J.P. Jain, J.
1. This is a second appeal by defendant Ramprasad against whom a decree for redemption on payment of Rs. 450/- has been passed by the Munsif Aimer District. Aimer and which has been upheld by the Civil Judge. Aimer
2. The facts leading to this appeal may be summarised as follows:--
There is a pucka Patti Posh shop facing north situate at village Pisangan in the district of Aimer. Deceased Rameshwarlal alleged that the said shop belonged to one Murlidhar son of Shri Hanotram Banear of Pisangan and it was martgaged by him with possession with Shri Harkaran on Bhadwa Sudi 5. Samwat year 1958 for securing a loan of Rs. 450/-% As disclosed by the deceased Rameshwarlal in the plaint, the mortgage amount was not to bear any interest and the mortgage was a usufructuary mortgage. It wag further alleged that Murlidhar died and his son Shrikishan by a registered sale deed dated 28-9-1953 transferred his rights to the plaintiff (deceased Remeshwarlal). According to the allegation in the plaint, Harkaran mortgagee died and Ramprasad appellant was his legal representative and he had been realising the rent from Heeralal who had been in occupation of the mortgaged shop as a tenant. It was also stated by the plaintiff that defendant Ramprasad delivered possession of the said shop on Bhadwa Sud 11 Samwat 2015 corresponding to 23-9-1958 to the plaintiff but the defendant No. 2 Heeralal continued to remain in possession as tenant But, defendant Ramprasad filed a suit for ejectment against defendant No. 2 Heeralal and obtained a decree against him and he thus came in actual physical possession of the suit shop. The plaintiff, therefore, prayed for a declaration that he is the owner of the suit shop and for delivery of possession. In the alternative, he claimed that a decree for redemption be passed and he be restored possession on payment of the mortgage amount of Rs. 450/- to defendant Ramprasad. This suit was instituted by the deceased Rameshwarlal in the court of Munsif. Ajmer District. Ajmer on 8th December, 1959. It may be mentioned here that the original suit was amended and the reliefs claimed finally were those as mentioned above.
3. Defendant Ramprasad contested the suit He controverted all the allegations made by the plaintiff. He denied that Murlidhar was ever the owner of the suit shop. He also denied that the suit shop was mortgaged with Harkaran. He did not admit that he recovered rent from Heeralal as the legal representative of Harkaran. His contention was that he was the owner of the shop and he realised rent from Heeralal in his own right. He admitted to have obtained an order of eviction against his tenant Heeralal by filing the civil suit No. 655/1958 and he obtained possession from him and has been in actual physical possession of the shop since then
