The
acceptable mode of proof would be the death certificate issued by the
municipality. The plaintiff has not shown why the application for issue of a
death certificates of the three attesting witnesses is not made. Merely
stating that the witnesses are not alive and cannot be found is, therefore,
not sufficient. Mr. Shah would argue that the statement of the plaintiff that
the attesting witnesses have died has not been disputed by the defendant
as there is no crossexamination of the defendant on that score and hence
it must be accepted as an admitted statement. Admitted facts which are
not to be proved under Section 58 of the Evidence Act which runs thus
are:
58. Facts admitted need not be proved. No fact need to be
proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing, or which, before the hearing, they
agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have
admitted by their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such admissions.
The facts not required to be proved would, therefore, be the facts
mentioned in the pleadings of the parties or in the documents of the parties
or specifically which were agreed to be admitted at or before the hearing in
writing. They may be facts which are specifically admitted in the oral
evidence of the parties. Merely because a fact has not been disputed by
crossexamination of a party would not make it an admitted fact such as
not requiring it to be proved under Section 58 of the Evidence Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 46 OF 1993
IN
TESTAMENTARY PETITION NO. 2 OF 1993
Smt. Usha Shrikant Rege Vs. Smt. Gauri Gajanan Rege
CORAM : MRS. ROSHAN DALVI, J.
Date of pronouncing the Judgment: 15 SEPTEMBER, 2014
Citation;2014(6) MHLJ 781Bom,2016(1) ALLMR801
