Varadachariar, J.

1. These two appeals may be conveniently dealt with together as the main question is common to both cases. It happened that the suits out of which these appeals arise were heard by different Judges who have come to opposite conclusions on that question. A.S. No. 8 of 1934 arises out of a suit (O.S. No. 11 of 1931) to enforce a mortgage for Rs. 10,000 executed on 21st December, 1923, by the first defendant for himself and as guardian of his minor younger brother the second defendant and his minor son the third defendant. The mortgagee being dead, the plaintiff, his son issuing to recover the balance due under the mortgage, some amounts having already been paid in part payment of the mortgage debt. A.S. No. 222 of 1934 arises out of a suit for partition instituted by the younger brother, who is the second defendant in the other case, against the elder brother who is the first defendant in the other case and against certain alienees from the elder brother.

2. The only question which arises for decision in A.S. No. 8 of 1934 relates to the liability of the second defendant, that is, the younger brother for the mortgage debt. The learned Subordinate Judge held th