(KATTUKKAVIL KIZHUKKEPAI) NANGUNNI KOVILLAMMA Vs. (KELI) NEDUNGADI

JUDGEMENT

(1.) This is a Letters Patent Appeal from the Judgment of Devadoss, J., and raises a question relating to the doctrine of subrogation.

(2.) We are concerned with two sets of properties, the first sot comprising items 1 and 2 and the second items 3 to 7. We may at once dispose of the appeal, so far as it relates to the properties in the second set, with the remark, that there is a concurrent finding of fact that they are the self-acquisitions of defendant 1 and that finding cannot be disturbed in second appeal.

(3.) Now as regards the first set, the facts are these. Defendant 1 executed in 1911 a usufructuary mortgage (Ex. A) in favour of defendant 11 for Rs. 4,000. As a part of the same transaction, the latter gave the mortgaged properties on lease to defendant 1 and he has throughout been in possession. Defendant 11 in 1914 assigned his right to the plaintiff who claims in this suit possession and rent. The main contest is that of defendants 13 to 16 who are members of defendant l's tarwad. They plead that items 1 and 2 are tarwad properties and the mortgage to defendant 11 (evidenced by Ex. A) was not made for tarwad necessity. The lower Courts have found, and the finding is conclusive, that the properties are the jenm properties of the tarwad and the mortgage was not executed for any purpose binding on it.