JUDGMENT :

PRAYER: Appeal Suit filed under Section 96 of Code of Civil Procedure Code, to set aside the judgment and decree dated 28.07.1993 passed in O.S.No.6 of 1992 on the file of Sub Court, Devakottai.

The unsuccessful plaintiff is the appellant in the appeal. The appeal is filed against the judgment and decree of the trial Court, dated 28.07.1993 passed in O.S.No.6 of 1992 for recovery of money on a mortgage.

2. The facts pithily stated are as follows:

The defendants 1 and 2 are brothers and the third defendant is the mother of the defendants 1 and 2. The second defendant was a minor at the relevant period. The defendants 1 and 3 approached the plaintiff for a loan of Rs.65,000/- for settling the joint family debts and for the educational expenses of the second defendant. The plaintiff advanced the loan on 13.06.1988 and on the same date, the defendants 1 and 3 executed a registered mortgage deed agreeing to repay the sum of Rs.65,000/- @ 1% interest within a period of 12 months. The defendants 1 to 3 further agreed to pay penal interest in case of failure to repay within the stipulated period. The plaintiff in the plaint stated that he was waiving penal interest. As the defendants 1 to 3 did not pay any amount either towards principal or interest, the plaintiff sent a notice on 24.10.1989 calling upon the defendants 1 to 3 to repay the loan. The defendants 1 to 3 sent a reply on 03.11.1989 denying the borrowal and the execution of the mortgage. The plaintiff having failed in his attempts to arrive at an amicable settlement through the panchayatdars filed the above suit.

3. The first defendant remained exparte and the defendants 2 and 3 filed separate written statements denying the suit transaction. The second defendant apart from denying the borrowal of Rs.65,000/- stated that the third defendant could not act as his guardian as the father as natural guardian was alive. The second defendant further submitted that there was no necessity for the loan and the recital in the mortgage deed as if the money was borrowed for his educational expenses was untrue as he was granted scholarship for his education. The second defendant further contended that the mortgage was not binding on him either personally or in respect of his share in the property.

4. The third defendant, who filed a separate written statement traced the title to the suit property to a settlement deed, dated 09.06.1983 executed by her father-in-law, Lakshmana Konar, in favour of the defendants 1 and 2. The third defendant therefore denied that the suit property was joint family property. The third defendant stated that the mortgage deed was invalid as it was against the provisions of the Hindu Minority and Guardianship Act which provides that the father is the natural guardian and the defacto guardian could not deal with the minor's property without the permission of the competent Court.

5. The third defendant further narrated the circumstances under which the mortgage deed was executed. According to the third defendant, the mortgage deed was obtained by threat and coercion. The third defendant denied the passing of any consideration as alleged by the plaintiff under the mortgage deed. For these and other reasons spelt out in the written statement, the defendants 2 and 3 prayed for the dismissal of the suit.

6. In the trial Court, the plaintiff and 3 witnesses were examined and 1 document was marked on behalf of the plaintiff and for the defendants, the third defendant examined herself and marked 1 document. The trial Court framed the following issues:

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7. The trial Court on an appreciation of the entire evidence on record dismissed the suit with costs on its finding that the suit mortgage deed was invalid as it was obtained by threat and coercion and further, the mortgage deed was not binding on the second defendant as the third defendant was not the natural guardian of the second defendant.

8. Aggrieved by the judgment and decree of the trial Court, the plai