A party can withdraw an admission made in a pleading if lawful grounds are alleged, and such withdrawal can be allowed if it is necessary for deciding the disputes involved in the suit.

Bhaskar Bhattacharya, J.

This appeal is at the instance of the defendant Nos.5 and 12 in a suit for partition and is directed against an order dated 30th September 2008, passed by a learned Single Judge of this Court, by which His Lordship dismissed an application for amendment of written statement filed by the appellants.

Being dissatisfied, the defendant Nos.5 and 12 have come up with the present appeal.

In the year 1978, the original plaintiffs, namely, Shreelal Kajaria and two others, filed a suit being suit No.696 of 1978 in the Original Side of this Court, thereby claiming, inter alia, for partition and various declarations in respect of the suit properties wherein the present appellants were made defendant Nos.5 and 12, respectively, by admitting the appellant No.1 as a co-sharer.

The share of the parties to the litigation, as pleaded by the original plaintiffs in the plaint, which has since been adopted by the transposed plaintiffs, would appear form the genealogical table set out below in respect of premises No.6 Russel Street with which we are concerned:

PREMISES NO.6 RUSSEL STREET

Jankidas (Died on 1936) Pannalal (1/2 share) (1/2 share)

Ramgopal Kajaria Ramkumar Kajaria (Died on 1972) = Anar Devi (Died in 1966) Matadin

Radhakisan Sitaram Lakhiprasad

Motilal Kajaria Jaharwal Kajaria Onkarmal Kajaria (Died in 1952) (Died in 1955) (Died in 1965) =Bhagwanidevi =Kamala Devi =Mulidevi Received 1/6th share by (O.M. created Trust on Award 12.1.555 & created 27.1.56) Trust on 1.2.57 Shreelall Harish Kumar (Adopted in 1964)

Shyam Sundar Mahabir Prasad Jugal Kishore Kishanlal Ramniranjan (Died in 1950) =Giniyadevi Sheo Prakash

a) The Plaintiff as trustees of the said Onkarmal Kajaria Family Trust.

1/6th

16.67%

b) Shyam Sundar Kajaria defendant No.1 …..2.78%

c) Sheo Prakash Kajaria, defendant No.5. …..2.78%

d) Jugal Kishore Kajaria, defendant No.2 …..2.78%

e) Kishanlal Kajaria, defendant No.3 …..2.78%

f) Ramniranjan Kajaria, defendant No.4 …..2.78%

g) Sm. Bhagwani Debi Kajaria, defendant No.15 …..2.78%

h) Shyam Sundar Kajaria and Sm. Shanti Debi Kajaria, defendant Nos.1 and 11. The trustees of Kamala Devi Kajaria Trust

1/6th

16.66%

i) Ramgopal Kajaria, defendant No.7 1/4th 25%

j) Radhakishan Kajaria, defendant No.8 1/12th 8.34%

k) Sitaram Kajaria, defendant No.9 1/12th 8.33%

l) Lakhi Prasad Kajaria, defendant No.10 1/12th 8.33%

It would appear from the aforesaid table that the appellant No.1, namely, Sheo Prakash is the son of Mahabir Prasad who died in 1950 and Smt Giniyadevi, the other appellant, is the widow of Mahabir Prasad as pleaded in the plaint.

Thus, in the original plaint the appellants before us were shown as members of the Mitakshara family and consequently, they were made the defendant No.5 and 12, respectively, in the suit.

The appellants before us entered appearance in the suit and filed a joint written statement thereby contending that there was no cause of action against them and that they were unnecessary parties, and, therefore, the suit against them should be dismissed with costs. In support of their defence, they stated that in the year 1942, their predecessor, Mahabir Prasad Kajaria, separated from his father, Motilal Kajaria, and his other brothers, who were the defendant Nos.1 to 4 in the suit, in food, estate and business. It was further contended that since his separation from the father and brothers, the said Mahabir Prasad was carrying on his independent business and had owned his separate property. It was further stated that Mahabir Prasad, during his lifetime also renounced all his interest in the properties and assets of his father, the Motilal Kajaria, since deceased.

Accordingly, the appellants contended in their original written statement that neither of them is a co-sharer of premises No.6 Russel Street, Calcutta nor had they any right, title or interest whatsoever in the said premises. It was further asserted that after the death of Motilal, neither of those two