ERULANDI THEVAN Vs. SSUBRAMANIA IYER

JUDGEMENT

(1.) IN this second appeal two questions are raised neither of them having been agitated in either of the two lower Courts. The fast is this. It is a question of possession and the lower Appellate Court has held that the plain tiff-respondent was in possession of the suit property through lessees till 1904, and up to 1909 through a mortgage under Ex. J. The suit was, therefore, in time as rears had not elapsed between 1909 and 1920, the date of its institution. These two questions that have been raised in second appeal both relate to this mortgage, Ex. J. It is said that the plaintiff was an adopted son and that Ex. J was effected while he was a- minor; and lastly that a natural brother of his effected the mortgage presumably as his guardian. It is said that there is no finding that the natural brother was under the circumstances a de facto guardian of the minor. It may be added that the minor has adopted this transaction on attaining majority and has in fact in 1920 discharged the mortgage. There was, therefore, presumably no objection on the part of the late minor to what was done on his behalf. It is difficult to see how the appellant here, a complete stranger to the transaction, can take this objection. If the natural, brother was a de-facto guardian, he can act as such under the decision of Vemuapalli Seetharamma V/s. Naganti Appiah 92 INd. Cas. 827 : (1926) M.W.N. 238 : 23 L.W. 285 : A.I.R. 1926 Mad. 457 : 50 M.L.J. 659. It is, in my opinion, too late now in second appeal to agitate this question for which fresh evidence would be necessary.

(2.) THE second point raised is that under Section 68 of the Evidence Act there has been no proof that Ex. J was properly executed because none of the attestors to the document were called. For the respondent it is said that the suit was not on Ex. J but that was a mere piece of evidence which it was not necessary to prove in this way. However that may be the point was not raised in the Courts below and there is authority in this Court to say that it is one of mixed law and fact and cannot be raised for the first time in the Appellate Court, bee Rangaswamy Ayyanyar V/s. Veeraraghavachary 76 Ind. Cas. 1003 : 33 M.L.T. 73 : 18 L.W. 620 : (1923) M.W.N. 789 : 46 M.L.J. 56 : A.I.R. 1924 Mad. 613. I am, therefore, of opinion that neither of these questions can be raised in second appeal for the first time and the second appeal must be dismissed with costs.