Judgement Consolidated Appeals from a decree of the Court of the Judicial Commissioner (July 31, 1907) reversing a decree of the Subordinate Judge of Barabanki (January 81, 1907). The suit was brought by the respondent Mandir Das, nephew of Kakhal Mal, to enforce a mortgage deed dated December 22, 1898, executed by the appellant in favour of Sukh Dei, since deceased, the widow of Kakhal Mal. The plaint alleged that the only payment made by defendant was one of Rs.2700 on account of interest, and that Rs.62,717 were due from the defendant to the plaintiff, who had obtained a certificate for collecting the debt in suit. It further alleged " that the plaintiff did not get the original deed which is lost. Therefore a co23y has been filed in the present suit." The defendant pleaded that he paid the amount due under the deed to Sukh Dei on December 4, 1902, and took back the original deed. The Subordinate Judge held that having regard to s. 114 of Act I. of 1872 the onus was on the plaintiff to shew that the bond had not been discharged. He dismissed the suit, finding that the plaintiff had put forward false witnesses who told an incredible story as to the defendants possession of the deed, inconsistent with the allegation in the plaint that it had been lost. Law. Rep. 39 Ind. App. 184 ( 1911- 1912) C haudhri Mohammad Mehdi Hasan Khan V. Mandir Das 90 The Appellate Court held that the onus had been wrongly thrown on the plaintiff, and dealt with the evidence on the assumption that the onus of proving payment was on the defendant. It considered that there were circumstances which rendered the payment very unlikely, and, though the plaintiff had adopted the reprehensible course of procuring false evidence which was worthless, this did not make the case of the defendant more probable. The Court did not believe the evidence of payment tendered by the defendant, whose omission to give evidence on his own behalf they held to be prejudicial to his case; and accordingly decreed the suit. Ross, for the appellant, contended that the suit had been rightly dismissed by the Subordinate Judge. He referred to Act I. of 1872, s. 4, the definition of "may presume,” s. 84, and s. 114. Ross, for the appellant, contended that the suit had been rightly dismissed by the Subordinate Judge. He referred to Act I. of 1872, s. 4, the definition of "may presume,” s. 84, and s. 114. The onus of proof was on the plaintiff to shew that notwithstanding what had happened the money had not been paid. This he had failed to discharge; nor had he explained the return of the mortgage deed, its possession by the respondent, and the indorse ment of a receipt thereon. The respondent did not appear. The judgment of their Lordships was delivered by MR. AMEER ALI These are two consolidated appeals from a judgment and decree of the Judicial Commissioners of Oudh, dated July 31, 1907, and arise out of a suit brought by the plaintiff in the Court of the Subordinate Judge of Barabanki on the basis of a mortgage bond executed by the defendant Chaudhri Mehdi Hasan on December 2, 1898, in favour of one Sukh Dei, since deceased. It appears that Sukh Dei carried on in her lifetime a money-lending business, and that the plaintiff has obtained a succession certificate under Act VII. of 1889 to collect the debts due to her estate. The present action was launched on February 16, 1906, for the recovery of over Rs.62,000, principal and interest, by the sale of the mortgaged premises. At the time of the institution of the suit the plaintiff produced only a copy of the document, alleging that the original had been lost. The defendant in his answer admitted its execution, but alleged that the debt was discharged. In support of his allegations he produced the original document containing the indorsement of payment by Sukh Dei and her general agent Bansidhar. In view of the presumption embodied in s. 114 of the Indian Evidence Act (I. of 1872), the Subordinate Judge was of opinion that the burden of establishing that the obligation created by the bond was still outstanding lay on the plaintiff. Their Lordships consider this to be the real meaning of the issue framed by him on September 6, 1906, after argument. The plaintiff accepted the onus and obtained an adjournment for the production of evidence in rebuttal of the presumption arising from the possession of the document by the defendant. Their Lordships consider this to be the real meaning of the issue framed by him on September 6, 1906, after argument. The plaintiff accepted the onus and obtained an adjournment for the production of evidence in rebuttal of the presumption arising from the possession of the document by the defendant. The hearing of the case was resumed in January, 1907, and the plaintiff examined a number of witnesses to prove that the defendant