[Cites 4, Cited by 0]

Kerala High Court

Zakheena Bai vs Mohammed Sali on 18 December, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

RFA No.307/2018



                                             1
                                                                       2025:KER:97116

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                    THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                             &

                   THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

   THURSDAY, THE 18TH DAY OF DECEMBER 2025 / 27TH AGRAHAYANA, 1947

                                RFA NO. 307 OF 2018

        AGAINST THE JUDGMENT AND DECREE DATED 20.11.2017 IN O.S.

NO.48 OF 2016 OF SUB COURT,KOCHI

APPELLANT/PLAINTIFF:

                  ZAKHEENA BAI
                  AGED 63 YEARS, D/O.ZACKARIA HAROON SAIT,
                  GANGADHARAN LANE, PALLURUTHY, KOCHI - 682 006.


                  BY ADV SRI.MILLU DANDAPANI
RESPONDENT/DEFENDANT:

                  MOHAMMED SALI
                  AGED 51 YEARS, S/O.ABDUL KHADER MOHAMMED,
                  RESIDING AT MAMMALAPARAMBIL,CC 21/1655,
                  PALLURUTHY,KOCHI - 682 006.


                  BY ADVS.
                  SHRI.P.CHANDRASEKHAR
                  SRI.K.ARJUN VENUGOPAL
                  SMT.V.A.HARITHA
                  SRI.SIDHARTH B PRASAD
                  SHRI.R.NANDAGOPAL
                  SRI.D.SREEKANTH
                  KUM.GAYATHRI MURALEEDHARAN


       THIS       REGULAR   FIRST   APPEAL       HAVING   COME   UP   FOR   HEARING   ON
15.12.2025, THE COURT ON 18.12.2025 DELIVERED THE FOLLOWING:
 RFA No.307/2018



                                        2
                                                               2025:KER:97116



                     SATHISH NINAN & P. KRISHNA KUMAR, JJ.
                     = = = = = = = = = = = = = = = = = =
                             R.F.A.No.307 OF 2018
                     = = = = = = = = = = = = = = = = = =
                  Dated this the 18th day of December, 2025

                                    JUDGMENT

P.Krishna Kumar, J.

An unsuccessful plaintiff in a suit for specific

performance of a contract for sale of an immovable property is

the appellant.

2. According to the appellant, the respondent/defendant

executed Ext.A1, a registered agreement for sale dated

26.04.2016, agreeing to sell his immovable property having an

extent of 2.02 Ares, together with a double-storied building

standing thereon, within a period of three months, for a total

sale consideration of Rs.40,00,000/-. At the time of execution

of the agreement, an amount of Rs.7,00,000/- was paid as

advance sale consideration. The appellant contends that she

was always ready and willing to perform her part of the

contract, but the respondent evaded execution of the sale deed

2025:KER:97116

and failed to perform the obligations required under the

agreement within the stipulated period. The appellant

thereupon issued Ext.A2 lawyer notice to the respondent, which

was duly served, as evidenced by Ext.A3 acknowledgment card.

3. The respondent stoutly resisted the suit, contending

that Ext.A1 was signed by him under compulsion. According to

him, by executing Ext.A1, he never intended to convey the

property, as he had no other land or building for his

residence. It is alleged that the document was executed only

to secure a chit transaction between one Haroon, the nephew of

the appellant, and the wife of the respondent, for an amount

of Rs.6,95,000/-.

4. Upon an elaborate consideration of the oral and

documentary evidence, the trial court concluded that Ext.A1

agreement was executed only as a security document, as alleged

by the respondent. The court further observed that there was

no proof either regarding payment of the alleged advance

amount or with respect to the financial capacity of the

2025:KER:97116

appellant to pay the balance sale consideration of

Rs.33,00,000/-.

5. We have heard Sri. Millu Dandapani, the learned counsel

appearing for the appellant. The respondent was set ex parte.

6. The learned counsel for the appellant persuasively

argued that, when an agreement for sale is registered, a

strong presumption arises in favour of the appellant, and in

such circumstances, the burden lay upon the respondent to

prove his contention that the agreement was executed only as a

security. It was further contended that the oral evidence of

PW1, coupled with the registered agreement, was sufficient to

decree the suit, and that the trial court failed to appreciate

the evidence in its proper perspective.

7. It is true that ordinarily a court may draw a

presumption that a registered document has been validly

executed. However, such presumption extends only to the

execution of the document and not to the correctness of the

recitals contained therein. It is settled law that admission

2025:KER:97116

of a document in evidence is distinct from proof of its

contents. In a suit for specific performance, mere proof of

execution of an agreement for sale will not entitle the

plaintiff to relief, unless readiness and willingness to

perform the contractual obligations are also established. With

this legal position in mind, we proceed to consider whether

the evidence on record is sufficient to hold in favour of the

appellant.

8. PW1, the appellant, deposed in cross-examination that

out of the alleged advance sale consideration of

Rs.7,00,000/-, an amount of Rs.2,00,000/- was withdrawn from

her bank account and the remaining Rs.5,00,000/- was given by

her sister's daughter. She further deposed that the balance

sale consideration of Rs.33,00,000/- was also agreed to be

provided to her by the children of her sister.

9. Despite the respondent having stoutly denied the

existence of the contract and having set up a specific defence

as noticed above, the appellant did not examine any of the

persons from whom she allegedly arranged either the advance

2025:KER:97116

amount or the balance sale consideration. She also failed to

produce any bank statement to substantiate her claim that

Rs.2,00,000/- was withdrawn from her account. Even though the

appellant filed an application under Order XLI Rule 27 of the

Code of Civil Procedure before this Court seeking permission

to adduce additional evidence, she was still unable to

demonstrate that such an amount had been withdrawn from the

bank.

10. In Krishnamurthy (Since Deceased) Thr. Mrs. U.N. v.

A.M. Krishnamurthy (AIR 2022 SC 3361), the Apex Court held

that, though it is not necessary for a plaintiff in a suit for

specific performance to possess sufficient funds at the time

of entering into the contract, if the plaintiff intends to

raise funds from other sources, the same must be specifically

pleaded in the plaint. The Court held:

"If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for

2025:KER:97116

disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money."

In Vasudevan Nair T.K. v. T.Vrij Mohan (2025 KHC 1156), this

Court reiterated the above proposition of law in similar

factual circumstances. In the present case, there is neither

any pleading that the appellant intended to raise funds from

her relatives, nor any evidence to show that she actually did

so.

11. Admittedly, the appellant had no amount in her

possession to pay the balance sale consideration. Her

contention that the amounts were provided by her relatives

remains unproved. There is also no reliable evidence to

establish payment of the alleged advance amount of

Rs.7,00,000/-.