Female heirs who were paid Streedhanom to be ordinarily left out of consideration.- Provided that any female heir of an intestate to whom Streedhanom was paid or promised by the intestate, or in the intestate's lifetime either by such intestate's wife or husband, or after the death of such wife or husband, by her or his heirs shall not be entitled to have any further claim in the property of the intestate when any of her brother (whether of the full-blood or of the half- blood by the same father) or the lineal descendants of any such deceased brother shall survive the intestate. Any Streedhanom promised, but not paid by the intestate shall be a charge upon his property.” A cumulative reading of the aforesaid provisions will show that the sons along with the widow of a pre-deceased son of the deceased will take share in the property equally. The daughters are entitled only to the value of the streedhanom which they have been promised. Any streedhanom promised, but not paid by the intestate, shall be charged upon his property. 12. During the currency of the Christian Succession Act, 1092 (TC), the Government of India brought the Indian Succession Act, 1925 (Act 39 of 1925). A reading of the Preamble of the Act shows that the Act is intended to consolidate the law applicable to intestate and testamentary succession. Section 29 deals with the application of the Act. It reads as under: “ 29. Application of Part.— (1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. (2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of [India] in all cases of intestacy.” A reading of Section 29 would clearly show that the provisions of Section 29 shall not apply to any intestacy occurring before 01.01.1866. More pertinently, under Sub-Section (2) of Section 29, the word “India” was substituted for the word “the States” with effect from 01.04.1951. 13. More pertinently, under Sub-Section (2) of Section 29, the word “India” was substituted for the word “the States” with effect from 01.04.1951. 13. It is in this context the enactment of the Part B States (Laws) Act, 1951 assumes importance. The Part B States (Laws) Act, 1951 (Act 3 of 1951) was enacted by the Parliament on 22.02.1951. Section 6 of the Act reads as under: “6. Repeals and savings.— If immediately before the appointed day there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in the Act, stand repealed: Provided that, the repeal shall not affect— (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed: Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or licence granted or registration effected) under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said Act or Ordinance.” 14. It is indisputable that going by the schedule to the Part B States (Laws) Act, 1951, the Indian Succession Act is also included. Clause (a) to Section 6 provides that the repeal shall not affect any law so repealed or anything duly done or suffered thereunder. Clause (b) of Section 6 also provides that any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed shall be protected. 15. Clause (a) to Section 6 provides that the repeal shall not affect any law so repealed or anything duly done or suffered thereunder. Clause (b) of Section 6 also provides that any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed shall be protected. 15. A further question would evolve on a cumulative reading of these provisions. Did the Indian Succession Act, 1925, intend to repeal the provisions contained under the Christian Succession Act, 1092 (TC). To consider this issue, one needs to understand the status of the Travancore State as it existed when the Indian Succession Act, 1925 was enacted by the Government of India. It is beyond doubt that the Travancore State was then existing as an independent Princely State and was not governed by any law enacted by the Government of India prior to 1947. It was only during July, 1949, that the former State of Travancore merged with the State of Cochin to form Part B State of Travancore-Cochin. When the Indian Succession Act was enacted in the year 1925, the Christian Succession Act, 1092 (TC) was already governing the law relating to the succession among the Christians in the Travancore State. It is not possible for this Court to hold that by virtue of sub-Section (2) of Section 29 of the Indian Succession Act, 1925, the Government of India intended to apply the provisions of the Succession Act to the Christians among the Travancore area. If it was otherwise so, there was no requirement for the Parliament to have included the provisions of the Succession Act in Part B States (Laws) Act, 1951. The Part B States (Laws) Act, 1951 was enacted with a view to bring uniformity in the legislation to the whole of the States. The very fact that, the provisions of the Indian Succession Act, 1925 were included in the Part B States (Laws) Act, 1951 would give a clear indication that the provisions of the Succession Act were intended to apply to the entire Union Territory of India only with effect from 1.4.1951. Therefore, in case where intestacy opened in the year 1940, it is not possible to hold that, the parties are to be governed by the Indian Succession Act, 1925, merely because the Christian Succession Act, 1092 (TC) was repelled by the Part B States (Laws) Act, 1951. 