Karnataka High Court
Shanthkumari W/O Suresh Chandra And Ors vs Prabhakar S/O Ramayya Mailaur on 26 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC-K:5869-DB
RFA No. 200012 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO.200012 OF 2019
BETWEEN:
1. SHANTHKUMARI W/O SURESH CHANDRA,
DECEASED BY LRS
1(A). DHARAMRAJ S/O D. CHRISTY,
AGE: 43 YEARS, OCC: NIL,
R/O. H.NO.15-04-339/18, GANESH NAGAR,
KUMBARWADA ROAD,
TQ. AND DIST. BIDAR-585 401.
Digitally signed 2. SUBHASH S/O LATE SHARNU @ SHARNAPPA,
by
BASALINGAPPA C/O SHANTKUMARI W/O SURESH CHANDRA,
SHIVARAJ
DHUTTARGAON AGE: 56 YEARS, OCC: NIL,
Location: HIGH
COURT OF
KARNATAKA
R/O: H.NO.15-04-339/18, GANESH NAGAR,
KUMBARWADA ROAD, BIDAR-585 401.
3. SUREKHA W/O LATE VIJAY KUMAR,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O. HALADKHERI (K),
TQ. & DIST. BIDAR-585 401.
...APPELLANTS
(BY SRI JAIRAJ K. BUKKA, ADVOCATE)
-2-
NC: 2025:KHC-K:5869-DB
RFA No. 200012 of 2019
HC-KAR
AND:
PRABHAKAR S/O RAMAYYA MAILAPUR,
AGE: 54 YEARS, OCC: BUSINESS,
R/O: AKKAMAHADEVI COLONY,
BIDAR-585 401.
...RESPONDENT
(RESPONDENT SRI. PRABHAKAR - SERVED)
THIS RFA IS FILED U/S 96 OF THE CIVIL PROCEDURE
CODE, PRAYING TO 1) CALL FOR RECORDS. 2) ALLOW THE
APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE OF THE II ADDL. SENIOR CIVIL Judge AND JMFC, BIDAR
IN OS No.52/2013 ON DATED 20.09.2018.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.08.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T.M.NADAF)
This appeal under Section-96, read with Order-41,
Rules-1 and 2 of CPC, by the unsuccessful defendants
NC: 2025:KHC-K:5869-DB
HC-KAR
calling in question judgment and decree passed in OS
No.52/2013, dated 20.09.2018, by IInd Additional Senior
Civil Judge & JMFC, Bidar, whereby the suit filed by the
plaintiff for recovery of the amount of Rs.43,75,000/- along
with interest at the rate of 18% per annum, was partly
decreed directing the defendants to pay the amount supra,
however with interest at 8% p.a.
2. The parties are referred to as per the rankings
before the trial Court.
3. A brief outline of facts leading to filing of this
appeal are as follows:
Survey No.28, totally measuring 18 acres, 35 guntas
which was bifurcated into two Parts 28/1 measuring 16
acres 5 guntas and 28/2 measuring 2 acres, 30 guntas
belongs to the family of defendant nos. 1 to 3. Defendant
no. 2 is the younger brother of defendant no.1 and
defendant no. 3 is the wife of younger brother of defendant
NC: 2025:KHC-K:5869-DB
HC-KAR
no. 1 by name Late.Vijay Kumar. A registered agreement to
sell came to be entered bearing document No.938/2010-11,
dated 03.05.2010, between defendant nos.1 to 3 and one
Christa-Kumari, wife of Joseph, on one part as sellers and
one Nand Kumar and plaintiff as purchaser, as the other
part. Whereunder the parties have agreed to sell and
purchase 6 acres, 30 guntas of land out of 16 acres, 5
guntas of land in Survey No.28/1, as per the schedule
stated in the said agreement at Exhibit-P1 for a total sale
consideration of Rs.69,00,000/- i.e., Rs.10,00,000/- per
acre.
4. In the agreement to sell, a sum of
Rs.50,00,000/- was paid under two cheques by the plaintiff.
One cheque for a sum of Rs.6,25,000/- in favour of Christa
Kumari and another for a sum of Rs.43,75,000/- in favour
of defendant no.1 - Smt.Shantakumari, who has received
the same on her behalf and on behalf of other defendant
nos. 2 and 3. It is further stated in the said agreement to
NC: 2025:KHC-K:5869-DB
HC-KAR
sell that a suit in O.S No. 212 of 2002 is pending for
partition in respect of the said survey number between the
family members and defendant nos. 1 to 3. In the said
agreement, it was also stated that other shareholders who
are the family members of defendant Nos.1 to 3 consented
for sale of 6 acres, 36 guntas of land without possession.
