1. The decree under appeal is one declaring that a mortgage to the 1st and 2nd defendants of the plaintiffs' tarwad property by the 3rd defendant and a lease of it to him are not binding. The 4th defendant, the present appellant, was impleaded as being in possession of the property by the mortgage from the 3rd defendant, in consequence of the allegations in the 1st and 2nd defendants' written statements. But the necessary amendment in the plaint was, however, not made. The 4th defendant's first complaint here is that a decree has been passed against him, explicity by the lower Appellate Court for profits, and by implication for possession, when no relief against him was asked for, and the plaint disclosed no cause of action against him. There is no doubt that the District Munsif and those concerned in the litigation were guilty of carelessness, in not making the necessary amendment, before beginning the trial. But we find that the 4th defendant never called attention to the omission in the two lower Courts; and it is in fact only on a liberal construction of his ground of appeal that he has been allowed to argue it here. On the other hand, his written statement directly traversed the allegations on which the claim against him is based. He explains that he appealed to the lower Appellate Court only to remove the cloud on his title, not on the understanding that the District Munsif's decree against him was for possession. But there is nothing in his appeal grounds, which indicates that this was so. In the circumstances, though we think the District Munsif's omission regretable, we do not consider that the 4th defendant was under any misapprehension as to the case he was contesting, or that he was entitled to relief on this ground. It is a repetition of this plea in another form that the lower Courts have not considered separately the 4th defendant's case as to the amount advanced by him in addition to that required for the discharge of the 3rd defendant's decree debt or the inclusion of other properties besides those in A Schedule in his mortgage. The answer is that the 4th defendant never attempted to contest this portion of the case on any separate footing, did not in fact file any copy of the decree and has not referred to any contention of this nature in his appeal grounds here or in the lower Appellate Court. In these circumstances this objection deserves no consideration. It is urged next that the lower Appellate Court's finding as to the nature of the debt for which the 4th defendant paid money, is not sustainable, and that even if the debt was not binding on the tarwad, the 4th defendant is protected by his bona fide belief that it was so. We concur fully in the lower Appellate Court's finding which is one of fact, against the binding nature of the debt, and we hold that though its embodiment in a decree might have been prima facie justification for the 4th defendant's belief that it was binding, there was sufficient in the decree itself to put him on inquiry into the validity of the proceedings He has not given evidence or offered any acceptable explanation for his failure to make such inquiry. He, therefore, cannot succeed on the ground that he acted in good faith. It is then argued that on the lower Appellate Court's findings of fact, the property is partible with reference to Ummanga v. Appadorai Patter 5 Ind. Cas. 671 : (1910) M.W.N. 195 and the 4th defendant should have a decree against the 3rd defendant's share. This was never suggested in the lower Courts and we cannot allow it to be put forward for the first time here. Lastly, exception is taken to the finding that the A Schedule property belongs to the tarwad and not to the 3rd defendant alone. We cannot allow the objection that the ownership of this property was not put in issue. For the course of the trial makes it clear that it was and was understood to be covered by the second issue. That issue was no doubt general in its terms. But no complaint was made that it did not cover the point now in question until the hearing in this Court and the parties evidently contested it on the assumption that it did so. The correctness of the finding that the property belongs to the tarwad is, however, disputed on its merits. The property is in the name of the 3rd defendant in the title-deed, Exhibit E. It was acquired by the deceased father of the 3rd defendant by that document. It is no one's case that he acquired it as tarwad property. The alternatives are that he acquired it either for the 3rd defendant or for his wife and family (including 3rd defendant), the latter now composing the tarwad. In these circumstances the objections to drawing a presumption from the fact that Exhibit E is in 3rd defendant's name, which might be valid in the case of a junior member of a joint family, do not arise here. The learned Subordinate Judge has, however, held that this presumption is counterbalanced by the probability for which he vouches on his own knowledge of Malabar habits, that the property was intended to be a provision for the widow and family of the father. He does not refer to the other evidence on the plaintiff's side. We cannot accept this. It is not alleged that the making of such provision is or has ever been recognised by authority as a custom, which can be treated as invariable. If as the learned Subordinate Judge relies on it, it is merely a common incident, that may create a probability in the light of which the other evidence available may properly be appreciated. But it alone cannot justify the rejection of the clear evidence, which Exhibit E affords in the 4th defendant's favour. In these circumstances we must call on the Subordinate Judge to submit a revised finding on the issue:
Whether the A Schedule property belongs to the tarwad or to the 3rd defendant' in the light of the foregoing and on the whole evidence on record. The finding should be submitted within six weeks and seven days will be allowed for filing objections. The remand will be to the Court of the Temporary Subordinate Judge of Calicut, the Court having been transferred to that station.
2. In compliance with the above order of this Court, the Temporary Subordinate Judge of Palghat at Calicut submitted the following.
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3. On a consideration of all the circumstances and the evidence I find that the property belongs to the tarwad.
4. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following.