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Ramasamy Pillai and ors. Vs. Marimuthu Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1928Mad764; 113Ind.Cas.865
AppellantRamasamy Pillai and ors.
RespondentMarimuthu Goundan and anr.
Cases ReferredSubbayya v. Challamma
Excerpt:
- - the rule, that in a mortgage suit the title of a third party paramount to that of the mortgagor and mortgagee cannot be enquired into, is now well established: all the contesting defendants in that case raised the objection that the suit was bad for misjoinder of parties and of causes of action. it will be seen by an analysis of the above cases that in all of them the paramount title pleaded was of a party different from the mortgagor and the suit would have been bad for multifariousness if the point was considered. issues were framed originally-not in very happy language-to cover those contentions; 425, the position in a suit for sale on a mortgage is clearly stated: if a defendant in a mortgage suit, who is on the record properly in one capacity, is allowed in an entirely.....ramesam, j.1. this appeal arises out a suit tiled on a mortgage bond (ex. a), dated 6th april 1907, executed by muthuswami goundan, grandfather of the two defendants. the mortgagor died on 1st september 1915 his son, kandaswami goundan, the father of the two defendants, died in 1917 or 1918. the suit was filed on 6th february 1920. the plaint alleged that the mortgage debt was taken for the purposes of the defendants' family, for paying antecedent debts and meeting necessary expenses of the family, and that the defendants are the undivided grandsons of the mortgagor. the defendants denied these allegations. they alleged that the mortgagor had no right to the suit properties, that they never formed part of the joint family properties of the mortgagor or his son and they also denied that.....
Judgment:

Ramesam, J.

1. This appeal arises out a suit tiled on a mortgage bond (Ex. A), dated 6th April 1907, executed by Muthuswami Goundan, grandfather of the two defendants. The mortgagor died on 1st September 1915 His son, Kandaswami Goundan, the father of the two defendants, died in 1917 or 1918. The suit was filed on 6th February 1920. The plaint alleged that the mortgage debt was taken for the purposes of the defendants' family, for paying antecedent debts and meeting necessary expenses of the family, and that the defendants are the undivided grandsons of the mortgagor. The defendants denied these allegations. They alleged that the mortgagor had no right to the suit properties, that they never formed part of the joint family properties of the mortgagor or his son and they also denied that the mortgagor was manager of the family at the time of the mortgage. They pleaded that the property belonged solely and exclusively to Marimuthu Goundan, father of the mortgagor and grandfather of the defendants, that the mortgagor never lived jointly with his father and the properties were bequeathed in favour of the defendants by Marimuthu Goundan by a registered will dated 1st August 1907, The plaintiff anticipated these allegations in para. 5 of the plaint and alleged that the will was a collusive document brought about for the purpose of defrauding him. Both sides filed draft issues. One of the issues in each of the drafts was:

Are the suit properties the self acquisition of defendants' great-grandfather and had the mortgagor no right or title to mortgage the plaint properties?

2. The issues, as finally settled by the Court, also raised such an issue (issue 2). This was on 16th March 1920. In April 1921 defendant 1 attained majority and filed another written statement repeating the old pleas. On 18th July 1922 the Subordinate Judge passed an order striking off issues 2, 5 and 6 on the ground that they raise the question of a paramount title and that such a title cannot be gone into in a mortgage suit. The remaining issues were tried and a decree was given in favour of the plaintiff allowing an interest of 20 per cent. from the date of default, i. e., 5th February 1908, on the aggregate sum then due.

