Karnataka High Court
Santosh S/O Nagappa Sadalapur And Ors vs Vidyasagar S/O Nagappa Sadalapur And ... on 25 October, 2025
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RSA No. 200369 of 2014
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.200369 OF 2014
(PAR/POS)
BETWEEN:
1. SANTOSH S/O NAGAPPA SADALAPUR,
AGED ABOUT 36 YEARS, OCC: AGRICULTURE
R/O CHIK-BEVANUR
TQ: INDI, DIST: BIJAPUR
2. LALITA D/O NAGAPPA SADALAPUR,
AGE: 44 YEARS, OCC: HOUSE WORK
R/O 125, RAILWAY LINE KADADI CHAWL
STATION ROAD, SOLAPUR, DIST: SOLAPUR.
(MAHARASHTRA STATE)
Digitally signed 3. REKHA D/O NAGAPPA SADALAPUR,
by RENUKA AGE: 40 YEARS, OCC: SERVICE
Location: HIGH C/O VIJAY DHOLE R/O 125, RAILWAY LINE.
COURT OF KADADI CHAWL, STATION ROAD, SOLAPUR,
KARNATAKA
DIST: SOLAPUR. (MAHARASHTRA STATE)
4. SHIVASHANTABAI W/O NAGAPPA SADALAPUR,
AGE: 40 YEARS, OCC: SERVICE
C/O VIJAY DHOLE R/O 125, RAILWAY LINE
KADADI CHAWL, STATION ROAD, SOLAPUR,
DIST: SOLAPUR.
(MAHARASHTRA STATE)
...APPELLANTS
(BY SRI. GANESH S. KALBURAGI, ADVOCATE FOR A2 TO A4)
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AND
1. VIDYASAGAR S/O. NAGAPPA SADALAPUR,
SINCE DECEASED BY HIS LRS
(AS PER ORDER DATED 29.01.2024)
A) SUREKHA W/O VIDYASAGAR SADALAPUR
AGE: 52 YRS, OCC: HOUSEHOLD,
R/O H.NO. 125, RAILWAY LINE KADADI CHAWL,
STATION ROAD, SOLAPUR, SOLAPUR-413 001
(MAHARASHTRA STATE).
B) ANIRUDHA S/O VIDYASAGAR SADALAPUR
AGE: 25 YRS, OCC: PVT. SERVICE,
R/O H.NO. 125, RAILWAY LINE KADADI CHAWL,
STATION ROAD, SOLAPUR, SOLAPUR-413 001
(MAHARASHTRA STATE).
C) ASHWINI D/O VIDYASAGAR SADALAPUR
W/O PRAMOD PATIL
AGE: 30 YRS, OCC: LECTURE,
R/O HOUSE NO. 101, SHIVAKUMAR RESIDENCY,
NAMDEV NAGAR, IN FRONT OF ZOOM COMPUTER,
BHAVANI PETH, SOLAPUR (MAHARASHTRA STATE).
2. SHANKAR S/O. SHYAMANI GUNJEGAVI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. CHIK-BEVANUR, TQ: INDI, DIST: BIJAPUR.
3. RAJASHEKAHR S/O. MAHADEVAPPA KAPSE,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. H.NO.937 BEERAPPA NAGAR,
SINDAGI ROAD, INDI, DIST: BIJAPUR.
4. MALLINATH S/A. REVANASIDDAPPA KAPSE,
AGE: 40 YRS, OCC: AGRIL, R/O. HALASANGI,
TQ: INDI, DIST: BIJAPUR.
5. GURUNATH S/O. SHANKARAO KULAKARNI,
AGE: 66 YEARS, OCC: ADVOCATE,
R/O. WARD NO. 16 GANESH NAGAR,
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TDB QUARTERS, INDI, TQ: INDI,
DIST: BIJAPUR.
6. PADAMAVATI W/O GURUNATH KULAKARNI,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. WARD NO.16 GANESH NAGAR,
TD QUARTERS, INDI, TQ: INDI,
DIST: BIJAPUR.
7. MADHAVI W/O SATISHCHANDRA KULAKARNI,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O GANESH NAGAR, TDB QUARTERS, INDI,
TQ: INDI, DIST: BIJAPUR.