4. Heeralal did not put in appearance and the case was heard ex parte against him.
5. The learned trial Judge framed the following nine issues:--
1. Did the suit shop belong to Murlidhar?
2. Did Murlidhar's son Shri Kishen sell the said shop to plaintiff as alleged in para. 2 of the plaint.
3. Was the said shop mortgaged with possession by Murlidhar with Harkaran as alleged in para 3 of the plaint?
4. Did defendant No, 1 come in possession of the suit shop as the legal rer presentative of Harkaran?
5. Did defendant No. 1 deliver possession of the said shop to the plaintiff?
6. Is the defendant No. 1 estopped from denying the mortgage in view of his statement in Civil suit No. 555 of 19582
7. Is the suit barred by time?
8. Is defendant No. 1 entitled to spe-cial costs?
9. To what relief, is the plaintiff entitled?
6. Issue No. 5 was not pressed by the plaintiff during the trial. The learned Judge after trial held that the suit shop belonged to Murlidhar and after his death, his son Shrikishan sold his rights in the shop to the deceased plaintiff Ram-eshwarlal. He further held that the said shop was mortgaged with possession by Murlidhar with Harkaran as alleged by the plaintiff and the defendant Ramprasad came into possession of the said shop after the death of Harkaran as his legal representative. He also came to the conclusion on the basis of the statement made by Ramprasad in Civil Suit No. 655/58 that the factum of mortgage was admitted by him and he was accordingly estopped from denying the mortgage. The suit was found to be within limitation and accordingly, a decree for redemption of mortgage was passed in favour of the plaintiff on payment of the mortgage amount of Rs. 450/- by him. Being aggrieved of this decree, defendant Ramprasad preferred an appeal. Learned Civil Judge, Aimer, dealt with this appeal and after having agreed with the conclusions arrived at by the trial Judge dismissed the appeal. The learned Judge in appeal, however, held that in view of Section 59 of the Transfer of Property Act there was no valid mortgage but relying upon Lachhami Narain v. Kalyan. AIR 1960 Raj I (SB); he held that a suit for redemption of mortgage can be maintained. It is this decree that has been challenged by the appellant Ramprasad in second appeal.
7. Rameshwarlal respondent died during the pendency of this appeal. His legal representatives have been brought on record and Mr. R.L. Maheshwari represents them. Heeralal respondent No. 2 has not put in appearance.
8. I have heard Shri M.R. Bhan-sali for the appellant and Shri Maheshwari for the legal representatives of deceased Rameshwar Lal. It is not disputed that Aimer was a centrally administered area before it merged into Rajasthan in 1956. Village Pisangan was a part of Aimer. The Transfer of Property Act, 1882 was, therefore applicable in Ajmer,
Section 59 of the Transfer of Property Act requires that where the principal money secured is Rs. 100. or upward, a mortgage, other than a mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. On the plaintiff's own showing a sum of Rs. 450/- was secured against the suit shop and the mortgage in question was a usufructuary mortgage. The plaintiff has not mentioned in the plaint that there was any written document to create the mortgage in question. It is thus clear that there was no mortgage as required by the provisions of Section 59 of the Transfer of Property Act. As noticed above, a mortgage other than a mortgage by deposit of title deeds could be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. In this view of the matter, there was definitely no valid contract between the parties to the alleged mortgage to effect a valid mortgage. The lower appellate court while accepting this position still held that the mortgage was proved and the suit shop was taken possession of by Harkaran mortgagee from Murlidhar mortgagor securing the loan of Rupees 450/- as mortgage money In Samwat 1958.
In this connection,, he observed as follows:
'There is no doubt that this entry could not in the terms of Section 59 of the Transfer of Property Act and Section 49 of the Registration Act create a valid mortgage agreement. But this fact has been duly proved in the light of the document Ex. 2 which is more than 30 years old and the oral evidence of the plaintiff that the suit shop had been taken possession of by one Harkaran mortgagee from one Murlidhar mortgagor securing a debt of Rs. 450/- as mort-age money in Sambat 1958. I further find that the facturo of mortgage has been admitted even by the defendant No. 1 Ram Prasad in his statement on oath which he has admitted to have given in Civil suit No. 655 of 1958 which suit he had filed against defendant No. 2 who was admittedly a tenant in the suit property.'
If a mortgage has not been effected in accordance with the requirement of law, I am unable to see how it can be proved by other evidence. The lower appellate court has placed reliance on document Ex. 3. an entry in the register of mortgages maintained by the Raja of Pisan-gan and the oral evidence led by the plaintiff. As indicated above, the requirement of law is that a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Admittedly, the mortgage has not been created in this manner.
9. I will now take up the document Ex. 2. Ex. 2 is an entry in the register of mortgages. From this entry it appears that Murlidhar Bangar son of Manutram mortgaged some shop with Harkaran Baheti. The mortgage amount has been specified as Rs. 450/-. The fee charged by the Raja has been shown as Rs. 18/-. The date of the entry has been shown as Bhadwa Sudi 5 Samwat 1958 and in the column of remarks it has been stated as a shop situated in Bassikabas. This entry does not purport to bear the signatures of the mortgagor. It also does not an-pear to have been attested. Apart from other infirmities in this entry to prove the mortgage in question this entry cannot take the place of a writing signed by the mortgagor and attested by two witnesses as required by the provisions of Section 59 of the Transfer of Property Act. That apart, this entry does not make it clear as to which shop was mortgaged and what was the nature of the mortgage. In my considered opinion, this document cannot be availed of to prove a valid contract effecting the mortgage.
