1. This is a curious case although, we are afraid, it is also a typical case. It is however by no means an easy case to dispose of. The plaintiff sues upon a mortgage-bond in common form, and claims payment of the amount due, or sale of the hypothecated property. The bond is said to be lost. This loss has not been established to the satisfaction of either Court. We are not surprised. Without finding any facts we can only say that the allegation of the plaintiff, that it dropped out of his hand, or pocket, or folds of his dhoti, on his way to the Court to file a suit on it, though not impossible, is an extremely unlikely event. We will not discuss the probabilities of the plaintiff discovering this unfortunate accident by the use of his senses, and taking immediate steps to recover the document, or the suspicious conduct of the plaintiff in going straight off to the police station and making a formal report. If there had been a crowd of people through which he was pushing his way, or a high wind which immediately carried the bond out of his sight and beyond recovery, we could have understood this extraordinary event. We can only say that we regard the whole story with the gravest possible suspicion. The Munsif escaped the necessity of arriving at a decision on this point by relying upon an authority with which we will deal in a moment. The Subordinate Judge, while properly agreeing with the Munsif, because he was really bound by the decision, which was a decision of a Judge of this Court, could not resist expressing his view about the evidence, and the case, therefore, reaches us with a finding of fact that the loss is not established by satisfactory evidence.
2. The case relied upon is Mulhu v. Deo Karan (1913) 11 ALJ 734, a decision of Mr. Justice Rafique, that although the execution of the bond was not expressly admitted, the plea of payment amounted to an admission of the execution of the bond, and that the plaintiff could maintain a suit on the copy of the deed without proving the alleged loss. With all respect to the learned Judge who decided that case, and who was a most experienced Judge in matters which may be described as questions of business, it appears to us that he was misled. In the first place it is not true to say that an inconsistent plea turns a preliminary plea in the same written statement into an admission when it is not in fact an actual admission. This matter will be found fully discussed in a chapter by Dr. Weir in a recent book published on the Principles of Pleadings. Alternative pleas have always been admitted from the earliest days for excellent reasons. A libel suit is perhaps the best, illustration. A defendant is perfectly entitled to deny publication and to deny that the libel refers to the plaintiff, even although he pleads alternatively that the libel is true. The reason for that is a perfectly sound one justified by the view of lawyers from all time. It has the effect of forcing the plaintiff into the box, and also the man to whom the libel or slander was published, and, therefore, the defendant by his pleadings puts the plaintiff to proof, so that he is able to assure himself that the plaintiff cannot keep out of the witness-box and will be compelled to submit to cross-examination on a question of justification.
3. Similarly, in a case like this, a defendant may well deny the existence of the bond, or its execution, consistently with an alternative plea that it is paid, if he instructs his pleader that the actual production of the original document will show by the endorsements upon it that the payments have been made. In other words he forces the plaintiff to prove the document. It appears to us that the learned Judge was misled by the view taken in the case of Chuni Kuar v. Udai Ram (1884) 6 All 73 which, unless it was a ruling upon a specific finding of fact, appears to us to be worthy of further consideration, and further the learned Judge distinguishes the case which he was deciding from the case of Sri Ram v. Ram Lal (1918) 11 ALJ 255 upon a fine distinction namely that the defendants in that case were not the original executants but were transferees, a ground which appears to us to be no real distinction. In the case of Sri Ram v. Ram Lal (1918) 11 ALJ 255 it was held that the alternative plea of payment did not amount to an admission of the mortgage sufficient to relieve the plaintiff from proving the loss of the original deed, and to entitle him to sue upon a copy of it. We agree with that decision. We respectfully think that Mr. Justice Rafique should have followed it. At any rate the principle there laid down is clearly right and ought to be followed,
4. We are prepared, and in this respect we are of opinion that we are laying down no new law at all to hold definitely in a case like this that the plaintiff cannot sue upon the bond without producing it subject, of course, to the provisions of Section 65 of the Evidence Act.
