Judgement Consolidated Appeal from two decrees of the High Court (July 29, 1897) reversing two decrees (March 30, 1896) of the Subordinate Judge of Madura (West), and decreeing two suits in favour of the respondent Periya Dorasami. These suits were both admitted in forma pauperis on April 9, 1895, and were instituted by the respondent, who claimed the property of his deceased father, Periya Dorisami alias Ovala Kondama Naiker. Part of this property consisted of the impartible zemindaries of Ayakudi and Rettayambadi, which were the subject of the first suit. These zemindaries were under mortgage to the respondent Lakshamanan Chettier. The second suit related to the zemindars other property, which was not included in the mortgage. The mortgagee was a party defendant in the first suit only. The other parties to both suits were the appellants, who are father and son. The suits were both based upon the title of the plaintiff to the property of his father by right of primogeniture, and the appellants resisted his claim in both suits on the ground of an alleged transfer by the zemindar to the first appellant in the year 1882, before the birth of the respondent. In the first case the suit was for a declaration of the plaintiffs right to redeem the mortgage. In the other it was to recover possession of the palace and the temple with the lands forming the endowment of that temple ; but in each case the question was whether the plaintiffs father had or had not effectually transferred his title to the first appellant, who in each of the cases claimed title in himself. There was no dispute as to the facts, which were disclosed by undisputed documents sufficiently set out in their Lordships judgment. The decision was as to the legal effect to be given to those documents. There was no dispute as to the facts, which were disclosed by undisputed documents sufficiently set out in their Lordships judgment. The decision was as to the legal effect to be given to those documents. The appellants stated in their written statement that growing embarrassments, owing to incapacity and extravagance on the part of the late zemindar, had, in the month of November, 1882, brought the mortgage property to the verge of sale; that, on November 4, 1882, he came to a family arrangement with his younger brother and the two sons of that brother (the first appellant being the elder son), forming a joint family to mortgage the two zemindaries by usufructuary mortgage to the respondent Lakshamanan Chettier for R2,47,000 “ for the purpose of discharging all the debts for which the said estates were then liable; that the said estates and all possessions attached thereto should even then be transferred " to the first appellant, who "should redeem the mortgage"; that in pursuance of such arrangement the first appellant " was constituted the proprietor " of the whole of the property, the two zemindaries being afterwards mortgaged as arranged, and the first appellant taking possession of all the other property; and that the mutation of names in the Collectors books was made on November 7, 1882. They further pleaded that both suits were barred by limitation. The Subordinate Judge held that the first appellant was entitled to succeed on both issues, transfer and limitation. He declined to consider the contention that the alleged transfer was invalid on the ground that it could only be made by a registered document under the Transfer of Property Act, 1882. He held that this objection was too late, not having been put forward in the plaint or at the first hearing, and there being no issue as to it. The High Court held in the mortgage suit that the transfer relied upon was inoperative to pass the property, and that this question clearly arose on the issue. They also held that the arzi or written statement addressed to the revenue authorities and reporting the transfer was not in itself a transfer and was revocable. The High Court held in the mortgage suit that the transfer relied upon was inoperative to pass the property, and that this question clearly arose on the issue. They also held that the arzi or written statement addressed to the revenue authorities and reporting the transfer was not in itself a transfer and was revocable. With regard to the mortgage, they remarked It may be said that there was a declaration of an intention on the part of the plaintiffs father to divest himself of his ownership in the zemindari, but nothing was done to give legal effect to this intention, and without a registered conveyance it was not competent for him to pass the property whether the transaction was in the nature of a sale or in the nature of a gift. There is no evidence to support the suggestion that there was anything in the nature of a family arrangement." They also held that the suit was not barred by limitation, remarking that " the actual possession of the property has all along been with the mortgagee defendant." In the other suit the High Court said "It is hardly suggested that the plaintiffs father absolutely divested himself of the ownership in such a manner as to vest an indefeasible title in the first defendant." They considered that the late zemindar, , " having at the time no issue, was minded to constitute the first defendant his heir, and to put him in possession of his property. The evidence shews this much, but stops short of shewing that the plaintiffs father divested himself irrevocably of his estate." And they held that the first defendant did not hold adversely to the late zemindar. Mayne, for