IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 RFA.No. 378 of 2010 (B) --------------------- (OS.114/2008 of SUB COURT, KASARAGOD) .................... APPELLANT/1ST DEFENDANT: -------------------------------------------- S.VENKATRAMANA BHAT, S/O.NARASIMHA BHAT, R/AT KUTTIMUNDA OF DELAMPADY VILLAGE, KASARAGOD TALUK, P.O.DELAMPADY, KASARAGOD DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI.KODOTH PUSHPARAJAN RESPONDENT/PLAINTIFF: -------------------------------------- S.VISHWANATHA BHAT, S/O.NARASIMHA BHAT, R/AT MUNDODI HOUSE SHANTHIGODU VILLAGE, PUTTUR TALUK, P.O.SHANTHIGODU, D.K.DISTRICT. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ RFA No.378 of 2010-B ------------------------------------------------------------------------ Dated 22nd September 2010 Judgment Thottathil.B.Radhakrishnan, J. The first defendant in a suit for partition, is the appellant. The plaintiff is his brother. Defendants 2 and 3 are respectively the wife and the mother-in-law of the first defendant. Plaint A schedule consisted of different items of immovable properties. Plaint B schedule related to movables. The court below upheld the plea regarding the independent right of defendants 2 and 3 over all items, for which partition has not been ordered. As regards Plaint A schedule items 1 to 3, it was held that those items are liable to be partitioned in equal shares between the plaintiff and the first defendant. This is under challenge. 2. Admittedly, the title document in relation to items 1 to 3 stand in the joint names of the plaintiff and the RFA 378/10 2 first defendant. They are brothers. The transaction of purchase in their names was in 2000, i.e., after the coming into force of the Benami Transactions (Prohibition) Act, 1988. Notwithstanding that, even if we are to search for any evidence to the effect that the entire consideration for that sale comes from the first defendant and he is entitled to hold the property to the exclusion of the plaintiff, we find no shred of evidence in support of any such contention. The first defendant did not tender any oral evidence. There is also no documentary evidence on record, disclosing that the consideration was paid for the same, exclusively by the first defendant. This position notwithstanding, we also find that it was the first defendant's contention that even if plaint A schedule items 1 to 3 are found partible, that should be conditional, on the plaintiff contributing and reimbursing to the first defendant, the amounts for repayment of the loan availed for agricultural operations in plaint A schedule items 1 to 3. There is nothing to show that the first defendant had repaid any amount towards any such loan. RFA 378/10 3 We find that the court below had concluded on the basis of the materials that the loans were written off. At any rate, there is no evidence of any discharge by the first defendant of any joint application of the plaintiff and the first defendant under any loan transaction. Under such circumstances, we do not find any ground to interfere with the preliminary decree granted by the court below as regards plaint A schedule items 1 to 3. 3. As regards plaint B schedule movables, a Commissioner visited the property and assessed the value of the movables. A report was filed by the Commissioner and no objections were filed to the report. Even if the value of the movables is assessed in a particular manner by the plaintiff, everything revolves on the Commissioner's report, which stands unimpeached. Therefore, the preliminary decree for partition of the movables in equal shares also stands. For the aforesaid reasons, we find no merit to RFA 378/10 4 admit this appeal to file. The same is accordingly dismissed in limine. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta RFA 378/10 5