Mrs.R.Banumathi, J.: All the four appeals arise out of the common judgment in O.S.No.5 of 1979 (dated 28.12.1983) on the file of Sub Court, Pattukkottai. 2. Details of all the four appeals are as under: Suit No. (1) Decree (2) Appeal No. (3) Appellant (4) O.S. No.5 of 1979 Suit for partition and separate possession of plaintiff’s1/5th share - Sch.I to III - 1/4th share in Sch. IV and V or alternative relief of 4/32 shares in Sch.I to III Plaintiff is entitled to 14/104 shares - 48 cents in Item 4, entire extent in Items 6 and 11 of Sch. I, Items 10 to 20, 37, 38, 40 to 42 and 45 in Sch. II and Items 2 to 18, 20, 21, 23 and 27 to 29 in Sch.III 390 of 1985 plaintiff O.S. No. 5 of 1979 —— A.S. No.399 of 1985 3rd defendant O.S. No. 5 of 1979 —— A.S. No.936 of 1985 2nd defendatn regarding Sch. V with reference to machineries O.S. No. 109 of 1980 - Suit for declaration that the Promissory Note dated 26.3.1966 is not enforceable and for recovery of possession of Victoria Printing Press and for recovery of rent D18 to deliver vacant possession fo Victoria Press and Buildings to D4 - Mohammed Yusuf. D18 to pay Rs.3,630 with subsequent interest.. Transferred A.S.No.657 of 1988 D18 Balasubramaniam O.S. No. 252 of 1980 suit for recovery of Rs. 4,260 on promissory note. Suit decreed against D4 - MOhammed Yusuf. No appeal —— 3. In all the suits, common evidence was recorded in O.S.No.5 of 1979. All these four appeals arise out of the common judgment in O.S.No.5 of 1979. Since the parties in all the appeals are one and the same and common points arise for determination, all the appeals are disposed of by the common judgment. Since O.S.No.5 of 1979 is the comprehensive suit, parties would be referred as in their rank in O.S.No.5 of 1979. 4. For better appreciation of contentious points, it is necessary to have an understanding of the relationship of the parties. Genealogy of D1-Sekkadi Rowther is under: 5. Since O.S.No.5 of 1979 is the comprehensive suit, parties would be referred as in their rank in O.S.No.5 of 1979. 4. For better appreciation of contentious points, it is necessary to have an understanding of the relationship of the parties. Genealogy of D1-Sekkadi Rowther is under: 5. Suit properties relate to I to VI Schedule - Schedule I comprising of 11 items; Schedule II, 45 items; Schedule III, 29 items; Schedule IV, one item Survey No.489/106 (said to have been purchased by D1 in the name of D8); Schedule V one item Survey No.489/114 and Victoria Press (said to be run by the family). Schedule VI contains description of certain impugned documents - sale deeds and settlement deeds. 6. Case of the plaintiff is that his maternal grand father M.S.Amir Moideen was doing grocery and money lending business and that he earned lot of money and purchased several properties in Mudukkur and Vikramam villages. Since M.S.Amir Moideen had no male issue, he bequeathed his properties in favour of D1 and his two elder brothers and D6. It is the further case of the plaintiff that the said M.S.Amir Moideen also purchased some properties which are mentioned in plaint Schedule I to III in the name of D1 benami. However, intending to bequeath all his properties, the said M.S.Amir Moideen executed a registered Will (Ex.A-1) on 23.6.1940 bequeathing his property to them. M.S.Amir Moideen died on 15.3.1945 and the Will came into force from that date. After the death of M.S.Amir Moideen D1 was managing the entire estate of M.S.Amir Moideen, assisted by the plaintiff and his brothers. As per Ex.B-2, a partial partition was effected on 1.7.1957 between the plaintiff and defendants 2 to 5 in which some properties were given to D3 and rest of the properties were retained by the plaintiff and his brothers. Some properties were left undivided to be divided later on. In 1961, D4 filed a partition suit in O.S.No.19 of 1961 on the file of the District Court, Thanjavur in respect of those properties which were not included in O.S.No.19 of 1961. Only decree for partial partition was passed in O.s.No.19 of 1961 (Ex.A-23 judgment). Thus properties under the plaint schedule I to III were purchased benami in the name of D1 from out of the funds of the estate of M.S.Amir Moideen. Only decree for partial partition was passed in O.s.No.19 of 1961 (Ex.A-23 judgment). Thus properties under the plaint schedule I to III were purchased benami in the name of D1 from out of the funds of the estate of M.S.Amir Moideen. Schedule IV was purchased by D1 from out of the income of other suit items in the name of D8. V Schedule - Victoria Press is run by the family and is leased to D18. Since Schedule IV and V were acquired after the partial partition in 1957, D3 is not entitled to any share in Schedule IV and V. D1 has alienated certain items of properties to D9 to D17 who had set up independent title in those items. Hence, the plaintiff’s suit partition of the suit properties. 7. Pending the suit, Sekkadi Rowther died; however, he filed the written statement claiming ownership of the entire suit items. According to D1, all the suit properties exclusively belong to him. He was enjoying the same as his separate properties and that no amount was utilised from out of the estate of M.S.Amir Moideen in purchasing the same. D2 supported the claim of D1 that the suit properties were the separate properties of D1. However, D2 would state that some of the suit items have been settled on him by D1 and that he is in possession of the same. D2 would further claim that Schedules IV and V are his separate properties wherein he is running a flour mill and press respectively. 8. Defendants 3 to 5 are supporting the claim of the plaintiff by setting up the plea contending that the entire suit items are the properties acquired from out of the estate of M.S.Amir Moideen and that they are available for partition. 9. D4 has set up independent title to Schedule V and Victoria Press and the building thereon and contends that D18 is his lessee who is running the Victoria Press. 10. O.S.No.252 of 1980: This suit on a promissory note was filed by one Swarnambikai against D4 - Mohammed Yusuf and D18 Balasubramanian Chettiar and one Natarajan Chettiar claiming Rs.4,260 on the promissory note with subsequent interest and the cost. The suit was decreed against D4 directing him to pay the amount due on the promissory note and the suit was dismissed against Balasubramaniam Chettiar and the said Natarajan Chettiar. The suit was decreed against D4 directing him to pay the amount due on the promissory note and the suit was dismissed against Balasubramaniam Chettiar and the said Natarajan Chettiar. This suit has not much relevance to the present appeals. 