The main legal point established in the judgment is the requirement for a mortgage bond to be supported by consideration, and the court's reliance on the lack of evidence and surrounding circumstances to determine the validity of the mortgage bond.

Varadachariar, J.

1. This appeal arises out of a suit for the sale on foot of a mortgage deed, Ex. A, executed in 1911 by one Peer Muhammad in favour of Alia Pichai Rowther who was the mortgagors brother-in-law as well as his son-in-law. The mortgagee died in 1913 leaving a number of heirs some of whom are also interested in the equity of redemption by reason of their relationship to Peer Muhammad. It is clear from the plaint itself that no payment either towards any portion of the principal or towards interest was made in respect of this mortgage between 1911 and the date of the suit. In August, 1926, Allapichai Rowthers widow, that is, the seventh defendant and two of her daughters assigned their interest in the mortgage bond to the plaintiff under Ex. B, and this suit was filed in September, 1926. Besides the persons who are also the heirs of the mortgagor the only other co-heir to the mortgagees estate, so far as we have been able together, is one Nagur Kanni Rowther who was impleaded as the ninth defendant in the case.

2. In view of the arguments urged before us, on behalf of the appellants, as to the frame of the suit, it is necessary to mention that the assignors were entitled only to 19/24th share in the mortgagees estate and that the assignee therefore became entitled only to that share of the mortgage money. It also appears that the assignors had somehow become interested in a portion of the hypotheca and it is accordingly stated in the deed of assignment that the assignee should proceed only against the rest of the hypotheca. In these circumstances the plaint sets out the fact that the plaintiff was entitled only to a 19/24th share in the mortgage amount and in paragraph 14 of the plaint the plaintiff works out the amount due under the mortgage deed at Rs. 7,644 and stated that 19/24th share therein is Rs. 6,051-8-0 and after remitting therefrom on his own choice Rs. 551-8-0 the plaintiff limits his claim to Rs. 5,500 which he takes as the figure for the purposes of court-fees and jurisdiction.

3. A written statement was filed on behalf of defendants 1, 5 and 4 the widows and the son of the mortgagor. Neither in this written statement nor at the stage when the issues were framed in the case was any objection taken to the frame of the suit. Nor does it appear that any such objection was urged at any time before judgment was given in the lower Court. The issues framed in the case related to three pleas (1) that the plaint bond was not true and supported by consideration; (2) that the assignment relied on by the plaintiff was not true and supported by consideration; and (3) that the suit was barred by limitation. I may say at this stage that it is unnecessary for the purpose of this appeal to notice any further the pleas involved in issues 2 and 3 because there is no prima facie basis for the second issue, nor is there any substance in the third issue.

4. In the appeal, however, objection has been taken to the frame of the suit. The learned Counsel for the appellant laid some stress upon the fact that the plaint claim relied against some of the mortgaged properties, but realising that the omission to claim relief as against the other properties-- whatever other consequences it may involve--was not fatal to the maintainability of the suit, he tried to press it into service as part of his objection based on the proviso to Section 67 of the Transfer of Property Act, especially when taken along with the fact that the plaintiff is limiting his claim to 19/24th share of the mortgage amount. Section 67 of the Transfer of Property Act no doubt provides that a mortgagee or co-mortgagee cannot claim to recover a fraction of the mortgage amount from a proportionate fraction of the mortgaged property. But in the present case, the omission of some of the mortgaged properties from the suit has, in view of the provisions in the assignment deed, nothing to do with the limitation of the plaintiffs claim to a fraction of the mortgage a