the appellants, contended that the absolute transfer of title to the zemindary was part of a family arrangement. The registered mortgage deed contained all the terms of this arrangement. The arzis and the revenue proceedings, including the mutation of names, were merely the machinery by which this arrangement, evidenced by a registered mortgage deed, was carried into effect. It is established by the documents and other evidence that the late zemindar intended to and did in fact finally divest himself of all actual possession of his estate from November, 1882. It is established by the documents and other evidence that the late zemindar intended to and did in fact finally divest himself of all actual possession of his estate from November, 1882. The mortgage deed and other transactions established at the least a binding contract to make the transfer relied upon, which contract did not require registration and was carried into actual effect. The High Court treated this view as one which might have prevailed if it had been made the subject of a separate issue, which it was contended was unnecessary, inasmuch as it was practically included in the issue as to an operative transfer. Further, it was contended that, if the transfer was illegal and inoperative, the possession under it was adverse to the late zemindar, who might have sued to set aside the alleged alienation. He further submitted that the mortgagees appearance was unnecessary, and that his costs should be disallowed. Phillips, for the first respondent, the plaintiff, was not heard. Branson, for the mortgagee, contended that he was made a party, and entitled to appear and obtain his costs in the absence of any arrangement or notice to the contrary. Dec. 8. The judgment of their Lordships was delivered by LORD HOBHOUSE. The subject of this litigation is the impartible zemindary of Ayakudi. In the year 1882 Ovala was its owner. Transactions then took place by virtue of which Thirugnana, his nephew, claims to be owner. He, along with his minor son, is the substantial defendant below, and now appellant. Afterwards, in the year 1883, Periya, the plaintiff below and now respondent, was born to Ovala by his wife Angammal. He also claims to be owner by inheritance from his father, who died in the year 1890. There are in fact two suits, Nos. 53 and 54 of 1895. But the only difference between them is that the bulk of the property which is comprised in one suit is subject to a mortgage which the plaintiff seeks to redeem; and that a small portion of it, consisting of the palace, the temple, and some endowments, comprised in the other suit, is not so subject. The question in both suits is the same, namely, What was the effect of the transactions in the year 1882 ? Other issues have been raised, but hav not been urged at this bar. The question in both suits is the same, namely, What was the effect of the transactions in the year 1882 ? Other issues have been raised, but hav not been urged at this bar. The Subordinate Judge decided in favour of the defendant. The High Court decided the other way; and the defendant appeals from their decision. Ovala came to the zemindary in the year 1872, by transfer from his father, who declared himself to be old and unable to manage the affairs. He seems to have been no more capable than his father, and in his hands the debts of the estate, which were large before, became larger. In the year 1879 he executed an usufructuary mortgage by way of lease for nineteen years to one Ramanathan Chettier in consideration of advances of money and of a sum of Rs.3000 per annum, to be paid by the mortgagee for the maintenance of the family. Debts, however, went on increasing, and on November 4, 1882, a new arrangement was made with Lakshamanan Chettier, who was the heir of Ramanathan and is the present mortgagee. The deed of that date is a deed-poll executed by (1.) Ovala, the zemindar; (2.) his brother Karutha ; (3.) the defendant Thirugnana, son of Karutha; and (4.) another son of Karutha ; and addressed by them to the mortgagee Lakshamanan. It commences by stating the "particulars of our having usufructuarily mortgaged the zemindari to him for Rs.2,47,000." It gives an account of the debts affecting the estate, of which much the largest is the debt already due to Lakshamanan. , Other subsequent items amount to about Rs.65,000, all of which the four parties to the deed declare to be due by them. Among them is specified " Rs. , Other subsequent items amount to about Rs.65,000, all of which the four parties to the deed declare to be due by them. Among them is specified " Rs. 10,000 borrowed from you on this date in order that, after a Settlement of the differences existing between the members of our family, the same might be paid as a recompense to the said I. Ovala Kondama Naiker Aiyan Avergal, one of us, for his transferring even now the right to Ayakudi Zemin and Rettayambadi Mitti to I. Thirugnana Sammanda Ovala Kondama Naiker Aiyan Avergal, and his addressing an arzi to the Collector of Madura District stating the said fact." The parties then state that they had importuned the mortgagee to take an usufructuary mortgage on the estate in lieu of interest on his debt, that he had kindly agreed to do so, and that they had conveyed twenty-eight villages with their incidents or appurtenances to him. They stipulate that he shall pay the peshcush and road cess to Government, and also an allowance " for our-maintenance at the rate of Rs.250 per mensem." Clauses 24 and 25 are as follows— " 24. We