Karnataka High Court
Shrishail S/O Parutappa Bhavi Since ... vs Shrishail Basalingappa Koti on 21 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 100612 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.100612/2024 (SP)
BETWEEN:
SHRISHAIL S/O. PARUTAPPA BHAVI,
SINCE DECEASED BY LRS.
1. SMT. YALLAVVA W/O. SHRISHAIL BHAVI,
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD WORK.
2. PUNDALIK S/O. SHRISHAIL BHAVI,
AGED ABOUT 21 YEARS,
OCC: AGRICULTURE.
3. SANDEEP PUNDALIK S/O. SHRISHAIL BHAVI,
AGED ABOUT 18 YEARS, OCC: STUDENT.
4. SANIKA D/O. SHRISHAIL BHAVI,
Digitally signed by
SAROJA AGE: 16, OCC: STUDENT,
HANGARAKI
Location: High MINOR REPRESENTED BY NATURAL MOTHER A1.
Court of Karnataka,
Dharwad Bench,
Dharwad
5. NINGAVVA W/O. PARUTAPPA BHAVI,
AGED ABOUT 62 YEARS, OCC: HOSEHOLD,
(R1 TO R5 ARE R/O: TOLAMATTI VILLAGE BILAGI,
TQ & DIST: BAGALKOT - 587 116).
DUNDAPPA S/O. PARUTAPPA BHAVI,
SINCE DECEASED BY LRS.
6. SMT. GANGAVVA W/O. DUNDAPPA BHAVI,
AGED ABOUT 39 YEARS,
OCC: HOUSEHOLD WORK.
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RSA No. 100612 of 2024
HC-KAR
7. SHILPA D/O. DUNDAPPA BHAVI,
AGED ABOUT 21 YEARS,
OCC: HOUSEHOLD WORK.
8. PRAJVAL S/O. DUNDAPPA BHAVI,
AGED ABOUT 18 YEARS, OCC: STUDENT,
(R6 TO R8 ARE R/O: ROLLI VILLAGE,
TQ: BILAGI, DIST: BAGALKOT - 587 116).
9. SMT. RUKAMAWWA @ RUKAMAVVA
W/O. NINGAPPA BISTGOND,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MASUTI NOW AT BANGALORE
C/O NAGARAJ, PINYA IIND STAGE
TIGALAR PALYA, SHIVABAR 10TH CROSS,
BANGALORE - 560 058.
...APPELLANTS
(BY SRI. SANTOSH B. MANE, ADVOCATE)
AND:
SHRISHAIL BASALINGAPPA KOTI,
AGED ABOUT 60 YEARS, OCC: AGRICULTURE,
R/O: TOLAMATTI, TQ: BILAGI,
DIST: BAGALKOT - 587 116.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO CALL FOR THE LOWER RECORDS, PERUSE
THE SAME AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED 01.04.2024 PASSED BY THE LEARNED PRL. JUDGE, FAMILY
COURT BAGALKOT IN R..ANO.156/2022 (OLD R.A.NO.105/2013 AND
CONFIRM THE JUDGMENT AND DECREE DATED 28.09.2013 PASSED
BY THE LEARNED SENIOR CIVIL JUDGE BILAGI IN O.S.NO.13/2012, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100612 of 2024
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. This appeal is filed by the defendants being
aggrieved by the judgment and decree dated 1st April 2024
passed in R.A. No.156 of 2022 by the Prl. Judge, Family
Court at Bagalkote (for short "the First Appellate Court") by
which the First Appellate Court, while allowing the said
appeal, filed by the plaintiff, set aside the judgment and
decree dated 28th September 2013, passed in O.S. No.13 of
2012 by the Senior Civil Judge, Bilagi (for short "the trial
Court") and directed the defendant No.1 through his legal
heirs to refund Rs.9,50,000/- to the plaintiff with interest at
the rate of 6% per annum from the date of the suit i.e.,
from 17.02.2012 till realisation.
2. The above suit in O.S. No.13 of 2012 is filed by
the plaintiff / respondent No.1 herein for the relief of
specific performance of a contract in respect of ¼th share of
defendant No.1 in the suit properties on the premise that
defendant No.1 had entered into an agreement for sale
dated 12.04.2011 agreeing to sell his ¼th share in favour of
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the plaintiff for a total sale consideration Rs.10,00,000/-.
Out of which, the plaintiff had paid a sum of Rs.9,50,000/-
towards the part payment of sale consideration. That
defendant No.1 had agreed to receive the balance sum of
Rs.50,000/- at the time of registration of deed of sale. That
since the defendant failed to perform his promise the
plaintiff constrained to file the suit for specific performance.
3. Despite service of summons, defendant 1 to 4
remained absent and they were placed exparte.
4. Based on the pleadings, the trial Court framed
the following issues for its consideration:
1. Whether the plaintiff proves that defendant No.1
has executed agreement of sale in respect of his
1/4th share in the suit properties with the consent
of defendant No.2 to 4?
2. Whether the plaintiff further proves that, he is
always ready and willing to perform his part of
contract?
3. What order or decree?
5. The plaintiff examined himself as PW1 and
examined three witnesses as PW2 to PW4 and produced six
documents, marked as Exs.P1 to P6.
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6. The trial Court upon appreciation of the
evidence, answered point No.1 in the negative and point
No.2 as it has become redundant and consequently
dismissed the suit.
7. Being aggrieved, the plaintiff preferred an appeal
in R.A. No.156/2022 before the First Appellate Court.
8. The First Appellate Court framed the following
points for its consideration:
1. Whether the judgment and decree of the trial court
is capricious, perverse and requires interference?