8. SANTOSH S/O. SHANTAPPA KAKKALMEIL,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. SHRI SHANTESHWAR MANGAL KARYALAY
SINDAGI ROAD, INDI, TQ: INDI, DIST: BIJAPUR.
9. IRAMMA W/O. RAMESH GUTTEDAR,
C/O RAMESH GUTTEDAR
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. BASAVASHWAR CHOEK, TDB QUARTERS, INDI,
TQ: INDI, DIST: BIJAPUR.
10. DHAYAKAMA S/O. RAMCHANDRA SHAHA,
AGE: 40 YEARS, OCC: BUSINESS,
R/O.DHANALAXMI COMPLEX CEMENT SHOP, INDI,
TQ: INDI, DIST: BIJAPUR.
11. SATAPPA S/O. NINGAPPA AMBRITSHETTI,
AGE: 48 YEARS, OCC: AGRICULTURE CUM
BUSINESS,
R/O. TIKKUNDI TQ: JATH, DIST: SANGLI.
12. THE PRESIDENT SHANTINIKETAN VIDAY VARDHAK
SANGH, TAL: INDI, DIST: BIJAPUR.
(BY R1 HAS BEEN DESIGNATED AS SENIOR ADVOCATE;
SRI. R. J. BHUSARE, ADVOCATE FOR R9 & R10;
SRI. DEEPAK V. BARAD, ADVOCATE FOR R11;
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NOTICE TO R1 (A) TO R1(C);
R2 TO R8 & R12 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THIS APPEAL AND
SET ASIDE JUDGMENT AND DECREE DATED 16.08.2014
PASSED IN R.A.NO.40/2009 ON THE FILE OF THE III ADDL.
DISTRICT JUDGE, BIJAPUR, CONFIRMING THE JUDGMENT AND
DECREE DATED 28.08.2008, PASSED IN O.S.NO.17/2007 ON
THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION) AT INDI,
INSOFAR AS THE DISMISSAL OF THE RELIEF SOUGHT FOR BY
THE PLAINTIFFS FOR PARTITION AND SEPARATE POSSESSION
IN RESPECT OF SY.NO.1009 MEASURING 12 ACRES 04
GUNTAS SITUATED AT INDI, IS CONCERNED.
THIS APPEAL HAVING BEEN HEARD AND DECTATING FOR
JUDGMENT ON 24.10.2025 COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is by an unsuccessful plaintiffs
questioning the concurrent findings of both the Courts
wherein the plaintiffs' suit seeking the relief of partition is
dismissed only in respect of item No.3 by recording a
finding that defendant No.2 is the bonafide purchaser of
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item No.3 bearing Survey No.1009. These concurrent
orders are under challenge.
2. For the sake of convenience the parties are
referred to as per their rank before the trial Court.
3. The family tree is as under:
Nagappa (Propositus)
=
Shivashantabai (Wife-P-4)
Vidyasagar Santosh Lalitha Rekha
(D-1) (P-1) (P-2) (P-3)
4. The plaintiffs, who are the brothers and sisters
of defendant No.1, instituted a suit in O.S.No.17/2007
seeking partition and separate possession of the suit
schedule properties. It was specifically alleged that
defendant No.1, without the knowledge and consent of the
plaintiffs, had executed a sale deed in respect of Item
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No.3, measuring 12 acres 04 guntas, on the strength of a
concocted and fabricated General Power of Attorney. The
plaintiffs contended that such alienation was unauthorized
and not binding upon their legitimate share in the joint
family properties. Hence, they sought partition and
consequential reliefs in respect of all the schedule items.
5. Upon service of summons, defendant No.1
remained absent and was placed ex parte. Defendant
No.2, the purchaser of Item No.3, entered appearance and
filed a written statement contending that he is a bona fide
purchaser for valuable consideration. He further alleged
that the suit had been instituted by the plaintiffs in
collusion with defendant No.1 only to defeat his lawful title
and possession over Item No.3. Defendant No.2 asserted
that he had purchased Item No.3 under a valid and
registered sale deed, and that he was in lawful possession
and enjoyment of the same. Both sides adduced oral and
documentary evidence. Upon appreciation of the evidence
on record, the Trial Court partly decreed the suit, holding
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that the plaintiffs were entitled to their legitimate shares in
Item Nos.1 and 2, while dismissing the suit in respect of
Item No.3. While answering Issue No.3 in the affirmative,
the Trial Court categorically held that defendant No.2 had
succeeded in establishing that he was a bona fide
purchaser.
