JUDGMENT
1. The suit is on a mortgage executed by the father of the 1st defendant in favour of the 1st defendant’s daughter. The 1st defendant sued in O.S. No. 407 of 1903 for a declaration that the mortgage had been discharged by his father before his death. The suit was dismissed on appeal. The question is whether the 3rd, 4th and 5th defendants, who are the sons of the 1st defendant, can plead discharge of the mortgage as a defence to the present suit. It is the case of both sides that the answer depends on the further question whether the 1st defendant conducted the suit of 1903 on behalf of his family as managing member thereof. The Subordinate Judge says there is nothing to show that he maintained that suit in his representative capacity as manager of the family and not in his individual capacity; and against this it is contended for the appellant that the circumstances found raise a presumption that the suit was on behalf of the family. These circumstances are that the interests of the 1st defendant and his sons were identical, it being as much to their interest as to his to free the family land of the encumbrance and that the 1st defendant was the father of the family.
2. The plaint does not allege that the 1st defendant sued as manager, nor does it appear that the 1st defendant was asked any question upon that point; the question was, therefore, not clearly raised, and we are unable to say, as a matter of law, that the Subordinate Judge was bound to raise a presumption on the circumstances relied on by the appellant.
3. The second appeal is dismissed with costs.