11. O.S.No.109 of 1980: This suit was filed by D4 Mohammed Yusuf for declaration that the promissory note dated 26.3.1966 taken from him by D18 Balasubramanian Chettiar and Natarajan Chettiar in favour of Swarnambikai is not enforceable against him and for recovery of possession of Victoria Press and the building and also for recovery of rent, viz., Rs.3,630. The suit was decreed directing D18 Balasubramanian Chettiar to deliver vacant possession of the suit properties and that D4 Mohammed Yusuf was found entitled to Rs.3,630 as rent with future interest. On the above pleadings and the evidence adduced by the parties, relevant issues were framed in the trial Court. 12. The main points for consideration before the lower Court was whether the suit properties were purchased by late M.S.Amir Moideen, benami in the name of D1 as contended by the plaintiff. Considering the entire circumstances and probabilities, the trial Court found that the suit properties were not purchased by M.S.Amir Moideen benami in the name of D1. On Schedules I to III the trial Court inter alia recorded the following findings: (i) D1-Sekkadi Rowther had substantial properties which were acquired by him from his father T.Amir Moideen and he also made purchase out of his own funds; (ii) that D1 alienated several items asserting his right and title and that those alienations are binding on the plaintiff; (iii) Items 26 to 33 and 36 of II Schedule was not purchased by D1 in the name of D2. Schedule IV: The trial Court negatived the contention of the plaintiff that Schedule IV belongs to him and his brothers, finding that the plaintiff failed to adduce satisfactory evidence showing that Schedule IV was purchased benami in the name of D8. Schedule V: The benami theory set up by the plaintiff of Schedule V was found to be not proved, trial Court found that V Schedule site was owned by D1 and the building thereon by D2. However, the trial Court found that the press and machineries are owned by D.W.2/D4 and that D2 has no right over the same. 13. Schedule V: The benami theory set up by the plaintiff of Schedule V was found to be not proved, trial Court found that V Schedule site was owned by D1 and the building thereon by D2. However, the trial Court found that the press and machineries are owned by D.W.2/D4 and that D2 has no right over the same. 13. Aggrieved over the findings and decree of the trial Court these appeals are preferred as stated above in para (2). 14. Assailing the findings of the trial Court the learned counsel for the plaintiff submitted that when absolutely there is no evidence showing that D1 had any independent source of income to make purchase of such extensive items of properties and in the light of Ex.A-1 Will, the trial Court ought to have accepted the contention of the plaintiff. It is further submitted that the non-mention of the properties in Ex.A1 Will would not in any way affect the claim of the appellant and the trial Court erred in ignoring the value of the evidence. It is further submitted that the intention of M.S.Amir Moideen to benefit his son-in-law and to give him a status in life was not properly appreciated by the trial Court. On items 26 to 33 and 36 in II Schedule, it is submitted that the trial Court has not properly appreciated the purchase of benami in the name of D2 from out of the funds of M.S.Amir Moideen and that the acquisitions made under Exs.A-21, A-22, B-118 and B-119 are also available for partition. Contending that Schedule V and the superstructure thereon belonged to D1 and that plaintiff/appellant, being entitled to share in the same, the learned counsel assailed the findings of the trial Court. 15. A.S.No.399 of 1985: On behalf of appellant/D3 Mohammed Abdullah, assailing the findings, arguments are advanced, almost sailing with the plaintiff. The learned counsel for the appellant/D3 has drawn our attention to the earlier proceedings in O.S.No.681 of 1965 and that D1 who was party to the earlier proceedings is precluded from re-agitating the same matter. 16. A.S.No.936 of 1985: Supporting the findings of the trial Court on the key points, appellant/D2 assails the findings of the trial Court that the Press in Schedule V belongs to him. 16. A.S.No.936 of 1985: Supporting the findings of the trial Court on the key points, appellant/D2 assails the findings of the trial Court that the Press in Schedule V belongs to him. In his elaborate arguments, the learned counsel for the appellant/D2 submitted that the trial Court has not properly appreciated Ex.B-61 Declaration by D2 under the Press Act which is a clinching document showing his ownership of Press. In his elaborate argument, the learned counsel for D2 relied upon Exs.B-1 and B-2 partition deeds contending that there are intrinsic evidence to show that D1 Sekkadi Rowther was having his own properties and that M.S.Amir Moideen had not purchased any property benami in the name of D1. Further reliance is placed upon the earlier proceedings - suit for partition in O.S.No.19 of 1961 and the appeals A.S.No.3 of 1964, A.S.No.666 of 1963 contending that D2 is not a man without means the learned counsel submitted that the findings and the conclusion of the trial Court are based on record and that there is no reason calling for interference excepting its findings on the Press in Schedule B. 17. Transferred A.S.No.675 of 1988: Aggrieved over the direction of the trial Court in O.S.No.109 of 1980, D18 Balasubramanian/lessee has preferred this appeal. On behalf of D18, it is submitted that the finding of the trial Court that the Press and the Machineries are owned by D.W.2/D4 is not sustainable and the trial Court erred in overlooking Exs.B-61 and B-131, precluding D4 from contending that he is the owner of the press. 