JUDGMENT
1. This appeal arises out of a suit on foot of a mortgage-bond dated the 1st June 1897 said to have been executed by Mir Singh and Ram Rikh. Mir Singh and Ram Rikh were brothers, members of a joint Hindu family, and both of them had issue. The sons were made parties to the suit on the express ground that the property was ancestral property and that the debt was binding upon the family. The mortgage bond was not forthcoming. This fact was stated in the plaint and a copy of the bond was produced but not the original. Written statements were put in by Ram Rikh, Mir Singh and Jaimal, son of Mir Singh, the main defence being that the bond had been paid off, and that the allegation of its loss was false. While the suit was pending Mir Singh died, and his son, who was already on the record as a member of the joint family, was placed on the record as the representative of his father Mir Singh. A writ (sic) statement on his behalf was filed on the (sic) March 1910, the written statement on (sic) Mir Singh having been filed on the (sic) August 1909, and that on behalf of (sic) on the 10th of December 1909. (sic) pear that the issues were framed (sic) commenced on the same day (sic) which the written statement was (sic) of Jai Mal, the son of Mir, (sic) namely, on the 4th of March 1910. It is quite clear from the perusal of the judgment of the learned Judge that the main question considered and discussed before him was that of the loss of the bond and the issue as to payment. The learned Judge says: “I do not believe that the bond was lost at all. The defence evidence as to payment is certainly such that it would be impossible to accept it in ordinary circumstances, but, as matters stand there may be something in it; what, I find is that, although complete satisfaction is not credible, some substantial portion of the loan had probably been satisfied and hence the suppression of the original band.” Since this decision was given it has been made abundantly clear that the bond was not in fact suppressed. A bond has since been found and produced in this Court with an affidavit satisfactorily explaining its loss and recovery. The document which is produced bears the date of the alleged bond. It bears a certificate of the Registrar, and there is nothing suspicious about it. We say nothing more as to its genuineness, because the document must at least be formally proved as against the minor defendants who deny all knowledge of it. The finding of the bond disposes altogether of the finding of the learned Judge that the bond was satisfied. It bears no endorsement of any payment having been made. There was, however, before the Court another issue, namely, the fourth issue, which was in the following terms: Was the loan incurred for legal necessity, and, if not, had the defendant executant power to transfer any portion of the hypothecated property? The learned Judge found this issue against the plaintiffs. He says plaintiffs should, in my opinion, have put in their books and proved the existence of a bona fide debt.” In our opinion the attention of the parties was hardly drawn to this question. We have already pointed out that the written statement of the minor Jai Mal was only put in the very day the evidence commenced. There was nothing in the written statement of Ram Rikh or Mir Singh to put in issue the question whether the bond had been made for an antecedent debt. The minors were already parties, but they had filed no separate written statement, and there was no denial that the bond was in fact for an antecedent debt. We think that, speaking generally, a recital in the bond of an antecedent debt is not of much weight by itself. But we think that in the present case it was evidence not only against Mir Singh and Ram Rikh but also against other members of the same joint family the manager of which was Mir Singh. Assuming that this was evidence for the plaintiffs, there was no evidence of any kind to contradict it. The bond contained a recital that Rs. 390 was due on foot of account-books. This recital was verified by Mir Singh and Ram Rikh who admitted before the Begistrar the receipt of Rs. 390 “in accordance with tire statement in the bond.” Ram Rikh was examined and he said that Mir Singh used to manage all the business, and he never attempted to deny that there was an antecedent debt. Not a word was asked the plaintiffs as to the non-production of their account-books. We think that the case could not be decided on the evidence as it stands, against the plaintiffs, on the question of the existence or non existence of an antecedent debt; under the circumstance as we think that the proper course to accept is to send the case back for re-trial under the altered circumstances which we have set forth above. Unless the bond is no v admitted by the minor defendants it must be proved. The Court will then consider the question as to whether or not the bond has been discharged in whole or in part. It will also consider whether or not there was an antecedent debt, and if so, how much? If the bond was given in part only for an antecedent debt, the Court will further consider whether there was any legal necessity for the balance of the money. We accordingly allow the appeal, set aside the decree of the lower Court and remand the case with directions to that Court to proceed to hear and determine the case according to law, bearing in mind the observations which we have made above. The bond which has been produced before us will be sent to the Court below. Costs here and heretofore will abide the event. Costs in this Court will include fees on the higher scale.