16. Therefore, in case where intestacy opened in the year 1940, it is not possible to hold that, the parties are to be governed by the Indian Succession Act, 1925, merely because the Christian Succession Act, 1092 (TC) was repelled by the Part B States (Laws) Act, 1951. 16. This Court needs to address another issue before concluding on this point. To finally pronounce upon its views on the applicability of the Christian Succession Act, 1092 (TC) or the Indian Succession Act, 1925, one needs to understand when does the intestacy open. It is beyond any dispute that, the intestacy opens on the death of the estate holder. In the present case, Kurian Varghese died in the year 1940. From the date of the death of Kurian Varghese, the intestacy opened. The law that was prevailing as on the date of opening of intestacy is the Christian Succession Act, 1092 (TC) and not the Indian Succession Act, 1925, because of its inapplicability to the Princely State of Travancore. That being so, it is inevitable for this Court to hold that, the parties are governed by the provisions of the Christian Succession Act, 1092 (TC). Thus, the finding rendered by the first appellate court contrary to the provisions is clearly unsustainable. Therefore, this Court holds that in the facts of this case, the parties are governed by the Christian Succession Act, 1092 (TC) in respect of the share of late Sri.Kurian Varghese. 17. Before finally pronouncing on this point, this Court needs to address one more issue. The first appellate court has found that, since the marriage of the daughters of the intestate, namely late Sri.Kurian Varghese, was conducted after 1951, they are entitled for the share in the property. However, this Court cannot subscribe to the aforesaid finding. At any rate, the claim for streedhanom cannot be a claim for share in the property. Still further, it has come out in evidence that, the marriage was conducted by the first son, namely Varghese Kurian, and therefore, the daughters cannot have any claim for streedhanom under the erstwhile provisions of the Christian Succession Act, 1092 (TC). Still further, merely because the marriage happened after 1951 by itself will not open the case of intestacy. Still further, it has come out in evidence that, the marriage was conducted by the first son, namely Varghese Kurian, and therefore, the daughters cannot have any claim for streedhanom under the erstwhile provisions of the Christian Succession Act, 1092 (TC). Still further, merely because the marriage happened after 1951 by itself will not open the case of intestacy. When the marriages of the daughters were conducted, the intestacy had already opened and the devolution of the shares in the property stood determined in the order of succession under Section 25 of the erstwhile Christian Succession Act, 1092 (TC). Therefore, on the death of Kurian Varghese, his wife Sosamma, Varghese Kurian the first son and Thomas Kurian the second son would form a group together and were entitled to hold the property in question. Thus, the daughters had no share in the plaint schedule property, which devolved consequent to the death of Sri.Kurian Varghese. 18. Based on the discussion as above, this Court holds that, the law that is applicable in the present case is the provisions of the Christian Succession Act, 1092 (TC) and that the provisions of the Indian Succession Act, 1925, would apply to the State of Travancore only after the Part B States (Laws) Act, 1951, was enacted. Accordingly, the questions of law raised as (i) to (iii) above are answered in favour of the appellants. Law governing the mode of succession on the share of Sosamma 19. Having held that, as far as the estate of late Mr.Kurian Varghese is concerned, the law applicable for succession is the Christian Succession Act, 1092 (TC), this Court needs to address one incidental question that has cropped up during the consideration of this appeal. Admittedly, going by the provisions of the Christian Succession Act, 1092 (TC), the widow of the intestate is also entitled for a share when the intestacy under Section 25 opens. Thus, in the year 