18. We have carefully considered the rival submissions of all the counsels, judgment of the trial Court and other materials on record. Upon careful consideration of the same, the following points arise for our determination in these appeals: (i) In the light of the earlier partition deed (Ex.B-2) and the decree in O.S.No.19 of 1961 whether the plaintiff is right in contending that the suit properties are purchased in the name of D1 benami by M.S.Amir Moideen for the benefit of the plaintiff and defendants 2 to 5? (ii) Whether in the light of the findings in A.S.No.666 of 1963 and A.S.No.3 of 1964 is it open to the plaintiff to urge that D1 was only in management of the properties? (ii) Whether in the light of the findings in A.S.No.666 of 1963 and A.S.No.3 of 1964 is it open to the plaintiff to urge that D1 was only in management of the properties? (iii) Whether the findings of the trial Court that the site IV Schedule belongs to D1 and not owned by D2 is correct? (iv) Whether the finding of the trial Court that Schedule V, press and the superstructure thereon belongs to D4 is unsustainable? (A.S.No.936 of 1985) (v) Whether D2 and D18 are right in contending that D18 is in possession of the press pursuant to the lease entered into between them-D2 and D18? (Trans.A.S.No.675 of 1988). 19. Points 1 and 2: At the outset we find it necessary to refer to certain facts in the light of which evidence is to be analysed. D1 Sekkadi Rowther had two other brothers as noted below: T.Amir Moideen ————— ————————————————————————— ———————— Maracayer Rowther Died in 1926 Kadar Bava Died in 1944 Sekkadi Rowther (D1) Died during pendency of suit Ex.B-1, Partition deed dated 21.1.1944: 20. Case of the plaintiff is that M.S.Amir Moideen - grand father of the plaintiff was doing Maligai business in large scale at Madukkur and was also doing money lending business. From out of his income M.S.Amir Moideen purchased certain items of the suit properties which are described in Schedule I and III in the name of D1 benami. Ex.B-1 is the partition deed between D1 Sekkadi Rowther and his brother Kadar Bava. In the said partition, D1 Sekkadi Rowther was allotted B Schedule properties. By a careful comparison of the items in Ex.B1 partition deed and the items in the plaint Schedule I to III, we find that most of the items in the plaint Schedule I to III are covered under Ex.B-1 partition deed as noted below: Schedule I - Items 1 to 5 and 7 to 11 Covered in Ex.B-1 - partition deed - Items 14, 17, 18, 7, 20, 16, 17, 18, 10, 11, 12 respectively. Schedule II - Items 1 to 18, 20 to 24, 35, 37, 38 to 44. Covered in Ex.B-1 - partition deed - Items 24, 23, 25, 25, 30, 62, 62, 63, 37, 82, 83, 29, 68, 70, 40, 70, 46, 46, 46, 38, 45, 47, 45, 47, 46, 67, 83, 68, 78, 75, 76, 74, 72 and 74 respectively. Schedule II - Items 1 to 18, 20 to 24, 35, 37, 38 to 44. Covered in Ex.B-1 - partition deed - Items 24, 23, 25, 25, 30, 62, 62, 63, 37, 82, 83, 29, 68, 70, 40, 70, 46, 46, 46, 38, 45, 47, 45, 47, 46, 67, 83, 68, 78, 75, 76, 74, 72 and 74 respectively. Thus most of the items in suit Schedule I to III are demonstrably covered under Ex.B-1 partition deed showing that the properties in Schedule I to III belong to the family of D1 and his brother Kadar Bava. When the properties belong to D1 and his brother Kadar Bava, it is not possible to accept the contention that suit Schedule I to III were purchased benami in the name of D1 by M.S.Amir Moideen. Had it been purchased benami in the name of D1, neither M.S.Amir Moideen nor D1 would have allowed the same to be partitioned among the brothers. Ex.A-1 dated 23.6.1940 Will executed by M.S.Amir Moideen in favour of plaintiff and D2 to 21. D6: Ex.A-1 is the Will under which M.S.Amir Moideen, the same would have been definitely mentioned in Ex.A-1 Will. The non-mention items or the benami purchase in the name of D1 in Ex.A-1 is a strong circumstance, discrediting the plaintiff’s claim of benami. Ex.B-2, dated 1.7.1957 earlier partition deed between plaintiff and his brothers: 22. Earlier plaintiff and his brothers entered into partition under Ex.B-2 partition deed stating that the parties have already partitioned some family items and are in joint cultivation of the properties in Pannai. Plaintiff and his brothers have divided the rest of the properties amongst themselves. In Ex.B-2 the parties have made clear that except some properties at Madukkur and Vikramam which were under Pannai cultivation, the remaining properties were divided and that the properties under Pannai cultivation would be divided later among the brothers. In Ex.B-2 also, there is no mention of the items which the parties have left undivided, agreeing for later division. Had there been any intention of the parties to divide the present suit properties at a later date, the same would have been definitely indicated in Ex.B-2. 23. In Ex.B-2 also, there is no mention of the items which the parties have left undivided, agreeing for later division. Had there been any intention of the parties to divide the present suit properties at a later date, the same would have been definitely indicated in Ex.B-2. 23. From Ex.B-2 the following three things emerge: (i) Only the properties in Madukkur and Vikramam Villages under Pannai cultivation were kept in common, agreeing to be divided at a later time; (ii) No mention about the benami purchase of the properties in the name of D1; (iii) Non-mention of any recital showing any agreement between the parties, agreeing to divide the properties at a later point of time, particularly the suit properties, except the one under Pannai cultivation. Thus from the above it is amply made clear that the plaintiff and his brothers D2 to D5 have already partitioned the family properties. The non-mention of the suit properties in Ex.B-2 clearly shows that the intention of the parties was to treat the suit properties Schedules I to III as the separate properties of D1 - Sekkadi Rowther or D2, as the case may be. 24. At this point, the earlier suit for partition in O.S.No.19 of 1961 filed by D4 is to be referred to. Suit for partition O.S.No.19 of 1961 on the file of the District Court, Thanjavur was filed by D4 against the present plaintiff alleging that he was in management of the estate of M.S.Amir Moideen and calling upon D1 - Moideen Abdul Kadir, the present plaintiff, to render accounts. From Ex.B-6 - plaint in O.S.No.19 of 1961, it is seen that nowhere in the earlier suit D4 has alleged benami purchase in the name of D1 Sekkadi Rowther. Thus, it is amply made clear that the benami theory now set up by D4 in unison with the plaintiff is only an after thought. 