6. Aggrieved by the said judgment and decree,
the plaintiffs preferred an appeal before the First Appellate
Court. The Appellate Court, on an independent reappraisal
of the entire material, declined to allow the application for
production of additional evidence, particularly the disputed
General Power of Attorney, on the ground that the
plaintiffs had failed to demonstrate due diligence. The
Appellate Court further held that, having specifically
pleaded forgery, the plaintiffs were required to
substantiate such plea by producing cogent oral and
documentary evidence, which they failed to do.
Consequently, the Appellate Court concurred with the
findings of the Trial Court and affirmed the dismissal of the
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suit in respect of Item No.3, while maintaining the decree
relating to Item Nos.1 and 2.
These concurrent findings recorded by both the
Courts below are now under challenge in the present
second appeal.
7. Heard the learned counsel appearing for
plaintiffs, learned counsel appearing for defendant No.3,
learned counsel appearing for respondent No.11 who is the
subsequent purchaser during the pendency of the appeal
and learned counsel appearing for respondents 9 and 10.
There is no contest by other defendants.
8. This Court vide order dated 24.07.2015 has
admitted the appeal on the following substantial questions
of law:
"1) Whether the Trial Court and the First Appellate
Court are right in holding that defendant No.2 has proved
that he is the bonafide purchaser of the suit Sy.No.1009 of
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Chik-bevanur village for valuable consideration even in the
absence of any evidence to that effect?
2) Whether both the Trial Court and the First
Appellate Court have committed any serious legal error in
holding that defendant No.1 is a valid power of attorney
holder to sell the property in favour of defendant No.2?
FINDING ON SUBSTANTIAL QUESTION OF LAW No.1:
9. In a suit for partition, the initial burden of proof
squarely lies upon the plaintiffs to establish that the suit
schedule properties are the joint family ancestral
properties. In the present case, the plaintiffs, by
instituting the suit, have specifically pleaded that all the
suit schedule properties constitute joint family ancestral
properties in which they are entitled to a legitimate share.
Defendant No.1, though served with summons, chose not
to contest the proceedings. However, defendant No.2,
claiming to be the purchaser of Item No.3, entered
appearance and filed a written statement contending that
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the said item had been sold to him by defendant No.1
under a valid General Power of Attorney executed by all
the family members. It is in this context that the Trial
Court framed Issue No.3 to ascertain whether defendant
No.2 could be treated as a bona fide purchaser for value.
10. However, the framing of such an issue and the
findings recorded thereon are, in the considered opinion of
this Court, fundamentally misconceived. The concept of a
"bona fide purchaser" is alien to a partition proceeding,
which essentially involves determination of the existence
of a joint family and ascertainment of the respective
shares of its members. In such proceedings, when a
stranger purchaser sets up title in respect of one or more
items of joint family property, the burden rests squarely
upon such purchaser to demonstrate that his purchase is
valid in law either on account of legal necessity, benefit to
the estate, or due to due authorization by the other
coparceners. The initial presumption in partition suits is
always in favour of jointness, and therefore, the onus lies
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upon the alienee to justify the alienation and to establish
that his vendor was legally empowered to convey the
interest of others.
11. In the present case, though defendant No.2
filed a written statement asserting that he had purchased
Item No.3 under a registered sale deed executed by
defendant No.1 pursuant to a valid Power of Attorney, he
has neither stepped into the witness box nor produced the
copy of the registered sale deed under which he claims
title. The entire claim of defendant No.2, therefore, rests
only on the pleadings, which by themselves do not
constitute evidence. Once the plaintiffs specifically
disputed the alienation and alleged that the General Power
of Attorney on the strength of which defendant No.1
executed the sale deed was fabricated and invalid, the
burden shifted on defendant No.2 to produce the best
evidence, namely, the registered sale deed and the
supporting authorization. However, for reasons best
known to him, defendant No.2 failed to produce either the
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sale deed or the alleged Power of Attorney, thereby
withholding the most material evidence in his possession.
