1. In this case the defendant's grandfather took an assignment of a mortgage from a creditor of the family to which the plaintiffs' and defendants' ancestors belonged. He simultaneously took a sale-deed of the one-third interest of one of his two brothers in the family house for Ks. 188 of which Rs. 123-8-0 represented that brother's share of the debt and thus became the full owner of that brother's share as well as his own share over which the mortgage became extinguished by merger.
2. He did not take any proceedings to recover the amount secured by the mortgage or a proportionate part thereof from the plaintiffs' grandfather's share and his right to do so was at the date of this suit barred by limitation.
3. In a suit by plaintiff for partition the defendant claims to set off the amount by which the plaintiff's estate has been benefited through the defendants' grandfather's omission to bring it to sale in pursuance of his rights as assignee mortgagee.
4. The Lower Courts have called upon the plaintiff to pay Rs. 123-8-0 as an equitable set-off before being put in possession of his share of the family property.
5. We do not think the defendants are entitled to this set off. At the date of partition there was no outstanding equity in the defendants' favour. They allowed their separate claim against the family property to become time barred with the result that at the date of suit there was no outstanding debt which they were legally entitled to recover.
6. This case resembles that of Vellayappa Moothan v. Krishna Moothan (1917) 34 M.L.J. 32 in which it was held that a debt of a joint family to a partnership in which some of the members of a joint family were partners could not be treated as an item of account in the partition suit, when the debt had become barred. Several cases have been cited in which equitable set-offs have been allowed when taking accounts at the time of partition even though those claims were barred by limitation, but they are all cases in which the claims arose: out of the same transaction or were so closely connected together that in taking accounts it became necessary to set off some debit items against other credit items. In this case there is no such connection between the separate title of the defendants' ancestor under the mortgage and the present right of the members of the family to have an equal division of the family property. The liability of a joint family to individual members is not assets or property to be brought into the hotchpot at division see the observations of Sadasiva Aiyar, J., in Vellayappa Moothan v. Krishna Moothan (1917) 34 M.L.J. 32.
7. The appeal must be allowed and the direction that plaintiff should pay Rs. 123-8-0 will be struck out of the decree. Plaintiffs will get one-third of their costs throughout.
8. The memorandum of objections is dismissed without costs.