- 1 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO.100540 OF 2018 (PAR) BETWEEN: PARASHURAM YELLAPPA KOLEKAR, AGED ABOUT 54 YEARS, OCC: KSRTC EMPLOYEE, R/O: BASAVESHWAR COLONY, HUBLI ROAD, SIRSI, DIST: UTTARA KANNADA. …APPELLANT (BY SMT. VIDYAVATI M.KOTTURSHETTAR, ADVOCATE) AND: 1. NITISH YELLAPPA KOLEKAR, AGED ABOUT: 48 YEARS, OCC: BUSINESS, R/O: DUNDASI NAGAR, SIRSI, DIST: UTTARA KANNADA. 2. DINESH YELLAPPA KOLEKAR, AGED ABOUT: 42 YEARS, OCC: BUSINESS, R/O: DUNDASI NAGAR, SIRSI, DIST: UTTARA KANNADA. 3. RAVI S/O. YELLAPPA KOLEKAR, AGED ABOUT: 40 YEARS, OCC: SERVICE, R/O: DUNDASI NAGAR, SIRSI, DIST: UTTARA KANNADA. 4. SMT. VIDYA W/O. PRAMOD KANIRI, AGED ABOUT: 55 YEARS, OCC: SERVICE, R/O: HALIYAL TALUK, HALIYAL KASBA PAIKI BRAHMIN GALLI, U.K. DISTRICT. 5. SRI. SHARAT V.GANDOLI, AGED ABOUT: 54 YEARS, OCC: SERVICE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 R/O: OPP. UNKAL BUS STOP, NEAR GURUNATH ROAD TEMPLE, HUBLI. 6. SRI. SHRIPAD SHARAT GANDOLI, AGED ABOUT: 24 YEARS, OCC: STUDENT, R/O: OPP: UNKAL BUS STOP, NEAR GURUNATH ROAD TEMPLE, HUBLI. 7. SRI. DHANYASHREE SHARAT GANDOLI, AGED ABOUT 22 YEARS, OCC: STUDENT, R/O: OPP: UNKAL BUS STOP, NEAR GURUNATH ROAD TEMPLE, HUBLI. 8. SMT. SUVARNA VINOD PATANKAR, AGED ABOUT 46 YEARS, OCC: HOUSEHOLD, R/O: VINOD PATANKAR, NO.38, ANUGRAHA NILAYA, 3RD CROSS, BHAGIRATHA BADAVANE, CHANDA BANK SHIKRI KENGERI, UPANAGAR, BENGALURU. …RESPONDENTS (BY SRI. GIRISH S.HULMANI, ADVOCATE FOR R1 TO R3; SRI. LAXMESH P.MUTAGUPPE (THROUGH VC) AND SRI. SANGMESH S.GHULAPPANAVAR, ADVOCATE FOR R4; NOTICE TO R5, R6, R7 AND R8 ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PLEASED TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.06.2015 IN O.S. NO.32/2008 PASSED BY THE SENIOR CIVIL JUDGE, SIRSI CONFIRMING THE JUDGMENT AND DECREE DATED 26.06.2018 IN R.A. NO.5006/2016 PASSED BY 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT SIRSI IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The above appeal is filed by the appellant/defendant No.1 challenging the judgment and decree dated 26.06.2018 passed in R.A.No.5006/2016 by the Court of I Addl. District and Sessions Judge, U.K.Karwar, Sitting at Sirsi, and the judgment and decree dated 30.06.2015 passed in O.S.No.32/2008 (common judgment in O.S.Nos.28/2008 and 32/2008) by the Court of Senior Civil Judge, Sirsi, thereby suit filed for partition is fully decreed. 2. The appellant has filed suit in O.S.No.32/2008 claiming partition in the suit schedule properties contending that ‘A’ schedule property was acquired by the father Yellappa Kolekar with the aid of appellant and defendants and commenced cloth shop and stationary shop in suit ‘B’ schedule properties. It is contended that said father Yellappa Kolekar died intestate on 03.10.2004 and after his death a dispute arose between the appellant - 4 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 and defendants in respect of Will alleged to have been executed by the father Yellappa Kolekar. It is alleged that Will dated 10.10.2003 stated to have been executed by the father is concocted document and is not the Will of father Yellappa Kolekar. The plaintiffs have contended that suit item bearing No.43/11 to the extent of 0-02-04 cents is self acquired property of the appellant. Hence, contended that property bearing Sy.No.43/11 is self acquired property of the appellant and other properties are the joint family properties and therefore, claimed that he is entitled for 1/8th share in other properties. 3. The respondents have appeared and filed statement of objections and contended that father Yellappa Kolekar had executed a Will in favour of his wife Anasuya Kolekar and in this regard, the appellant has also given a statement confirming the execution of Will. After the death of Anasuya Kolekar, children of Yellappa Kolekar and Anasuya Kolekar have commonly inherited the said property. Hence, they are equally entitled to share in the - 5 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 properties. It is the contention of respondents that suit schedule properties was acquired by the father Yellappa Kolekar and is not self acquired property of the appellant. Hence, prays to dismiss the suit filed by the appellant and decree the suit in O.S.No.32/2008. 4. The trial court has framed the following issues: In O.S.No.28/2008: (1) Whether plaintiff proves that all the suit properties were acquired by his father with the aid of himself and defendants? (2) Whether defendant No.5 proves that suit ‘C’ schedule property is her self acquired? (3) Whether plaintiff proves existence of suit ‘D’ schedule properties? (4) Whether defendants prove that property at Sl.No.2 of suit ‘A’ schedule is self acquired of defendant No.1? (5) Whether plaintiff proves that Will dated 10-10-2003 said to have been executed by his father is out come of fraud and it was not executed by the father? On the - 6 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 other hand, whether defendants prove due execution of said Will by late Yellappa Krishnappa Kolekar? (6) Whether defendants prove that Yellappa Krishnappa Kolekar purchased property in Sy.No.43/11 extent 0-2-8 of Sirsi village in the name of plaintiff and as such it is also joint property available for partition? (7) Which are the partible properties and what is the quantum of share of the parties? (8) What Decree of Order? In O.S.No.32/2008: (1) Whether plaintiff proves that suit property was purchased by late Yellappa Krishnappa Kolekar in the name of defendant No.1 and as such it is joint family property ofherself and defendants? On the other hand, whether defendant No.1 proves that it is his self acquired? (2) To what relief are the parties entitled to? - 7 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 5. Though independent trials have been conducted in O.S.No.28/2008 and 32/2008, the parties in both suits and properties in the said suits are one and the same and both suits have been filed for partition in respect of very same properties and very same parties. Therefore, has delivered common judgment and decree in both the suits. 