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. 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, 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. 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 properties were purchased by the 1 st 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. 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 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 1 st 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, 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 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 1 st defendant himself and not that of the plaintiff. 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. 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 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. 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 1 st 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 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. 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 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 1 st 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.