5. It is further contended by the plaintiff that the
suit in O.S.No.212 of 2002 was disposed on 24.02.2011.
Thereafter defendant nos. 1 to 3 sold land in Survey No.
28/1, measuring 2 acres, 30 guntas in favour of one
Avinash S/o. Shesharao, through a registered sale deed
dated 15.09.2011, without notice and knowledge of the
plaintiff. The plaintiff immediately thereafter approached
defendant nos. 1, 2, 3 and Chirista Kumari, whereupon the
defendants informed the plaintiff that due to internal
difference between the shareholders, the defendants were
not in a position to execute a registered sale deed as per
the registered agreement of sale dated 03.05.2010 and
NC: 2025:KHC-K:5869-DB
HC-KAR
promised to repay the amount they have received under the
sale agreement.
6. In furtherance of promise, Smt. Christa Kumari,
wife of Joseph, has repaid sum of Rs.6,25,000/- whereas
the defendant no.1 who has received a sum of
Rs.43,75,000/-under a cheque bearing No.156315, dated
17.05.2010 on her behalf and on behalf defendant Nos. 2
and 3 remained unpaid despite the repetitive demands and
requests made by the plaintiffs. Since the other party i.e.,
Nandakumar, has not shown any interest to recover the
said amount as the amount is paid by the plaintiff alone,
the plaintiff having left with no other alternative, requested
the defendants lastly on 07.04.2013, which they have
refused to pay. Having left with no other alternative, the
plaintiff has instituted suit seeking for recovery of money
Rs.43,75,000/- along with 18% interest against defendant
nos. 1 to 3.
NC: 2025:KHC-K:5869-DB
HC-KAR
7. Subsequent to the institution of the suit, in
response to notice issued by the trial Court, defendant nos.
1 and 2 appeared and filed their written statement denying
the case of plaintiff contending that the averments stated in
the plaint are false and not admitted. Further, stated that
the plaintiff has suppressed the fact and stated that the
entire land of survey No.28/1, measuring 18 acres 35
guntas, whereas survey no. 28 is divided into 2 parts, as
28/1 measuring 16 acres, 5 guntas and 28/2 as 2 acres, 30
guntas. The plaintiff has stated in the suit on the basis of
agreement, wherein also there is a statement that the other
shareholders of the family have consented for sale of the
property stated in the agreement of sale. Those persons
were not made as parties in the suit. As such, the suit
suffers from non-joinder of necessary parties.
8. The contention of the plaintiff that the
defendants subsequent to disposal of the suit in OS No. 212
to 2002 sold the property in favour of Avinash denied,
NC: 2025:KHC-K:5869-DB
HC-KAR
whereas there is specific contention taken that it is the
plaintiff and another person, Nandakumar, who have
actively participated in getting 11-E sketch for the purpose
of sale deed in favour of Avinash. In these circumstances,
the suit filed for recovery does not arise. Since another
party who is party to agreement to sell not joined his hands
in the suit for recovery, clearly shows that there is nothing
remained in the agreement and there remains nothing to
pay back as contended by the plaintiff.
9. Further contended that, the plaintiff has shown
imaginary date of cause of action and the suit without cause
of action is not at all maintainable. There is no outstanding
amount as contended by the plaintiff. They have
subsequently filed additional written statement contending
that when the suit was posted for evidence of plaintiff, he
has filed an application seeking to amend the plaint,
whereby withdrawn certain admissions. Though defendant
NC: 2025:KHC-K:5869-DB
HC-KAR
no.3 was served and appeared through counsel, he did not
file any written statement.
10. The trial court after completion of pleadings
framed the following issues, which reads as follows:
1. "Whether the plaintiff proves that he has paid an amount of
Rs.43,75,000/- to the defendants under the Registered
Agreement of Sale bearing document No.938/2010-11 dated
03.05.2010 entered in between himself and the defendant as
alleged?
2. Whether the suit of the plaintiff is bad for non-joinder of
necessary parties to this suit?
3. Whether the plaintiff is entitled for the recovery of the amount
of Rs.43,75,000/- with interest at the rate of 18% p.a. from
the defendants as prayed for?