6. The defendant No.1 in O.S.No.32/2008 (who is plaintiff in O.S.No.28/2008 has filed an appeal before the first appellate court in R.A.No.5006/2016 so far against the judgment and decree passed in O.S.No.32/2008, which is fully decreed. The first appellate court has rejected the appeal and confirmed the judgment and decree passed in O.S.No.32/2008. 7. Being aggrieved by it, the appellant being defendant No.1 in O.S.No.32/2008 has preferred the present regular second appeal. This Court on 08.03.2019 has framed following substantial question of law for consideration: - 8 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 “Whether the Courts below erred in holding that the property in R.S.No.43/11 measuring 2 guntas and four annas is purchased by the appellant from out of the joint family nucleus by the appellant who is an employee of KSRTC and has produced several documents to evidence that he had purchased this property from his self earnings? 8. Heard the arguments from both the sides and perused the records in the light of substantial question of law framed by this Court. 9. The trial court after appreciating the evidence on record had come to conclusion that the suit property bearing No.43/11 is joint family property, but not self acquired property of the appellant. Though the appellant joined services in KSRTC in the year 1987 and his services was recognized in the year 1990, he was getting a salary of Rs.900/- and Rs.1,000/- per month for the services in the KSRTC and therefore, upon admission made in the cross examination that his salary was not sufficient for maintenance of the family, he was doing additional work of - 9 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 repairing suitcase and tailoring work. Therefore, the appellant in his written statement has not pleaded that he was earning income by doing additional work of tailoring and repairing work of suitcase, but it is first time stated in the evidence. The salary of appellant from KSRTC services was not sufficient for maintenance of his family therefore it was not possible for him to purchase the property and thus disbelieved the evidence of the appellant and decreed the suit also in respect of the property bearing Sy.No.43/11. The trial court while answering Issue No.6 in O.S.No.28/2008 and Issue No.1 in O.S.No.32/2008 has held that appellant has failed to prove that the property in Sy.No.43/11 is self acquired property of appellant but is joint family property and thus, amenable for partition. Accordingly, decree of partition is granted. 10. Being aggrieved by it the appellant has preferred the appeal before the first appellate court and first appellate court has dismissed the appeal by confirming the judgment and decree passed by the trial - 10 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 court assigning the reason that property in Sy.No.43/11 is purchased out of joint family funds at the lifetime of father Yellappa Kolekar. Further assigned reason that salary of appellant was not sufficient for his family and therefore, it may not be possible to purchase the property in Sy.No.43/11 out of his own earnings. Though the appellant has given evidence that he was also doing addition work of tailoring and repairing suitcase, it is not pleaded in the written statement. Further disbelieved the loan transaction between appellant and S.J.Jannu, as Ex.D-1 which is produced subsequently which gives raise to inference that the alleged loan transaction is concocted story to support the averments in the written statement. Further the first appellate court upon reconsidering the evidence on record appreciated by the trial court that the appellant in the cross examination has admitted that father Yellappa Kolekar was a rich person, was doing tailoring and cloth merchant business and is an economically forward person in his community, appreciated the evidence that property at Sy.No.43/11 - 11 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 was purchased by father Yellappa Kolekar but not self earning by the appellant. Therefore, on this reason disbelieved the case of the appellant and confirmed the judgment and decree passed by the trial court. 