shall not only inform the Collector of the Madura District, the Sub-Collector of the Dindigul Division and the Tahsildar of the Palni Taluk by means of arzis and yadast that a conveyance on usufructuary mortgage has been made to you and that all the proceedings in revenue matters should be conducted in your name, but also cause the said fact to be published by means of proclamation in the villages. " 25. As soon as the above-mentioned mortgage amount, the amount spent by you on repairs and the amount of expenses incurred by you in suits, are paid in full at the end of any Fusli either by all of us jointly or by I. Thirugnana Sammanda Ovala Kondama Naiker Iyen Avergal, you should surrender the said zemin and the mitta to I. Thirugnana Sammanda Ovala Kondama Naiker, one of us." The arzis contemplated in the deed were presented by Ovala on November 7. One is addressed to the Deputy Collector of Madura as follows — " As besides being too old and infirm to bear and manage our two zemindaris of Ayakudi and Rettayambadi and all other immovable and movable properties appertaining thereto and the duties of Hukdar of Pachala Naickenpatti village attached to Sri Agobalesvara Perumal Devasthanam, we are also issueless, we have transferred the right to Immudipattam Thirugnana Sammanda Ovala Kondama Naiker, who is the eldest son of our brother Karutta Kondama Naiker and who is the next heir to get the said zemin and all other possessions, and have at this very moment delivered the same zemin and all other possessions into the hands of the said Thirugnana Sammanda Ovala Kondama Naiker after entering into an arrangement with him that he should be paying us month by month at the rate of Rs.250 per mensem for the maintenance of ourself and those attached to our family. Therefore, I request that the name of the said Thirugnana Sammanda Ovala Kondama Naiker may be entered in the register and that orders may in future be issued for conducting all the revenue proeedings through him as the zemindar for the zemins and as hukdar for the Devasthanam in our place." The other is addressed to the Collector of Madura in similar terms. On November 17 Ovala made a statement before the Tahsildar of Palani Talook, which is in the following terms— " The arzi, dated the 7th instant, now read and shewn is the one addressed to me by the Sub-Collector. I have also written to the Collector on the said date. As I have surrendered to my brothers son Thirugnana Sammanda Ovala Kondama Naiker, son Kondama Naiker, the villages and all other possessions attached to the zemin, in consequence of my inability to look after all the affairs relating to the said zemin and for other reasons as stated in the said arzi, all proceedings relating to the Government should, in future, be conducted through him." After this was signed by Ovala and the Tahsildar, another question was put to Ovala to which he answered, "I have no issue," and this again is signed by him and the Tahsildar. These are the transactions relied on by the defendant to prove the transfer under which he claims. These are the transactions relied on by the defendant to prove the transfer under which he claims. It is not disputed that according to the law established at this time such a transfer could not be effected except by a registered deed. The arzis and the statement made to the Collector clearly do not bear any such character. Mutation of names in the Collectors books seems to have been effected in the year 1888; though possession of the twenty-eight villages has always been with the mortgagee, and it does not appear that Ovala was ever put out of possession of the other property. But even if a complete change had been effected in these respects, it would at the utmost do no more than give a starting point for the law of limitation. It would not supply the conditions of the law of transfer. The Subordinate Judge would not allow the plaintiff the benefit of this law because he had not made it the subject of express pleading and issue. In this he was wrong, because the party who relies on a transfer must prove it, and the second issue as the High Court points out, raises the question whether by the stated arrangements the property had passed to the defendant. The question then is, whether the mortgage effects the alleged transfer. Directly, it does not. It contemplates such a transfer and an arzi stating the fact, and it requires that the mortgagee, if paid off either by all the family or by the defendant, shall surrender to the defendant. But both in form and in substance it is a transaction between the family and the mortgagee, and not one between the several members of the family. The defendants case is then put in a different way ; and this is the point principally argued at the bar. It is contended that, though the mortgage may fall short of an actual transfer, "it shews a good contract for 6ne, and that the defendant may now call upon Ovalas heir to implement that contract. Certainly, if such a right exists it would be an answer to the plaintiff’s claim, and the exact form in which it could be enforced need not be considered. Certainly, if such a right exists it would be an answer to the plaintiff’s claim, and the exact form in which it could be enforced need not be considered. The High Court held it to be fatal to the defendant that his case was not put in that way in the Court below, and that no evidence was tendered upon it. Clearly it was for the defendant to allege a contract between himself and Ovala, founded on valuable