3. The main appeal was filed by the plaintiff. He claims 18 per cent. compound interest. The document itself provided 24 per cent. compound interest form the date of. default, but the plaintiff appellant is content with' 18 per cent. compound interest. The respondents-defendants have filed a memo of objections. In this they contend that the Court below erred in striking out issues 2, 5 and 6 and now wish the issues to be tried. It will be convenient to take this point first. The rule, that in a mortgage suit the title of a third party paramount to that of the mortgagor and mortgagee cannot be enquired into, is now well established: see Jaggeswar Butt v. Bhulan Mohan Mitra [1906] 33 Cal. 425. In that case, the plaintiff had so framed the plaint as to implead persons who claimed a paramount title. All the contesting defendants in that case raised the objection that the suit was bad for misjoinder of parties and of causes of action. The Subordinate Judge disallowed the objection. There was an appeal by the defendants who repeated the objection that the suit as framed was multifarious. Mukerjee, J., exhaustively reviewed all the authorities on this matter. He referred to the decision in Nilakant Bannerji v. Suresh Chandra Mullick [1886] 12 Cal. 414, a decision of the Judicial Committee. He pointed out that their Lordships observed that if the defendants who alleged a paramount title in this had been allowed to remain as parties, the suit would have been multifarious and confused in the highest decree if it had gone on in that shape.

4. He distinguished the decision Hare Krishna Bhowmik v. Robert Watson & Co. [1904] 8 C.W.N. 365, on the ground that in that case there was no objection to the trial of the third party's title in the Court below and that objection was taken for the first time on appeal and was properly disallowed. He then referred to the English and American authorities. At p. 439 he said:

It is hardly necessary for the present purposes to investigate whether this rule has any and, if any, what exception.

5. He then held that the case before him fell within the scope of the ordinary rule. He allowed the appeal and after expunging the third party from the suit, modified the decree. In Joti Prasad v. Aziz Khan [1908] 31 All. 11, this decision was followed. In that case also the third parties claiming the paramount title were parties other than the mortgagor or his representatives, but their title was pleaded by the defendants and the objection to its investigation was raised by the plaintiffs. In Radha, Kunwar v. Reoti Singh A.I.R. 1916 P.C. 18, the Privy Council observed at p. 491 (of 38 All.-Ed.)

They made, as parties to that suit, not merely the people who claimed under the mortgagors, but also certain people who had set up adverse claims to the mortgaged property, among whom the appellant was one. Their Lordships think that this joinder of the parties was irregular, and that it could only tend to confusion.

6. In Gobardhan v. Munna Lal [1918] 40 All 584 also a third party was impleaded along with the mortgagors as claiming a paramount title, but the point was disallowed, and it was held there was no res judicata in a later suit. In Kalidas Roy v. Girindra Mohan A.I.R. 1921 Cal. 343 a husband and wife executed a mortgage. After the husband's death the suit was brought against the wife and the sons of the mortgagors. After the suit was filed the wife also died. The sons were then placed on record as representatives of the mother also. They then sought to raise a new plea by claiming that the mortgage did not bind their interest as reversioners in the estate of the maternal grandfather after the mother's death. It was held that this plea could not be raised. To allow it would have been to permit the addition of a new written statement in the course of the suit and it was a mere accident that the representatives of the father and the representatives of the mother happened to be the same. They might have been different. It will be seen by an analysis of the above cases that in all of them the paramount title pleaded was of a party different from the mortgagor and the suit would have been bad for multifariousness if the point was considered. It is in that form that the objection was stated by the Privy Council in Radha Kunwar v. Reoti Singh A.I.R. 1916 P.C. 18, Nilakant Bannerji v. Suresh Chandra Mullick [1886] 12 Cal. 414, and by Mukerjee, J., in Jaggeswar Dutt v. Bhuban Mohan Mitra [1906] 33 Cal. 425.