1940, when the intestacy opened, the widow of late Kurian Varghese, namely Sosamma, the first son Sri.Varghese Kurian and the second son Sri.Thomas Kurian, would take equal shares. Therefore, the widow Sosamma had 1/3 rd right over the property which was lying in common without being partitioned. Sosamma, the widow of Kurian Varghese, died in 1999 and by that time, the Part B States (Laws) Act, 1951 had come into force. Therefore, the widow Sosamma had 1/3 rd right over the property which was lying in common without being partitioned. Sosamma, the widow of Kurian Varghese, died in 1999 and by that time, the Part B States (Laws) Act, 1951 had come into force. Once the Part B States (Laws) Act, 1951, came into effect, then the provisions of the Indian Succession Act must be applied to determine the devolution of share of Sosamma, thereby triggering the application of the principles laid down by the Hon’ble Supreme Court in Mary Roy (supra). Resultantly, Varghese Kurian, Thomas Kurian, Annamma Mathew, Aleyamma Thomas and Saramma Oommen would all join together to take equally the 1/3 rd share of Sosamma in the plaint schedule property. When the daughters together with the sons take equal share on the 1/3 rd right over the plant schedule property, the impact of the release deed executed in favour of Sri.Thomas Kurian, the plaintiff, assumes significance. Therefore, the 1/3 rd share will have to be partitioned between Varghese Kurian and Thomas Kurian and their siblings, Aleyamma, Annamma and Sarama with each of them taking 1/15 share. However, since three of the daughters have executed a settlement deed in favour of the plaintiff, the plaintiff will get 4/15 share and the legal heirs of the defendant, Varghese Kurian, will get 1/15 share. Thus, the defendants/appellants herein cannot resist the claim for partition by Thomas Kurian, the plaintiff, in respect of the plaint schedule property to the extent of 1/3 rd share of Sosamma. To that extent, the judgments of the courts below require a modification. 20. At any rate, this is not a case where the suit ought to have been dismissed. The contra distinction, as far as the applicability of the Christian Succession Act, 1092 (TC) and the Indian Succession Act, 1925 properly, was not taken note of by the first appellate court. Since the case evolves on a suit for partition, necessarily this Court can modify the decree while exercising its power under Section 100 of the Code of Civil Procedure,1908, as the plaintiff and the defendants are common as far as a suit for partition is concerned. The manner in which the shares are to be delineated will be dealt with in the conclusive part of this judgment. Applicability of the principles of ouster. 21. The manner in which the shares are to be delineated will be dealt with in the conclusive part of this judgment. Applicability of the principles of ouster. 21. The rule regarding what constitutes an ouster of a co-sharer from the joint property is well settled by the decision of Their Lordships of the Judicial Committee of the Privy Council in a case which went from Ceylone. In Thomas v. Thomas [1855 (2) K&J 79] , it was held that possession is never considered adverse if it can be referred to as a lawful title. To succeed on the ground of ouster, the person setting up ouster is bound to show that he did set up an adverse or independent title during the period, which was beyond the statutory period of 12 years. 22. The uninterrupted sole possession of such property, without more, must be referred to the lawful title possession by the joint holders to use the joint estate, and cannot adversely claim against other interested members. The possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be the former. While deciding the question of ouster or exclusion from the joint property in true route what is deducible is that there can be no adverse possession by one co-sharer as against others until there is an ouster or exclusion and that the possession of the co-sharers becomes adverse to another co-sharer from the moment when there is ouster. That is after the assertion of an ouster title by one co-sharer against the other and to the knowledge of the latter. 23. In Govindammal v. R.Perumal Chettiar & Others [(2006) 11 SCC 600] , the Supreme Court held that a co-sharer becomes constructive trustees of the other co-sharers and the right of a person or his predecessor in interest is deemed to have been protected by the trustees. In order to prove ouster and adverse possession against the co-sharer, the following relevant factors have to be taken into consideration: (i) Exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) Dealings by the party in possession treating the properties as exclusively belonging to him; (iii) The means of excluded co-sharer of knowing that his title has been denied by the co-owner in possession. 