10. Another evidence that has been relied upon by the lower appellate court is a statement of Ramprasad which was recorded in civil suit No. 655/58. A certified copy of the statement of Ramprasad dated 18-9-59 is on record. It is marked 'C'. It may be mentioned here that Ramprasad instituted a suit for eviction of defendant Heeralal from the suit shop which he was occupying as a tenant. Defendant Heeralal disputed Ramprasad's right to seek an order of eviction against him on the ground that the property was mortgaged and it bad been redeemed. In his statement on oath Ramprasad stated that he never told the defendant (Heeralal) in Bhadwa Samwat 2015 that he should deliver possession of the shop to Rameshwarlal. He further stated that Rameshwarlal had not redeemed the suit shop nor had he paid the mortgage amount. He claimed that the suit shop was still in the possession of defendant Heeralal and he had not vacated the same. On the basis of this statement it has been argued on behalf of the mortgagors that the factum of mortgage has been admitted by the defendant Ramprasad. The lower appellate court as well held that this was so. I am unable to accept this contention. I find in the statement referred to above nothing which may persuade me to hold that the defendant admitted the creation of the mortgage In Samwat year 1958. That apart this statement has been made with a view to controvert the allegation of defendant Heeralal in that case. The statement also does not contain the terms of the alleged mortgage. It does not mention when the contract of mortgage was entered into or what was the type of the mortgage and what was the amount secured under that mortgage. In order to bind a party by his admission, the ad-mission must be clear, precise and un-ambiguous.
I may here only refer to two decisions of the Supreme Court Nagubai Ammal v. Shama Rao. AIR 1956 SC 593 and C. Koteswara Rao v. C. Subbarao, AIR 1971 SC 1542. In these decisions their Lordships emphasised that before an admission is presumed to be true against the party making it. it must be shown that there is a clear and unambiguous statement by the party making it. An admission is only a piece of evidence and the weight to be attached to which depends upon the circumstances under which it has been made. Before the right of a party can be considered to have been defeated on the basis of an alleged admission made by him, the implication of the statement must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. In view of the authority referred to above. I am clearly of the opinion that Ithe statement of Ramprasad which he made on 18-9-1959 in civil suit No. 655/58 does not advance the case of the plaintiff at all. I may here observe that (there is no oral evidence worth mention to say that the suit shop was mortgaged by Murlidhar in favour of Harkaran.
11. I have referred the above evidence only with a view to show that this evidence does not prove any contract of mortgage having been effected by Murlidhar in favour of Harkaran. As a matter of fact, no amount of evidence could have been examined to establish the mortgage in question. Under Section 91 of the Indian Evidence Act, the contract of mortgage could not have been proved by either document Ex, 2 or the statement Ex. 'C' of defendant Ramprasad or any oral evidence to that effect. Section 91 of the Indian Evidence Act reads as follows'
'91. When the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such, matter, except the document itself, or secondary evidence of its contents In cases in which secondary evidence is admissible under the provisions hereinbefore contained.'
12. This section makes it abundantly clear that in cases where a contract is required by law to be reduced in the form of a document no evidence shall be given in proof of the terms of such contract except the document itself. I have already noticed above that the law required the mortgage in question to be reduced to the form of a document and it must have been signed by the mortgagor and attested by at least two witnesses. I have also found that there was no written document to that effect. There being no document creating the mortgage, no amount of evidence can be held to be admissible to prove the terms of the contract of mortgage in view of Section 91 of the Indian Evidence Act. The question of proving the terms of the contract by secondary evidence will also not arise as no document of mortgage existed. I have, therefore, no hesitation in holding that the courts below were in error in relying upon the document Ex. 2 or the statement of defendant Ramprasad or any other oral evidence in proof of the terms of the contract of mortgage. All this evidence was inadmissible under Section 91 of the Evidence Act I need hardly state that the present case does not fall under any of the exceptions given under Section 91. The finding of the Courts below on this Point cannot be sustained and I. therefore, hold that there was no contract of mortgage between Murlidhar and Harkaran.