7. In Nafar Chandra v. Ratnamala Devi [1910] 15 C.W.N. 66, the suit was filed against the legal representative of the mortgagor. She set up her own paramount title. The District Munsif gave the plaintiffs a decree; on appeal by the defendant the plaintiff's suit was dismissed. In that appeal the defendant seemed to have taken an objection that the suit should not proceed against her as she claimed a title paramount to that of the mortgagor. On second appeal by the plaintiff, the objection was repeated, but was again overruled. Mukerjee, J, observed that the rule in Jaggeswar Dutt v. Bhubhan Mohan Mitra [1906] 33 Cal. 425 is subject to exceptions. One such exception is of the kind dealt with in Bhaju Chowdhury v. Chuni Lal Marwari [1907] 11 C.W.N. 284. That case does not help us here, as it is a case of subsequently acquired title: see also Raj Nath v. Narain Das [1914] 35 All. 567. He seemed to have laid down that the case before him illustrates a second exception. I do not wish to proceed to the full extent as laid down by him, for it seems to me, while there was no case of a joinder of parties and causes of action, certainly there is a mixture of causes of action between the same parties. It does not matter who raises the paramount title and who puts forward the objection'. Whoever wishes to object to the trial, it seems to me, is entitled to point out that the trial involves the consideration of more than one cause of action between the same parties. The case would then fall within the principle of Order 2, Rule 3, Civil P.C. Whether the plaintiff joined the two causes of action against the same defendant, or the defendant raised the other title as a defendant, if it appears to the Court that they cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient: vide Order 2, Rule 6: In Rukmani Ammal v. Ankamma Naidu A.I.R. 1926 Mad. 744, the point was not raised in appeal in this form. The only point argued was what was the proper form of the decree against defendant 3. As a matter of fact the paramount title was considered both by the Court below and by Venkatasubba Rao, J., in appeal and was found against. That case does not help us.

8. Our attention has also been invited, after the arguments are closed, to a decision in M. V. A. L. Viswanathan Chettiar v. Ma Aye A.I.R. 1926 Rang. 208. That decision purports to rely on Order 34, Rule 1, but I do not see how that rule which lays down who shall be made parties to a mortgage suit can guide us in a case where the question is who may be made parties or whether an existing party may raise a particular defence. Though the case in Jaggeswar Dutt v. Bhuban Mohan Mitra [1906] 33 Cal. 425 was referred to, the one in Nafar Chandra v. Ratnamala Devi [1910] 15 C.W.N. 66 was not. I am not able to agree with that decision. In the present case, both the parties raised the question of paramount title. Both the parties submitted their draft issues wishing its trial. Until two years after the framing of the issues there was no objection. Under such circumstances, there is no justification for allowing an objection of this kind at a very late stage of the suit. Moreover, the course we are now taking practically amounts to having separate trials of the question of paramount title and the other questions in the case. As there is no possibility of confusion or inconvenience now and as, on the other hand, it is desirable that all the questions of title relating to the mortgage property should be settled before it is brought to sale. I think the most proper course will be to call upon the Subordinate Judge to try issue 2 and issue 5 as recast by my learned brother and submit a finding on them. I agree with my learned brother that no finding is necessary on issue 6. Fresh evidence will be allowed. Two months for findings and ten days for objections.

Reilly, J.

9. The more important part of the case before us is the memorandum of objections presented by defendants 1 and 2. The Subordinate Judge has proceeded on the assumption that at the date of the mortgage the mortgagor, his father, Marimuthu Goundan, his son, Kandasami Goundan, and his grandsons, defendants 1 and 2, were members of a joint family; but, as he has found that the mortgagor was not manager of the joint family, he has exonerated Marimuthu's half-share of the property concerned from liability under the mortgage. Of the principal of the mortgage money the Subordinate Judge has found only Rs. 851-8-0, to represent antecedent debts of the mortgagor, and that amount he has declared to be binding on the defendants' quarter-share of the property. The remainder of the principal, viz., Rs. 143-8-0, he has found to be binding only on the mortgagor's quarter-share, on which the Rs. 851-8-0 also is binding. These findings are not disputed by the plaintiffs on appeal. But the defendants contended in the suit that the mortgagor, their grandfather, never had any interest in the property to mortgage and that it belonged exclusively to their great grandfather, Marimuthu, who by his will Ex. 1, devised it to them. Issues were framed originally-not in very happy language-to cover those contentions; but, when the suit came on for final hearing before the Subordinate Judge more than two years later, he struck out those issues and amended issue 1 on the ground that no paramount title set up by the defendants could be investigated in a suit on the mortgage. In their memorandum of objections the defendants contend that their allegations that the property concerned belonged exclusively to Marimuthu and was devised by him to them should have been tried. I think it can hardly now be disputed and I do not understand Mr. Krishnaswami Ayyar for the defendants seriously to dispute-that in a suit on a mortgage between the mortgagor and mortgagee or their representatives a third party should not be brought in to set up a paramount title adverse to that of the mortgagor. That is implied in remarks made by their Lordships of the Privy Council in Nilakant Banerji v. Suresh Chandra Mullick [1886] 12 Cal. 414, and Radha Kunwar v. Reoti Singh A.I.R. 1916 P.C. 18. In Jaggeswar Dutt v. Bhutan Mohan Mitra [1906] 33 Cal. 425, the position in a suit for sale on a mortgage is clearly stated:

