The plaintiffs appeal from the Judgment of the Subordinate Judge of Vellore pronounced on 20th March, 1957, in A.S. No. 129 of 1956 allowing the appeal preferred by the 7th defendant. The District Munsif had on 28th December, 1954, passed a decree in favour of the plaintiffs. The Subordinate Judge allowed the 7th defendant’s appeal and dismissed the suit with costs. The suit was for partition and separate possession of the plaintiffs 1/4th share in the suit property, namely, a house in Vellore.

The plaintiffs and the 2nd defendant are brothers. Their father is the 1st defendant. His brother is the 3rd defendant. The plaintiffs case is this. The suit property belonged to the joint family consisting of the plaintiffs and defendants 1 to 3. It was mortgaged by the 1st defendant in 1936 for Rs. 350 in favour of one Rathnammal. After her death, her heirs obtained a decree in O.S. No. 8 of 1949 on foot of the mortgage. The mortgage was not for family necessity or benefit or for any antecedent debt of the 1st defendant. It was therefore not binding on the plaintiffs They were not parties to that suit, although the 2nd defendant was made a party. The mortgage decree is not