Sundaram Chetty, J.
1. This second appeal arises out of a suit filed by the plaintiffs, for the recovery of a sum of Rs. 2,999-0-0 (Rupees two thousand nine hundred and ninety-nine) alleged to be due under a mortgage bond (Ex. A) dated 10th July 1929 (after relinquishing a large portion of the sum due for the reason that the hypotheca would not be worth more than the suit amount). Ex. A was executed by defendant 1 through his agent under a power-of-attorney viz., defendant 3 in favour of the deceased Shaik Dawood Rowther for Rs. 2,500 (Rupees two thousand five hundred). The mortgagee died in December 1909. He was the brother of plaintiff 1 and defendant 2, and a cousin of defendant 1. Plaintiffs 2 to 5 are the children of Shaik Dawood Rowther whose widow is plaintiff 6. The claim was resisted by defendant 1, on the ground that Ex. A was executed nominally, without any consideration, for the purpose of defrauding the creditors. The first Court dismissed the plaintiff's suit accepting defendant 1's plea as true, whereas, the lower appellate Court disagreed with the District Munsiff's view and found that Ex. A was executed by defendant 1, not as a benami or colourable transaction, but for real consideration, on account of the share of profits due to Shaik Dawood's branch in the partnership business at Moulmein, which was made over to defendant 1 solely on the occasion of Shaik Dawood going away to India.
2. In this second appeal, the correctness of the finding arrived at by the lower appellate Court is challenged. Is that finding which is substantially one of fact, vitiated by any flaws, which afford reasonable grounds for interference under Section 100, Civil P.C.? The learned Subordinate Judge has dealt with the evidence (oral and documentary) in a careful manner, pointing out the errors and misstatements which have crept in some portions of the District Munsiff's judgment: vide paras. 3 and 10 in the judgment of the lower appellate Court.
3. It is urged by the learned advocate for the appellant that the plaintiff's case sought to be proved at the time of trial was at variance with the plaint allegations as to how the consideration passed for Ex. A, and this change of front must be taken to militate against the truth of the plaintiffs' claims. Any variance between the pleading and the proof, would no doubt be a good ground for rejecting the case. The lower appellate Court has given prominent attention to this objection, and observed that there is really no variance, and that the District Munsiff is not correct in his assumption. Turning to the recitals in Ex. A itself, it is extremely difficult to hold that it recites an actual cash loan of a sum of Rs. 3,000 (Rupees three thousand) by defendant 1 from Shaik Dawood Rowther.
4. On the other hand, reference is made to the partnership business at Moulmein, and to the fact of defendant 1 having taken the sum of Rs. 3,000 (Rupees three thousand) out of the profit due to Shaik Dawood Rowther, when he left Moulmein for India enabling defendant 1 to do. the whole business solely at Moulmein. If due regard be had to the particulars of consideration set forth in Ex. A, it cannot be construed as a document reciting the advance of a cash loan to defendant 1, but the reasonable inference is that the share of profits duo to Shaik Dawood Rowther in that partnership business, was treated as the sum borrowed by defendant 1, as the latter was taking over the whole business for himself, on the departure of Shaik Dawood for India. Nor is the allegation in para. 4 of the plaint materially different from the recitals in Ex. A. It is alleged in that paragraph that Ex. A was executed in accordance with the letter Ex. B written by defendant 1 to defendant 2. Defendant 1 was deemed to have become indebted to Shaik Dawood in connexion with some arrangement effected as regards the partnership business at Moulmein and that the suit bond (Ex. A) happened to be executed later on for that liability is in my opinion fairly established in this case. As pointed out by the lower appellate Court, it was defendant 1 who fought shy of admitting the existence of the said partnership, lest it should cut the bottom out of his plea. There is ample proof as to the alleged existence of the partnership.
5. It is next contended that the lower appellate Court was wrong in having directed the taking of defendant 2's evidence, during the pendency of the appeal. It has, in my opinion, given adequate reasons, for exercising the discretion vested in it, in that manner, under Rules 27 and 28, Order 41, Civil P.C. Both sides were given full opportunity for cross-examining this witness. The learned Subordinate Judge thought the evidence of this witness was necessary for a satisfactory decision in this case. There is no irregularity or flaw in the procedure adopted by it.