5. With regard to bills of exchange in England and doubtless also in India, because the law in both countries has been codified on the same lines, it has always teen held that the bill must be produced in Court. Even where the execution of the bill is admitted, and liability is not disputed it has been held by a strong Court in the case of Hutton v. Ward (1-50) 19 LJQ B 293 that interest cannot be claimed unless the bill is produced showing the date of maturity from which interest is to run, and it is worth while on this question of the fundamental necessity of production of the document, upon which the suit is brought, to draw attention to the observations of one of the greatest commercial lawyers of his century, Lord Chief Justice Tenterden, in the case of Hansard v. Robinson (1827) 7 B & C 90. No doubt, different considerations apply to negotiable instruments which were based upon the custom of merchants, but for this purpose there is no distinction between a negotiable instrument, which is transferable by delivery, and a bond, which is far more common for an ordinary debt transaction in India, and takes the place of bill transactions which are more usual in England. So far as transferability is concerned, Lord Tenterden says-and in using this term he is expressing the law merchant at the lime:
The custom is that the holder of the bill shall present the instrument, at its maturity to the acceptor to demand payment and upon receipt of the money deliver up the bill.
6. If one substitutes for the word 'holder' the word 'bond-holder' and for the word 'acceptor' the word 'debtor' the passage would run as follows:
The debtor paying the bond has a right to the possession of the instrument for his own security and as his voucher and discharge... in his account with the bond-holder. If upon an offer of payment the bond-holder should refuse to deliver up the bond can it be doubted that the debtor might retract his offer and retain his money? And if this be the right of the debtor when the bond is due must not his right be the same if though not ready at the due date he is ready afterwards; and can his right be varied if the payment is to be made under a compulsory process of law? The foundation of his right, his own security, his voucher, and his discharge to wards the bond-holder, remain unchanged.... It will be the same thing whether the instrument has been destroyed or mislaid.... But how is he to be assured of the fact, either of the loss or destruction of the bill?
7. And the passage then goes on to point out what may happen even in the case of a lost bond, when the debtor is required to pay again by a bona fide transferee of value from the original bond-holder. This does no more than emphasize the importance of production, indeed the right, of the debtor to demand production. Section 65 of the Evidence Act provides an alternative to the bond-holder in cases where for various reasons production of the original is impossible; but if a bond is in existence production is not dispensed with by that section, and the observation of Lord Tenterden, and our own view of the strict provisions of Section 65, emphasize the importance of the trial Court exercising the greatest circumspection and care in deciding fundamental questions of fact, which, becoming res judicata between the parties, may be of vital importance to the defendant as to whether there really has been a bona fide loss.
8. We may mention by the way that it is a recognized principle of evidence in England, and the presumption reasonably is within the four corners of the Evidence Act that every deed being the best evidence of its own contents its non-production raises the presumption that it contains some defeasance. In other words, it is not an unreasonable presumption from the non-production in a case of this kind that there was some endorsement on the document which the plaintiff did not like. It is perhaps not irrelevant to observe that people in this country are particularly careful in preserving what they treasure and particularly documents. They have been known even to preserve in a locked box a judgment of the High Court, and they are people by nature and habit unlikely easily to lose a document so treasured, generally for a long period of years as a mortgage-bond particularly at the moment when it becomes necessary to transport it to the Court for the purpose of filing a suit. The statement of the plaintiff that this document had been kept in an iron box duly locked for at least two years and had disappeared in this sudden and mysterious fashion almost suggests the conduct of some wild bird which had been kept in confinement in a cage for a long period, and makes its escape into freedom and its natural element at the first opportunity.
9. The whole story suggests itself to us as almost farcical and incredible. If we thought that we were doing any hardship to the plaintiff in this particular case, we should have referred back issues for further findings. There is a plausible case for doing so because the Munsif has avoided a specific finding: but for the reasons already given we are satisfied that the only just thing to do in this case is to act upon the finding that the plaintiff's evidence did not satisfy the lower Court and to allow the appeal with costs here and below including in this Court fees on the higher scale.