- 1 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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, AGE: 16, OCC: STUDENT, MINOR REPRESENTED BY NATURAL MOTHER A1. 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. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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: - 3 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 - 4 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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. - 5 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 - 6 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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/-, - 7 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 - 8 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 - 9 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 - 10 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 - 11 - HC-KAR NC: 2025:KHC-D:9002 RSA No. 100612 of 2024 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 List No.: 2 Sl No.: 12