4. Whether the plaintiff is entitled for reliefs claimed in the suit?
5. What order or decree?"
11. The plaintiff in order to prove his case examined
as PW1 and marked three documents as Exhibit P1 to P3
and examined Ravindra S/o.Kallayya Swamy and
Nandakumar, S/o. Nagendra, who are the witness and
another party to the agreement as PW2 and PW3 and
- 10 -
NC: 2025:KHC-K:5869-DB
HC-KAR
closed his side. The defendants have not chosen to lead any
evidence. However, marked three documents as Exhibits-P1
to P3 and closed their sides. Subsequently, the matter was
posted for argument. The trial court, after hearing the
parties and after going through the entire material placed
before it, proceeded to answer the issues in the following
manner:
"Issue No.1: In the Affirmative.
Issue No.2: In the Negative.
Issue No.3: In the Partly Affirmative.
Issue No.4: In the Affirmative.
Issue No.5: As per final orders for the following"
12. As per the findings on the issues, the trial Court
found that there is payment of money received by
defendant no. 1 on behalf of defendant nos. 2 and 3 to the
tune of Rs.43,75,000/- by way of a cheque, which fact has
been proved by the statement of accounts at Exhibit-P3,
wherein there is a clear mention that a sum of
Rs.43,75,000/- paid in favour of Smt.ShanthaKumari i.e.,
- 11 -
NC: 2025:KHC-K:5869-DB
HC-KAR
defendant no. 1 and held that the plaintiff has proved his
case.
13. The trial Court has subscribed to its reasoning in
paragraph 10 wherein the trial Court has stated that the
defendants not disputed that they have executed the
agreement of sale in favour of plaintiff and Nandkumar and
they have admitted regarding the receiving the amount
through cheque. The witnesses who have been examined
including PW-3, Nandkumar stated that the plaintiff has
paid earnest money amount to the defendants. Exhibit-P3
shows that Shanthakumari received a consideration amount
of Rs.43,75,000/-.
14. The trial Court further held that in the absence of
any explicit and clear terms in the contract, there cannot be
any forfeiture as contended by the defendants of earnest
money paid, as the advance money being part of earnest
money, when the non-performance is not attributable to the
- 12 -
NC: 2025:KHC-K:5869-DB
HC-KAR
person who has paid the amount. The amount paid as
advance money being the part of the earnest money for the
part performance on behalf of the purchasers is for a
guarantee for the due performance of the contract. Since
the defendants have failed to perform their part of the
contract and the agreement itself is frustrated by the
subsequent sale deeds at Exhibits-P1 & D1.
15. In these circumstances, held that, the
defendants have not led any evidence to substantiate their
claims and the plaintiff having proved his case, accordingly
partly decreed the suit directing the defendants to pay part
consideration amount of Rs.43,75,000/- to the plaintiff with
future interest at the rate of 8% per annum from the date
of suit till the date of realisation, by partly decreeing the
suit. It is this judgment and decree passed by the trial
Court which is called in question in this appeal.
- 13 -
NC: 2025:KHC-K:5869-DB
HC-KAR
16. Heard Sri.Jairaj K. Bukka learned counsel
appearing for appellants. The sole respondent though
served remained unrepresented.
17. Sri. Jairaj K. Bhukka with all vehemence
submitted that the suit filed by the plaintiff is not
maintainable and is hit by the principle of non-joinder of
necessary and proper parties. As per the contentions stated
in the suit as well as the agreement of sale, under which it
is alleged that an amount of Rs.43,75,000/- has been paid
in favour of defendant no. 1 herself and on behalf of
defendants nos. 2 and 3 and the agreement to sale was
entered with the consent of other shareholders. There are
13 other family members who have not been made as
party, so also another person who is also a party to the
agreement by name Nandkumar has not been made as
party. The suit filed on the basis of agreement to sell,
without seeking specific performance, is not maintainable.
Further, the plaintiff has not made Smt. ChiristaKumari,
- 14 -
NC: 2025:KHC-K:5869-DB
HC-KAR
who is also one of the party in the agreement to sell not
made as a party litigant before the trial court. The trial
Court has failed to consider these aspects of matter and the
same has resulted in miscarriage of justice.