had dishonestly obtained possession of the bond after Sukh Deis death through the instrumentality of Bansidhar. He also attempted to establish that Sukh Dei was not at Barabanki on the date of the alleged payment. The defendant then went into evidence regarding the fact of payment and the delivery of the document to his servants on his behalf. The Subordinate Judge disbelieved the plaintiffs witnesses. With regard to the defendants evidence, he observed as follows " I would have hesitated in believing the testimony of defendants witnesses also, had it not been corroborated by the facts that the bond bearing an indorsement of payment was filed from the defen dants custody, and it was stated by plaintiffs own witnesses that the said indorsement was in the handwriting of Sukh Deis general agent, Bansidhar." In the result the Subordinate Judge dismissed the suit with costs. Law. Rep. 39 Ind. App. 184 ( 1911- 1912) C haudhri Mohammad Mehdi Hasan Khan V. Mandir Das 91 From this decree the plaintiff appealed to the Court of the Judicial Commissioner of Oudh. The learned judges who heard the appeal were of opinion that at the trial the onus had been wrongly thrown on the plaintiff. In this view the learned judge who delivered the principal judgment proceeded to examine in the first instance the evidence produced by the defendant and came to the conclusion that it was not reliable. He then considered the testimony of the plaintiffs witnesses and was of opinion that it was false. As regards the fact that the document on which the suit was based was in the possession of the defendant, and produced by him with the admitted indorsement of Sukh Deis general agent, he held that it must have come into the defendants hands by some dishonest means. He accordingly reversed the decision of the first Court and decreed the plaintiffs claim; and his learned colleague concurred in this judgment. He accordingly reversed the decision of the first Court and decreed the plaintiffs claim; and his learned colleague concurred in this judgment. The defen dant has appealed to His Majesty in Council, and there is a cross-appeal by the plaintiff on the question of interest disallowed by the learned judges in the Court below. But he has not appeared either in support of the judgment in his favour or to argue his own appeal. Their Lordships after a careful consideration of the case have come to the conclusion that the judgment and decree of the Judicial Commissioners cannot be sustained. Assuming that any question of onus remained after the parties had gone into evidence, and that it lay on the defendant to establish the allegation of payment, he appears to have proved facts which strongly support the presumption of law arising from the possession of the bond. He shewed that the indorsement of payment on the document was in the handwriting of Bansidhar, who, it is admitted, was the " recognized " and general agent of Sukh Dei and held a power of attorney from her, and that it bore his signature. The defendant also produced a letter of demand on behalf of Sukh Dei, dated some seventeen days before the date of the alleged payment, signed by Bansidhar. He proved further that this Bansidhar used to give acquittances on Sukh Deis behalf. Matadin, who, according to the plaintiffs own witnesses, is the defendants treasurer, states that he and two other fellow servants carried the money to Sukh Deis house, and that she after payment signed the document in Hindi in his presence below the indorsement written by Bansidhar and returned it to him. There is not a trace of cross-examination in the evidence of this witness with regard to the genuineness of Sukh Deis signature. That statement remains uncontradicted, for no attempt, so far as their Lordships can see, was made to recall the plaintiffs witnesses to say the alleged signature of Sukh Dei was not in her hand. To meet the case made by the defendant, the plaintiff produced three classes of testimony. He attempted to shew that the defendant was heavily involved in debt at or about the time of the alleged payment, and he wished the Court to draw from this circumstance the inference that repayment was unlikely. To meet the case made by the defendant, the plaintiff produced three classes of testimony. He attempted to shew that the defendant was heavily involved in debt at or about the time of the alleged payment, and he wished the Court to draw from this circumstance the inference that repayment was unlikely. The trial judge very properly, in their Lordships opinion, observed that the fact of the defendants indebtedness " in itself would not go to prove that he did not repay the debt in question." And he referred to the evidence of one of the plaintiffs witnesses to shew that the defendant was in funds in June, 1902, and repaid other debts. The real