The central legal point established in the judgment is the need to determine the nature of the properties and the validity of the security bond before proceeding with the sale, considering the principles of Hindu family property and the implications of the defendant's claim of self-acquisition by a member of a joint Hindu family.

Varadachariar, J.

1. This appeal arises out of a suit brought to enforce the charge created by a security bond (Ex. H) dated 1st May, 1925, executed by one Lakshmanan Chettiar, the uncle of the defendant, to secure repayment of moneys due on dealings that had gone on for some years between Lakshmanan Chettiar and the plaintiff. The plaint stated generally in paragraph 2 that Lakshmanan Chettiar died without issue leaving no other heir except the defendant and that the defendant has succeeded to and has been enjoying the properties of the deceased Lakshmanan Chettiar as his heir. The defendant contended that he and Lakshmanan Chettiar were members of an undivided Hindu family, that, of the two items included in the security bond, item I was the self-acquisition of his father and could not therefore be subjected to a charge by Lakshmanan Chettiar, that item II was the joint property of the two branches to the extent of one-third and that the security bond could accordingly bind only Lakshmanan Chettiars one-sixth share in item II.

2. Of the issues framed in the case, issues 1 to 3 related to the dealings alleged in the plaint and to the truth of the security bond. Issues 4, 5 and 6 raised the questions which we have above set forth from amongst the defences raised by the defendant. Issue 7 runs as follows:

Whether the defendant is not estopped from questioning the title of the deceased Lakshmanan Chetti to the properties detailed in the security bond?

3. We are not concerned in this appeal with the findings of the lower Court on issues 1 to. 3. On issues 4, 5 and 6 the lower Court declined to record findings, holding that they must be agitated in a separate suit, because the questions raised by them were really in the nature of a plea of a title paramount.

4. On issue 7 the lower Court held that the defendant in his character as the legal representative of Lakshmanan Chettiar was estopped from questioning Lakshmanan Chettiars title to the mortgaged properties.

5. The defendant who has appealed to this Court contends that there is no hard and fast rule by which the trial of issues 4, 5 and 6 should be relegated to another suit and that it will be in the interests of all parties to have the questions raised by them decided in this suit, so that in One view he may have the opportunity of saving the property by paying off the amount due under the security bond and also that before the sale takes place in execution of the decree, all persons interested may know what exactly is being brought to sale. In the circumstances of the case, there can be little doubt as to what is the most convenient course. It will scarcely be worth the while of a court auction-purchaser unless he is a speculator to purchase in execution of a decree directing the sale of the properties without knowing whether the mortgagor had any title thereto or not and the price fetched at such a sale will in all probability be so low as to cause loss both to the plaintiff and to the defendant.

6. On behalf of the respondent Mr. Patanjali Sastri has, however, argued that the question of the propriety of trying these issues in this suit cannot be determined merely on grounds of convenience but must be decided in the light of the well-established principle that in a suit to enforce a mortgage any pleas in the nature of a claim by way of title paramount are not to be introduced. Our attention was drawn to several reported decisions wherein the Courts have held either that the plea should be excluded in the particular case or that the plea could be tried in the circumstances of the particular case. In some decisions learned judges have stated that the rule as to the exclusion of a claim by way of title paramount is not absolute or is subject to exceptions (of. Nafar Chandra Kundu v. Ratnamala Debi (1910) 13 C.L.J. 85 and Zakir Rasa v. Madhusudan Dass (1918) 45 I.C. 691). The point has been dealt with in three or four recent judgments of this Court at some length and the lead