Kerala High Court
Radhakrishnan vs M.T.Muraleedharan on 11 September, 2025
RFA 228/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 11TH DAY OF SEPTEMBER 2025 / 20TH BHADRA, 1947
RFA NO. 228 OF 2017
OS NO.16 OF 2011 OF SUB COURT, OTTAPPALAM
APPELLANT/PLAINTIFF
RADHAKRISHNAN, AGED 52 YEARS, SON OF
SREEDHARAN,POTHUVAYIL HOUSE, VENGASSERI (P.O),
OTTAPPALAM TALUK, PALAKKAD DISTRICT, REPRESENTED
BY POWER OF ATTORNEY HOLDER, SANTHAKUMARI, AGED 49
YEARS, WIFE OF RADHAKRISHNAN,POTHUVAYIL
HOUSE,VENGASSERI (P.O)OTTAPPALAM TALUK, PALAKKAD
DISTRICT
BY ADV SRI.R.RAJESH KORMATH
RESPONDENTS/DEFENDANTS 2 TO 6
1 M.T.MURALEEDHARAN, AGED 51 YEARS, FATHER'S NAME
NOT KNOWN TO THE APPELLANT, MUTHUTHODI
PUTHANVEETTIL,VENGASSERI (P.O), OTTAPPALAM TALUK,
PALAKKAD DISTRICT, PIN 679 516
2 OMANA MURALEEDHARAN, AGED 44 YEARS, WIFE OF M.T
MURALEEDHARAN, MUTHUTHODI PUTHANVEETTIL,
VENGASSERI(P.O), OTTAPPALAM TALUK, PALAKKAD
DISTRICT, PIN 679 516
3 K. USHADEVI NARAYANAN, AGED 46 YEARS, DAUGHTER OF
LATE SREEDHARAN,NO.34,SHAJAMUNESWAMY
STREET,MADRAS-600 021,TAMILNADU.
RFA 228/2017
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4 RAMANI SURESHKUMAR
AGED 44 YEARS, DAUGHTER OF LATE
SREEDHARAN,ANAKKALLUPARAMBIL HOUSE, MUCHEERI
(P.O), KONGAD, PALAKKAD DISTRICT, PIN 678 631
5 JANAKI, AGED 76 YEARS, WIFE OF LATE
SREEDHARAN,POTHUVAYIL HOUSE, VENGASSERI (P.O),
OTTAPPALAM TALUK, PALAKKAD DISTRICT PIN 679 516
BY ADV SRI.SANTHEEP ANKARATH
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 25.8.2025, THE COURT ON 11.09.2025, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
RFA 228/2017
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JUDGMENT
Dated : 11th September, 2025
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
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Exhibit A1 sale deed No. 4482 of 2010, the 1st 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 4th 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 6th 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:
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1) Whether the plaint schedule properties were purchased by the plaintiff
in the name of the 1st 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, A3 and A4 sale deeds. Plaint schedule item No.
1 consisting of 40 cents a property was purchased as per Ext.A2 sale deed of the
year 1987 for a consideration of ₹ 10,000/-. Plaint schedule item No. 2 consisting of
40 cents of property was seen purchased in the name of defendant no. 1 as per
Exhibit A3 sale deed in the year 1987, for a consideration of ₹10,000/-. Plaint
schedule item No. 3 consisting of 15 cents of paddy field is seen purchased in the
name of defendant no. 1 as per Exhibit A4 sale deed of the year 1989, for a
consideration of Rs.10,000/-. In the year 2010, the 1 st defendant sold the entire
plaint schedule properties in favour of defendants no. 2 and 3 for a consideration
₹5,00,000/-. The plaintiff who is the son of the first defendant filed this suit on
12.01.2011 contending that the plaint schedule properties were purchased by him in
the name of his father, using his own money, the father being his benami. The
defendants 2 and 3 would contend that they are the bona fide purchases of the plaint
schedule property for valid consideration and also that the plaint schedule
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properties were purchased by the 1st defendant using his own money.
9. In order to prove that the plaintiff was working abroad as a tailor, he
produced his passport and got it marked as Exhibit A12. From the endorsements in
Exhibit A12 passport, it can be seen that the plaintiff went abroad for the job as a
tailor in the year 1984. However, the plaintiff could not produce any documentary
evidence to prove that he had sent any money from abroad to the 1 st defendant so as
to enable him to purchase the plaint schedule property.
