Mehnga Singh And Ors. vs Gurdial Singh And Ors. on 13 August, 2003
"Learned counsel for the appellants by placing reliance on ratio of case "Sukhwant Rai v. Kalu Ram Khiali Ram, 1991 Pun LJ 591 : (AIR 1992 Pun] and Har 80) argues that in case there is absolute bar under Section 91 of Indian Evidence Act in production of oral evidence to prove that terms of a contract which has been reduced into writing and if the written contract is inadmissible in evidence, then suit to enforce the written contract must fail. The ratio of the cited authority in my view applicable only to the extent of Mark E being not proved cannot be read in evidence. In the reported case it was found that Hundis in question not proved and that is why decree on basis of Hundis was refused to be passed due to Hundis being inadmissible in evidence. In the case before me plaintiffs/respondents has succeeded In proving the contract of mortgage of land by Jaimal Singh in favour of Guranditta through the admission suffered by appellants in their written statement and as such that is enough to prove that in fact land was put under mortgage by Jaimal Singh with Guranditta. As there is specific admission in the written statement of appellants to the averments of plaint regarding mortgaging of 158 kanals 16 marlas of land, by Jaimal Singh in favour of Guranditta and as such in view of that admission is there on part of appellants in their written statement that Jaimal Singh mortgaged with possession 158 kanals 16 marlas of land. As admitted facts in view of Section 58 of Indian Evidence Act need not be proved and as such there is no necessity for the plaintiffs/respondents to adduce proof of documentary evidence qua this mortgage. Provisions of Section 58 of Indian Evidence Act are enacted with the object of doing away with the necessity of proving documents or facts admitted qua/which admission obtained and as such it was not essential for plaintiffs/respondents to prove the admitted facts again by getting produced the documentary evidence of mortgage deed or of authenticated copy of report Roznamcha. As defendants/appellants in their written statement itself admitted about the two transactions of mortgage and as such appellants in view of the rule of estoppel are debarred from claiming that in fact Jaimal Singh did not mortgage 158 kanals 16 marlas of land in favour of Guranditta."