25. No doubt, the plaintiff viz., Mohideen Abdul Kadir who was D1 in O.S.No.19 of 1961 has raised the plea that some properties were purchased by their father Sekkadi Rowther from the income of M.S.Amir Moideen which were not included in the suit. Further, in his written statement in O.S.No.19 of 1961 the present plaintiff contended thus: "Sheikadi purchased Schedule III properties with the income from the estate of Ameer Mohideen in the name of defendant and No.2 and they are available for partition. Further, in his written statement in O.S.No.19 of 1961 the present plaintiff contended thus: "Sheikadi purchased Schedule III properties with the income from the estate of Ameer Mohideen in the name of defendant and No.2 and they are available for partition. Another item of property has been purchased by Sheikadi with the income from the estate in the name of defendant No.2. Various other items of properties were purchased by Sheikadi with the income from the estate including Victoria Printing Press which has been installed in the land S.No.489/114 measuring 2 cents in Madukkur village belonging to Sheikadi. Plaintiff has failed to include them in the plaint and the suit is therefore bad." D4, who was the plaintiff in the earlier suit, later filed application for amendment of the plaint to include those items in the suit; but the amendment application was later given up because of the objection raised by D3 thereon. Suffice it to point out that D4 had give up the amendment application for inclusion of certain properties. 26. It may however be noted that in the earlier proceedings the parties have agreed to file a separate suit for partition only in respect of the press. (i) Non-inclusion of the present suit items in O.S.No.19 of 1961. (ii) The plaintiff who was D1 in O.S.No.19 of 1961 did not specifically insist for the inclusion of the present suit items now claimed by him as benami purchase in the name of D1 - Sekkadi Rowther. The above two aspects are the strong circumstances discrediting the plaintiff’s case. 27. Finding of the trial Court in O.S.No.19 of 1961 that the present D2 Abdul Rahim had means to purchase the properties and that there is no satisfactory evidence to show that plaint III Schedule properties were purchased out of the estate of M.S.Amir Moideen was confirmed by the High Court in Appeal Nos.666 of 1963 and 3 of 1964. It is to be noted that during the pendency of the above appeals before the High Court. D4, the plaintiff in O.S.No.19 of 1961 filed petition to amend the plaint to include certain items of properties, viz., 227/4, 213/2, 183/6, 183/5, 174/11, 236/4, 236/5, 320/2, 374/14 and 182/8. Curiously the present suit properties were not sought to be included in the said amendment petition. In fact the said amendment petition itself was directed to be pursued before the trial Court. Curiously the present suit properties were not sought to be included in the said amendment petition. In fact the said amendment petition itself was directed to be pursued before the trial Court. The non-inclusion of the present suit properties in O.S.No.19 of 1961 and finding that certain items thereon were not purchased from the estate of M.S.Amir Moideen militates against the contention of the plaintiff. Had the present suit properties were considered as the family properties, the parties would have definitely included them in the earlier litigation strictly fought out between them. No reasonable explanation is forthcoming for the non-inclusion of these suit properties in the earlier proceedings. 28. The main point for determination is whether the plaintiff has proved that the suit properties were purchased benami in the name of D1 from out of the income of M.S.Amir Moideen. The burden of proof squarely lies upon the plaintiff to prove the benami nature. In determining the benami nature of the transactions, the Courts are usually guided by the following circumstances: (i) The source from which the purchase money came; (ii) The nature and possession of the property after the purchase; (iii) Motive, if any, for giving the transaction a benami colour; (iv) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (v) The custody of the title deeds after the sale; and (vi) The conduct of the parties concerned in dealing with the property after the sale. Jaydayal Poddar v. Bibi Barra, (1994)1 S.C.C. 3. 29. The decision of the Court in determining the benami nature of the transaction is to be based upon legal grounds. Definite evidence is to be let in proving each one of the items/purchase are the benami transaction. As detailed earlier in para (16) most of the items of the suit properties are covered under Ex.B-1 partition deed. For the rest of the properties, the plaintiff has not produced any sale deeds or documents showing that the consideration flew from M.S.Amir Moideen. 30. Exs.A-7, A-11 and A-25 are the sale deeds produced by the plaintiff contending that the consideration for the above sale deeds flew from M.S.Amir Moideen. For the rest of the properties, the plaintiff has not produced any sale deeds or documents showing that the consideration flew from M.S.Amir Moideen. 30. Exs.A-7, A-11 and A-25 are the sale deeds produced by the plaintiff contending that the consideration for the above sale deeds flew from M.S.Amir Moideen. The details of purchase under Exs.A-7, A-11 and A-25 are as below: Sale deed and and exhibit In favour of whom by whom Consideration Ex.A-7 dated 23.6.1920 attested by M.S.Amir Moideen Sale deed in favour of D1 and his brother Maracair Rowther by Srinivasa Iyengar Rs.1,800 Ex.A-11 dated 13.8.1921 Sale deed in favour of D1 Sekkadi Rowther by Silamban Pariyari Rs.100 Ex.A-25 dated 6.6.1920 Sale deed in favour of D1 Sekkadi Rowther and Kadar Bava by Rajagopal Iyengar Rs.1,800 Though Ex.A-7 sale deed is produced, the plaintiff is unable to correlate Ex.A-7 with the suit Survey Number. In fact, M.S.Amir Moideen has attested the same, implying the presence of M.S.Amir Moideen at the time of purchase. Had the consideration been paid by M.S.Amir Moideen, the same would have been definitely mentioned in Ex.A-7; but that is not to be so. We find that mere attestation of M.S.Amir Moideen in Ex.A-7 cannot render D1 a benamidar; more so, when D1 Sekkadi Rowther had purchased the property under Ex.A-7 along with his brother Maracayer Rowther. 