It is not competent for the mortgagee to make as party defendant one who claims adversely to the title of the mortgagor and mortgagee. He is a stranger to the mortgagee, has no connexion with the mortgage, and, as his adverse claim of title cannot in any way be affected by the mortgage suit in which he has no interest, he cannot be made a party for the purpose of litigating such claim or title;

and again:

A plaintiff-mortgagee cannot be allowed so to frame his suit as to draw into controversy the title of a third party who is in no way connected with the mortgage and who has set up a title paramount to that of the mortgagor and mortgagee.

10. This last statement of the position was adopted as correct in Joti Prasad v. Aziz Khan [1908] 31 All. 11. Indeed authority is hardly required in the matter. It is obvious that, if a mortgagee impleads such a third party and prays in effect not only for a decree for sale on his mortgage, but also for a declaration against the alleged paramount title of the third party, his suit is multifarious by misjoinder of separate defendants and separate causes of action. But Mr. Krishnaswami Ayyar contends that the position is different if a defendant, who is properly on record in the mortgage suit, for instance as the representative of the mortgagor, sets up a paramount title, and that in such a case that title can properly be investigated in the mortgage suit. In this he certainly has the support of Nafar Chandra v. Ratnamala Devi [1910] 15 C.W.N. 66. In that case the defendant was properly on record as the legal representative of the mortgagor. When sued properly in that capacity she set up her own independent title to the property concerned under a will. The learned Judges say that the rule that questions of paramount title cannot properly be investigated in a mortgage suit is subject to exceptions and that it would have been an idle formality to compel the mortgagee to institute a suit for a declaration that the property belonged to the mortgagor and to stay the mortgage suit till the disposal of that litigation. There is very little discussion of the point, and the learned Judges refer to Bhaju Chaowdury v. Chuni Lal Marwari [1907] 11 C.W.N. 284. On examination, however, it will be found that the latter ease really turned on other points. On the other hand, in Gobardhan v. Munna Lal [1918] 40 All 584, it was laid down that a puisne mortgagee, made a party in that capacity, could not in another capacity raise a plea of paramount title, nor could that plea be set up for him by the mortgagor. In Viswanathan Chettiar v. Ma Aye A.I.R. 1926 Rang. 208 it was decided that a husband who was on the record in a mortgage suit as the representative of his deceased wife, the mortgagor, should not have been allowed in another capacity to set up in the suit his own right adverse to that of the mortgagor, and the finding of the trial Court that the husband was the owner of a half-share of the property concerned was set aside and the decree modified accordingly.