24. 24. Again, in Des Raj & Ors vs Bhagat Ram (Dead) By Lrs. & Ors [ (2007) 9 SCC 641 ] , the Supreme Court considered the issue of adverse possession and ouster in suits relating to partition. It was held that a plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act. Mere assertion of the title by itself may not be sufficient unless the parties prove animus possidendi. 25. In B.R.Patil v. Tulsa Y Sawkar & Others [2022 SCC OnLine SC 240] , the Supreme Court had occasion to consider the plea of ouster in a wider perspective and it was held that the very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. The possession of a co-owner is ordinarily on his behalf and also on behalf of the entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to a lawful title. 26. The plea of ouster raised by the appellants must be considered in the light of the principles deduced above. Although the plea of ouster is a weak defence in a suit for partition, it is not altogether impermissible under law to put forward a claim for ouster in a suit for partition. The question further is, whether the appellants have succeeded in establishing their plea of ouster. Before delving deep into the oral evidence adduced by the parties, one needs to consider the question as to whether sufficient pleadings are present in the written statement as regards the plea of ouster. When we read the written statement of the defendants, it is explicitly clear that a clear case of ouster is pleaded. Paragraphs 6 and 7 of the written statement is extracted as under: In paragraph 10, it is specifically pleaded that the possession of the defendants in exclusion of the plaintiff is clearly more than 20 years. This Court needs to test the pleadings of the defendants 2 to 4 with the oral evidence adduced by the parties. When the plaintiff was cross-examined, he had set up a case that he had contributed substantially to the well-being of the family after he had left Bombay and thereafter, to the United State of America. This Court needs to test the pleadings of the defendants 2 to 4 with the oral evidence adduced by the parties. When the plaintiff was cross-examined, he had set up a case that he had contributed substantially to the well-being of the family after he had left Bombay and thereafter, to the United State of America. However, when specifically questioned in cross-examination as to whether he had produced sufficient proof as regards his contribution towards the family, the answer is “I myself is the proof to support the family”. This Court fails to comprehend, as to how the plaintiff without any evidence, could assert in the box that he was instrumental in contributing substantially to the well-being of the family. That apart, a further question was put to him as follows: support proof answer is “I don’t think it was necessary to explain in the proof affidavit”. Still further, it has come out in evidence that the plaintiff did not even come to attend the funeral of his mother when she died on 30.10.1999. He further states that whenever he came to India, he used to stay in a hotel. But, however, he did occasionally visit the ancestral property whenever he came to the native place. 27. In support of the plea that, the right if any of the plaintiff as far as his share is concerned, consequent to the opening of intestacy has been lost by ouster, the defendants examined one Mathai Kurian as DW3. Mathai Kurian is none other than the brother of the father of PW1. When this Court investigates the oral testimony of DW3, it is clear that during the year 1989-1990, admittedly, the plaintiff claimed a right over the ancestral property by requiring his brother Varghese Kurian to partition the property, which was outrightly refused. DW3, further speaks about the conversation which the plaintiff had with him as soon as this incident happened. Though, both counsels are at serious variance as regards the exact year on which the claim of partition of the plaintiff was refused by his brother, late Varghese Kurian, insofar as the present dispute is concerned, the exact pleading is not of much consequences. Admittedly, the plaintiff did claim a right of partition of his share in respect of the plaint schedule property which was refused. Admittedly, the plaintiff did claim a right of partition of his share in respect of the plaint schedule property which was refused. Moreover, DW3 was extensively cross-examined on the side of the plaintiff, but nothing has been brought out to discredit his oral testimony. 