IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 AS.No. 379 of 2000(A) ------------------------------ O.S. 461/1988 OF PRL. SUB COURT, THIRUVANANTHAPURAM .................... APPELLANT(S): PLAINTIFF ------------------------ MADHAVAN SAVITHRI, PANAYIL VEEDU, PAZHAYAKUNNUMMEL DESOM, PAZHAYAKUNNUMMEL VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): DEFENDANT ------------------------- KARUNAKARAN DILEEP KUMAR, MAVILA VEEDU, KARETTU, PULIMATHU DESOM, PULIMATHU VILLAGE. ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND SRI.N.MAHESH SMT.ASHA JYOTHI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/06/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.379 OF 2000 ............................................. Dated this the 22nd day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Trivandrum in O.S.No.461/1988. The suit is one for a declaration, an injunction and in the alternative one for recovery of possession or recovery of the amount. The brief facts necessary for the disposal of the appeal are stated as follows: 2. The plaintiff was an employee in a court and she had entered into an agreement for the purchase of property from Balan who is the father of one Bhasi. The property was agreed to be purchased for a consideration of Rs.35,000/=. The plaintiff paid Rs.10,000/= to Balan and later Rs.35,000/= to Bhasi and got the document registered in the name of the defendant as trustee of her. The defendant did not have any right or possession over the property and therefore pretension of the defendant that he is the owner of the property has to be ignored and the relief sought for in the suit has to be granted. 3. The defendant on the other hand would contend that : 2 : the plaintiff has not advanced any amount for the purchase and he had purchased the property from Bhasi for a consideration of Rs.35,000/= and therefore he is the absolute owner in possession of the property. 4. The court below on an appreciation of the materials found against the plaintiff and it is against that decision, the plaintiff has come up in appeal. 5. Heard the learned counsel. The learned counsel for the appellant would strongly contend before me that the materials available would indicate that it was the plaintiff who had parted with consideration for the purchase of the property and therefore the plaintiff is entitled to decree as prayed for. The defendant refused the same. In para-4 of the plaint, it is stated that there was a litigation pending between the wife and the husband with respect to maintenance. It is never stated anywhere that it was to overcome that litigation, the document was sought to be executed in the name of the defendant. The reasons stated in the plaint would show other things. It is also interesting to note that the word benami was used in the plaint first : 3 : which later got amended and made it as trustee. Admittedly, the plaintiff has no relationship with the defendant. But, it is contended that the wife of the defendant is a close relative of the plaintiff and she was also working in the court. The learned counsel for the appellant highlighted before me the documents - Exts.X1 and X1(a) which would prove that Rs.10,000/= has been paid to Balan and Rs.35,000/= had been paid to Bhasi and it would reflect that consideration for the purchase of Ext. A1 property had been made by her. This is countenanced by the other side stating that as per the document, consideration was paid on the date of registration and it was not through any cheque as is seen from Ext.A3. There is no mention in the document regarding the issuance of any cheque. But the learned counsel would contend that it was on account of the encashment of the cheque the consideration has been paid. Though it has not been so specifically stated in the document, there are recitals in the document regarding passing of consideration. It is true that though there is an embargo under Section 92 of the Evidence Act, but there are : 4 : circumstances under which oral evidence can be adduced in certain aspects. The most competent person to speak about the receipt of consideration from the plaintiff is Bhasi. This Bhasi is still alive, but it is submitted that he is working abroad. But no attempt is made to examine this Bhasi by the plaintiff to show that he had been paid the consideration by her. It has to be stated that the defendant is also not a man without any resources. His wife is employed in a court. He himself is employed as Sales Tax Inspector and it is stated by him in evidence that from the salary as well as from the money entrusted to the mother he has paid consideration for the transaction. 6. So what ever it may be, I have to hold that creating some suspicion in the mind of the court cannot be a substitute for proof. When an educated person enters into a transaction and first contends the case of benami and later amended it to a trustee that would indicate that all is not well with the case of the plaintiff. 7. It is contended by the learned counsel for the plaintiff that there is a contradiction between the evidence of : 5 : DWs 1 and 2 regarding passing of consideration. That is why I stated earlier that mere suspicion cannot be a substitute for proof when the best possible evidence was available and it was not adduced. It has to be remembered that the real motive for purchasing the property in the name of the defendant is not established. The plaintiff might have fought with her husband. She had close kith and kin. But the evidence adduced in the case would show that she chose a person who is the husband of a co-worker to do the execution of the document in her favour. Unless there are close contacts and one has absolute faith and domain over the other, benami transaction does not take place. It has also to be stated that in what way the defendant can be a trustee of the plaintiff. The subsequent conduct also revealed that the plaintiff had never been in possession of the property. It is the defendant who had constructed the building. It is the defendant who is residing in the building. He is the person who is paying the tax. It is true that if transaction is a benami one, since the document stands in the name of the owner, the tax receipt will be in his name. : 6 : But possession is the important criteria. 8. I do not find any evidence before me to show that the plaintiff was in possession of the property from the date of execution of the document in the year 1985 till the institution of the suit. So from these discussions, I find that the plaintiff has only succeeded in throwing some suspicion regarding passing of consideration. The best person who had received the consideration is not examined and the evidence attempted to be adduced is against the recitals in the registered document. Secondly the motive also is not proved. Thirdly, original of the document is not forthcoming from the custody of the plaintiff. Lastly from the subsequent conduct of the parties it has to be remembered that she has stated in her evidence that there was an agreement for re-transfer of the property in her name. That also would crush the case of the plaintiff regarding benami as well as trustee ship. 9. Therefore, taking into consideration all these aspects, I am not in a position to agree with the argument of the learned counsel for the appellant that the plaintiff has : 7 : got right over the property and that Ext.B1 transaction is only a transaction where the defendant is a trustee of the property. Therefore, the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. cl : 8 : M.N. KRISHNAN, J. ........................................... A.S.NO.379 OF 2000 ............................................. 22nd day of June, 2010. J U D G M E N T