10. According to the learned counsel for the appellant, the appellant has
taken steps to the bank manager to produce the details of his bank account to prove
that he had sent money from abroad to the first defendant. From the records it
appears that the bank manager filed an affidavit stating that the documents called
for by the plaintiff are no longer available in the records of the bank. The learned
counsel for the appellant has also relied upon Exhibits A5 to A11 counterfoils of
check books issued in favour of the plaintiff. Those counterfoils were seen filled up
by the plaintiff himself and it does not contain any authentication by the bank.
Moreover, those documents are also of subsequent periods. Therefore Exhibits A5
to A11 counterfoils of the cheque books issued from the bank, does not in any way
help the plaintiff to prove that he had sent any amount to the 1 st defendant to
purchase the plaint schedule properties in his name.
11. Though the plaintiff produced Exhibits A5 to A11 counterfoils of the
cheque books, he has not produced the corresponding bank passbooks. If the bank
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passbooks of the relevant period were produced, it would have been better evidence
than the counterfoils of the cheque books, which has no authenticity, as it was
prepared by the plaintiff himself. The plaintiff has not offered any explanation for
not producing the passbook issued from the bank. There is every reason to believe
that a person who keeps the counterfoils of the old bank cheque books will
definitely keep the bank passbooks also. Failure to produce the bank passbook,
even after producing counter foils of very old cheque books is a circumstance to
cast serious doubt regarding the genuineness of the plaintiff's claim.
12. The plaintiff examined PW2 to prove that, he had sent Rs. 30,000/-
through one Ramakrishnan and as informed by the plaintiff through letter, PW2
went to the residence of Ramakrishnan, received a sum of Rs. 30,000/- and handed
over the same to the 1st defendant, in May 1987. Though he has deposed that the
letter sent by the plaintiff in that respect was in his possession, the same was not
produced, without offering any explanation. The manner in which the plaintiff sent
the money through Ramakrishnan is not disclosed by PW2. As argued by the
learned counsel for the respondents, if the plaintiff had sent money from abroad
through Ramakrishnan, the said Ramakrishnan is the witness competent to swear
about the same. However, without offering any explanation, the plaintiff has not
examined the said Ramakrishnan.
13. If the above evidence of PW2 is believed, the amount was sent by the
plaintiff from abroad, by illegal means. However, in the plaint, the plaintiff has no
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case that he had sent any money to the 1 st defendant through any such person. The
first attempt of the plaintiff was to examine the bank manager and to produce the
details of the money sent by him through the bank. The Bank Manager filed an
affidavit stating that the documents called for being very old, are not available in
the records of the bank. As I have already noted above, the plaintiff has not
examined Mr. Ramakrishnan who allegedly brought money from him and handed it
over to PW2 to pass over the same to defendant no. 1. The plaintiff has not offered
any explanation for not examining the said Ramakrishnan also. Therefore, the claim
of the plaintiff that he had sent money from abroad through Ramakrishnan and
handed over to the first defendant for purchasing the scheduled property, also
cannot be believed.
14. Though in the plaint the plaintiff contends that the first defendant had
no job or source of income, at the time of evidence, it was found to be incorrect. At
the time of evidence it is revealed that the first defendant had 2 acres of landed
property and he was doing agriculture in the said property and getting income from
the same. He was also rearing cattles. It is also revealed that after purchasing the
plaint schedule properties the first defendant mutated the properties in his name and
also availed a loan from the bank by mortgaging the said property. The fact that the
first defendant mutated the properties in his name and also availed loan from bank
by mortgaging the said property are also circumstances showing that the said
properties belonged to the 1st defendant himself and not that of the plaintiff.
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15. It is also revealed that defendants 2 and 3, after purchasing their plaint
schedule property, effected mutation in their favour and the properties are in their
exclusive possession and enjoyment. Though the plaint scheduled property was
purchased in the name of defendant no. 1 as early as in 1987 and 1989, no steps
were taken by the plaintiff to get the said property during the lifetime of the first
defendant.
16. Relying upon clause (b) of sub-section (3) of Section 3 of the Benami
Prohibition Act, 1988, the learned counsel for the appellant would argue that in case
the property was purchased in trust and in favour of a person in fiduciary capacity,
the bar under Section 3 will not apply. The learned counsel has also relied upon the
decision of the Hon'ble Supreme Court in Valliammal (D) by LRs v.