11. In a recent case of this Court, Rukmani Ammal v. Ankama Naidu, the learned Judges were of opinion that a defendant, who was on record as the widow and legal representative of one of the mortgagors concerned, could not be allowed in that suit to contest the right of her husband, who had executed the mortgage, though it was open to her to set up her own independent title, if she had any, in other proceedings. It is true that the attack of the widow on her husband's title, which was by devise under a will, was discussed in the appeal, as it had been considered by the original Court, and was found to be baseless; but the principle that the widow could not question the right of her husband, whom she represented, or set up her title against his in the mortgage suit, was accepted by both the learned Judges. I prefer to follow the view expressed in the last three cases which I have mentioned, not only because it has been accepted in this Court in one of them, but because it appears to me to be logically correct. If a defendant in a mortgage suit, who is on the record properly in one capacity, is allowed in an entirely different capacity to set up a paramount title, that will widen the scope of the suit and bring in questions foreign to a mortgage suit as effectively as if a third party came in and set up a paramount title. The accident that the two capacities aside in one person will not simplify the proceedings or essentially alter the petition. In assuming 'the second capacity and setting up the alleged paramount title the defendant becomes in effect a third party and sets up separate pleas as a third party. In my opinion Rule 3, Order 2, Civil P.C., does not cover such a case, as the plaintiff's contest on the two causes of action would not really be against 'the same defendants' within the meaning of that rule.

12. But these general principles are not sufficient for the disposal of the defendants' memorandum of objections. Defendants 1 and 2 were not impleaded by the plaintiff, merely as the representatives or successors-in-title of their grandfather, the mortgagor. The plaintiffs contended that, as undivided grandsons of the mortgagor, the defendants' interests in the property concerned were liable for the mortgage debt, and the Subordinate Judge found that that was so in respect of far the greater part of the debt. The plaintiffs also alleged that the mortgagor, as manager of the joint family, of which he and the defendants were members, took the mortgage advance for joint family purposes and for that reason also the mortgage was binding on the defendants' interests in the property. That is to say, the plaintiffs contended that the defendants were constructively parties to the mortgage, and in that sense the plaintiffs properly impleaded the defendants in the mortgage suit as constructive mortgagors. As parties so impleaded the defendants answered in their written statements that the property concerned was not, and never had been, joint family property of themselves and the mortgagor, but that it was the separate property of their great-grandfather, Marimuthu, who had devised it to them. On what principle can it be said that that plea was not open to them in the mortgage suit? The plaintiffs impleaded them as constructive mortgagors and so liable under the mortgage. They denied any liability in that capacity. How could any decree properly be made against them in that capacity until their plea had been heard and the contest on it decided? In this aspect of the case the defendants are not in the position of the representatives or successors-in-title of a mortgagor questioning his right to mortgage his own interest in the property concerned. It is alleged that they are themselves constructively mortgagors. They are as much entitled to deny that and to establish their plea in the mortgage suit as a man sued as a mortgagor would be entitled to deny that he ever executed the mortgage in question. Whether they were constructively mortgagors and their interests in the property were in fact mortgaged are questions as pertinent to the mortgage suit as what amount is due on the mortgage. Without a decision that the defendants are constructively joint mortgagors with their grandfather, because the property concerned is their joint family property and, therefore, their interests in it are liable for the mortgage-debt, no decree making their interests liable for it can in reason or justice be made. If the plaintiffs had been satisfied with a decree against the grandfather's interest in the property, whatever it might be, the position would be different. But that is not what they asked for, nor what they have got. When this case is examined, it is seen that it is not so much an instance of a defendant in a mortgage suit setting up a paramount title as of a defendant denying the capacity or character in which he is sued as any defendant in any suit is entitled to do. By the Subordinate Judge's procedure one essential question in the mortgage suit itself has been left undecided.

13. There is also another aspect of the case which must be mentioned. In the plaint it was alleged that after the execution of the mortgage the mortgagor, Muthuswami, and his father, Marimuthu, had fabricated records to show that the property concerned belonged exclusively to Marimuthu in order to defraud the mortgagee and that for the same purpose Marimuthu had executed a will in favour of the defendants. In their written statements the defendants asserted the validity of the will and the exclusive ownership of Marimuthu. Both the plaintiff and the defendants submitted draft issues, which included practically similar issues on these pleas. The Subordinate Judge, when settling the issues to be tried, adopted the draft submitted by the defendants. That was in March 1920. After that the suit was transferred and re-transferred and was adjourned 23 times before further progress was made in it. On 18th July 1922, it came on for final hearing before the Judge who had settled the issues more than two years earlier. On that occasion the plaintiffs contended that the issues regarding Marimuthu's exclusive ownership of the property and the will should be struck out as they related to a paramount title set up by the defendants. The Subordinate Judge accepted the plaintiffs' belated contention on this point, though it was opposed by the defendants, and struck out the issues in question. That procedure appears to me to have been improper and unfair quite apart from the fact that it prevented the defendants from getting a decision on the question whether the property concerned was joint family property, without which the suit against them, even as nothing more than a mortgage suit, could not be properly decided. For two years and four months the defendants were left under the impression that that question would be decided in this suit.

