Discretion by the Court has to be exercised on sound and reasonable principle.

COMMON JUDGMENT:

M.CHOCKALINGAM, J.

Defendants 1 to 3 in O.S.No.40 of 1981 and plaintiffs in O.S.No.1286 of 1980 are the appellants herein.

2. Both the appeals have been filed against the common judgment and decree passed by the learned II Additional Subordinate Judge, Erode in the said suits.

3. The plaintiffs in O.S.40/81 have alleged in their plaint as follows:

Item 1 of the plaint schedule properties originally belonged to A.S.Abbai Naidu, from whom Thirumalai Ammal, wife of Nainar Chettiar purchased the same on 5.3.64 under a registered sale deed for a consideration of Rs.2,500/-. She was in exclusive possession and enjoyment of the said property until she died on or about 8.1.68. On her death, the plaintiffs and the defendants 1 to 6 who are her children, are each entitled to 1/8th undivided share. The plaintiffs together are entitled to 1/4th share. Item 2 of the plaint schedule properties originally belonged to Venkataperumal Naidu, senior paternal uncle of the plaintiffs and the defendants 1 to 6. He executed a registered Will bequeathing item 2 to Thirumalai Ammal to be enjoyed by her without any power of alienation or encumbrance till her life time and the remainder to vest absolutely in favour of her sons. Venkataperumal Naidu died on 21.8.61. She got possession of item 2 and was enjoying the same till she died on 8.1.68. The plaintiffs and the defendants 1 to 3 became absolutely entitled to item 2. As the plaintiffs and the defendants 1 to 3 are residing at different places, by consent the first defendant was allowed to collect the rents from the tenants and was directed to distribute the rents so far as item 2 is concerned among the plaintiffs and the defendants 1 to 3 and so far as item 3 is concerned, to distribute it among the plaintiffs and defendants 1 to 6. But the first defendant appropriated the entire income without equally distributing the rent among the sharers. The plaintiffs were demanding defendants 1 to 6 for division of the suit properties. The defendants 4 to 6 were amenable for partition of item 1, while the defendants 1 to 3 were not amenable for partition of the suit properties. The first defendant brought forth some henchmen as Panchayatdars for settling the dispute among them. There was no agreement for panchayat nor was there any award in writing. At the instigation of the first defendant, the defendants 2 and 3 issued a notice calling upon the plaintiffs to execute release deeds relinquishing their rights over item 2. The defendants 2 and 3 also filed a suit in O.S.1286/80 on the basis of the oral award and agreement to execute a release deed. The plaintiffs did not execute any agreement. They did not agree to relinquish their right, title and interest in item 2 in favour of the defendants 2 and 3. The alleged award or decision and the agreement are all void ab initio and cannot be enforced. Hence this suit.

4. The first defendant in O.S.40/81 has filed a written statement with the following averments:

Item 1 of the suit property belonged to him. It is the first defendant who purchased the said property from Abbai Naidu under a registered sale deed for Rs.2,500/- in the name of his mother benami for him. He paid the entire purchase money, since Thirumalai Ammal had no sufficient funds. She did not pay the sale consideration. The said transaction is a benami transaction. Even though the document stands in the name of his mother, item 1 has been in his exclusive control, possession and enjoyment since 5.3.64. He has been exercising absolute right over the said item. He has been paying the municipal tax, etc. The plaintiffs and the defendants 2 and 3 were never in possession and enjoyment of item 1. He, as owner of item 1, let out the same to the 11th defendant and has been collecting rent from him, and hence, the question of distribution of rents did not arise at all. The plaintiffs and the defendants 2 to 6 have no right in item 1. They are not entitled to the relief of partition in r