6. In para. 4 of its judgment, the Subordinate Judge has stated that defendant 1 would not produce the partnership accounts. Exception is taken to this observation and it is argued that the lower appellate Court seemed to have been led, to some extent, to discredit defendant l's plea by reason of the non-production of accounts. It appears from the evidence of P.W., that defendant 1 was summoned to produce these accounts in the connected partition suits, which was understood to be tried along with this suit and therefore no summons was taken out to him in this suit for their production. The accounts must have boon in the possession or power of defendant 1, and if produced they would throw considerable light on the question at issue. It would not be wrong to draw an adverse inference from the non-production, but the lower appellate Court simply referred to the circumstance in considering the evidence as to the existence of the partnership.
7. The burden of proving that the suit bond (Ex. A) was executed nominally and without consideration is on defendant 1. He was failed to discharge that burden. He cannot succeed on the strength of one or two slightly suspicious circumstances. They have also been duly considered by the lower appellate Court in weighing the evidence and the probabilities of the case. The finding of the lower appellate Court is correct and is accordingly confirmed.
8. A new objection has been raised by defendant 1 in this second appeal, which is covered by the last three grounds in appeal memorandum. It is urged that in executing the mortgage deed (Ex. A) defendant 2 has exceeded his authority and in the absence of clear and unequivocal evidence of ratification by defendant I, the whole mortgage should be held to be not binding on him. This plea is a mixed question of fact and law and is certainly not a pure question of law. It was nowhere set up in the written statement, nor was it urged in the trial Court and no issue has been framed in respect of it. There is no justification for allowing the appellant to raise this new contention in the second appeal and I should disallow it.
9. It is curious, that the lower appellate Court observed in para. 15 of its judgment that defendant 2 should be deemed to have exceeded his authority by mortgaging under Ex. A the houses also (items 1 and 2), besides the lands as defendant l's letter Ex. B, authorized him to mortgage the lands only. On this ground, he disallowed the plaintiffs claims over items 1 and 2. He did not pause to consider whether there was any express or implied ratification by defendant 1 and whether such ratification has cured the defect. In the first place, he should not have raised this point in his judgment in the absence of any plea, and in the second place, he ought not to have decided this point so summarily. This has given rise to the memo of objections filed by the respondents.
10. I am clearly of opinion that the Subordinate Judge was wrong in introducing a contention not set up or pleaded. Defendant 2 has a general power-of-attorney, authorising him to effect sales and mortgages (Ex. J). But the special authority given to him for the suit mortgage is under Ex. B. In view of the directions given in Ex. B, the mortgage of the houses also, is in excess of the authority. But by a subsequent letter of defendant 2 (Ex. V-a) the principal (defendant 1) was clearly apprised of the fact of the houses also having been mortgaged under Ex. A. But there is nothing to show that defendant 1 ever repudiated it. Where an agent does an act exceeding his authority and the principal on being apprised of the fact fails to communicate to the agent, his determination not to be bound by it within a reasonable time, it must be presumed that there was implied ratification: Lakshmanan Chetty v. Chidambaram Chetty  9 M.L.W. 251 and Ramasami Chetty v. Karuppan Chetty  29 M.L.J. 551. In the decision in Premabhai Hemabhai v. T.H. Brown 10 B.H.C.R. 319 relied on by the appellant there was no question of ratification and the principal had no knowledge of the agent having acted in excess of the authority. The view of the lower appellate Court that the suit mortgage cannot be enforced on items 1 and 2 is unacceptable.
11. In the result, in dismissing the second appeal with costs of respondents 1 to 7, and allowing the memo of objections, the decree of the lower appellate Court is modified by directing the inclusion of items 1 and 2 in the properties to be sold for the realization of the amount due to plaintiffs under the mortgage decree. In the circumstances sat forth above, I think fit to direct the parties to bear their own costs in respect of the memorandum of objections. Time for redemption is extended by three months from this date.