11. Upon concurrent finding of the fact as above discussed by both the Courts below, the appellant has preferred the second appeal. Learned counsel for the appellant submitted that with reference to Ex.D-1 agreement the appellant has received loan from S.J.Jannu and raised a loan from cooperative society for purchase of property in Sy.No.43/11. Learned counsel for the appellant has argued the matter by relying on Ex.D-1 – agreement. The entire case is revolving around Ex.D-1 agreement stated to have been executed between DW-1 - appellant herein and S.J.Jannu. The appellant is trying to establish that by raising loan he has purchased the property Sy.No.43/11 0-02-04 extent of land. 12. It is evidence given by the appellant and DW2- S.J.Jannu that appellant has received loan of Rs.7,130/- - 12 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 from DW-2 and DW-2 had obtained loan from KSRTC cooperative society and gave the said amount to defendant No.1. It is pertinent to mention here that at the particular point of time the salary of appellant and DW-2 was ranging between Rs.900/- to Rs.1,000/- per month. This is admitted by the appellant in his cross examination. The appellant has joined services in KSRTC in the year 1987 and his service was regularized in the year 1989, at the relevant point of time DW-2 has joined the services in KSRTC. It is the case of appellant that DW-2 - S.J.Jannu has given a loan of Rs.30,000/- to the appellant. DW-2 had received said loan amount of Rs.30,000/- from his elder brother, who was working in the Bank. Therefore, the appellant by receiving loan of Rs.30,000/- had purchased the property in Sy.No.43/11. This fact is not pleaded in the written statement. 13. It is only vague written statement that appellant had raised loan from his colleague and purchased the property in Sy.No.43/11 on 22.11.1990. - 13 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 The appellant has pleaded that he has received loan from his colleague but not mentioned what was the amount received from his colleague. If this pleading is considered at the most, it proves that appellant might have received loan of Rs.30,000/- from DW-2 – S.J.Jannu, but absolutely there is no pleading in the written statement that DW-2 has received a sum of Rs.30,000/- from his elder brother and in turn gave it to the appellant. Therefore, the evidence of DW-2 that he has received Rs.30,000/- from his brother and gave it to the appellant is not found place in the pleadings in the written statement filed by the appellant. Therefore, this is rightly considered by both the Courts below that the contention of appellant that he has received loan of Rs.30,000/- from DW-2 is subsequent statement but not pleaded. Therefore, in this regard the appellant has failed to prove as to what was his source of income to purchase the property in Sy.No.43/11. Whatever the quantum of evidence is produced, if there is no pleading in this regard the said evidence cannot be - 14 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 accepted. This principle is well recognized by both the Courts below. 14. Further the appellant in the cross examination admitted that his father Yellappa Kolekar was financially rich person in his community by doing tailoring work and cloth merchant business in Sirsi Town. It is not disputed fact that appellant is the elder son of Yellappa Kolekar and Anasuya. Therefore, this probabalise the fact that Yellappa Kolekar was rich person in his community and since appellant is the eldest son in the family, the property in Sy.No.43/11 might have been purchased in the name of appellant. Just because the property was purchased in the name of the appellant, the same cannot become his self acquired property in the absence of proof of his self earning capacity to purchase the property. Therefore, respondents herein have proved the fact that joint family has sufficient nucleus of funds for purchasing the property at Sy.No.43/11 during the lifetime of Yellappa Kolekar as discussed above. Though appellant has stated in the - 15 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 evidence that he was doing extra addition of work of tailoring and repair of suitcase, it has not found place in the written statement. Salary of the appellant was Rs.900/- to Rs.1,000/- per month at the relevant point of time and hence, considering the sale consideration of purchasing property in Sy.No.43/11, it was not possible for him to invest such huge amount for purchasing the property. The document Ex.D-1 is not pleaded in the written statement of the appellant. Therefore, both the courts below have correctly appreciated the evidence on record which is not perverse in nature. Therefore, both the Courts below have correctly held that appellant has failed to prove that property in Sy.No.43/11 is self acquired property. The trial court is correct in decreeing the suit partly in O.S.No.28/2008 and decreeing the suit in O.S.No.32/2008 in full in respect of all the suit properties. Substantial question of law is answered accordingly that the appellant has failed to prove that property in Sy.No.43/11 has been purchased out of his self earnings. Therefore, it is held that all the suit properties including - 16 - NC: 2025:KHC-D:1478 RSA No. 100540 of 2018 the property in Sy.No.43/11 are joint family properties. Both the courts below are correct in decreeing the suit for partition and there is no perversity or illegality in the judgment and decree passed by both the Courts below. Hence, the appeal is liable to be dismissed. Hence, I proceed to pass the following: ORDER i. Appeal is dismissed. ii. Judgment and decree dated 26.06.2018 passed in R.A.No.5006/2016 by the Court of I Addl. District and Sessions Judge, U.K.Karwar, Sitting at Sirsi, and the judgment and decree dated 30.06.2015 passed in O.S.No.32/2008 (common judgment in O.S.Nos.28/2008 and 32/2008) by the Court of Senior Civil Judge, Sirsi, are hereby confirmed. iii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 21