31. In the same way, Ex.A-25 is another sale deed in the name of D1 and his brother Kadar Bava. The recitals in Exs.A-25 and A-11 are to the definite effect of payment of consideration by D1 himself. As discussed infra, evidence as to providing of purchase money M.S.Amir Moideen, is found to be wanting. On the other hand, provenly, D1 had extensive properties and had independent source of income. Unless there are strong and compelling reasons, the definite recitals as to the payment of consideration in Exs.A-7, A-11 and A-25 cannot be satisfied. 32. Feeble attempt is made by the plaintiff to prove the payment of money by M.S.Amir Moideen. Admittedly, M.S.Amir Moideen was running a grocery shop. Ex.A-20 is said to be the Day Book in which M.S.Amir Moideen maintained the accounts for his grocery shop. Exs.A-12 to A-17 are said to be the entries stating payment of money by M.S.Amir Moideen for the purchase under Exs.A-11, A-26 and A-27. Admittedly, M.S.Amir Moideen was running a grocery shop. Ex.A-20 is said to be the Day Book in which M.S.Amir Moideen maintained the accounts for his grocery shop. Exs.A-12 to A-17 are said to be the entries stating payment of money by M.S.Amir Moideen for the purchase under Exs.A-11, A-26 and A-27. In the elaborate discussion in para.44 of its judgment, the trial Court expressed doubt about the genuineness of Ex.A-20 Day Book. We also find that the entries in Ex.A-20 Day Book are not properly correlated towards the sale deeds nor which the purchase of suit items. Further the correctness of the entries in Ex.A-20 Day Book is disputed by D2. In para.44 of its judgment, the trial Court has well considered this aspect. In any event, even assuming that any small amount was paid by M.S.Amir Moideen, such payment could only be taken as the benefit conferred upon D1 by M.S.Amir Moideen. Those entries of payment cannot be said to be establishing that M.S.Amir Moideen intended to purchase the property benami in the name of his son-in-law D1. 33. We feel it necessary to refer to the subsequent conduct and the relevant circumstances wherein D1 has asserted his title to the suit properties. For the joint purchase of the items of properties in Vikramam Village, D1’s brother Kadar Bava filed the suit O.S.No.72 of 1944 - D.M.C., Pattukkottai, claiming his 3-1/8th Pangu (Ex.B-128). In the said suit M.S.Amir Moideen did not raise the plea of benami. He had only admitted each party should take their share. Accordingly, D1 and Kadar Bava had taken delivery of their respective properties in the said suit, showing that M.S.Amir Moideen and Kadar Bava and D1 Sekkadi Rowther had taken exclusive possession of the properties in their own right without being placed on the footing of benami sale or purchase. 34. The conduct of M.S.Amir Moideen in asserting his title in respect of Survey No.331/1 - 12 cents is yet another circumstance which considerably weakens the plaintiff’s claim of benami theory. M.S.Amir Moideen had filed Ex.B-33 petition before the Record of Rights Officer and claimed patta in his name wherein he has stated that Survey No.331/1 was purchased benami in the name of D1. Accepting the claim of M.S.Amir Moideen, R.O.R. officer transferred the patta for Survey No.331/1 in the name of M.S.Amir Moideen as per Ex.B-34 order. M.S.Amir Moideen had filed Ex.B-33 petition before the Record of Rights Officer and claimed patta in his name wherein he has stated that Survey No.331/1 was purchased benami in the name of D1. Accepting the claim of M.S.Amir Moideen, R.O.R. officer transferred the patta for Survey No.331/1 in the name of M.S.Amir Moideen as per Ex.B-34 order. Admittedly M.S.Amir Moideen has not put forth the claim of benami purchase in respect of other items, particularly the present suit properties. This would clearly show that M.S.Amir Moideen had no claim for the suit properties. We find when M.S.Amir Moideen was so careful enough in asserting his right over 12 cents in Survey No.331/1 and getting the patta transferred in his name, he would not have remained silent, without raising any objection in respect of larger extent of properties standing in the name of D1. This strong circumstances showing that M.S.Amir Moideen had neither purchased any other property benami in the name of D1 nor asserted his right nor had any claim for other items. 35. Items 9 and 10 - Schedule I: Survey No.500/5 and 500/4: Items 9 and 10 are adjacent to each other. There are two houses in Items 9 and 10. Case of the plaintiff is that M.S.Amir Moideen purchased these items benami in the name of D1. Neither sale deed nor any other evidence is let in showing benami purchase in the name of D1. On the other hand, definite evidence is let in by D2 disproving the plaintiff’s case. Item No.9 - Survey No.500/5 - 0.44 acres was purchased by D2 under Ex.B-119 sale deed under which D2 purchased 32 cents from D1. Total extent of Survey No.500/5 is 57 cents. Out of which D1 settled 19 cents to D19. D2 purchased an extent of 32 cents under Ex.B-119 sale deed. D.W.4 would state that Survey No.500/4 belong to their paternal uncle. In his evidence D2/D.W.4 has spoken about the construction of houses - in item No.10 - D.No.69 and his occupation of the same. D.W.4 is said to be in occupation of the houses in Items 9 and 10. Basing on the evidence of D.W.4 and Ex.B-119, the trial Court had rightly found that the Items No.9 and 10 are not available for partition. 36. D.W.4 is said to be in occupation of the houses in Items 9 and 10. Basing on the evidence of D.W.4 and Ex.B-119, the trial Court had rightly found that the Items No.9 and 10 are not available for partition. 36. Items 26 to 33 and 36 - II Schedule: Though the case of the plaintiff is that these items are also benami in the name of D1, in his evidence, P.W.1 has not specifically spoken about these items nor the facts showing the benami purchase of these items. Perhaps P.W.1 has not spoken about the benami nature of these items, realising the definite evidence showing the purchase by D2. Under Ex.A-21 sale deed (dated 26.8.1955) D2 purchased Item No.28 - Schedule II - Survey No.179/1 from one Ramalinga Gopalar. Likewise, under Ex.A-22 sale deed (dated 12.3.1954) D2 purchased Survey No.489 (Item No.9 - Schedule I) from Mohamed Rowther. 