1. We think there is no evidence on which it can be held that the money was borrowed for family purpose. There is some evidence that some money was borrowed for the expenses of the defence of a member of the family who was prosecuted in a Criminal case but the nature of the Criminal case does not enable us to say that the defence was for a family purpose.
2. The District Judge has not found whether the l0th defendant was in possession or the plaintiffs were in possession. We must ask for findings on the 2nd and 3rd issues on the evidence on record.
3. The finding should be submitted within six weeks and seven days will be allowed for filing objection.
4. In compliance with the above judgment the District Judge submitted the following
1. Plaintiffs sued for a declaration that a usufructuary mortgage deed by defendants Nos. 1, 2, 5 to 10th defendants does not bind the family of plaintiffs and defendants Nos. 1-9.
2. They succeeded. Tenth defendant appealed and this Court allowed the appeal holding that the mortgage having been executed by the heads of the 3 tavazhis of the family and supported by defendants Nos. 3, 4, 6, 8 and 9, who are 6 more adult members of the family, and only opposed by the remaining 7 adult members and the children, who had themselves got up fraudulent documents, must be held to be for family purposes unless the opposing plaintiffs proved the money borrowed was misused.
3. On second appeal the High Court held that there was no evidence that the money was borrowed for a family purpose and called for a finding on the evidence on record on issues Nos. 2 and 3, i.e., whether plaintiffs are in possession of part of the properties in suit or whether 10th defendant is in possession of 3 mudis of land as contended by him.'
4. The 3rd issue 'whether a suit for a mere declaration is unsustainable' depends on the 2nd, for if 10th defendant is in possession of 3 mudis a suit for a mere declaration cannot lie for these 3 mudis. If plaintiffs are in possession of the remaining 3 mudis, a suit for declaration can lie as regards them.
5. Now the family enjoy the property, 6 mudis of fields, in 3 lots of 2 mudis each.
6. Plaintiffs Nos. 1 and 8-12 and 1st defendant form one branch. Plaintiffs Nos. 2 to 7 and 13 to 23 and 5th defendant form another branch, and defendants Nos. 3, 4 and 6-9 form the 3rd branch.
7. Now, the mortgage deed executed by the heads of these 3 branches recites that 3 mudis fields, i.e., Trimaru and Sanna Balli and Dodda Balli are made over to 10th defendant in lieu of interest.
8. 1st D. W. swears that he rents these 3 fields under 10th defendant and this fact is further sworn to by D. Ws. Nos. 2 and 3 persons to whom the family owed money, to pay off which they mortgaged the property to 10th defendant.
9. Against this is only the evidence of 5th plaintiff. He swears that 10th defendant is in possession of none of the fields. He also says certain fields were leased to one Malinga Bhatta but the leases to that person are found by the Munsif to be sham transactions. And by Exhibit IV in 1903, I find Tyampa, 1 D. witness's claim to the crop in Timaru field was allowed. On the evidence available, I must find that 10th defendant is in possession of Timaru, Dodda Balli and Sanna Balli fields. The family of which plaintiffs are members are in possession of the remaining 3 mudi fields.
10. Hence the suit for a declaration is unsustainable as regards the 3 mudi fields in possession of 10th defendant.
11. This case again coming on for final hearing after the return of the finding, the Court delivered the following
5. We must accept the finding. It is argued for the respondents that upon the finding we are bound to dismiss the suit and reliance is placed on Narayana v. Shankunni 15 M. 205. The plaintiffs are in possession of some o| the properties comprised in Exhibit V though the 10th defendant is in possession of the rest. Mr. Rosario says that as no possession is prayed for as regards properties now found to be in the 10th defendant's possession but only a bare declaration, the suit must fail under Section 42 of the Specific Relief Act. The plaintiffs ask for a declaration that Exhibit V cannot affect the rights of the plaintiffs' family in a number of properties. They are in possession of only some of them. If instead of asking for a declaration in respect of all the items covered by Exhibit V, the plaintiffs had confined their suit to the items in their possession, no objection could have been raised under Section 42. The fact that a declaration is asked for in respect of other items also, which cannot be granted because the 10th defendant is in possession of those items and there is no prayer for possession in respect of them, would be no ground for refusing a declaration in respect of items in the plaintiffs' possession. Narayani v. Shankunni 15 M. 205 was, no doubt, a case where the whole suit was dismissed on appeal when possession was prayed for as regards a portion and not of the remainder while possession of the whole could have been claimed. No question appears to have been argued or discussed as to why a decree for possession of a part could not be granted. We cannot, therefore, treat it as an authority compelling us to hold that the plaintiffs' entire suit must fail. We must reverse the decree of the lower appellate Court and give the plaintiffs the declaration asked for as regards the suit properties other than Timaru, Dodda Balli and Sanna Balli fields. As regards these the suit is dismissed. The parties will bear their own costs throughout.