Kerala High Court
Nixon vs Suresh on 10 April, 2026
2026:KER:32120
RFA Nos.42 and 42 of 2014 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 10TH DAY OF APRIL 2026 / 20TH CHAITHRA, 1948
RFA NO. 41 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 24.10.2013 IN OS NO.524 OF
2009 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT, THRISSUR
APPELLANT/PLAINTIFF:
NIXON
AGED 42 YEARS
S/O. KALLOOKKARAN VARAPPAN, VALLISSERY DESOM,
AVINISSERY VILLAGE, THRISSUR TALUK.
BY ADVS.
SHRI.R.PARTHASARATHY
SMT.SEEMA PARTHASARATHY
RESPONDENT/DEFENDANT:
SURESH
AGED 41 YEARS
S/O. POTTAYIL KESAVAN, KOTTAPPURAM DESOM, THRISSUR
VILLAGE & TALUK, THRISSUR DISTRICT-680667.
BY ADV SRI.MAHESH V.MENON
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2026, ALONG WITH RFA.42/2014, THE COURT ON 10.04.2026
DELIVERED THE FOLLOWING:
2026:KER:32120
RFA Nos.42 and 42 of 2014 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 10TH DAY OF APRIL 2026 / 20TH CHAITHRA, 1948
RFA NO. 42 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 24.10.2013 IN OS NO.559 OF
2009 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT, THRISSUR
APPELLANT/S:
NIXON
AGED 42 YEARS,S/O KALOOKKARAN VARAPPAN, VALLISSERY
DESOM, AVINISSERY VILLAGE, THRISSUR TALUK
BY ADVS.
SHRI.R.PARTHASARATHY
SMT.SEEMA PARTHASARATHY
RESPONDENTS/DEFENDANTS:
1 SURESH
AGED 41 YEARS
S/O POTTAYIL KESAVAN, KOTTAPPURAM DESOM, THRISSUR
VILLAGE & TALUK, THRISSUR DISTRICT 680001
2 SHANAVAS
AGED 47 YEARS
S/O KATTAKATH KUNJALAN, HOUSE, NO 15/395, VEMBALLUR
DESOM, SREENARAYANAPURAM VILLAGE, KOODUNGALLUR TALUK
680664
3 MUHAMMED SHAREEF
AGED 56 YEARS
S/O KATTAKATH KUNJALAN, HOUSE NO 15/395, VEMBALLUR
DESOM, SREENARAYANAPURAM VILLAGE, KOODUNGALLUR TALUK
2026:KER:32120
RFA Nos.42 and 42 of 2014 3
680664
4 HARIS
AGED 43 YEARS
S/O KATTAKATH KUNJALAN, HOUSE NO 15/395, VEMBALLUR
DESOM, SREENARAYANAPURAM VILLAGE, KOODUNGALLUR TALUK
680664
5 MUHAMMED HANEEFA
AGED 36 YEARS
S/O KATTAKATH KUNJALAN, HOUSE NO 15/395, VEMBALLUR
DESOM, SREENARAYANAPURAM VILLAGE, KOODUNGALLUR TALUK
680664
6 SAILI BAJU RAHMAN
AGED 36 YEARS
W/O KATTAKATH BAJU RAHMAN, HOUSE, NO 16/221, VEMBALLUR
DESOM, SREENARAYANAPURAM VILLAGE, KOODUNGALLUR TALUK
680664
7 ABDUL GAFOOR
AGED 52 YEARS
S/O PANIKKAVEETIL KADER, HOUSE NO 8/104, THALIKULAM
VILLAGE & DESOM, CHAVAKKAD TALUK 690506
BY ADVS.
SRI.MAHESH V.MENON
SMT.AMRIN FATHIMA
SRI.BABU KARUKAPADATH
SHRI.KANDAMPULLY RAHUL
SHRI.K.A.NOUSHAD
SMT.M.A.VAHEEDA BABU
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2026, ALONG WITH RFA.41/2014, THE COURT ON 10.04.2026
DELIVERED THE FOLLOWING:
2026:KER:32120
RFA Nos.42 and 42 of 2014 4
MOHAMMED NIAS C.P., J.
......................................................
R.F.A. Nos.41 and 42 of 2014
.............................................................
Dated this the 10th day of April, 2026
JUDGMENT
R.F.A. Nos. 41 and 42 of 2014 are filed by the appellants/plaintiffs challenging the common judgment dated 24.10.2013 of the Subordinate Judge's Court, Thrissur, whereby O.S. No. 524/2009, a suit for realisation of money, and O.S. No. 559/2009, a suit for declaration and injunction, were dismissed.
