A mortgage executed by a natural guardian without court permission is voidable against minors, and the limitation period for challenging such a mortgage is governed by Article 59 of the Limitation Act, not Article 60.

JUDGMENT

Plaintiffs in OS No.812/2003 on the files of the Additional Munsiff’s Court, Cherthala, a suit for partition, are before this Court in this second appeal. They are aggrieved by the judgment and decree of the Sub Court, Cherthala in AS No.23 of 2008 by which the judgment of the trial court was reversed, dismissing the suit.

2. Brief facts necessary for the disposal of the appeal are as follows:

The appellants are the plaintiffs in a suit for partition. The plaint schedule item No.1 property was allotted to the share of the plaintiffs and the 1^st defendant through their mother one Bharghavi Amma, by partition deed No.534/1122 M.E. dated 23.02.1122 M.E. Bharghavi Amma, who is the eldest member of the family, had two sons and one daughter. The daughter of Bharghavi Amma, namely, Anandavally Amma had three daughters, named, Baby, Sreedevi and Ushakumari. Anandavally Amma was married to one Karunakaran Nair. The 1^st plaintiff, on attaining majority, got employment in Military and was there in Military service.The 2^nd plaintiff did not have any employment except a small tea shop. The 1^st plaintiff claimed that he had constructed the house (plaint item No.2 building) in the plaint schedule property and the existing building (plaint item No.3) in the plaint scheduled property was in a dilapidated condition and is now being used as a cattle shed. Bharghavi Amma expired in July 1966 and therefore it is contended that both the plaintiffs and the defendants are co-owners of the property and as co-owners at the time of Kerala Joint Hindu Family System (Abolition) Act, 1975, each co- owner is entitled to 1/6 share. The defendants were not amenable for any settlement and were not ready to partition the property and hence the suit.

3. The 1^st defendant resisted the suit by contending that the plaintiffs have no right to claim partition and that the right, if any, of the plaintiffs has been lost by adverse possession. It was stated that an earlier suit filed by the plaintiffs herein as O.S.No.339/2000 was dismissed and later the present suit was filed, which is not permissible. The defendants also questioned the relationship between the parties and even went to the extent of stating that the plaintiffs are not the brothers of the 1st defendant. In order to prove the relationship, the plaintiffs called upon the husband of the 1^st defendant, Karunakaran Nair and he was examined as PW2. During his examination, it was deposed by him that the property in question was mortgaged by Bharghavi Amma, in favour of one Kamalakshiamma and later from the said Kamalakshiamma, Karunakaran Nair obtained an assignment of mortgage and therefore, he is having exclusive right over the plaint schedule property. Subsequently, PW2 sought impleadment in the suit as additional 5^th defendant, which was allowed. The 5^th defendant accordingly filed a written statement setting up an independent title over the plaint schedule property. This necessitated the plaintiffs to seek for setting aside the mortgage and also the subsequent assignment on the ground that the plaintiffs were minors at the time of execution of the mortgage. The amendment was allowed and an additional prayer to set aside the mortgage executed by Bharghavi Amma in the year 1964 was permitted and the suit proceeded to trial.

4. Before the trial court, the 1^st plaintiff examined himself as PW1 and produced Exts.A1 to A21 documents. The defendants produced Exts.B1 to B4 documents. PW2, PW3 and PW4 were also examine