18. Sri.Jairaj further submitted that the amount paid
as alleged by the plaintiff in the suit to the extent of
Rs.43,75,000/- has been adjusted towards the subsequent
sale deeds at Exhibit-P1 and D1. The trial Court has failed
to consider this aspect of the matter. Since these amounts
have already been adjusted towards the sale deed in
respect of the consideration fixed under the sale deed, the
question of repayment of money does not arise. In these
circumstances, he sought to allow the appeal.
19. Having heard the learned counsel for the
appellant, perused the entire appeal papers, so also the trial
Court record, the points that would arise for our
consideration are as under:
- 15 -
NC: 2025:KHC-K:5869-DB
HC-KAR
i) Whether the appellants have made out any case
to interfere with the impugned judgment and decree
passed by the trial Court? If the answer is in
affirmative, what order?
ii) Whether there is any requirement of modification
in the judgment and decree?
20. Our answer to the above points are in negative
for the following:
REASONS
21. It is on record that the amount paid is in favour
of defendant No.1 by way of cheque and it is a bank
transaction, which has been proved by the extract of
statement of accounts produced at Exhibit P3. There is
nothing contra placed by defendant No.1 to show that the
amount has been repaid. Though the learned counsel
appearing for the appellants has taken a contention that the
amount received under the agreement has been adjusted
towards the subsequent sale deeds, when this Court in
- 16 -
NC: 2025:KHC-K:5869-DB
HC-KAR
order to ascertain questioned the learned counsel for the
appellants as to whether there is any such kind of
statement has been taken in the written statement, and any
evidence led in that line? The learned counsel for the
appellant is unable to point out anything of that sort either
in the written statement or in the evidence, since there is
no evidence led on behalf of the defendants. Further, there
is nothing suggested in the cross examination of PW1, PW2
and PW3 that the amount which has been received under
the agreement to sell under cheque has been adjusted
towards the consideration in respect of subsequent sale
deeds. In the absence of these categorical averments and
evidence, the arguments of learned counsel appearing for
the appellants that the amount has been adjusted cannot
be countenanced.
22. The defendant has not led any evidence to
substantiate his claim except producing the documents
which includes the subsequent sale deed and once, there is
sale of the property which was shown as a suit schedule
- 17 -
NC: 2025:KHC-K:5869-DB
HC-KAR
property in the agreement and gone away, there remains
nothing for the plaintiff to seek for performance and even if
any attempt is made it would amount to fruitless claim.
23. As per Section-65 of the Indian Contract Act,
1872, which provides that obligation of a person who has
received advantage under void agreement or contract that
becomes void. For easy reference we extract the provision,
so also the illustration given in respect of the provision of
law, 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.
a) xxx
b) A contracts with B to deliver to him 250 maunds of rice before
the first of May. A delivers 130 maunds only before that day, and
none after. B retains the 130 maunds after the first of May. He is
bound to pay A for them."
- 18 -
NC: 2025:KHC-K:5869-DB
HC-KAR
24. Since the agreement itself has been frustrated in
view of subsequent sale deed and as the amount is paid to
defendant No.1 for her and on behalf of other defendants, a
simple suit for recovery of money which has been paid and
with the document at Exhibit-P3 is very well maintainable.
There is no necessity for the persons who are not parties to
the agreement to sell be made as parties, since there is no
specific performance sought, which could go against their
rights. The relief sought is only recovery of money. Since
there is a categorical statement in the plaint that a person
who is a party to the agreement to sell, by name Chirista
Kumari, who has received a sum of Rs.6,25,000/- out of
Rs.50,00,000/- paid in advance has repaid the amount. In
these circumstances, what is to be recovered is only a sum
of Rs.43,75,000/- which has been paid to defendant No.1
for her and on behalf of defendant Nos.2 and 3.
25. Since there is no denial of payment of amount
and now in view of the contention that the same has been
adjusted towards the consideration in respect of subsequent
- 19 -
NC: 2025:KHC-K:5869-DB
HC-KAR
sale deeds failed in the absence of any documents to that
effect, what remains to be considered is the amount
received since not repaid. The suit for recovery of the said
amount is filed taking the claim against the persons to
whom the amount is paid. There is no contra evidence
placed by defendant Nos.2 and 3 to contend that the
amount received by defendant no. 1 is for herself and not
on behalf of defendant no. 2 and 3.