Subramaniam and Ors., 2004 (3) KLT 587 in which the Apex Court has laid
down the guidelines for determining benami transaction, as follows:
".....It has been held that in the judgments referred to above that the
question whether a particular sale is a benami or not, is largely one of
fact, and for determining the question no absolute formulas or acid
test, uniformly applicable in all situations can be laid. After saying so,
this Court spelt out following six circumstances which can be taken as
a guide to determine the nature of the transaction:
1. the source from which the purchase money came;
2. the nature and possession of the property, after the purchase;
3. motive, if any, for giving the transaction a benami colour;
4. the position of the parties and the relationship, if any, between the
claimant and the alleged benamidar;
5. the custody of the title deeds after the sale; and
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6. the conduct of the parties concerned in dealing with the property
after the sale.
17. In the decision in Rajan v. Reddy Kumari, 2012 (2) KLT SN 15
(case number 13), this Court held that the essence of a benami transaction is the
intention of the parties and the onus to establish that it was a benami transaction is
on the person who assets it. Therefore, in the instant case also, the burden is heavily
on the plaintiff to prove that the plaint schedule properties were purchased by him
in the name of his father, as benami. However, as I have already noted above, in this
case the plaintiff could not produce any documents to prove that the consideration
for the purchase of the plaint schedule properties was paid by him. I have already
found that the evidence of PW2 in that respect is not at all reliable. The person who
allegedly brought money from abroad was not examined in this case. Moreover, in
the plaint, there is no pleading to the effect that the plaintiff had sent any money
from abroad to the 1st defendant, through any such person, as claimed at the time of
evidence. In the above circumstance, it is to be held that the plaintiff has miserably
failed in proving that the plaint schedule properties were purchased by him in the
name of his father as benami. Therefore, the plaintiff is not entitled to get any
declaration or injunction as prayed for.
18. In this context, it is also to be noted that from the evidence on record,
it is revealed that after the execution of Exhibit A1, the defendants 2 and 3 are in
possession and enjoyment of the plaint schedule properties. Even then the plaintiff
has not prayed for recovery of possession of the plaint schedule properties from the
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defendants 2 and 3. For not claiming the relief of recovery of possession, there is
absolutely no explanation from the side of the plaintiff.
19. In the light of the above discussions, it is to be held that the trial court
was perfectly justified in holding that the plaint schedule properties were not
purchased by the plaintiff in the name of his father as benami, as claimed. I do not
find any irregularity or illegality in the impugned judgment and decree passed by
the trial court, so as to call for any interference. Therefore, this appeal is liable to be
dismissed, confirming the judgment decree of the trial court. Points answered
accordingly.
20. At the time of arguments, the learned counsel for the appellant
contended that the trial court was not justified in awarding costs against the
plaintiff. According to him, the plaintiff has taken all steps to bring in the evidence
within his reach and he could not prove the case as the bank manager could not
produce the documents called for. However, as I have already noted above, at the
time of evidence, the attempt of the plaintiff was to prove that he had sent a sum of
Rs. 30,000/- from abroad through one Ramakrishnan and that it was handed over by
Ramakrishnan to PW2 and PW2 had passed over the same to the first defendant.
Without offering any explanation, the plaintiff has not examined the above
Ramakrishnan. Though the plaintiff has produced Exhibits A5 to A11 counterfoils
of the bank passbooks, those transactions were of subsequent years and they are not
related to the relevant period namely 1987 and 1989. He has not produced his bank
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pass books corresponding to Exts. A5 to A11.
21. The plaintiff also has not taken any steps to get the properties during
the lifetime of the 1st defendant and waited till he assigned the property to
defendants 2 and 3, to file the suit. At the same time, he has miserably failed in
proving that those properties were purchased by him in his father's name as benami.
From the evidence on record, it is revealed that defendants 2 and 3 are bona fide
purchasers of the plaint schedule property for valid consideration. Even his mother
and sister supported the case of the defendants 2 and 3. For no fault of defendants 2
and 3, they have to defend this case for the last 14 years, spending huge amounts
and as such, I do not find any grounds to deny the costs to the contesting
defendants, namely defendants 2 and 3.
22. In the result, this appeal stands dismissed with costs to defendants 2
and 3.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/8.9.
