Karnataka High Court
Parashuram Yellappa Kolekar vs Nitish Yellappa Kolekar on 25 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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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,
Digitally signed by DIST: UTTARA KANNADA.
MALLIKARJUN
RUDRAYYA
KALMATH 3. RAVI S/O. YELLAPPA KOLEKAR,
Location: HIGH AGED ABOUT: 40 YEARS,
COURT OF
KARNATAKA 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,
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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:
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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
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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
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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
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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?
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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:
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"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
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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
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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
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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/-
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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.
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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
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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
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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
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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