14. In these circumstances the defendants naturally did not think it necessary to protect their interests by instituting a suit for a declaration. Then suddenly the plaintiffs were allowed to turn round and to demand an alteration of the issues which was clearly to the defendants' detriment and which was opposed by them. The Subordinate Judge gave way to the plaintiffs and refused to try issues which he had himself settled, and by, which the defendants had been led to suppose that it was unnecessary for them to take other steps to protect their interests. One result of this is the appearance of a very extraordinary foot-note at the end of the judgment, in which the learned Judge has explained that he has assumed an essential fact on which his decree depends and on which the parties are at issue. Such a disposal of the suit is most surprising and unsatisfactory. But, apart from that, I cannot understand how the learned Judge brought himself to allow the plaintiffs to play fast and loose with the Court as they did. Even though the issues which he originally settled were not all strictly appropriate to a mortgage suit, since they had been framed at the request of the plaintiffs as well as of the defendants, and as it was necessary for the defendants' interests that they should be tried in some proceedings and the defendants had been left so long under the impression that they would be tried in this suit, the learned Judge should not, without the defendants' consent, have struck out any of them at so late a stage. Ha appears to have entirely overlooked Rule 7, Order 2, Civil P.C., which precluded him from even listening to the plaintiffs' objections in July 1922. In the circumstances even issues unnecessary for, or inappropriate to, a mortgage suit should not have been struck out without the defendants' consent at that stage. Mis-joinders even of causes of action, not explicitly forbidden, do not in themselves, affect the jurisdiction of the Court, and, though Courts should guard against them carefully when a misjoinder is not noticed until a late stage, it should not then be corrected even by the Judge at his own instance by striking out issues if that cannot be done without unfairness or prejudice to one of the parties. In such circumstances, if the complication of the suit is found to be really embarrassing, the Judge can always separate the issues or groups of issues and try them separately under Rule 6, Order 2, Civil P.C. I may remark that the present Rule 7, Order 2, Civil P.C., has taken away the force of many old decisions regarding the effect of misjoinder of causes of action.

15. The issues struck out were the original 2nd, 5th and 6th issues. I agree that findings should now be called for on original issues 2 and 5. But the form of the latter issue is very curious, and it should now be recast so as to run:

Was the will, Ex. 1, validly executed by the defendants great-grandfather, Marimuthu Goundan, when he was in a sound disposing state of mind.

16. The original 6th issue regarding adverse possession is unnecessary. If the property in question belonged exclusively to Marimuthu and he devised it to the defendants by the will, Ex. 1, the mortgage does not affect their interest in the property. If the property was joint family property of the defendants and the mortgagor, there can be no question of adverse possession between the defendants and the mortgagee.

17. I agree that the question of interest, which has to be decided on the plaintiff's appeal, should be left over until the findings have been returned.

18. [The following judgment was delivered when the appeal came on for final hearing after the return of the findings by the lower Court.]

Ramesam, J.

19. We called for fresh findings on issues 2 and 5 as recast by us. The Subordinate Judge has now found that the mortgage property was the self-acquired property of Marimuthu Goundan, and that the mortgagor had no right or title to mortgage those properties under Ex. A. He also found that the will, Ex. 1, was executed by Marimuthu Goundan when he was in a sound disposing state of mind.