28. The evidence of DW3, coupled with the fact that the plaintiff was settled in US for a considerable long time and nothing is produced to support his assertion in box that he supported the family including for the marriages of his three sisters, it is inevitable for this Court to find that as far as the claim of the plaintiff to his share in the plaint schedule property is concerned, there is a clear hostile possession by the defendants to his knowledge as far as the share of the plaintiff is concerned. The most clinching evidence as regards the plea of ouster is that the plaintiff left the native place in the year 1956 and had acquired US Citizenship in the year 1982. The evidence of PW1 itself clearly shows that defendants 1 to 4 were staying in the plaint schedule property and that he was not maintaining any relationship with them, including his mother. The only piece of evidence available from the side of the plaintiff is the tax receipt. It has come out in evidence that the remittance of the tax by the plaintiff is just prior to the filing of the suit. Admittedly, the brother of the plaintiff died in the year 2006 and, hence, remittance of tax by the plaintiff in the year 2011 can only be viewed for the purpose of the suit and nothing else. 29. In this context, it is pertinent to note that Ext.X1 certificate, which is proved through DW2, shows that the building in the plaint schedule property is in the name of late Varghese Kurian. It is certainly a strong indication of the plea of defendants 1 to 4 regarding ouster. Still further, it has clearly come out in evidence that late Sri.Varghese Kurian had sold a certain extent of the property inherited from his father. Though the plaintiff in reexamination asserted that he authorized his brother to sell the property, he did not produce any proof. Therefore, it clearly shows that the plaintiff was quite aware of his brother possessing the property in exclusion of his rights. Though the plaintiff in reexamination asserted that he authorized his brother to sell the property, he did not produce any proof. Therefore, it clearly shows that the plaintiff was quite aware of his brother possessing the property in exclusion of his rights. Although the learned counsel for the plaintiff asserted before this Court that the mere non-participation of a co-sharer in sharing profits by itself cannot make out a case of ouster, there is sufficient evidence in this present case to show that, a clear case of ouster qua the 1/3 rd share of the plaintiff over the plaint schedule property is made out. This Court cannot remain oblivious of the status of a son, who did not even care to come back for the funeral of his mother in the year 1999. The conduct of the plaintiff is writ large on the face of the record and the total lack of evidence to prove his case that he was supporting his family as asserted by him in the witness box, leads to a strong presumption that, the claim of partition is clearly unacceptable and a clear case of ouster is made out. 30. However, the learned Counsel for the 1 st respondent, Shri.Varghese C.Kuriakose drew the attention of this Court to numerous precedents on the point that a co-sharer cannot plead adverse possession against another co-sharer and hence the Judgment of the first appellate court does not call for interference. This court has anxiously bestowed its consideration of the precedents cited across the bar and accordingly, following conclusions are arrived at. a) In Syed Shah Ghulam Ghouse Mohiuddin and Ors. v. Syed Shah Ahmed Mohiuddin Kamisul Quadri (Died) by his legal representatives and Ors. [ (1971) 1 SCC 597 ], the Supreme Court held that the possession of the co-owner is not by itself adverse to other co-owners. However, this decision cannot have any application when the plea of ouster is raised. b) In Krishnamurthy S. Setlur (Dead) by Lrs. v. O.V. Narasimha Setty and Ors. [ (2007) 3 SCC 569 ] - it was held by the Supreme Court that when the plaintiff raises a plea of adverse possession, he must plead and prove the date on and from which he claims to be in exclusive possession. b) In Krishnamurthy S. Setlur (Dead) by Lrs. v. O.V. Narasimha Setty and Ors. [ (2007) 3 SCC 569 ] - it was held by the Supreme Court that when the plaintiff raises a plea of adverse possession, he must plead and prove the date on and from which he claims to be in exclusive possession. So, therefore, according to Shri.Varghese Kuriakose, the defendants have no consistent case regarding the exact date from which they are in possession of the plaint schedule property and hence the plea is unsustainable. This Court fails to comprehend how the decision is applicable to the case at hand. What is pleaded by the appellants is ouster. In