Admissions in pleadings serve as binding evidence of ownership; a probated Will grants legal rights to legatees, making further proof unnecessary when parties do not contest the matter.

JUDGMENT :

(Siddhartha Roy Chowdhury, J.)

1. This second appeal challenges the judgement passed by learned Additional District Judge, 16th Court, Alipore, South 24 Parganas in Title Appeal No. 117 of 2012 thereby affirming the judgement and decree passed by learned Civil Judge (Senior Division) 9th Court, Alipore in Title Suit No. 66 of 2011.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. Briefly stated, the plaintiff filed a suit for partition in respect of suit property stating, inter alia, that Bibhuti Bhusan Bose, the original owner of the property in suit is the grandfather of the parties to the proceeding. During his lifetime Bibhuti Bhusan Bose executed a Will on 19th June, 1957 by which he bequeathed his property to his wife Uma Rani Bose with further direction that if Uma Rani Bose during her lifetime kept the property with her, after the demise of Uma Rani 50% of the property would go to the plaintiff and remaining 50% of the property would go to Bimal Kanti Bose and Niva Rani Bose who are the son and daughter-in-law of Bibhuti Bhusan Bose.

4. The said Will of Bibhuti Bhusan was probated by competent Court of law in Probate Case No. 237 of 1977. However, during the said probate proceeding Uma Rani Bose died intested and as directed in the Will 50% of the property bequeathed by Bibhuti Bhusan Bose was given to the plaintiff and remaining 50% was given to his parents.

5. After demise of parents, the plaintiff, along with his brothers and sisters stepped into the shoes of their parents and acquired the 50% share in the suit property jointly by way of inheritance. Having felt difficulty in joint possession of the property, the plaintiff filed the suit for partition seeking declaration as to his 60% share in the suit property the share of defendants to the extent of 10% each and for final decree in terms of preliminary decree.

6. The defendants contested the suit by filing separate written statement denying all material allegations made in the plaint. The defendant no. 1 in his written statement admitted the contention of the plaintiff made in paragraph 1. It is contended by the plaintiff :-

“1) All that premises No. 60/8, Maharaja Ragore Road, P.S. Jadavpur, Ward No. 92, Kolkata-700031, District South 24 Parganas Land measuring 2 Cottahs 9 Chittaks 30 Sq. ft. more or less together with structure standing thereon purchased by Bibhuti Bhusan Bose during his life time and thereafter he renovated and converted one storied pucca building on the said plot of land by his own fund and had been living in the said premises with his family members as an absolute owner and said Bibhuti Bhusan Bose, the grandfather of the plaintiff and the defendants, died on 20.10.1971.”

In answer to that defendant no. 1 says :-

“That the statements made in para no. 1 of the plaint are admitted by the Defendant. It is a fact that Bibhuti Bhusan Bose was the owner of the property comprising in the premises no. 60/8, Maharaja Tagore Road, Police Station- Jadavpur, Kolkata-700 031, in Ward no. 92.”

But the defendant denied the claim of the plaintiff that he has acquired 60% of share in the suit property. Defendant no. 1 expressed his ignorance about the factum of execution of Will by his grandfather Bibhuti Bhusan Bose. According to defendant the property should be partitioned in equal share amongst the plaintiff and defendants.

7. Learned Trial Court after considering the evidence on record was pleased to dismiss the suit on the ground that the pl