2. The case of the plaintiff in O.S. No. 524/2009 was that the defendant had borrowed an amount of Rs. 6,00,000/- (Rupees Six Lakhs Only) on various occasions for completing the construction of his residential building, agreeing to repay the same with interest at 12% per annum, and in discharge thereof executed a promissory note dated 07.11.2008. On failure to repay despite demands, the suit was instituted.
3. O.S. No. 559/2009 was filed by the same plaintiff seeking a declaration that the sale deed executed by the first defendant in favour of 2026:KER:32120 RFA Nos.42 and 42 of 2014 5 defendants 2 to 7 in respect of the plaint schedule property is void and not binding on him and other creditors, and for consequential injunction. The plaintiff alleged that the said transfer, effected by a registered sale deed dated 19.12.2008, was without consideration and was executed in collusion with defendants 2 to 7 to defeat the claims of creditors, including the plaintiff.
4. The first defendant, in his written statement, denied the borrowing and execution of the promissory note and contended that the plaintiff was conducting a local chitty in which he was a subscriber, and at the time of receiving the prized amount, he had handed over a blank paper affixed with a revenue stamp, bearing his signature, as security. It was further contended that another subscriber by name Shaji defaulted in payment of the kuri amount and had no assets in his name, and the plaintiff had required the defendant to recover the said amount from Shaji, which he was unable to do. Taking advantage of the same, the plaintiff is alleged to have misused the signed blank paper and instituted the suit on a false claim.
5. Insofar as the transfer of the plaint schedule property is 2026:KER:32120 RFA Nos.42 and 42 of 2014 6 concerned, the first defendant contended that the property was sold to defendants 2 to 7 for valid consideration through a duly executed and registered sale deed in their favour. According to him, the sale was genuine, had taken effect, conveying a valid title. He specifically denied any allegation of collusion or conspiracy with the other defendants.
6. Defendants 2 to 7 filed a separate written statement denying knowledge of any transaction between the plaintiff and the first defendant and contended that they are bona fide purchasers for value. They also disputed the possession and title as alleged by the plaintiff.
7. The trial court jointly tried both the suits and considered the evidence of PW1 and marked Exts.A1 to A5 on the side of the common plaintiff. On the side of the defendant, DW1 was examined and Exts. B1 to B18 on the side of the defendant 2 to 7 in OS No. 559/2009, oral evidence of DW2 on the side of the common defendant and Exts. C1 series to C2 being the commissioner's reports and sketch.
8. On appreciation of evidence, the trial court found that when the execution of the promissory note is not proved, no presumption under 2026:KER:32120 RFA Nos.42 and 42 of 2014 7 Section 118 of the Negotiable Instruments Act can be drawn as to consideration. It was further held that the withdrawal amounts and dates referred to in O.S. No. 559/2009 were not pleaded in O.S. No. 524/2009, and the entries in Ext.A3 do not establish that such withdrawals were made for payment to the defendant. The entries show that on 29.05.2008, the amount was withdrawn for self, on 02.07.2008 and 14.07.2008 payments were made to one Ananthakrishnan, and on 13.08.2008, 26.09.2008 and 07.11.2008 payments were made towards other cheques. On that basis, it was found that the dates shown in O.S. No. 559/2009 were arranged so as to synchronise with the withdrawals before and after the relevant dates, without any acceptable evidence linking them to the alleged payments to the defendant.
9. As regards O.S. No. 559/2009, the trial court held that Section 53 of the Transfer of Property Act cannot be invoked. Referring to Section 5 of the TP Act, it was observed that transfer of property requires a conveyance by which right, title and interest pass from the transferor, and that the definition applies to Section 53 as well. Section 53(1) contemplates a transfer made with the intent to defeat or delay creditors, 2026:KER:32120 RFA Nos.42 and 42 of 2014 8 which presupposes a real transfer. If there is no conveyance or passing of title, there is no transfer in law, and mere execution of a document does not suffice. Therefore, to attract Section 53, the plaintiff must accept that there was a real transfer by the debtor. Where the case pleaded is that the document is sham and nominal, without intention to transfer any right, Section 53 has no application. In the present case, since the plaintiff's own case is that Ext.A2 is not supported by consideration and is only a paper transaction, the provision cannot be invoked. Further, under Section 54, a sale requires transfer of ownership in exchange for a price paid or promised, and in the absence of such elements, there is no sale to attract Section 53. It was also found that the suit is not one properly framed for avoidance or cancellation of the transfer, which is the nature of relief contemplated under the said provision.
10. The trial court also found that the plaintiff failed to prove that any debt is due from the defendant and consequently failed to establish that he is a creditor. In the absence of such status, the declaratory relief sought cannot be granted. Being a third party to Ext.A2, the plaintiff was held to have no locus standi to challenge the sale on the 2026:KER:32120 RFA Nos.42 and 42 of 2014 9 grounds alleged. It was further found that defendants 2 to 7 are bona fide purchasers for value without notice of any alleged transaction between the plaintiff and the first defendant.
