R M P R A P R KASI CHETTIAR ALIAS PERICHIAPPA CHETTIAR Vs. VALVRAMAASAMI CHETTI FIRM BY ITS MANAGING PARTNER VALVRAMASAMI CHETTIAR

JUDGEMENT

(1.) This appeal arises out of a suit brought to enforce the charge created by a security bond (Ex. H) dated 1 May, 1925, executed by one Lakshmanan Chettiar, the uncle of the defendant, to secure repayment of moneys due on dealings that had gone on for some years between Lakshmanan Chettiar and the plaintiff. The plaint stated generally in paragraph 2 that Lakshmanan Chettiar died without issue leaving no other heir except the defendant and that the defendant has succeeded to and has been enjoying the properties of the deceased Lakshmanan Chettiar as his heir. The defendant contended that he and Lakshmanan Chettiar were members of an undivided Hindu family, that, of the two items included in the security bond, item I was the self-acquisition of his father and could not therefore be subjected to a charge by Lakshmanan Chettiar, that item II was the joint property of the two branches to the extent of one-third and that the security bond could accordingly bind only Lakshmanan Chettiar's one-sixth share in item II.

(2.) Of the issues framed in the case, issues 1 to 3 related to the dealings alleged in the plaint and to the truth of the security bond. Issues 4, 5 and 6 raised the questions which we have above set forth from amongst the defences raised by the defendant. Issue 7 runs as follows: Whether the defendant is not estopped from questioning the title of the deceased Lakshmanan Chetti to the properties detailed in the security bond?

(3.) We are not concerned in this appeal with the findings of the lower Court on issues 1 to. 3. On issues 4, 5 and 6 the lower Court declined to record findings, holding that they must be agitated in a separate suit, because the questions raised by them were really in the nature of a plea of a title paramount.