20. On the first point the history of the family seems to be somewhat as follows: Marimuthu Goundan was aged above 80 and below 95 at the time of his death in 1910. Witnesses give his age variously as 82, 85, and 90 and so on, but in 1907, the date of the mortgage, he was fairly old. In 1885 he acquired a number of lands on darkast. The pattas for these lands are Ex. 10 series. In 1862, under Ex. 3, he purchased a land of 4 vallams and other lands he purchased in 1874 and 1888. In June 1871 he made certain statements, Exs. 11 and 12, according to which 15 vallams out of the lands he then possessed were obtained on darkast and some of the lands were purchased; but, since he was then possessed of something like 33 vallams, there was still a balance of the land in his enjoyment about which no information was forthcoming. There is absolutely no evidence in the case as to whether this was ancestral property or whether it was acquired by him in some other way prior to 1885. From 1871 to 1897 he was dealing with the family properties. In 1889 and 1894 he executed two usufructuary mortgages (Exs. 12 and 9). In 1892 and 1897 he executed simple mortgages, Exs. 7 and 8, in which it was recited that the lands were his self-acquisition, the vernacular being (swayarjitum) and these documents were attested by his son Muthuswami Goundan. The phrase ' acquired by me ' sometimes may be ambiguous in a document executed by a Hindu. It may mean that the property is self acquired in the legal sense of the term, or it may mean that the property was acquired during the regime or by the activities of the person executing the document and not necessarily self acquired in the legal sense of the term, i. e., without using ancestral funds. Even in 1900 Marimuthu was looking after the family affairs because he filed a complaint against the relations of a zamindar and effected a compromise of it Exs: 14 and 14 (a). After that date we do not find that he is taking active part in the management of the property. The defendants' evidence is that Muthuswami Goundan and his son Kandaswami were not leading a good life. Especially about Muthuswami Goundan they say that he was gambling, that he was leaving the house and was roaming about; but they also admit that he was visiting the fields and looking after the cultivation. We have no doubt that the evidence 'of the defendants is exaggerated; but, accepting the evidence of the plaintiffs that Muthuswami was, at any rate, in the latter part of his life, leading a good life, living with his father, looking after cultivation and managing other family affairs, it does not follow that the properties have become joint family properties. We have no evidence in the case that there was any nucleus. No doubt it is very improbable that a person should acquire a large property like 100 acres all by darkast. But, even if he did not get the whole property by darkast, all that we have is we do not know how other property was acquired. In this state of things we think the burden of proof is upon the parties who assert that the property is not self acquired but joint family property, no nucleus being admitted or being proved.

21. The decision in Subbayya v. Challamma [1836] 9 Mad. 477 must be taken to be a decision on the facts of the particular ease. In that case it appears that 'there was some cultivation of the land after darkast and, as the cultivation immediately followed the acquisition, one might presume that it was brought under cultivation by family funds and infer that the acquisition was for the benefit of the joint family. But facts of 'the kind are wanting in this case. There is nothing to show that there were family funds in 1855. There is nothing to show that there were family funds in 1855. It must be admitted that the case is somewhat difficult and it is just possible that the family, after incurring debts under Ex. A, really entered into an agreement to defeat creditors by this will, Ex. 1; but this is speculation on facts which are not proved. We find it difficult to say that the lower Court is. wrong. It is a matter for observation that the plaintiff, who is a money-lender, has not taken the smallest steps to safeguard his transactions by making Marimuthu a party to the mortgage document or getting his attestations or having some recital that he became old and renounced the management of the family or something of that kind. We must, hold that the mortgage, Ex. A, is not binding on the defendants. The only relief that can be given to the plaintiff is on the footing of personal liability. This is barred whether it is three years or six years, so that it is too late evert for a decree being passed on the assets of Muthuswami Goundan in the hands of the defendants.

22. The result is that the appeal is dismissed with costs and the memorandum of objections allowed with costs. The vakils fee on the memorandum of objections will be calculated on the value of the suit as framed by the plaintiff.

Reilly, J.

23. I agree.


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