12. In such circumstances, both the Courts below
were expected to draw an adverse inference under Section
114(g) of the Indian Evidence Act, 1872, against
defendant No.2 for withholding crucial documentary
evidence which was solely within his knowledge and
possession. Instead, both the Courts appear to have
misdirected themselves by casting the burden upon the
plaintiffs to prove the alleged fabrication of the Power of
Attorney, without first insisting that defendant No.2
produce the very documents forming the basis of his
claim. The approach adopted by the Courts below,
therefore, amounts to a reversal of the settled burden of
proof.
13. Had defendant No.2 produced the registered
sale deed, it would have been possible for the Court to
examine whether the sale was effected jointly by all the
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co-sharers, or whether it was an alienation solely by
defendant No.1 purporting to act under an authorization
from others. The failure to produce such a vital document
has deprived the Court of an opportunity to properly
adjudicate upon the core issue of authority and validity of
alienation. Therefore, the conclusion recorded by both the
Courts below that defendant No.2 is a bona fide purchaser
is unsustainable in law and on facts.
14. In a partition suit, where a stranger claims title
by purchase from one of the coparceners, the burden lies
heavily upon such purchaser to establish that the sale was
either for legal necessity, benefit of the family, or that the
alienating member was duly authorized to convey the
shares of the others. In the present case, there is a
complete absence of any such evidence. The finding of the
Trial Court on Issue No.3, therefore, suffers from a serious
misapplication of legal principles and is based on no
substantive evidence. The Appellate Court, by merely
concurring with the said finding without rectifying the
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fundamental error in approach, has also fallen into the
same error.
15. Consequently, this Court is of the considered
opinion that Issue No.3 was unwarranted and that the
finding thereon holding defendant No.2 to be a bona fide
purchaser is fundamentally flawed and perverse.
Accordingly, Substantial Question of Law No.1 is answered
in the negative, holding that both the Courts below erred
in law in concluding that defendant No.2 is a bona fide
purchaser of Item No.3 of the suit schedule properties.
FINDING ON SUBSTANTIAL QUESTION OF LAW No.2:
16. Though in the plaint, the plaintiffs have averred
that defendant No.1 had alienated Item No.3 of the suit
schedule properties by executing a sale deed on the
strength of a concocted and fabricated Power of Attorney,
the initial onus, in such a situation, did not rest upon the
plaintiffs to disprove the document. Once the plaintiffs set
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up a plea disputing the alienation and denying the
authority of defendant No.1 to convey the joint family
property, the burden of proof shifted to defendant No.2,
who was asserting independent title to the property, to
produce the registered sale deed and demonstrate that the
alienation was made not merely in his individual capacity
by defendant No.1 but on behalf of all the family members
with due authorization. The very foundation of defendant
No.2's defence rested upon his alleged purchase from
defendant No.1 under a valid authorization, and therefore,
the onus of proving the existence, validity, and scope of
such authorization lay squarely on defendant No.2.
17. Unfortunately, defendant No.2 has not chosen
to lead any rebuttal evidence either by entering the
witness box or by producing the registered sale deed
through which he claims to have derived title. The failure
of defendant No.2 to produce such vital evidence has
resulted in both the Courts below misreading the pleadings
and misapplying the settled principles governing burden of
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proof in partition suits. If defendant No.2 had stepped into
the witness box and produced the sale deed indicating that
defendant No.1 had executed the same in his capacity as
an agent duly authorized by the plaintiffs, the burden
would have thereafter shifted upon the plaintiffs to
substantiate their plea that the Power of Attorney was
fabricated or forged. However, in the absence of such
evidence, the Courts below fell into a serious error in
wrongly casting the burden upon the plaintiffs to disprove
the Power of Attorney, when in law it was for defendant
No.2 to affirmatively establish the validity of his title and
the due authorization underlying the alienation.
