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Issues Involved:
1. Consideration of the mortgage deed. 2. Abatement of the previous suit. 3. Allegations of fraud and misrepresentation. 4. Proper attestation of the mortgage deed. 5. Integrity of the mortgage. Detailed Analysis: 1. Consideration of the Mortgage Deed: The defendants contended that the mortgage deed dated 21st September 1923 was without consideration, arguing that the previous suit had abated, leaving no enforceable decree. The court held that the mortgage deed was not without consideration. According to Section 25(3) of the Contract Act, a written promise to pay a time-barred debt is binding. The court interpreted "limitation of suits" to mean the limitation of time as prescribed by the law of limitation in force, concluding that the mortgage deed was valid despite the abatement of the previous suit. 2. Abatement of the Previous Suit: The suit based on the earlier bond resulted in a preliminary decree for sale dated 8th March 1923. The sole plaintiff died on 2nd May 1923, and no application for substitution of heirs was made within the three months allowed by law. The court referenced previous rulings, including Moti Lal v. Ram Narain and Jagarnath Umar v. Ram Karan Singh, which concluded that the suit abated automatically due to the death of the sole plaintiff and the omission to bring heirs on record within the limitation period. The court affirmed that the suit abated automatically. 3. Allegations of Fraud and Misrepresentation: The defendants alleged that the mortgage was obtained fraudulently and that there was misrepresentation. The court examined the definitions of "fraud" and "misrepresentation" under Sections 17 and 18 of the Contract Act, respectively. It was noted that fraud involves a suggestion of a fact not believed to be true, while misrepresentation involves a positive assertion not warranted by the information available. The court held that mere silence or concealment of the abatement did not constitute fraud. The evidence presented was insufficient to establish that any fraudulent statements induced the mortgagors to enter into the agreement. The court concluded that the mortgage deed could not be avoided on the grounds of fraud or misrepresentation. 4. Proper Attestation of the Mortgage Deed: The defendants argued that the mortgage deed had not been properly attested. The court found that the execution of the mortgage deed was made in the presence of witnesses, and an acknowledgment of execution would now be sufficient. Therefore, the plea regarding improper attestation was dismissed. 5. Integrity of the Mortgage: The defendants contended that the integrity of the mortgage was broken. The court noted that the mortgage was executed by four persons whose properties were jointly and severally liable. Subsequently, the mortgagee acquired the interest of one of the mortgagors, Inamullah Khan, by purchase. The court held that the integrity of the mortgage was not broken as the interests were not co-extensive. Consequently, this plea was overruled. Conclusion: The appeal was dismissed with costs, affirming the validity of the mortgage deed and rejecting the defendants' contentions on all grounds.
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