1. The appellant's first contention is one of limitation. This plea was not taken in either of the Lower Courts or even in the original Second Appeal petition; but only in a memorandum of supplementary grounds of appeal. In such circumstances we should only allow it to be raised, if we are certain that its legitimacy can be determined on the pleadings, and that it depends on no possible question of fact regarding which the party adversely affected might have adduced evidence. The appellant relies on the recent Full Bench ruling reported in Doraisami v. Nondisami Saluvan (1912) 25 M.L.J. 405 and contends that as it is clear from the plaint that the plaintiff's elder brother (3rd defendant) attained majority more than three years before the institution of the suit, Section 7 of the Indian Limitation Act will apply and the plaintiff's suit will be time barred. There is no allegation in the pleadings that the 3rd defendant was the managing member of the family and as such in a position to give a discharge on behalf of the plaintiff and the 1st respondent's vakil does not admit so much. The appellant points out that in the Full Bench case the status of managing member appears to have been inferred from the relationship; but under the special circumstances of this case and in view of the danger of the plaintiff's being prejudiced by a technical plea raised at so late a stage we are not disposed to proceed on such an assumption here. Moreover the plaint specifically alleges that the 3rd defendant had been colluding with the 1st defendant and this is also a matter which might have to be taken into consideration in determining the applicability of Section 7 of the Indian Limitation Act. After careful consideration, we do not think we should be justified in allowing the plea of limitation and we therefore disallow it.
2. It is next argued that the finding of the District Judge on the 1st issue is vitiated by his refusal to consider Exhibit V. A reference to the evidence shows that the evidence on record was not sufficient to justify the admission of this document; on the other hand the 1st respondent does not seem to have objected to its admissibility in the District Munsif's Court. The objection was, however, specifically put forward by the 1st respondent in his appeal petition to the District Court, and it does not appear that any application was made to the District Judge to take fresh evidence as to its admissibility. We cannot say that in these circumstances the District Judge's refusal to consider it was illegal (vide also Kanto Prashad Hazari v. Jagat Chandra Dutta I.L.R. (1895) C. 335 and Section 165 of the Indian Evidence Act); and we refuse to interfere with his finding.
3. The next plea now set up, that the suit was barred by reason of Exhibit VI, does not appear to us to have been taken in either of the Lower Courts and we cannot allow it to be raised now.
4. It is then argued that the District Judge has not found as regards the sum of Rs. 100 which is said to have formed the cash part of the consideration for Exhibit II. If this sum was borrowed for family purposes, it may be that the 1st defendant is entitled to recover a moiety of it from the plaintiff, as a condition precedent to the rendition of the plaintiffs share of the properties conveyed by Exhibit II. We can find nothing in the judgment of the learned District Judge to indicate that he considered this point, or that he differed from the finding of the District Munsif as regards the sum in question. We must, therefore, call for a finding on the following issues:
1. Was the cash consideration of Rs. 100 recited in Exhibit II received by the 2nd defendant for family purposes binding on the plaintiff?
2. Is the plaintiff bound to refund a moiety of it before recovering his share of the plaint property?
5. We must also ask for a finding on the second issue framed by the District Munsif the decision of which became necessary on the District Judge's finding on the first issue but was apparently overlooked by him.
6. The findings should be submitted within three months from this date and 7 days will be allowed for filing objections.
7. In pursuance of the order contained in the above judgment, the District Judge of Coimbatore found in favour of the plaintiff on all the issues, holding on the (1) and (2) issues that a sum of Rs. 100 was not received by the 2nd defendant for purposes binding on the plaintiff and that consequently the plaintiff was not bound to pay a moiety of it before recovering his share of the property, and on the last issue that the 1st defendant was not entitled to recover any amount for improvements as he could not have believed in good faith that he was entitled to the land.
8. On receipt of the above findings the Court accepted the findings of the District Judge and dismissed the second appeal with costs.