this case, the defendant has established that from 1989 onwards they are in open and hostile possession with the knowledge of the plaintiff. c) In Karnataka Board of Wakf v. Government of India and Ors. [ (2004) 10 SCC 779 ] , the Supreme Court held that for a plea of adverse possession, the exact date of coming into possession must be shown. However, this decision does not deal with a plea of ouster and hence has no application to the facts of the case. d) In Nagabhushanammal (Dead) by Legal Representatives v. C.Chandikeswaralingam [ (2016) 4 SCC 434 ] , the Supreme Court held that the plea of ouster is a weak defence in a suit for partition and as between co-owners there could be no adverse possession unless there has been a denial of the title and an ouster to the knowledge of the other. Perhaps, this decision suits the case of the appellants more than the respondents. In the particular facts, what is pleaded and established is a case of ouster and not adverse possession. e) In John P.J. (dead) v. P.J.George (dead) [2024 KHC 7176], a Division Bench of this Court reiterated that there cannot be a plea for adverse possession against a co-owner unless a case of ouster is made out. 31. The ratio decidendi culled out from the cumulative reading of the precedents cited across the bar leads to a conclusion that, the plea of adverse possession cannot sustain against the co-owner. However, when a plea of ouster is raised and proved, the same disentitles the co-sharer from asserting his rights over the property. 31. The ratio decidendi culled out from the cumulative reading of the precedents cited across the bar leads to a conclusion that, the plea of adverse possession cannot sustain against the co-owner. However, when a plea of ouster is raised and proved, the same disentitles the co-sharer from asserting his rights over the property. In the present case, a close analysis of the evidence lends credence to the plea of the defendants that the share, if any, of the plaintiff qua his 1/3 rd share is lost. Therefore, in the considered view of this Court, the first appellate court erred egregiously in reversing the findings of the trial court on the question of ouster. Therefore, this Court concludes that, the appreciation of evidence by the first appellate court as regards ouster is clearly perverse. 32 . Having said so, this Court must notice the fact that as far as the share of late Sosamma is concerned, she remained in joint possession with late Sri.Varghese Kurian as well as Sri.Thomas Kurian. It may not have been possible for Sri.Thomas Kurian, the plaintiff, to have claimed the right on his mother’s share unless intestacy opened. Consequent to the death of Sosamma, when the intestacy opened, the law governing being the Indian Succession Act, the parties together would inherit equal rights on the 1/3 rd share of late Sosamma, which would come to 1/15. As far as the plea of ouster in respect of the share of late Sosamma is concerned, this Court finds that the intestacy having opened only in 1999, the plaintiff is entitled for the limited relief. It must be remembered that the suit was filed on 3.10.2011. The period of holding by the defendants qua the share of Sosamma is not sufficient to constitute a valid plea of ouster as far as her share is concerned. Resultantly, it is inevitable for this Court to find that the appellants are entitled to partly succeed in the appeal. Accordingly, this appeal is allowed in part by reversing the judgment dated 22.11.2021 of the Sub Court, Thiruvalla in A.S.No.15/2020 and a preliminary decree for partition in respect of 1/3 rd share of late Sosamma in the plaint schedule property is liable to be granted. Consequently, a preliminary decree is passed as follows: 1. The claim for partition of the entire plaint schedule property is declined. Consequently, a preliminary decree is passed as follows: 1. The claim for partition of the entire plaint schedule property is declined. The suit is partly decreed as follows: (a) It is declared that the plaintiff and defendants are entitled to 1/15 share over the 58 cents of the plaint schedule property, being 1/3 rd right of late Sosamma. (b) Since the defendants 5 to 7 have executed release deed, the plaintiff will be entitled to 4/15 share and the defendants 2 to 4 will be entitled to 1/15 share over the 58 cents out of the plaint schedule property. (c) In all other respects, the suit stands dismissed. (d) Parties are at liberty to prefer final decree application. 2. Appellants are entitled to costs of these proceedings, while the plaintiff is entitled to proportionate costs in the suit. 3. Equities will be worked out in the final decree proceedings. Ordered accordingly.