IMPORTANT POINT
Amendment sought after 20 years of filing the written statement to wholly withdraw the admission therein cannot be allowed.

JUDGMENT

KURIAN, J.:

Leave granted.

2. Whether a defendant in a suit for partition can be permitted to withdraw an admission made in the written statement after a pretty long period, is the issue arising for consideration in these cases.

3. Partition Suit No. 696 of 1978, filed in the High Court of Calcutta on Original Side, pertains to the partition of premises No.6, Russel Street, Calcutta, originally belonging to one Motilal Kajaria. Defendant Nos. 5 and 12 are the son and widow, respectively, of the predeceased son, viz., Mahabir Prasad of Motilal Kajaria. In the Partition Suit, Defendant Nos. 5 and 12 filed a joint written statement on 16.08.1979, inter alia, stating as under:

“1. These defendants state that there is no cause of action against these defendants and these defendants are unnecessary parties and as such the suit against these defendants should be dismissed with costs,…

“a) xxx xxx xxx

b) In the year 1942, the said Mahabir Prasad Kajaria, since deceased separated from his father Motilal Kajaria since deceased and his brothers, namely the defendants No. 1 to 4 in food, estate and business. Since his separation from his father and brothers the said Mahabir Prasad Kajaria was carrying on his independent business and holding his own separate property. The said “Mahabir Prasad Kajaria” also renounced all his interests in all the properties and assets of his father the said Motilal Kajaria since deceased.

c) These defendants state that neither of them is a co-sharer for the Premises No. 6, Russel Street, Calcutta and nor they have any right title or interest whatsoever in the said premises. These defendants further state that after the death of Motilal Kajaria neither of these defendants had inherited his property nor business as the said Mahabir Prasad separated from his father and brothers in 1942 and renounced all his rights, title and interest in the properties of the said Motilal Kajaria.”

4. Prior to the filing of the written statement, they had also filed an affidavit dated 29.11.1978 while opposing an application for appointment of receiver in respect of the suit property stating that:

“I state that my late father Mahabir Prasad Kajaria was separated from my grand father late Motilal Kajaria in the year 1942 and severed all his connections with his father and brothers and since then my father was carrying independent business and holding separate property.

I further state neither I nor my mother is co – sharer of the Premises No. 6, Russel Street, Calcutta and we have no right, title and interest whatsoever in the said Premises No. 6, Russel Street, Calcutta nor we have inherited the shares of my grand father Late Motilal Kajaria and as such I state that we have been unnecessarily joined as defendants.”

5. In the Order dated 02.05.1979, while appointing a Court Receiver in respect of the suit property, the court recorded the following findings:

“… Mahabir Prasad Kajaria had no interest in the property as such respondent No. 5 (Sheo Prakash Kajaria) also can have no interest in the said property. The allegation that the co-owners have not received any money towards their shares is incorrect…”

6. After Defendant Nos. 5 and 12 filed written statement on 14.09.1979, Smt. Bhagwani Devi Kajaria-Defendant No.16, who is the mother of late Mahabir Prasad Kajaria (Grand mother of Defendant No.5 and mother-in-law of Defendant No.12), filed a written statement clearly stating that late Mahabir Prasad had separated from his father and other brothers as early as in 1942 and had also renounced all his rights in the movable and immovable properties of his father Motilal Kajaria. The relevant portion of the written statement of the grand mother of Defendant No.5 reads as follows:

“b) The defendant Nos. 1, 2, 3 and 4 are the sons of this defendant and defendant No. 5 is the grandson of this defendant. This defendant’s second son Mahabir Prasad Kajaria father of the defendant No. 5 Sheo Prakash Kajaria and husband of the defendant No. 12 Sm