2. Whether the respondent No.3(b) and 3(a),
respondent No.1(a) and 1(d) show the sufficient
grounds to file written statement before the
appeal?
3. What order?
9. On re-appreciation, the First Appellate Court
answered point No.1 in the affirmative, and point No.2 in
the negative and consequently held that though the
agreement at Ex.P1 was a doubtful document and it
appeared to be some transactions with regard to hand loan
and since passing of consideration / hand loan was proved,
allowed the appeal by setting aside the judgment and
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decree passed by the trial Court and directed defendant
No.1 through his legal heirs to pay the sum of
Rs.9,50,000/- to the plaintiff with interest at the rate of 6%
per annum from the date of the suit i.e., from 17.02.2012
till realisation.
10. It is against this judgment and order, the present
regular second appeal is filed by the defendants.
11. Learned counsel for the appellants submits that
since the trial Court had dismissed the suit declining to
accept the agreement for sale, the question of the First
Appellate Court going though the validity or otherwise of
the agreement was not justified. He further submits that,
even as per the reasoning and the findings assigned by the
First Appellate Court at paragraph Nos.27 and 28 of its
judgment, the First Appellate Court itself was suspicious
and doubtful with regard to the nature of the document at
Ex.P1. In that view of the matter, the First Appellate Court
grossly erred in directing defendant No.1 represented
through his legal heirs to refund a sum of Rs.9,50,000/-,
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purportedly paid under the said document to the plaintiff.
He submits that when both the trial Court and the First
Appellate Court have not accepted the agreement to be the
agreement for sale, capable of enforcement, despite the
said finding, the First Appellate Court ought not to have
directed refund of the money. Hence, he submitted that the
substantial question of law would arise for consideration.
12. Heard. Perused the records.
13. A Perusal of the reasoning and the conclusion
arrived at by the First Appellate Court would indicate that
defendant No.1 had indeed entered into an agreement
dated 12.04.2011 agreeing to sell his ¼th share in the suit
schedule properties in favour of the plaintiff. The evidence
of PW1 to PW4, which has remain unchallenged would
indicate that even as observed by the trial Court and the
First Appellate Court, a sum of Rs.9,50,000/- had been paid
by the plaintiff and received by defendant No.1. The trial
Court however proceeded to dismiss the suit on the premise
that the suit schedule properties are the ancestral joint
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family properties of defendant Nos.1 to 4 and since
defendant Nos.2 and 4 have not at all consented for the
sale of ¼th share of defendant No.1 in favour of the plaintiff,
the suit filed by the plaintiff was not maintainable. As such
the further probe into the readiness and willingness of
performance of the agreement by the plaintiff was held to
be redundant. It is on this premise, the trial Court has
dismissed the suit.
14. The trial Court however has not negated the
claim of the plaintiff of he making the payment of
Rs.9,50,000/- under the said agreement. The First
Appellate Court on re-appreciation of the evidence and
referring to the evidence of PW2 to PW4 has come to the
conclusion that there was certainly an agreement that had
been entered into between the plaintiff and defendant No.1.
However, it expressed its doubt as to whether the said
agreement at Ex.P1 was an agreement to convey the
property in real sense or was a loan transaction. It is in that
context, the First Appellate Court arrived at a conclusion
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that the agreement would appear to be some loan
transaction between the parties. This finding of the First
Appellate Court is based on the description mentioned in
the stamp paper that was purchased for the purpose of
agreement at Ex.P1 showing it as a "hand loan chit". The
First Appellate Court in the circumstances relying upon the
evidence of PW2 and PW4 has come to the conclusion that
notwithstanding the said document at Ex.P1 not being an
agreement of sale simpliciter, it would indicate the same to
be a document evidencing the loan transaction and in the
light of payment of consideration of Rs.9,50,000/- having
been proved by the plaintiff, directed defendant No.1
representing through his legal heirs to refund the same to
the plaintiff.
15. Though, learned counsel for the appellant
vehemently submits that when the trial Court and the First
Appellate Court have come to the conclusion of there not
being an agreement for sale as contemplated, ought not to
have directed refund of the amount to be given by the
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defendant No.1 representing through his legal heirs. He
further submits that when an agreement held to be void
and unenforceable, the same cannot be relied upon even for
the purpose of direction to pay the amounts allegedly made
under the said void and unenforceable document. The said
submission cannot be accepted.
16. Appropriate at this juncture to refer to Section
65 of the Contract Act, which reads as under:
"65. Obligation of person who has
received advantage under void agreement, or
contract that becomes void.-- When an
agreement is discovered to be void, or when a
contract becomes void, any person who has received
any advantage under such agreement or contract is
bound to restore it, or to make compensation for it
to the person from whom he received it.
17. The trial Court has declined to grant the relief of
specific performance merely because the other members of
the joint family had not joined in executing the said
agreement. The First Appellate Court has found that the
said document to be a document evidencing loan
transaction. Nonetheless, in the light of the aforesaid
provisions of Section 65 of the Contract Act, defendant
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No.1, who has admittedly executed the agreement at Ex.P1,
cannot be allowed to retain the benefit which he received
under the said agreement. The payment of consideration of
Rs.9,50,000/- having been proved by the plaintiff, no error
or illegality can be found with the judgment and decree
passed by the First Appellate Court in directing defendant
No.1 represented through his legal heirs to refund the said
amount of Rs.9,50,000/- to the plaintiff with interest at the
rate of 6% p.a. from the date of 07.12.2012 till realisation.
No substantial question of law would arise for consideration.
Accordingly, the appeal is dismissed.
Sd/-
(M.G.S. KAMAL)
JUDGE
VNP/CT-ASC
