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The document also contained the following clause with reference to the share allotted to Muruga Pillai:

2. On 5th December, 1918, Muruga Pillai mortgaged his share of the properties along with the well in favour of one Ramai (Sounder and Rayakkal reciting therein that the said properties were allotted to Muruga Pillai absolutely under the partition (Exhibit B-3). On the same day, Arunachala mortgaged S.F. Nos. 30 and 31 without the well in favour of the same two persons under the original of Exhibit B-4. Muruga Pillai died in the year 1922. On 2ist June, 1924, Arunachala mortgaged S.F. Nos. 30 and 31 along with half rights to the well in S. No. 30 to one Ramaswamy Iyer, the father of the plaintiff herein with a direction in the mortgage deed to redeem the mortgage under the original of Exhibit B-4. Subsequently, the Town Bank Ltd., Coimbatore, filed O.S. No. 439 of 1925 against Arunachala and Ramakrishna and obtained a simple money decree against them. In execution of that money decree, the Town Bank Ltd., had sold S.F. Nos. 24, 25, 30 and 31 in Court-auction subject to the mortgages under the originals of Exhibits B-3 and B-4. The properties were purchased by Nanjunda Gounder, the Secretary of the Town Bank, Ltd., Coimbatore. Exhibit B-5, the sale certificate in this behalf does not specifically mention about the suit well even though all the four survey fields had been mentioned as the property purchased under the Court-auction. Nanjunda Gounder in turn sold all the four survey fields to Nattuswami Gounder on 3rd September, 1927, under the original of Exhibit B-6. In the description of the property in this document, also, the suit well does not find a place. Subsequently on 14th October, 1927, Rayakkal and her sons filed O.S. No. 235 of 1927 on the strength of the mortgage created in their favour by Muruga Pillai under the original of Exhibit B-3. To that suit, the two sons of Muruga Pillai, Arunachala and Ramakrishna, the Official Receiver representing Ramakrishna and Nanjunda Gounder and Nattuswami Gounder were made parties. On 24th October, 1929,a preliminary decree was passed in that suit. Under that preliminary decree, the Secretary, Town Bank Ltd., namely, Nanjunda Gounder and Nattuswami Gounder were given the option to redeem the mortgaged property, but they did not do so. In that situation Ramaswami Iyer, the plaintiff's father filed O.S. No. 177 of 1930 on 26th August, 1930,on the strength of the mortgage created in his favour under the original of Exhibit A-2. During the pendency of that suit, on 25th January, 1932, Nattuswami Gounder sold S.F. Nos. 30 and 31 along with the entire well in S.F. No. 30 to plaintiff's father, namely, Ramaswami Iyer, retaining S.F. Nos. 24 and 25 to himself. S.F. Nos. 24 and 25 along with the well, were brought to sale in execution of the decree in O.S. No. 235 of 1927 and the same were purchased by Rayakkal and her sons as evidenced by the sale certificate, dated 15th January, 1936, namely, Exhibit B-8. The purchasers took possession of the properties through the Court. Rayakkal sold S.F. Nos. 24 and 25 along with the entire well to one Kandaswami on 7th June, 1937, under Exhibit B-11. Kandaswami in his turn sold the property to the defendants in the suit under Exhibit B-13, dated 3rd June, 1946. Thus, it will be seen that the plaintiff claims title in the property through Arunachala and Ramakrishna, while the defendants claim title to the property pursuant to the mortgage decree obtained in O.S. No. 235 of 1927.

