A plaintiff claiming a benami transaction bears the burden of proof, and the absence of credible evidence can lead to dismissal of the claim.

JUDGMENT :

C.PRATHEEP KUMAR, J.

The appellant is the plaintiff in OS No. 16 of 2011 on the file of the Sub Court, Ottapalam. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)

2. The plaintiff filed this suit for declaration and injunction. The 1^st defendant is the father of the plaintiff. Defendants 2 and 3 are the assignees of defendant no. 1. During the pendency of the suit, the 1^st defendant died and hence his widow and 2 daughters were impleaded as additional defendants 4 to 6.

3. The plaint schedule property consists of 3 items, which was in the name of defendant no. 1 by virtue of Exhibits A2, A3 and A4 documents. The case of the plaintiff is that, since 1985 he has been working as a tailor abroad. His father, namely the first defendant, had no job or source of income. He had send money to the first defendant and the plaint schedule properties were purchased by him in the name of his father as a benami. Plaint schedule item Nos. 1 and 2 properties were purchased as per Exhibit A2 and A3 sale deeds of the year 1987. Plaint schedule item No. 3 was purchased as per Exhibit A4 sale deed of the year 1989. According to the plaintiff, though the property was purchased in the name of his father, he was in possession and enjoyment of the said property and that the first defendant had no manner of right or interest in the said property. However, in the year 2010, as per Exhibit A1 sale deed No. 4482 of 2010, the 1^st defendant assigned the plaint schedule properties in favour of defendants no. 2 and 3. According to the plaintiff, since the scheduled properties were purchased by him in the name of his father as benami, his father had no manner of right in the said property, Exhibit A1 sale deed executed by defendant no. 1 in favour of defendants no. 2 and 3 is null and void.

4. The defendants 2 and 3 filed a written statement denying the averments in the plaint and contending that the plaint schedule properties were purchased by defendant no. 1 using his own hard earned money and not using the money sent by the plaintiff. According to them, they are bona fide purchasers of the plaint schedule property, for valid consideration. They denied the allegation that the plaint schedule property was purchased in the name of the 1^st defendant as benami. Though the 4^th defendant remained ex-parte, the 5th defendant filed a written statement in tune with the averments in the written statement filed by defendants 2 and 3. The 6^th defendant filed a memo adopting the contentions raised by the 5^th defendant in his written statement.

5. The trial court framed 5 issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A15, B1 to B22 and X1. After evaluating the evidence on record, the trial court dismissed the suit. Aggrieved by the above judgment and decree of the trial court, the plaintiff preferred this appeal, raising various grounds.

6. Now the points that arise for consideration are the following:

1) Whether the plaint schedule properties were purchased by the plaintiff in the name of the 1^st defendant as benami, as claimed?

2) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal?

7. Heard Sri. R. Rajesh, the learned counsel for the appellant and Sri Santheep Ankarath, the learned counsel for the respondents/defendants.

8. The points: The plaint schedule properties were purchased by defendant no. 1 as per Exhibits A2