11. Heard the learned counsel appearing on both sides and perused the records.
12. The learned counsel for the appellants contended that the execution of the promissory note stood established by the admission of signature and that the explanation offered by the defendant regarding the issuance of signed blank papers in connection with a chitty transaction was not supported by any evidence. It was argued that the non- examination of the plaintiff's wife was not fatal in view of Section 120 of the Evidence Act and that the trial court erred in discarding the oral evidence of PW1. It was further submitted that the trial court failed to properly appreciate the documentary evidence showing withdrawal of amounts corresponding to the alleged payments.
13. In respect of the declaratory relief, it was contended that the sale deed was executed fraudulently with the intent to defeat creditors 2026:KER:32120 RFA Nos.42 and 42 of 2014 10 and that the trial court misapplied Section 53 of the Transfer of Property Act. Reliance was placed on the decision in Prasad and Others v. V Govindaswamy Mudaliyar and others (AIR 1982 SC 84) to contend that such transfers are voidable at the instance of creditors. It was also argued that the evidence of DWs 1 and 2 regarding possession and subsequent occupation, read along with Ext.C1 commission report and Ext.B15 rent deed, would disclose collusion. The inadequacy of consideration and absence of proper enquiry regarding market value were also relied on to contend that the transaction was not bona fide.
14. Per contra, the learned counsel for the respondents supported the judgment of the trial court and submitted that the plaintiff failed to establish the execution of the promissory note or the passing of consideration and that the burden of proof was not discharged. It was further contended that in the absence of proof of debt, the plaintiff cannot claim the status of a creditor to challenge the sale.
15. On a consideration of the pleadings and evidence, this Court finds no reason to take a view different from that of the trial court. The plaintiff has failed to establish the execution of the promissory note. The 2026:KER:32120 RFA Nos.42 and 42 of 2014 11 evidence of PW1 clearly discloses a lack of direct knowledge regarding the transaction, and the admitted position that the alleged payments were effected through his wife, who was not examined, assumes considerable significance. In such circumstances, the trial court was fully justified in holding that execution was not proved. It is well settled that mere admission of signature cannot be equated with due execution, particularly when the passing of consideration is specifically disputed. None who witnessed the alleged execution of the promissory note was examined.
16. Once execution is not proved, the statutory presumption under Section 118 of the Negotiable Instruments Act does not arise. The trial court has rightly analysed the entries in Ext.A3 and found that they do not establish any nexus between the withdrawals and the alleged payments to the defendant. The withdrawal amounts and dates relied on in O.S. No. 559/2009 were not even pleaded in O.S. No. 524/2009. The entries show that on 29.05.2008, the amount was withdrawn for self, on 02.07.2008 and 14.07.2008 payments were made to one Ananthakrishnan, and on 13.08.2008, 26.09.2008 and 07.11.2008 payments were made towards different cheques. The finding that the dates in O.S. No. 559/2009 were 2026:KER:32120 RFA Nos.42 and 42 of 2014 12 arranged to synchronise with such withdrawals is well-founded. Significantly, none of these payments was made to the account of the defendant, which completely undermines the plaintiff's case regarding the alleged loan.
17. In the above circumstances, the conclusion of the trial court that the plaintiff has failed to prove the existence of a legally enforceable debt is unassailable. In the absence of proof of such debt, the very foundation for claiming the status of a creditor falls to the ground.
18. Insofar as the challenge against the sale deed is concerned, the approach of the trial court in declining relief under Section 53 of the Transfer of Property Act is legally sound. The plaintiff's own case is that the transaction is a sham and without consideration. Section 53, however, proceeds on the premise of a real transfer intended to defeat or delay creditors and cannot be invoked in a case where the transfer itself is denied in substance. Further, in the absence of proof that the plaintiff is a creditor, he cannot seek to avoid the transfer. The finding that defendants 2 to 7 are bona fide purchasers for value without notice is also supported by the materials on record and does not call for interference.
2026:KER:32120 RFA Nos.42 and 42 of 2014 13
19. The discrepancies pointed out in the evidence regarding possession and the adequacy of consideration, by themselves, are insufficient to dislodge the conclusions reached by the trial court in the absence of proof of the underlying debt and creditor status of the plaintiff.
20. The trial court has considered the entire evidence, both oral and documentary, in the proper perspective and has arrived at findings which are well supported. No grounds are made out for interference in the appeal.
In the result, the findings of the trial court are affirmed, and the appeals will stand dismissed. All pending interlocutory applications are closed.
Sd/-
MOHAMMED NIAS C.P. JUDGE okb