4. Against that judgment and decree, the defendants in the present suit preferred S.A. No. 543 of 1957 on the file of this Court. During the pendency of that J appeal the present suit was instituted by the plaintiff on the file of the Court of the I District Munsif, Coimbatore, for a declaration of the plaintiff's title to all the portion of S.F. No. 30 and the entire well) therein and for a permanent injunction restraining the defendants (appellants) their men, and servants from trespassing into or otherwise interfering with and doing any act with regard to the entire suit well and to any portion of S.F. No. 30 or to the plaintiff's absolute and sole use thereof. In view of this institution of the suit, namely, O.S. No. 598 of 1957, on 16th January, 1957, S.A. No. 543 of 1957 was dismissed affirming the findings of the Courts below with regard to possession as being findings of fact and leaving the question of title open to be determined in O.S. No. 598 of 1957. In the said suit, as' I pointed out already, the plaintiff claimed title to the property tracing it through Arunachala and Ramakrishna and putting forward the contention that under the partition deed of 1917 Muruga Pillai had obtained only a life interest in. S.F. Nos. 24 and 25 and the well in S.F. No. 30, and consequently the mortgage created by him in favour of Rayakkal and; others came to an end with his life, with, the result, the defendants as representatives of the purchasers in execution of the mortgage decree did not obtain and acquire any title in the suit well. As against this contention, the defendants put forward the contention that under partition deed of 1917 Muruga Pillai acquired an. absolute estate to the two S.F. Nos. 24 and 25 and the well in the S.F. No. 30, the decree in the mortgage suit and the sale pursuant thereto having been made and effected in the presence of Arunachala and Ramakrishna, Nanjunda Gounder, and Nattuswami Gounder, the plaintiff herein who is successor-in-interest to those persons is bound by the decree, and consequently, he cannot claim any title to the well in dispute. Certain contentions were put forward with regard to the question of possession in respect of the properties in the suit. The learned District Munsif by his judgment and decree, dated 30th March, 1960, decreed the suit of the plaintiff. He held that under the partition deed of 1917 Muruga Pillai obtained only a life interest in the properties allotted to his share; that being the case, Arunachala and Ramakrishna were in the position of holders of paramount title with reference to the mortgage suit, and consequently, the question regarding that paramount title need not have been raised and could not have been gone into in the mortgage suit; therefore, that decree is not binding on them. There was one other contention that was put forward by the defendants on the basis of the two mortgage documents Exhibit B-3 and B-4. As I pointed out already, Exhibit B-3 was the mortgage created by Muruga Pillai claiming that he had obtained absolute right to S.F. Nos. 24 and 25 and the well in S.F. No. 30 under the partition deed and that mortgage deed among others was attested by Arunachala and Ramakrishna. Exhibit B-4 as pointed out already was a mortgage executed by Arunachala on the same day in favour of the same persons and that document was attested by Muruga Pillai. The argument of the defendants was that in Exhibit B-3 Muruga Pillai had claimed absolute title to the properties covered by the document and the attestation of that document by Arunachala and Ramakrishna, with the knowledge of the contents of the document constituted estoppal against Arunachala and Ramakrishna; therefore, it was not open to them and the plaintiff as successor-in-interest, to put forward the contention that Muruga Pillai did not acquire, under the partition deed, an absolute estate, but only life interest. The learned District Munsif held that mere attestation would not estop Arunachala and Ramakrishna from putting forward the contention. Consequently, he found the title to the well in favour of the plaintiff. As far as the title to the portion of the land to the west of the well and the east of the line connecting Section 1, Section 2 and Section 3 in Exhibit A-1 plan, which fell completely within S.F. No. 30 was concerned, he found that it is with the plaintiff. With regard to possession, the learned District Munsif was of the view that the finding in O.S. No. 740 of 1952 was res judicata. It is on this basis that the suit was decreed as pointed out by me already. Against this judgment and decree the defendants herein preferred A.S. No. 5 of 1962 on the file of the Subordinate Judge, Coimbatore, and the learned Subordinate Judge, by a judgment and decree dated 18th July, 1962, affirmed the conclusions of the learned District Munsif and dismissed the appeal. It is against this judgment and decree, the present second appeal has been filed by the defendants.

