1. This appeal arises out of a suit brought to enforce the charge created by a security bond (Ex. H) dated 1st May, 1925, executed by one Lakshmanan Chettiar, the uncle of the defendant, to secure repayment of moneys due on dealings that had gone on for some years between Lakshmanan Chettiar and the plaintiff. The plaint stated generally in paragraph 2 that Lakshmanan Chettiar died without issue leaving no other heir except the defendant and that the defendant has succeeded to and has been enjoying the properties of the deceased Lakshmanan Chettiar as his heir. The defendant contended that he and Lakshmanan Chettiar were members of an undivided Hindu family, that, of the two items included in the security bond, item I was the self-acquisition of his father and could not therefore be subjected to a charge by Lakshmanan Chettiar, that item II was the joint property of the two branches to the extent of one-third and that the security bond could accordingly bind only Lakshmanan Chettiar's one-sixth share in item II.
2. Of the issues framed in the case, issues 1 to 3 related to the dealings alleged in the plaint and to the truth of the security bond. Issues 4, 5 and 6 raised the questions which we have above set forth from amongst the defences raised by the defendant. Issue 7 runs as follows:
Whether the defendant is not estopped from questioning the title of the deceased Lakshmanan Chetti to the properties detailed in the security bond?
3. We are not concerned in this appeal with the findings of the lower Court on issues 1 to. 3. On issues 4, 5 and 6 the lower Court declined to record findings, holding that they must be agitated in a separate suit, because the questions raised by them were really in the nature of a plea of a title paramount.
4. On issue 7 the lower Court held that the defendant in his character as the legal representative of Lakshmanan Chettiar was estopped from questioning Lakshmanan Chettiar's title to the mortgaged properties.
5. The defendant who has appealed to this Court contends that there is no hard and fast rule by which the trial of issues 4, 5 and 6 should be relegated to another suit and that it will be in the interests of all parties to have the questions raised by them decided in this suit, so that in One view he may have the opportunity of saving the property by paying off the amount due under the security bond and also that before the sale takes place in execution of the decree, all persons interested may know what exactly is being brought to sale. In the circumstances of the case, there can be little doubt as to what is the most convenient course. It will scarcely be worth the while of a court auction-purchaser unless he is a speculator to purchase in execution of a decree directing the sale of the properties without knowing whether the mortgagor had any title thereto or not and the price fetched at such a sale will in all probability be so low as to cause loss both to the plaintiff and to the defendant.
6. On behalf of the respondent Mr. Patanjali Sastri has, however, argued that the question of the propriety of trying these issues in this suit cannot be determined merely on grounds of convenience but must be decided in the light of the well-established principle that in a suit to enforce a mortgage any pleas in the nature of a claim by way of title paramount are not to be introduced. Our attention was drawn to several reported decisions wherein the Courts have held either that the plea should be excluded in the particular case or that the plea could be tried in the circumstances of the particular case. In some decisions learned judges have stated that the rule as to the exclusion of a claim by way of title paramount is not absolute or is subject to exceptions (of. Nafar Chandra Kundu v. Ratnamala Debi (1910) 13 C.L.J. 85 and Zakir Rasa v. Madhusudan Dass (1918) 45 I.C. 691). The point has been dealt with in three or four recent judgments of this Court at some length and the leading cases have been reviewed (see Doraiswami Aiyangar v. Varadarajulu Naidu : (1927)53MLJ647 Muthiah Servai v. Somasundaram Chettiar : AIR1928Mad199 Ramaszvami Pillai v. Marimuthu Goundan : AIR1928Mad764 and also Veeraraghavalu v. Suryanarayana : AIR1936Mad338 ). It is therefore unnecessary to refer to the cases again. Even if one should prefer not to state that the rule is subject to exceptions, much the same result will follow from holding that the reference to 'title paramount' in this connection must be taken only to exclude a claim by strangers whose interest in the property can in no circumstances be affected by the act of the mortgagor. In view of the personal laws of the parties, such a clear cut distinction does not often exist in litigations in this country. It often happens that in one set of circumstances a mortgagor would have had power to impose a charge upon certain properties even to the extent of binding the interests of other persons therein but in another set of circumstances he might not have had such power; in such-cases the defendant will stand to gain if the Court upholds his plea that the circumstances of the case were of the latter kind whereas he would be bound by the mortgage if the circumstances were of the former kind. A claim of self-acquisition by a member of a joint Hindu family can by no means be put on the same footing as a claim by a stranger to the mortgage because even if that plea is negatived, the claimant will still have an interest in the property which may be bound by the decree in the suit. We are of opinion for the reasons above given that this is eminently a fit case for the questions raised by issues 4, 5 and 6 being tried before the security properties are brought to sale. We accordingly remand the case to the lower Court for the trial of issues 4, 5 and 6. Its finding on issue 7 must be understood as not to preclude the trial of these issues.
7. Mr. Patanjali Sastri suggests that if the question as to whether the security properties are joint family properties or not should be permitted to be tried in this action it is only fair that his client should have the opportunity of alleging and proving that the circumstances under which and the purpose for which the security bond was executed were such as to bind the whole interest of the joint family in those properties even if. they were joint family properties. The plaintiff did not anticipate this line of defence and even after the written statement was filed no reply statement was filed raising this question; but as we are remanding the case for trial of issues 4, 5 and 6 the plaintiff may be given an opportunity to file any reply statement on these lines above suggested and the defendant will also be at liberty to file his answers thereto and, if necessary, additional issues may be framed with reference to the contentions thus raised.
8. The lower Court will embody in its revised decree appropriate declarations in pursuance of its findings on issues 4, 5 and 6 and the new issues, if any. The costs of this appeal will abide the result of the trial of issues 4, 5 and 6 and the new issues and will be provided for in the revised decree of the lower Court.
9. The memorandum of objections relates to the lower Court's direction as to costs, but on the footing on which the trial in the lower Court proceeded that order was appropriate. The memorandum of objections must therefore be dismissed with costs.
10. The court-fee paid on the memorandum of appeal will be refunded.