and substantial case put forward by the plaintiff was of a twofold character—first, that the bond was dishonestly and fraudulently made over to the defendant by Bansidhar after Sukh Deis death; and, secondly, that Sukh Dei was not at Barabanki on the date of the alleged payment. It is to be remarked that, although a book was produced by a Pujari, whom the Subbordinate Judge calls "a tutored and untruthful witness," to prove Sukh Deis absence from Barabanki, no attempt was made by the plaintiff to produce her mahajani books of account regularly kept in the course of business. The Subordinate Judge disbelieved the story told by the plaintiffs witnesses Law. Rep. 39 Ind. App. 184 ( 1911- 1912) C haudhri Mohammad Mehdi Hasan Khan V. Mandir Das 92 and the Appellate Court agreed with him in holding that their testimony was worthless. But it has built up a theory of its own, based chiefly on surmises, regarding the manner in which the bond came into the possession of the defendant. The gist of the Appellate Courts judgment is to be found in the following statements, which also shew how the learned judges have looked at the case. Referring to the testimony of the plaintiffs witnesses, they say " Worthless as this evidence is, it does not in any way make the defendant-respondents case more probable. The gist of the Appellate Courts judgment is to be found in the following statements, which also shew how the learned judges have looked at the case. Referring to the testimony of the plaintiffs witnesses, they say " Worthless as this evidence is, it does not in any way make the defendant-respondents case more probable. In the view that I have taken of the evidence of payment, it is difficult to account for the possession of the bond on the part of the defendant; yet there are documents on the record whence it may be inferred that some person for his own ends laid his hands on the document soon after the death of Musammat Sukhdei and that through him it came into possession of the defendant." And after referring to the disputes among Sukh Deis relations after her death, they go on to say " The plaintiffs inability to account for its disappearance no doubt suggested to him. the reprehensible course of procuring false evidence, but when the question is considered whether the possession of the indorsed bond on the part of the defendant raises a presumption of pay ment, due weight should be attached to the possibility during this state of confusion of some person purloining the bond or even of its being lost and afterwards found and coming into the defendants possession." Their Lordships cannot help considering this mode of treating a case where two distinct and conflicting sets of facts are opposed to each other as unsatisfactory. The plaintiff came into Court with a definite story to account for the possession of the document by the defendant. The learned judges agree with the first Court in holding that story to be false, and yet they proceed to build up a case for the plaintiff on what they call a " possibility," As already observed, the defendant did not rest his case merely on the legal presumption which arose from the possession of the document; he produced positive testimony which received corroboration from that presumption, and he proved facts which made his statement probable. The learned judges having disbelieved the evidence on both sides have set aside the presump tion under s. 114 of the Evidence Act, which only embodies the ordinary rule of law, by a possibility based on surmises. The learned judges having disbelieved the evidence on both sides have set aside the presump tion under s. 114 of the Evidence Act, which only embodies the ordinary rule of law, by a possibility based on surmises. Now, it is a settled principle that suspicion, though a ground for scrutiny, cannot be made the foundation of a decision, and that is exactly what appears to have happened in this case. With reference to the conflicting views of the two Courts in India regarding the question of onus, in view of the presumption under s. 114 of the Indian Evidence Act their Lordships are of opinion that the Subordinate Judge was right in holding that the production by the defendant of the bond with the indorsement of payment cast on the plaintiff the burden of establishing the affirmative proposition that the debt was still outstanding, in other words, of shewing that the bond came into defendants 23ossession by dishonest means and that the signatures to the indorsement were either forgeries or unauthorized. On the whole their Lordships are of opinion that the judgment and decree appealed against should be set aside and the plaintiffs’ suit dismissed with costs in all the Courts, and they will humbly advise His Majesty accordingly. The plaintiff will pay the costs of these appeals.