Maharajan, J.- This appeal is preferred against the judgment of Ganesan, J. dismissing the appellant’s CM. S.A. No. 132 of 1969. Nallusamy Poosari, Natanasabapathy Poosari, Arumugham and Gandhi were members of an undivided Hindu coparcenary.

2. On 1st December, 1949, they execued a mortgage for Rs. 3,000 in favour of the appellant’s father, Ardhanari Gounder. After the death of the mortgagee, the appellant, his son, instituted O.S.No. 888 of 1960 on the file of the District Munsif Court, Sankari at Salem, for the recovery of moneys due under the said mortgage. At the time of the institution of the suit, Natanasabapathy had died leaving him surviving Mariyayee, his widow, and T.N. Mani, his only son (1st respondent). It appears that on the date of the institution of the suit, T.N. Mani had attained majority. However, in ignorance of that fact, the appellant instituted the suit against Natanasabapathy as the first defendant, Mariyayee as the second defendant, minor T.N. Mani, as the third defendant and Arumugham and Gandhi as the 4th and the 5th defendants. It transpires that the description of Mani as a minor was erroneous because it has been established that Mani had attained majority on the date of the suit. However, all the defendants remained ex parte, and a decree was granted in enforcement of the mortgage on 23rd January, 1961. A final decree was also granted. R.E.P. No. 131 of 1965 was filed to execute the final decree. While the execution petition was pending, T.N. Mani filed E.A. No. 1152 of 1966 in which he prayed that the properties described by him in his execution application be released from the execution proceedings inasmuch as the entire proceedings in O.S. No. 888 of 1960 were null and void. His case was that in or about the year 1950, the petition — mentioned properties fell to his share at an oral partition between him and the second defendant Nalluswamy Poosari, that he attained majority on 15th June, 1960, that the suit was filed after that date misdescribing him as a minor instead of as a major and consequently, the decree obtained against him had become unenforceable. The executing Court held that the mortgage suit had been filed against the head of the joint family of which T.N. Mani was a member, that consequently, it was binding upon him whether he was co nominee party to the suit or not and that it was not open to him in execution to attack the decree on the ground relied on by him. On this basis, the executing Court dismissed E.A.No. 1152 of 1966 with costs. Against this, Mani preferred an appeal and the appellate Court reversed the order of the executing Court and held that the judgment and decree were not bind" ing upon the ¼th share of T.N. Mani. Against the judgment allowing the appeal, the appellant preferred Civil Miscellaneous Second Appeal No. 132 of 1969 and Ganesan, J., agreeing with the first appellate Court, dismissed that Civil Miscellaneous Second Appeal. It is against the dismissal of that civil miscellaneous second appeal that the present Letters Patent Appeal has been filed.

3. Admittedly, on 1st December, 1949, when the mortgage in dispute was executed, Nallaswamy Poosari, Natanasabapathy Poosari (the father of T.N. Mani), Arumughan and Gandhi were undivided members of a Hindu coparcenary. It has been held by all the three Courts that the amount of Rs. 3,000 was borrowed under the mortgage for purposes binding upon the joint family of these four executants. The mortgage itself shows that the amount had been borrowed for "our business and family necessities". At the time the suit was filed by Sankaralingam, Natanasabapathy Poosari, the father of T.N. Mani had died. He, therefore, impleaded the widow and the son of Natanasabapathy as parties to his action. Nalluswamy Poosari, who was, admittedly the eldest of the four brothers, was impleaded in this action as the first defendant. At the time of the suit, Nalluswamy Poosari was the manager of the joint family consisting of all the four b

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