RANGASWAMI NADAR Vs. SUNDARAPANDIA THEVAR

JUDGEMENT

(1.) The suit out of which this second appeal has arisen was for sale on a mortgage. The plaintiff was the mortgagee and defendant 1 the mortgagor. Defendant 3 was made a party to the suit on the ground that he claimed ownership in respect of item 2 of the property, the subject-matter of the suit. The plaintiff has been granted a decree in respect of half of item 2 in the suit.

(2.) The point taken last by the learned vakil for the appellant may first be disposed of. He argued that defendant 3 was not a necessary party at all to the suit upon the mortgage, but he was made a party as a person claiming title to the property in himself and the plaintiff made him a party to the action on the ground that the property which was subject to the mortgage was in his possession. No objection was taken to this course and we cannot possibly accede to the contention that at this stage we should allow this point of misjoinder to be taken for the first time.

(3.) It was next argued that the decision relating to the fraud on the registration on the ground that item 1 was fraudulently included originally in the suit mortgage Ex. A, merely for the purpose of getting the deed of mortgage registered in a particular registration district, was come to by the lower appellate Court without an opportunity being given to the District Munsif's Court to arrive at a finding thereon. The District Munsif did not give a finding with regard to it because in the view he took of the case, it became unnecessary for him to do so. But the lower appellate Court has gone fully into the matter and affirmatively found against the fraud alleged. We are not satisfied that the finding of the lower appellate Court on this matter is wrong. The lower appellate Court was not bound to remand the case and it was entitled in law to come to any finding of fact by itself.