OUSEPH Vs. ALICE

JUDGEMENT

(1.) The above appeal is preferred by the 1st defendant in O.S.No. 412/1988 on the file of the Sub Court, Irinjalakuda. The suit is one for partition of the plaint schedule items and claiming 1/7 share in the said plaint schedule property. Admittedly, the property belonged originally to one Thomman who died in the year 1941 corresponding to 1117 ME. His wife Mariyam also died subsequently in the year 1972, when the plaint schedule property originally belonged to the said Thomman. Thomman had 7 children. Kunjayyathi, Annam, Thressia, Kunhellia and Rossy are his five daughters whereas Ouseph and Devassy are two sons. Kunjayyathi, Annam, Thressia and Devassy died. Plaintiffs are the legal heirs of Thressia, daughter of Thomman. 7th defendant is the only legal heir and son of Kunjayyathi. The 12th defendant is another daughter by name Kunhelia and 13th defendant is Rossy. Defendants 2 to 6 are the legal representatives of deceased Devassy, the other son of Thomman. Defendants 8 to 11 are the legal heirs of deceased Annam. Plaintiffs are the children of Thressia (deceased) who was the daughter of Thomman.

(2.) The suit property consists of 2.281/2 acres in Sy.No. 410/3 and 413/3 in Kakkulissery Village. The suit was filed in 1988.

(3.) According to the plaint averment, the plaintiffs are entitled to 1/7 share in the property. Since Thomman died intestate, all his children including daughters are entitled for equal share in the property. Before the court below it was admitted by the parties that the succession to the properties of the deceased Thomman is to be governed by the provisions of Cochin Christian Succession Act (Act 6 of 1097). It was also contended in the plaint that the 1st defendant was in possession as a co-owner of the property and is in joint possession with that of the plaintiff and other co-owners. It is also pleaded that they were visiting the property and obtaining their shares of income from the property. It was however contended by the contesting defendants that the plaintiffs being the daughters of Thressia, are not entitled to any share as Thressia was given 'Sthreedhanam' property. It was also contended that if at all there is any right in favour of the plaintiffs, the same is lost by ouster and adverse possession. It was the contention of the 1st defendant that subsequent to the death of Thomman, Mariyam, Ouseph and Devassy (mother and two sons) entered into a partition deed Ext.B2. There is a specific recital contained therein that the daughters have been given "Sthreedhanam' and therefore the only heirs entitled to the share in the property of Thomman are the wife and two sons. Wife of Thomman was given right to live with either of the sons and the entire property was divided between the two sons (Ouseph and Devassy) and thereafter they were in continuous and uninterrupted possession to the exclusion of all others and they were also taking profits from their respective shares in the property. Hence, according to them, whatever right if any the plaintiffs had over the property is lost by ouster and adverse possession. The court below repelled the contention raised by the defendants. Aggrieved thereby the 1st defendant has preferred this appeal. Though defendants 2 to 6, who are the legal representatives of deceased Devassy, who stepped into the shoes of Devassy, contested the matter along with the 1st defendant and have filed the cross-objection herein, when the matter was taken up, the learned Counsel Sri N. Subramaniam appearing on behalf of the cross objectors submitted that in view of the subsequent developments, the cross objection is not pressed. Accordingly, we dismiss the cross objection as not pressed.