SANDANAM PILLAI Vs. SOMASUNDARAM CHETTIAR

JUDGEMENT

(1.) This second appeal arises out of a suit to enforce a mortgage executed by defendants 1 and 2 in plaintiff's favour. The only question for determination in the second appeal is whether the first defendant was entitled to a share in four out of the mortgage items, namely, items 3 and 4 of Karur village and items 1 and 3 of Balambapuram village.

(2.) It has been found that the four items in question were acquired by the seventh defendant, the father of the mortgagors, in the years 1897, 1900, 1906 and 1908 in his own name, at a time when defendants 1 and 2 were minors. The seventh defendant contended that they were his self-acquired property and that the first defendant had no share therein which would pass under the mortgage. The first Court held that the first defendant had no interest in these items and passed a mortgage decree against the first defendant's share in the other items comprised in the mortgage; but on appeal the learned District Judge held that these items, though acquired by the father, had not been kept separate by him as self-acquired property and that the first defendant was therefore entitled to a share therein, which must be held to have passed under the mortgage. The seventh defendant has appealed, asserting his claim that these properties are his self-acquisition.

(3.) The learned Counsel for the respondent has insisted that the lower appellate Court has recorded a finding of fact with which I am not entitled to interfere in second appeal. As I am of opinion that the point of view from which the learned District Judge has approached the consideration of the question is not correct, I cannot accede to this contention of the earned Counsel for the respondent.