37. As discussed earlier, in O.S.No.19 of 1961 confirmed by the High Court in Appeals A.S.No.663 of 1963 and A.S.No.3 of 1964, it is the definite finding that D2 had sufficient means to purchase plaint III schedule properties thereon and that there is no satisfactory evidence to show that plaint III schedule properties were purchased out of the income of the estate of M.S.Amir Moideen. Schedule III in O.S.No.19 of 1961 relate to Survey Nos.169/9, 169/10, 235/9 corresponding to Items 26, 31 and 27 - II Schedule of the present suit. Thus as per Exs.A-21 and A-22 and the earlier findings in O.S.No.19 of 1961 and the appeals thereon Items 26, 31 and 27 are found to be the separate properties. Plaintiff being a party in O.S.No.19 of 1961 is precluded from claiming those items, as the properties are in the name of D1, as benamidar. 38. D2 claims Items 26 to 32, 35, 36, 39, 43 and 44 of II Schedule properties as his separate properties. According to D2, he has purchased those items under Ex.B-118 (dated 20.4.1962), Ex.B-119 (dated 10.11.1962) and other sale deeds. Exs.B-118 and B-119 being sale deeds of the year 1962, the subsequent purchase after Ex.B-2 partition deed cannot be said to be either for the benefit of the family or to benefit of D1. According to D2, he has purchased those items under Ex.B-118 (dated 20.4.1962), Ex.B-119 (dated 10.11.1962) and other sale deeds. Exs.B-118 and B-119 being sale deeds of the year 1962, the subsequent purchase after Ex.B-2 partition deed cannot be said to be either for the benefit of the family or to benefit of D1. When there is definite evidence that D2 is the purchaser of the above items and holding them as his own, the finding of the trial Court, negativing the plaintiff’s case on Items 26 to 33 is to be endorsed with. 39. Schedule VI sets out description of certain documents under which the suit items were either settled or alienated in favour of D7 to D9 as noted below: Description of document (1) Survey No./Item No. (2) Settlement deed dated 14.10.1971 in favour of D7 S.No.497/2B - Item 5 Schedule I Sale deed dated 29.4.1966 in favour of D9 S.No.489/125 - Item 7, Sch.I Sale deed dated 11.1.1971 in favour of D10 Survey No.321/5 Item No.23/Sch.II Sale deed dated 11.1.1971 in favour of D11 Survey No.178/2 Sale deed dated 9.5.1968 in favour of D12 S.No.320/1 - Item No.21/II Sch. Sale deed dated 9.5.1968 in favour of D13 Survey No.320/14 - Item No.22/II Sc. Survey No.329/17 Sale deed dated 28.7.1971 in favour of D14 Survey No.85/9 Item No.24/III Sch. Sale deed dated 30.12.1971 in favour of D15 Survey No.84/6-Item 22-III Sc. Survey No.84/3 Sale deed dated 16.3.1968 in favour of D16 Survey No.87/2-Item 25-III Sch. Survey No.87/8-Item 26-III. Sale deed dated 7.1.1971 in favour of D17 Survey No.81/2-Item 19-III Sch Survey No.81/1 Schedule VI only contains plaint description of documents, sale deeds or settlement deeds which cover certain suit items as noted above. Schedule VI has relevance only to the limited extent of showing that D1 Sekkadi Rowther was asserting his right and title over the suit items by executing either settlement deeds/sale deeds relating to way back in 1971. Such assertion of right by D1 Sekkadi Rowther is yet another circumstance, disproving the plaintiff’s case. The above sale deeds/settlement deeds are binding upon the plaintiff. He cannot seek to avoid the same and claim partition. In view of the alienations of the items as noted above, they are not available for partition. 40. Such assertion of right by D1 Sekkadi Rowther is yet another circumstance, disproving the plaintiff’s case. The above sale deeds/settlement deeds are binding upon the plaintiff. He cannot seek to avoid the same and claim partition. In view of the alienations of the items as noted above, they are not available for partition. 40. Aggrieved over the allotment of certain items of properties to D4, who was the plaintiff in O.S.No.19 of 1961, D1 Sekkadi Rowther has filed O.S.No.681 of 1985 on the file of D.M.C., Pattukkottai for declaration that the properties belong to him. The suit O.S.No.681 of 1965 renumbered as O.S.No.671 of 1967, D.M.C., Mannarkudi was remanded back on the lower Court; but D1 Sekkadi Rowther did not further pursue the same. The learned counsel for the plaintiff drawing the attention of the Court to the conduct of D1 in not pursuing the suit O.S.No.681 of 1965 amount to D1 himself conceding that some of the properties were purchased benami in his name. As rightly pointed by the trial Court, the present suit properties were not the subject-matter of earlier litigations much less regarding Items which D1 filed the suit O.S.No.681 of 1965. We are of the view that the conduct of D1 has no bearing on the present case. In any event, that conduct cannot be extended and generalised to cover other items also. By that conduct of D1, the present suit properties do not partake the character of benami purchase. 41. C.M.P.No.16608 of 1999 and 8966 of 2001: In support of the contention that for the purchase of certain items consideration was paid by M.S.Amir Moideen, additional documents are sought to be filed by D3, the appellant in A.S.No.399 of 1985. Certain documents are produced to show that D1 had dealt with the properties. As elaborately discussed above, neither the plaintiff nor the defendants 3 to 5 who are in unison with the plaintiff, had convincingly proved that the suit properties Items 1 to 3 were purchased from out of the funds of M.S.Amir Moideen. For the reasons discussed above, at this distant point of time, we are not inclined to accept the additional evidence. More so, when D3 has not convincingly set forth the reasons for not producing them at the early point of time. 42. Plaintiff has not convincingly discharged the burden cast upon him to prove the benami nature of the suit items. More so, when D3 has not convincingly set forth the reasons for not producing them at the early point of time. 42. Plaintiff has not convincingly discharged the burden cast upon him to prove the benami nature of the suit items. When most of the items are covered under Ex.B-1 partition deed, the theory of benami set up by plaintiff is to be disbelieved. Neither payment of consideration nor motive for such purchase and other compelling circumstances are proved by the plaintiff. In that view of the matter, we confirm the following findings of the trial Court on Schedule I to III: (i) that the items were not purchased benami in the name of D1 by M.S.Amir Moideen; (ii) the finding that items 26 to 33 and 36 were not purchased benami in the name of D2 and are his separate properties. 