26. In these circumstances, the trial Court proceeded
to pass judgment and decree partly decreeing the suit
directing the defendants to make good a sum of
Rs.43,75,000/- along with 8% interest as against 18%
interest as claimed by the plaintiff is just and proper.
27. It is trite law that once the agreement becomes
impossible to perform the person who has received certain
advantage is bound to restore the same. Since the amount
has been paid under a cheque through bank and the same
has been proved by producing the extract of statement of
- 20 -
NC: 2025:KHC-K:5869-DB
HC-KAR
account and in the absence of any contra evidence to that
effect, so also in the absence of any effective cross-
examination in order to substantiate their contentions now
raised, though not in the written statement, it becomes
very hard for this Court, accept the submissions of the
learned counsel for the appellants.
28. The illustration provided to Section-65 of
Contract Act, which we have already extracted above
clearly shows that the person who has received certain
advantage is bound to restore it. In these circumstances,
we find no infirmities in the judgment and decree passed by
the trial Court.
29. Sri. Jayaraj has relied on the judgment of
Hon'ble Apex Court in the case of M/S J N REAL ESTATE
vs. SHAILENDRA PRADHAN & ORS. IN CIVIL APPEAL
NOs. 5405-5406 OF 2025, dated 22.04.2025, wherein
the Hon'ble Apex Court has held that in the absence or non-
joinder of appropriate party whose presence is required for
proper and effective adjudication of the dispute in the suit
- 21 -
NC: 2025:KHC-K:5869-DB
HC-KAR
requires a remand to the trial Court. The judgment of the
Hon'ble Apex Court no doubt true regarding the non-joinder
and necessary parties, however, the said judgment will not
come to the aid of the appellant in view of the peculiar facts
and circumstances of the case on hand. The suit is filed for
recovery of money against defendant Nos.1 to 3 who are
the parties to the agreement and who have received the
amount. The presence of other person who had already
repaid the amount, since there is no claim against the said
person.
30. In the case relied on by the learned counsel for
the appellant, a third person has filed application seeking
impleadment and even the plaintiff in the said suit has not
filed any objection to the impleadment. In the present case
on hand, the persons who are even according to the
defendants who are necessary and property parties to the
suit, have not filed any application for impleading since
there is no relief sought and passed against their interest.
- 22 -
NC: 2025:KHC-K:5869-DB
HC-KAR
The amount is paid under cheque to a particular person who
has received it for her as well as on behalf of other
defendants in the suit and since there is no specific
assertion by other defendants that no authority given to
defendant No.1 to receive the amount on their behalf and
the amount is received by defendant No.1 individually. In
these circumstances, the presence of other parties are not
at all necessary for effective adjudication of the lis in the
case, as held in the judgment of the Hon'ble Apex Court
stated supra.
31. In the case on hand, though defendant Nos.1
and 2 have filed statement of objections but not led any
evidence, except producing 3 documents, which even
strengthens the case of the plaintiff. There are subsequent
sale deeds which have frustrated the agreement to sell. In
these circumstances, the suit filed seeking for recovery of
money, even without seeking for specific performance, as
contemplated by the learned counsel for the appellant is
maintainable.
- 23 -
NC: 2025:KHC-K:5869-DB
HC-KAR
32. As stated supra, under Section 65 of the
Contract Act, the party to an agreement, when it becomes
impossible to perform and either void or otherwise, is bound
to restore the advantages which he has received under the
same. In the facts and circumstances of the case, we have
gone through the entire records, there is nothing elicited by
the defendants even in the cross-examination of the
plaintiff and his witnesses that the amount received has
either already been paid or adjusted towards the sale
consideration, in respect of subsequent sale deeds, as now
contended by the appellants in the present appeal. It is
germane to state that, even, there is no such ground raised
in the appeal memorandum.
33. In the aforesaid facts and circumstances, we find
no force in the argument of the learned counsel appearing
for the appellant and having not found any infirmities in the
judgment of the trial Court, we find no necessity of
- 24 -
NC: 2025:KHC-K:5869-DB
HC-KAR
interference at the hands of this Court in the judgment and
decree passed by the trial Court. Accordingly, we pass the
following:
ORDER
i) The appeal sans merit and accordingly Dismissed,
confirming the judgment and decree passed in OS
No 52/2013, dated 20.09.2018 by IInd Additional
Senior Civil Judge and JMFC, Bidar is confirmed.
ii) In the facts and circumstances, no order as to
costs.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
JJ
