Govinda Menon, J.- The suit out of which this second appeal arises was for recovery of a sum of money by sale of the plaint items on the strength of a mortgage deed, Exhibit A-1, dated 2nd May, 1934, for a sum of Rs.750 executed by one Krishna Menon, Karnavan of the tarwad of defendants 1 to 4 in favour of the plaintiff The fifth defendant is the purchaser of the jenm right, etc., in some of the mortgaged items in Court auction under Exhibit B-10. The other defendants were impleaded either as persons in possession or as mortgagees.

The main contest by the fifth defendant was that the hypothecation deed was not valid and binding on the tarwad of defendants 1 to 4 and as such the plaint items could not be sold in enforcement of that document. There were other pleas raised by her with which at this juncture we are not concerned. The trial Court found that to the extent of Rs. 635-7-11 the mortgage was binding on the tarwad and decreed the suit for sale of the properties to that extent.

The fifth defendant preferred an appeal to the lower appellate Court, contending that Exhibit A-1 was totally invalid and unenforceable. The plaintiff did not put forward any memorandum of cross-objections with regard to the sum not found binding. The learned Subordinate Judge accepted the objections raised by the fifth defendant and allowed the appeal, thereby dismissing the suit The second appeal is filed by the plaintiff.

Though the trial Court found that the fifth defendant as purchaser of the jenm rights, etc., over some of the mortgaged items has got herself substituted to all the rights and liabilities of the mortgagor’s tarwad with regard to these items, and therefore, could justifiably object to the validity of the mortgage, on the finding that to the extent of Rs. 635-7-11 it was binding, that Court gave the decree. Before the learned Subordinate Judge one of the main points urged was that being a stranger to the tarwad, the fifth defendant cannot attack the validity of the mortgage, which could be done only by a member of the family and by none else. The learned Subordinate Judge, following the decision in Cherutty v. Saraswathi Ammal 1 , held that as at least one member of the tarwad, namely the fourth defendant had impugned the validity of Exhibit A-1 it is open to the fifth defendant to contest the binding nature of that document. The learned Judge held also that no portion of the consideration was binding on the tarwad.

The first question for consideration is whether it is open to the fifth defendant to allege and prove the invalidity of the mortgage. What is urged by Mr. N. Sundaram Iyer on behalf of the appellant is that Exhibit B-10 which is the sale-certi- ficate issued in favour of the fifth defendant in O.S. No. 255 of 1934 on the file of the District Munsiff of Walluvanad, as a result of which these properties came to be sold and purchased by the fifth defendant, it has been stated in the column relating to encumbrances charged on the properties that a sum of Rs. 750 and interest due under the document No. 640 of 1934 was an encumbrance. The reference is to Exhibit A-1 and the mortgagee’s name is also mentioned thereunder. In the column relating to remarks, what is stated is that the jenmom, kanom, kuzhikur and chamayam rights which belong to the tarwad have been sold after reserving the encumbrances. Relying upon these recitals, the learned counsel for the appellant urges that what the fifth defendant has obtained is only the right, title and interest of the tarwad, namely jenmom, kanom, kuzhikur and chamayam rights, subject to the encumbrances in favour of the plaintiff. If that is so, having purchased in Court-auction, only the residuary rights after reserving the mortgage, it is not open to the fifth defendant now to come forward and say that the mortgage is not binding.

Krishnaswami Nayudu, J., who heard the second appeal in the first instance being of the opinion that a substantial question is involved in this argument has. r

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