43. The resultant position is that most of the items in Schedule I to III are the self-acquisition of D1. In fact, on the footing of the self-acquisition nature of the suit properties, the plaintiff himself alternatively claimed 4/32 shares. The properties alienated under the sale deeds or settled in favour of other defendants are not available for partition. Likewise properties found to be owned by D2 are also not available for partition. 44. After careful consideration of all the circumstances and upon hearing both the parties, the trial Court found that 48 cents in Item 4, entire extent of Items 6, 11 of I Schedule, Items 10 to 20, 37, 38, 40 to 42 and 45 in II Schedule and Items 2 to 18, 20, 21, 23 and 27 to 29 in III Schedule are only available for partition. We find no reason to take a different view. The conclusion of the trial Court as to the entitlement of the shares of plaintiff and defendants as indicated in para.71 of its judgment is to be confirmed. 45. Point No.III: Schedule IV - Survey No.489/106: Case of the plaintiff is that Schedule IV was also purchased in the name of D8 (wife of D2) from out of the funds of M.S.Amir Moideen for the benefit of the plaintiff and D2 to D5. Absolutely no evidence is adduced showing that Schedule IV was purchased benami in the name of D8. Absolutely no evidence is adduced showing that Schedule IV was purchased benami in the name of D8. On the other hand, convincing evidence is let in by D2 and D8 that Schedule IV was purchased by D8 out of her own funds and the funds provided by her husband D2. Ex.B-66 (17.6.1958) is the sale deed in favour of D8 by one Abdul Khader. Consideration of Rs.1,200 was paid by D8 herself on the date of execution of Ex.B-66 and the balance consideration was to be paid towards the discharge of mortgage debts. As per the recitals in Ex.B-66, D8 discharged mortgage debts and Exs.B-67 to B-69 are the discharged mortgage deeds. 46. Independent source of income of D8 is well proved by the evidence of D.W.4 - husband of D8 and D.W.3 brother of D8. According to D.W.4 he is doing ready-made business and that he has possessed of sufficient funds and that he contributed amount for the purchase of Schedule IV in the name of his wife. Further in the family partition of D8 (as per Exs.B-70 and 71) B Schedule was allotted to D8. Supporting the evidence of D.W.4, D.W.3 brother of D8 has clearly stated about the giving away the family properties worth Rs.30,000 to D8. For their portion allotted in B schedule patta is also granted in favour of D8. It is not as if D8 is without property or a pennyless woman. From the evidence of D.Ws.3 and 4 independent source of income of D8 is well proved. Hence, in all probability, for the purchase of Schedule IV and construction of flour mill, D8 herself must have raised the funds of her own. 47. In his evidence D.W.4 has clearly spoken about the construction of flour mill in Schedule IV out of his own funds and raising money from his wife D8. Independent claim of D2 over the flour mill is well established by the overwhelming evidence. Ex.B-74 is the ground-rent patta in the name of D8 for IV Schedule. Exs.B-76 to B-78 are the Blue prints and Health Officer Certificate and permission granted by the Executive Officer for constructing the flour mill and also for installation of 20 H.P. motor therein in the name of D2. Ex.B-79 is the Panchayat Resolution, authorising D2 to conduct flour mill. Exs.B-76 to B-78 are the Blue prints and Health Officer Certificate and permission granted by the Executive Officer for constructing the flour mill and also for installation of 20 H.P. motor therein in the name of D2. Ex.B-79 is the Panchayat Resolution, authorising D2 to conduct flour mill. Exs.B-80 to 86 are the correspondence regarding the purchase of 20 H.P. motor by D2 for the installation in Schedule IV. The construction and running of flour mill in Schedule IV by D8 is well proved by sufficient evidence. Absolutely no evidence is let in by the plaintiff and defendants 3 to 5 proving that the flour mill stands in the name of D2 benami. We confirm the findings of the trial Court on Additional Issue No.5 that the IV Schedule and the flour mill thereon is the separate property of the defendants 2 and 8. 48. Point No.IV: Schedule V: This schedule refers to Survey No.489/114 - 0.01-1/3 - vacant site and Victoria Press building thereon. D4 claims to be the owner of the Press and Machineries thereon. Case of D4 is that he has purchased Machineries and started Victoria Press in Schedule V and that they are his exclusive properties. Further case of D4 is that he had leased out the same to one Farooq and then to one Kamal and then to D18 Balasubramaniam who is presently running the press under e lease agreement with D4. Claiming arrears of rent from 1.1.1972 to 30.9.1974 and for recovery of possession D4 has filed O.S.No.109 of 1980. With regard to the tenancy set up by D4, D18 has denied any such lease agreement with D4. According to the lessee - D18 he entered into a lease agreement with D2 on 9.2.1966 and became a lessee under him and that he has nothing to do with D4. The second defendant has set up rival claim for the press and the Press Machineries. According to D2, he purchased the Press Machineries through one Karuppiah Chettiar. D2 mainly relies upon the Declaration (Ex.B-61) submitted by him under the Press Act. 49. There is no dispute that the vacant site in Survey No.489/114 belonged to D1, who settled the same to D2 under Ex.B-64 settlement deed. Absolutely there is no evidence showing that the plaintiff and his other brothers viz., D3 and D5 have constructed Press buildings and installed the Press Machineries. 49. There is no dispute that the vacant site in Survey No.489/114 belonged to D1, who settled the same to D2 under Ex.B-64 settlement deed. Absolutely there is no evidence showing that the plaintiff and his other brothers viz., D3 and D5 have constructed Press buildings and installed the Press Machineries. The trial Court rightly found that Schedule V and the press thereon is not available for partition. 