18. Both the Courts have also failed to notice that
defendant No.2, while claiming to be a bona fide
purchaser, has not produced any material to demonstrate
that the sale deed executed by defendant No.1 was
binding on the other coparceners. In a case of alienation of
joint family property by one member, the purchaser has
the responsibility to prove that the alienation was made
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either for legal necessity, benefit to the estate, or with the
consent or authority of other coparceners. The record in
the present case is conspicuously silent on all these
aspects. Hence, the initial burden ought to have been cast
upon defendant No.2 and not on the plaintiffs merely
because they pleaded that the alienation was based on a
fabricated document. The approach adopted by both
Courts below, therefore, runs contrary to the settled legal
principle governing alienations of joint family properties.
19. In that view of the matter, this Court holds that
the Appellate Court clearly erred in recording a finding that
defendant No.1 was acting under a valid Power of Attorney
and was, therefore, competent to alienate Item No.3 in
favour of defendant No.2. There being no reliable evidence
either of the existence or of the validity of such
authorization, the concurrent finding to that effect is
unsustainable. Accordingly, Substantial Question of Law
No.2 is answered in the affirmative, by holding that both
the Courts below committed a serious error in law and on
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facts in concluding that defendant No.1 possessed a valid
Power of Attorney to sell Item No.3 to defendant No.2.
20. Having answered both the substantial questions
of law, this Court proceeds to consider the equitable rights
of defendant No.2, who is admittedly a stranger
purchaser. In law, a purchaser from one coparcener
acquires an equitable interest in the property
corresponding to the vendor's share, and such interest is
liable to be worked out in the final decree proceedings.
Therefore, though the alienation made by defendant No.1
cannot bind the shares of the plaintiffs or other
coparceners, the purchaser's rights to the extent of the
share of defendant No.1 deserve protection in equity.
21. The Trial Court as well as the First Appellate
Court have failed to examine this aspect, namely, that
even if the alienation was unauthorized vis-à-vis the
shares of the plaintiffs, the sale deed executed by
defendant No.1 would still be valid to the extent of his own
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undivided share. Defendant No.1, being one of four
siblings, was entitled to a 1/5th share in the suit
properties. On a notional computation, the total extent of
all three items of the suit schedule properties being 46.00
acres, the 1/5th share of defendant No.1 would
approximately work out to 9.20 acres. Consequently, the
sale deed executed by defendant No.1 in favour of
defendant No.2 can be treated as valid and binding to the
extent of 9.20 acres, representing defendant No.1's
undivided share in the joint family properties.
22. Furthermore, the plaintiffs have not specifically
pleaded that Item No.3 was a distinct or more valuable
portion of the joint family property, nor have they
demonstrated that denial of their share in Item No.3 would
result in manifest inequity or prejudice. Hence, this Court
deems it just and proper, in the interest of equity and to
avoid multiplicity of litigation, to protect the rights of
defendant No.2 to the extent of the share of defendant
No.1. Defendant No.2 shall therefore be entitled, in the
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course of final decree proceedings, to seek allotment and
possession of the property corresponding to defendant
No.1's 1/5th share in item nos.1 and 2.
23. It is a well-settled principle of law that a
stranger purchaser of an undivided interest in coparcenary
property does not acquire ownership over any specific
portion, but only steps into the shoes of the vendor to the
extent of his share, and may, during final decree
proceedings, seek allotment of the portion alienated to
him. This equitable right has been consistently recognized
by the Hon'ble Supreme Court and various High Courts.
Accordingly, this Court clarifies that the sale in favour of
defendant No.2 shall be recognized and protected only to
the extent of the 1/5th share of defendant No.1, and
defendant No.2 shall be entitled to seek appropriate reliefs
in that regard during the final decree proceedings.
ORDER
(i) The appeal is allowed in part.
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(ii) The judgment and decree passed by the Courts below
are hereby modified. The suit filed by the plaintiffs is
decreed in its entirety, holding that the plaintiffs are
entitled to partition and separate possession in
respect of all the suit schedule properties, including
Item No.3.
(iii) However, having regard to the findings recorded
hereinabove, it is clarified that defendant No.2 and
any subsequent purchasers, if any, shall be entitled to
work out their equities in respect of Item No.3 during
the course of the final decree proceedings, to the
extent of the share of defendant No.1 in the joint
family properties.
(iv) The office is directed to draw the decree accordingly.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
ALB
Ct:si
