IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 RSA.No. 360 of 2008() --------------------- AS.217/2006 of DISTRICT COURT, THRISSUR OS.687/2000 of PRL.SUB COURT,THRISSUR .................... : APPELLANT/APPELLANT/DEFENDANT ---------------------------------------------- K.V.ANTHONY, S/O.K.J.VARUNNI, KATTUKARAN HOUSE, 3/214, PADIKKALA NAGAR, NELIKKUNNU, THRISSUR - 5. BY ADV. SRI.B.PREMNATH (E) RESPONDENTS: RESPONDENTS/PLAINTIFFS -------------------------------------------------- 1. REETHA VARGHESE, W/O.P.L.VARGHESE, & D/O.KATTOOKKARAN JOSEPH, KURIACHIRA AMSOM, OLLUR VILLAGE, THRISSUR TALUK, NOW RESIDING AT NO.10, MUKRI ROAD, BANGALORE - 8. 2. ROSEMARY SEBASTIAN, W/O.K.P.SEBASTIAN & D/O.KATTOOKKARAN JOSEPH, KURIACHIRA AMSOM, OLLUR VILLAGE, THRISSUR TALUK, NOW RESIDING AT HOUSE NO.16, INDRAYANI SOCIETY, NASIK - 6. 3. THRESSIAMMA JOSE, W/O.JOSE VADASSERY & D/O.KATTOOKKARAN JOSEPH, KURIACHIRA AMSOM, OLLUR VILLAGE, THRISSUR TALUK, NOW RESIDING AT ST.ANTONY'S STREET, KURIACHIRA, THRISSUR - 6. 4. PHILOMINA JOSE, W/O.V.A.JOSE, & D/O.KATTOOKKARAN JOSEPH, KURIACHIRA AMSOM, OLLUR VILLAGE, THRISSUR TALUK, NOW RESIDING AT NO.46, 9TH CROSS, BHARATHI LAY OUT, S.G.PALAYA, BANGALORE - 29. 5. P.V.BABY, D/O.KATTOOKKARAN JOSEPH, KURIACHIRA AMSOM, OLLUR VILLAGE, THRISSUR TALUK, NOW RESIDING AT BETHLEHEM ABHAYABHAVAN, NEAR GANAPATHI VILAS SCHOOL, P.O.KOOVAPPADI, PERUMBAVOOR (VIA). BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.938/2008 IN R.S.A.NO.360/2008 9.4.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 360 OF 2008 =========================== Dated this the 9th day of April, 2008 JUDGMENT Defendant in O.S.687/2006 on the file of Sub Court,Thrissur is the appellant. Plaintiffs are the respondents. Suit was filed for partition of plaint A, B and C schedule properties. Plaint A schedule properties are the immovable properties, plaint B schedule property, the bank deposits and plaint C schedule property the movable properties. Both item 1 and 2 of plaint schedule properties are originally belonged to deceased Rosa Varunni under Exts.B3 and B4 assignment deeds of 1121 M.E and 1977 respectively. Joseph Varunni who died on 9.10.1983 is her husband. Appellant respondents are their children. Respondents contending that plaint A to C schedule properties are available for partition instituted the suit. Appellant contended that they are not available. With regard to item No.1 of plaint A schedule property it was R.S.A. 360/08 2 contended that appellant had redeemed the mortgage by repaying the entire loan amount to Service Co- operative Bank, Kuriachira. Ext.B1 is the mortgage deed executed by deceased Joseph Varunni and Rossa Varunni in favour of the bank. Though it was contended that it was redeemed by appellant no evidence was adduced. Trial court and first appellate court on appreciation of evidence found that in the absence of any evidence to prove the redemption, case of appellant that he redeemed the property cannot be accepted. What was claimed by appellant was that under a will Rossa Varunni had bequeathed plaint A schedule properties in his favour and the properties are therefore not available for partition. No will was produced. In the absence of evidence courts below rightly found that both item 1 and 2 of the plaint A schedule properties are available for partition. 2. Plaint B schedule deposits are admittedly in the name of Rossa Varunni. What was claimed by appellant was that though deposits stand in the R.S.A. 360/08 3 name of the mother, the amount was invested by appellant in her name. Apart from ipse dixit of appellant no evidence was adduced to establish that the deposit was made by the appellant. The grievance of learned counsel appearing for appellant is that first appellate court relied on Ext.B5 order in O.P.108/1979 where there is an observation that appellant was a drunkard and incapable of maintaining himself as well as his children. The argument is that facts are not germane for decision in this case. Even if it is taken that the finding in O.P.108/1979 is not relevant, without establishing that plaint B schedule bank deposits were made by the appellant and not by Rossa Varunni appellant is not entitled to claim that the deposits are not available for partition. Similarly plaint C schedule movables are found to be available for partition as per the earlier judgment in A.S.452 of 2003. Hence courts below rightly found that plaint A, B and C schedule properties are available for R.S.A. 360/08 4 partition and a preliminary decree was passed. I find no substantial question of law involved in the appeal. 3. The argument of learned counsel then is that without showing any reason first appellate court has awarded a cost of Rs.3000/- to be paid by appellant and it was unwarranted and in any case excessive. Cost is at the discretion of the court. On the facts and circumstances of the case, I do not find that the discretion exercised by the first appellate court warrants any modifications. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006