13. The next question that emerges for my consideration Is whether there was a mortgage by operation of law. This was not the plaintiffs case that Harkaran acquired mortgagee's rights to the suit shop by adverse possession. But the learned lower appellate court in having placed reliance on a decision of this Court in AIR 1960 Raj 1 (SB) appears to have considered this aspect of the case. I have therefore chosen to examine this question as well. The case referred to is a decision by a Special Bench, of three Judges of this Court. In that case, the forefathers of the plaintiff mortgaged a shop for Rs. 401/- with Jodhraj and Jamna Lal on Bos Sudi 15, Sambat 1975. corresponding to the 16th January, 1919, under an unregistered mortgage deed. A suit for redemption was instituted. It was admitted on behalf of the defendants-mortgagees during examination under Order 10 Rule 1 C.P.C. that the disputed shop was mortgaged for Rs. 401/- on Pos Sudi 15 Samwat 1975 by an unregistered and unstamped document. It was also found as a fact that the possession of the mortgaged shop passed to the mortgagees in consequence of the mortgage. The case arose from an area where the Transfer of Property Act, 1882 was not applicable and therefore, it was not necessary that the mortgage deed should have been attested by two witnesses. The deed was required to be registered under the Jaipur Transfer of Property Act and Jaipur Registration Act. It was held that the document being unregistered, did not operate as a valid mortgage but their Lordships held in the circumstances of that case that the mortgagees came into possession of the mortgaged property under an invalid mortgage, and as their possession continued for a period of 12 years, they acquired a limited right of mortgagee by prescription. Their Lordships did not seek the help of unregistered document as it was inadmissible in evidence under. Section 49 of the Registration Act. In view of the obvious animus of the mortgagees in retaining the property as a mortgagee, it was held that they only acquired the limited rights of the mortgagee and after the lapse of 12 years, the mortgagors were entitled to redeem the property, when the right of the mortgagees ripened into full rights as mortgagees.
In the present case, there is no admission of the defendant Ramprasad in his pleadings or in his statement under Section 10, Rule 1 C.P.C. that Harkaran entered on the property in question as a mortgagee and he had the animus to retain that property in the capacity of a mortgagee. There is not an iota of evidence on record that possession was delivered to Harkaran in consequence of the alleged mortgage. The plaintiffs examined eight witnesses. Ghessulal P.W. 3 is 75 years of age. In the first instance, he stated that the suit shop was mortgaged, but in the cross-examination he admitted that the mortgage was not done in his presence nor was the possession delivered to the mortgagee in his knowledge. Another witness is Shrikishan P.W. 7. He is the son of Murlidhar. He admitted that he was not born at the time the alleged mortgage took place. Thus, it cannot be said that Harkaran came into possession of the suit shop as a mortgagee in pursuance of the alleged mortgage. There was no document in writing in the present case evidencing the mortgage. I have also noticed that the Transfer of Property Act was applicable in village Pisangan where the mortgage is said to have taken place and according to the requirements of Section 59, the contract of mortgage could only be effected by a written document signed by the mortgagor and attested by at least two witnesses. The case of Lahhmi Narain, AIR 1960 Rai 1 (SB) decided by the special Bench is clearly distinguishable from the facts of this case. I am unable to hold from the facts of the present case that Harkaran acquired any right of the mortgagee in the suit shop by operation of law, that is by prescription.
14. Once it is held that there was no mortgage either by contract or by operation of law the question whether Ramprasad was the legal heir of Harkaran loses its importance. Ramprasad is admittedly in possession of the suit shop and according to his statement, he came into possession of the suit shop from Samwat year 1975 after the death of Mst. Dhapa. Shrikishan son of Murlidhar sold his rights in the suit shop to deceased Rameshwarlal The plaintiff's suit for redemption of the mortgage cannot, therefore, be maintained and the decree passed by the court below is erroneous and must be set aside.
15. In the result the appeal succeeds and it is hereby accepted. The judgment and decree passed by the courts below are set aside and the plaintiff's suit for redemption is dismissed. Having regard to the circumstances of the case, I direct that the parties shall bear their own costs throughout.