consideration, that Ovala should cease to be owner and that he should become owner. In the absence of such an allegation the circumstances which led Ovala to execute the mortgage and to present the arzis have not been examined. If the documents in proof contained on their face clear evidence of a valuable consideration passing to Law. Rep. 28 Ind. App. 46 ( 1900- 1901) Immudipattam Thirugnana v. Periya Dorasami 143 Ovala, it would have to be considered whether it was open to the defendant to make such a case on appeal. Mr. Mayne has argued the case very fully on the supposition that it is open. So treating it, their Lordships cannot find that the existence of a contract for valuable consideration between the defendant and Ovala is proved by the mortgage deed. It is suggested that the transfer was part of a general family arrangement; but there is no proof of that. It is contended that the family were making themselves liable for payment to the mortgagee. But, as the High Court points out, the family was a joint family, and the estate a joint estate, though impartible; and the object was to strengthen the mortgagees title, not to effect changes in the family. It did not signify to the mortgagee whether the estate when redeemed went back to Ovala or to the defendant. All wished to save it from sale, and in the then position of Ovala it was likely that either his brother Karutha or his nephew the defendant would be zemindar on his death. No reason is given why a transfer of interest from the uncle to the nephew should form part of a joint effort by the family to keep the estate in the family. If there was any reason, it should have been alleged and proved. As to pecuniary benefits accruing directly to Ovala, only two are mentioned. No reason is given why a transfer of interest from the uncle to the nephew should form part of a joint effort by the family to keep the estate in the family. If there was any reason, it should have been alleged and proved. As to pecuniary benefits accruing directly to Ovala, only two are mentioned. One is the pension of Rs.250, which is only a continuance of a similar payment by Ramanathan and which is for the maintenance of all the members of the family. The other is the sum of Rs.6000, said to be given to Ovala as a recompense for his transfer of the property. But there is no evidence that this recompense ever really reached Ovalas hands, and the documents give reason for doubting it. It was to be paid " after a settlement of the differences existing between the members of our family.* No evidence has been given of any such settlement. To treat the intended payment as the consideration for Ovalas transfer is inconsistent with his arzis presented three days later, and with his statement to the Tahsildar made thirteen days later. In none of these documents does he allude to the receipt of money, except that he is to have Rs.250 per mensem for maintenance of himself and family. The reasons he assigns for the transfer are that he is infirm, that he has no issue, and that Thirugnana is the next heir. If there had been any substance in the allegation that the mortgagee had paid Rs.6000 to Ovala as consideration for transferring the estate, it is inexplicable that it should not be mentioned in the arzis which were intended to effect the legal transfer. With such imperfect evidence on the face of the documents it was imperative on the defendant that, in order to avail himself of an antecedent contract, he should by his pleadings and evidence have put it in a proper course of trial. Not having done so, he has been rightly adjudged to have failed on that issue. The case is not free from obscurity or difficulty. Not having done so, he has been rightly adjudged to have failed on that issue. The case is not free from obscurity or difficulty. But their Lordships think that the High Court has arrived at the sound legal conclusion, namely, that though there may have been an intention to transfer the property, it never was effected in the mode required by law; and that the intended transferee cannot now call for implement of the intention, because he fails to shew any contract founded on valuable consideration. The mortgagee has been added as a respondent in these appeals. Mr. Mayne now asks that he may be relieved from paying that respondents costs, because, as nobody sought to attack his interests, he need not have appeared. The mortgagee is clearly interested to watch the litigation in the redemption suit; but he has judiciously kept himself from doing more, treating the controversy between the cousins as a matter indifferent to himself. It is quite possible that arrangements might have been made with him to dispense with his appearance. But none have been made; and he appears here, maintaining the same attitude of neutrality as before. The appellants say that, they were obliged to bring the mortgagee here as a matter of procedure. If so, it is one of the necessary incidents of the appeal, and the costs of it must be taken as part of the costs of this appeal. In giving the foregoing reasons their Lordships have not distinguished between the more important suit Law. Rep. 28 Ind. App. 46 ( 1900- 1901) Immudipattam Thirugnana v. Periya Dorasami 144 for redemption and the other for possession. The result in both is governed by substantially the same considerations, and the cases have been so treated by the High Court. Their Lordships will humbly advise Her Majesty to dismiss both appeals as against both respondents, whose costs the appellants must pay.