5. Mr. M.S. Venkatarama Iyer, learned Counsel for the appellants, raised the following contentions : (1) Under the partition deed of 1917, Muruga Pillai obtained an absolute interest in respect of S.F. Nos. 24 and 25 and the well in S.F. No. 30. The clause contained in the said partition deed, which I had already referred to, did not operate to cut down the absolute interest so created. The subsequent conduct of the parties, namely, the execution of Exhibit B-3 and Exhibit B-4, the two mortgage deeds by Muruga Pillai and Arunachala, the former being attested by Aruchala and Ramakrishna and the latter being attested by Muruga Pillai establish that the intention of the parties, when entering into the partition agreement, was to confer an absolute interest on Muruga Pillai. (2) Even assuming that the relevant clause extracted already, in the partition deed, operated to cut down the absolute estate, created in favour of Muruga Pillai, such clause will be void as being repugnant to the earlier clause conferring absolute interest oh Muruga Pillai. (3) Even assuming that under the partition deed of P917, Muruga Pillai obtained only a life interest to S.F. Nos. 24 and 25 and the well in S.F. No. 30, still as Murugu Pillai purported to create a mortgage on the basis of his having an absolute interest, a decree having been passed on that mortgage and the properties having been sold in the presence of Arunachala and Ramakrishna and Nanjunda Gounder and Nattuswami Gounder, the plaintiff is bound by that decree and it is not open to the plaintiff to contend that nothing passed to the purchasers in execution of that decree. (4) In any event, Arunachala and Ramakrishna having attested Exhibit B-3 with the knowledge of its contents, were estopped from putting forward the contention that Muruga Pillai had obtained only a life interest and not absolute interest under the partition deed and consequently, the plaintiff as representative-in-interest of Arunachala and Ramakrishna is also estopped from putting forward that contention. (5) The Courts below erred in their understanding of the scope of the finding in O.S. No. 740 of 1952 with regard to possession.

14. However, for the purpose of this case, I do not propose to rest my conclusion solely on the basis of attestation of Arunachala and Ramakrishna in Exhibit B-3 and the prima facie position and presumption resulting therefrom. I have already indicated sufficiently the attending circumstances; on the same date when the partition deed was executed the mortgage in favour of Kuppuswami Chettiar was executed by all the three. Obviously, the parties were not able to discharge that mortgage except by mortgaging again the very same properties that they obtained under the partition deed. It was in these circumstances Exhibit B-3 and Exhibit B-4 were executed on the same date by the two sets of parties to the partition deed; the mortgage executed by the father being witnessed by the two sons and the mortgage executed by one of the sons being witnessed by the father and the other son, the other attestors and the scribe being common. This would clearly show that both the documents form part of the same transaction in which the parties attempted to arrange for the discharge of the mortgage executed in favour of Kuppuswami Chettiar in 1917. In these circumstances, it is impossible to state that, when Arunachala and Ramakrishna attested Exhibit B-3, they were not aware of the contents of that document. Consequently, I hold that in addition to the attestation by Arunachala and Ramakrishna all the circumstances of this case clearly point to the 'conclusion that Arunachala and Ramakrishna attested the document with the full knowledge of the contents of the document. Such a conclusion is also supported by the ratio in the decision in Janikiram Sital Ram Firm v. The Chota Nagpur Banking Association Ltd. (1936) I.L.R. 15 Pat. 721. Therefore, I hold that Arunachala and Ramakrishna were estopped from contending that Muruga Pillai had only a life interest and did not have an absolute interest in Survey Nos. 24 and 25 and the well in S. No. 30, and therefore, the plaintiff herein, as the successor-in-interest of Arunachala and Ramakrishna, is also estopped from putting forward that contention. If that be the case, under the mortgage decree and the sale that took place pursuant thereto, absolute interest in Section Nos. 24 and 25 and the well in S. No. 30 passed to the purchaser which in turn passed to the defendants-appellants before me. In so far as the appellants claim their title through Muruga Pillai, they will be entitled only to what Muruga Pillai mortgaged under Exhibit B-3 and what passed by virtue of the sale pursuant to the decree in that mortgage suit. The description of the property contained in the mortgage deed Exhibit B-3 and covered by the sale certificate is as follows: