The withdrawal of an admission and introduction of a contrary plea by way of amendment can be allowed if the prior admission cannot confer any title, and the refusal of such an amendment may amount to a failure to exercise the jurisdiction vested in the court by law.

P.K. Balasubramanyan, J.

This Revision is by defendants 16 to 26, in a suit for partition. The partition was of the estate of one Moyi Haji, the father of the plaintiff, defendants 1 to 6 and one Mammu Haji the husband of defendant No. 16 and the father of defendants 17 to 26. Various items of properties were included in the plaint schedule. Defendants 16 to 26 filed a written statement that the plaint schedule properties belonged to Moyi Haji, but that there was already an oral partition effected among lust heirs and hence the suit for partition was not maintainable.

2. Evidence was commenced in the suit. PW-1 was examined on behalf of the plaintiff. At that stage, defendants 16 to 26 sought an amendment of their written statement by filing I.A. 6764 of 1996 seeking to introduce a pleath at plaint schedule item No. 22 originally belonged to one Pocker as per a lease deed, Document No. 679 of 1943 and that the said right was purchased by Mammu Haji, their predecessor under document No. 1349 of 1948. In other words, they wanted to set up an exclusive title as lessee in their predecessor in interest against their original stand that all the suit items belonged to Moyi Haji, the father of Mammu Haji, the plaintiff and defendants 1 to 6. The application was opposed by the plaintiff and defendant No. 2., They contended that an amendment which had the-effect of withdrawing an admission made in the written statement that the tide to item 22 also rested in Moyi Haji and hence part of his estate available for partition and the introduction of a totally different case that the title to that item was with Mammu Haji, their predecessor, cannot be permitted. They relied on the decisions of the Supreme Court in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram (AIR 1977 SC 680) and Jagannadha v. ChanderBhan (AIR 1988 SC 1362) in support of their argument. Defendants 16 to 26 relied on the decision in Basavan Jaggir Bhobi v. Sukhnandan Ramdas Choudhary (1995 Supp. (3) SCC 179) in support of their plea that such an amendment of the written statement can be allowed, even if a contrary stand is attempted to be adopted. The Court below rejected the prayer for amendment by taking the view that it was not only an incorporation of an inconsistent plea but it was a 'deprivation of an admission to the benefit of the plaintiff and 2nd defendant'.

3. The suit was for partition on the basis that plaint item No. 22 also belonged to Moyi Haji and hence was available for division among his heirs. This was not disputed by defendants 16 to 26. It can also be said that they admitted the title of Moyi Haji over that item. Now defendants 16 to 26 want to plead that the title to that item exclusively vested in their predecessor-in-title, Mammu Haji son of Moyi Haji. They are setting up two registered documents in support of their present plea.

4. It is true that the allowing of the amendment prayed for would entail a trial of an issue regarding that item. But, it is well settled that an admission by itself cannot confer title to property. An admission of a preexisting title where none in fact existed, is not sufficient to create title on Moyi Haji in this case. This position is clear from the decision of the Supreme Court in Neelakantan v. Velayudhan (AIR 1958 SC 832) and the decision of this Court in Sarojini v. Sanlha Trading Co. (1969 KLT 412). It is also clear from Ambika Prasad v. Ram Ekbal Rai (AIR 1966 SC 605 at 612) that admission cannot convey title. I refer to this aspect because, the main contention of Sri. P. Sukumaran Nair, Senior counsel appearing for defendant No. 2 is that defendants 16 to 26 are not entitled to withdraw their admission that the title to property is that of the estate of Moyi Haji and is available for partition and to introduce in its place, a plea that the title is that of their predecessor Mammu Haji, the son of Moyi Haji. If the position of law is that such an admission by itself cannot confer any title on Moyi Haji,