50. However, in view of the rival claims for the ownership of the Press Machines put up by D2 and D4 and the contentious points involved in Transferred A.S.No.675 of 1988, the inter se dispute between D2 and D4 regarding the ownership of Press and the Machineries is also to be considered in the light of the evidence let in by the parties. As said earlier, the ground site is settled in favour of D2 under Ex.B-64. Since the site is settled in favour of D2, the trial Court found that the Press building also must have been constructed only by D2. Nothing substantial is brought out on record by D4 showing the construction of press building by him. Hence, the finding of the trial Court that D2 is the owner of the site and the press building is to be affirmed. 51. The main point for determination arising in A.S.No.675 of 1988 is to resolve the dispute relating to the ownership of the Press and Machineries thereon. 52. D2 claims right and ownership of the Press and the machineries thereon. Absolutely no evidence is adduced showing the purchase of Press Machineries and running of the Press. While D2 was careful enough to preserve the documents relating to the installation of motor pump set for running the flour mill in Schedule IV, if really D2 purchased the Press Machineries and installed the same, he would have been careful enough to preserve the relevant documents. The non-production of any such documents disproves the claim of D2 over the Press and Machineries. 53. As against the case of D2 lacking in evidence, D4 has adduced innumerable evidence showing purchase of Printing Machines and running of the press. Case of D4 is that he purchased the Printing Machines from one Rajammal on 13.8.1957. As seen from Ex.B-36 it is clear that the said Rajammal was running the Printing Press at Madras in the name of Victoria Press. Case of D4 is that he purchased the Printing Machines from one Rajammal on 13.8.1957. As seen from Ex.B-36 it is clear that the said Rajammal was running the Printing Press at Madras in the name of Victoria Press. Ex.B-36 is the proceeding of the Director of Controller of Commodities dated 16.2.1950 granting exemption to Rajammal under the provisions of Paper Control (Economy) Order, 1945. Exs.B-37 and B-38 would further show running of the press at Madras by the said Rajammal. Under Ex.B-9 the said Rajammal sold the Printing Press Machines to D4. Exs.B-10 to B-12 and B-25 are the correspondence made by D4 for starting the press. D4 has produced number of other documents - Electricity Bills (Exs.B-13 and B-15), payment of Professional Tax for running the press (Ex.B-14) corresponding with various Paper Companies addressed to D4 in his capacity as Proprietor of the press (Exs.B-20 and B-21) and other documents. Various correspondence with Banks, Insurance Companies, as elaborated in paragraph (50) of the judgment of the lower Court would clearly D4’s ownership of the press and running of the press by him. 54. In support of his rival claim, D2 mainly relies upon (i) Ex.B-61 Declaration under the provisions of the Press Act 25 of 1867; (ii) In Ex.B-131 copy of the registered lease deed dated 24.3.1961 executed by Kamal in favour of D2. Ex.B-61 and B-131 cannot conclusively establish the ownership of D2 over the printing press. As rightly pointed out by the trial Court, nowhere in Ex.B-131, D2 is described as the owner of the press. D2 might have given Ex.B-61 Declaration because of the site in Survey No.489/114 and the press building thereon standing in his name. The lease deed Ex.B-131 might have been taken in the name of D2 because of the Declaration given by him under the Press Act. We find Exs.B-61 and B-131 cannot upset the innumerable documentary evidence adduced by D2. 55. D18/D.W.15 against whom O.S.No.109 of 1980 was filed, examined as D.W.15, has stated that he became the tenant under D2. Neither the lease deed executed in favour of D2 nor other convincing evidence is let in showing the subsistence of lease agreement between D2 and D18. Perhaps to avoid any eviction and the subsequent proceedings thereon, D18 might have adopted the plea of lease agreement with D2. Neither the lease deed executed in favour of D2 nor other convincing evidence is let in showing the subsistence of lease agreement between D2 and D18. Perhaps to avoid any eviction and the subsequent proceedings thereon, D18 might have adopted the plea of lease agreement with D2. Even if D18 had any such lease agreement with D2, it is of no relevance in determining the inter se dispute between D4 and D2. Perhaps, in view of the Declaration given by D2 under the Press Act, to avoid any possible questioning from the Authorities, the lease deed might have been taken in the name of D2. We find that by itself cannot establish any privity of contract between D18 and D2. 56. D18 has stated that he had paid the rent to D2. Perhaps due to the misunderstanding between the brothers, D18 might have paid the rent to D2 which would not in any way conclusively prove the ownership of the printing press of D2. In his evidence, D4 has clearly stated about collecting of rent from D18. Sparse evidence let in by D2 cannot out-weigh the innumerable evidence let in by D4 showing his ownership of the Printing Machineries and the press. In O.S.No.109 of 1980 the trial Court finding him to be the owner, has directed D18 to deliver vacant possession. Necessarily that finding of the trial Court is to be upheld. 57. Upon re-appraisal of the evidence, we are of the considered view that the findings of the trial Court reflect the evidence on record. We find that the learned trial Judge has carefully analysed the entire evidence. Considering the evidence and weight of probabilities and other circumstances, we find no reason warranting interference in the well considered judgment of the trial Court. 58. A.S.Nos.390, 399 and 936 of 1985: Therefore, the common judgment and decree of the Subordinate Judge, Pattukkottai in O.S.No.5 of 1979 (dated 28.12.1983) is confirmed and these appeals are dismissed. 59. Tr.A.S.No.675 of 1988: Therefore, the judgment and decree of the Subordinate Judge, Pattukkottai in O.S.No.109 of 1980 (common judgment in O.S.No.5 of 1979) is confirmed and this appeal is dismissed. 60. In view of the relationship of the parties and other circumstances, there is no order as to costs.