1. This is an application to revise the order of the Subordinate Judge of Sivaganga refusing to raise an issue at the instance of defendant 2. Defendant 2 is the father of defendant 1. The suit is on a mortgage bond executed by defendant 1 in favour of the plaintiff. Defendant 2 raised several contentions, one of which was that the property mortgaged was his own self-acquisition and that defendant X had no right to the property. The Subordinate Judge framed several issues, the first was
Is the bond sued on true, and duly attested' supported by consideration and binding on defendants 2 to 5.
2. The issue that is sought to be raised now is whether the hypotheca is the self-acquired property of defendant 2 in which defendant 1 has no interest. The learned Subordinate Judge relying upon a decision of this Court in Rukmani Ammal v. Ankama Naidu : AIR1926Mad744 , has disallowed defendant 2's application. In a mortgage suit it is not proper that the title of a person who claims adversely to the mortgagor should be gone into. But the present case is distinguishable on the facts from the case in Rukmani Ammal v. Ankama Naidu : AIR1926Mad744 . This is a case in which the members of a joint family are sued on a mortgage bond on the ground that the amount of the mortgage was borrowed for family purposes and, therefore, the debt is binding on them. Defendant 2 is the father of defendant 1 and they both according to the plaintiff's allegation are members of a joint family. That being so, it cannot be said that defendant 2 is a stranger to the transaction. If the debt was for the benefit of the joint family, or if defendant 1 acted for the defendant 2, then it would be binding on the whole family and the hypotheca, whether it was self-acquisition of defendant 2 or not, would become liable. Therefore, the decision in Rukmani Ammal v. Ankama Naidu : AIR1926Mad744 , cannot apply to the facts of this case. Considering the circumstances of the case, I think it is but fair that this issue ought to be raised and determined in course of the suit and should not be left to be determined in execution. Issue 1 relates to the liability of defendant 2 for the plaint debt. Inasmuch as defendant 2 has not chosen to ask for the issue at the time when issues were settled but has waited for nearly 10 months, I think he should be made to pay the costs of the plaintiff up to date. I, therefore, set aside the order of the Subordinate Judge and direct him to raise an issue with regard to the contention of defendant 2 that the property is his self-acquisition in which defendant 1 has no interest, on the petitioner paying the costs up to date of the plaintiff excepting the institution fee, which I assess at Rs. 450. If this is paid into Court within six weeks from the date of the receipt of this order, the Subordinate Judge will frame the issue asked for and if not paid within that time he need not raise the issue and the order passed by him will stand. No order as to costs of this petition. If the issue asked for is framed, he may frame any consequential issue which may arise.