The main legal point established in the judgment is that a person having a paramount title is not a necessary party in a mortgage suit and need not be impleaded. However, if the person with paramount title takes up contradictory pleas and the issue is decided, the decision is binding on the parties.

1. The second appeal arises out of a suit on simple mortgage for the recovery of the mortgage money. The suit was decreed against two out of three shares in the mortgage property by both the lower courts and the 8th defendant has filed the second appeal against that concurrent decision.

2. The facts that emerge in the case may be briefly noted. The property originally belonged to Adichan Ayyan on kanapattom right, the jenmi being the Akavur Mana. After Adichan Ayyan his son Ayyan alias Ayyappan inherited the property. Ayyan alias Ayyappan had two children, Chandran and Ayyappan, by his first wife and the 7th defendant was his second wife. After the death of Ayyan alias Ayyappan the 8th defendant obtained a gift of the property under Ext. I in 1117 from the 7th defendant reciting that she was solely entitled to the property after the death of her husband. Disputes thereafter arose regarding possession of the property between the 8th defendant on the one hand, and Chandran and Ayyappan on the other, resulting in criminal proceedings in 1118. In 1120 the 7th defendant cancelled the gift deed by Ext. B. During the pendency of the criminal case Chandran and Ayyappan created the suit mortgage Ext. A in 1118 and borrowed amounts for the prosecution of the criminal case. The suit was by the 1st respondent-mortgagee based on Ext. A for the realisation of the amount so lent.

3. The contesting defendant was the 8th defendant as already indicated. He contended that Chandran and Ayyappan had no right in the property, since they were not the children of Ayyan alias Ayyappan. According to him the 7th defendant was the only heir of Ayyan alias Ayyappan and from her he obtained the entire right under the gift. Both the lower courts considered the question whether the 7th defendant was the sole heir of Ayyan alias Ayyappan and whether Chandran and Ayyappan had any right in the property. It may also be mentioned that the case of Chandran and Ayyappan in Ext. A was that the 7th defendant was not the second wife of their father, but she was brought for the purpose of looking after or nursing him after their mother died.

4. Both the lower courts concurrently held that the property originally belonged to Adichan Ayyan, from whom Ayyan alias Ayyappan inherited it and the 7th defendant was the second wife of Ayyan alias Ayyappan, Chandran and Ayyappan being his children by the first wife. In that view, the lower courts held that the 7th defendant was entitled to a third share in the property, which passed under the gift to the 8th defendant. They also held that Chandran and Ayyappan were entitled to the remaining two shares, against which a decree for the mortgage money was also passed. Be it also noted that defendants 1 to 6 are the legal representatives of Chandran, his brother Ayyappan having died earlier leaving no heirs.

5. Though some argument has been advanced by the learned advocate of the appellant against the concurrent finding of the lower courts that Chandran and Ayyappan were the sons of Ayyan alias Ayyappan, I do not think I can reopen that question in second appeal. The question is one of fact on which the lower courts have entered a concurrent finding to the effect that Chandran and Ayyappan were the sons of Ayyan alias Ayyappan, the 7th defendant being his second wife. Therefore, that finding has to be confirmed and it is hereby confirmed. Consequently, the finding that the 7th defendant was entitled to a third share and the mortgagors of the 1st respondent were entitled to the balance has also to be confirmed.

6. But it is seriously contended before me by Mr. P. C. Chacko, the learned advocate of the appellant, that the appellant was an unnecessary party to the suit, which was only a suit on a simple mortgage for recovery of the mortgage money. The learned counsel contends that for that reason the finding against the appellant should be set aside and the decree for recovery of the mortgage money should be confined to the right