RAM NIRANJAN KAJARIAversusSHEO PRAKASH KAJARIA AND OTHERS

                   [2015] 12 S.C.R. 369


              RAM NIRANJAN KAJARIA                           A
                            v.
        SHEO PRAKASH KAJARIAAND OTHERS
        (Civil Appeal Nos.7213-7214 of2015 etc.)
                                                             B
                 SEPTEMBER 18, 2015
    [ANIL R.DAVE, KURIAN JOSEPH AND AMITAVA
                        ROY,JJ.)

      Evidence Act, 1872 - Admission - Withdrawal of - C
Permissibility- Suit for partition - Two of the defendants in
their written statements made admissions regarding
relinquishment of their right in the suit property - After 25
years, seeking amendment of written statement withdrawing
their admissions- Held: A party cannot be permitted to wholly D
withdraw the admission in the pleadings - However, the
admission can be clarified or explained by way of amendment
and the basis of admission can be attacked in a substantive
proceedings - Delay by itself may not be crucial in such
amendment - Therefore, the claim of defendants for E
withdrawal of their admissions is rejected - However, they
are given opportunity to explain/clarify their admissions.

      Partly allowing the appeals, the Court
                                                             F
      HELD: 1. The attempt to wholly resile from the
admission made after twenty-five years cannot be
permitted. Delay in itself may not be crucial on an
application for amendment in a written statement, be it
for introduction of a new fact or for explanation or G
clarification of an admission or for taking an alternate
position. It is seen that the issues have been framed in
the present case only in 2009. The nature and character
of the amendment and the other circumstances are
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370         SUPREME COURT REPORTS               [2015) 12 S.C.R.

A relevant while considering the delay and its
  consequence on the application for amendment. But a
  party cannot be permitted to wholly withdraw the
  admission in the pleadings. However, the admission can
  be clarified or explained by way of amendment and the
B basis of admission can be attacked in a substantive
  proceedings. [Paras 22, 23 and 25] [383-G-H; 384-A-B;
  385-C]

            2. In view of the averment in the application for
C     amendment and in view of the counter affidavit filed
      before this Court by Defendant Nos. 5 and 12, this Court
      does not intend to make the suit filed in the year 2005
      otherwise infructuous. The application for amendment
      withdrawing the admissions made in the written
D     statement on relinquishment of the claim to the suit
      property by Defendant Nos. 5 and 12 is rejected.
      However, in the facts and circumstances of the case,
      Defendant Nos. 5 and 12 should be given an opportunity
      to explain/clarify the admissions made in the written
E     statement. Accordingly, Defendant Nos. 5 and 12 are
      permitted to file an application limiting their prayer only
      to the extent of explaining/clarifying the disputed
      admissions in the written statement which will be
F     considered on its merits and in the light of the
      observations made in th.is judgment. [Paras 25, 26 and
      27] [385-C-G; 386-C-B]

           Nagindas Ramdas v. Dalpatram lchharam alias
           Brijram and others 1974 (2) SCR 544: (1974) 1
G          SCC 242; Gautam Sarup v. Leela Jelly and others
           2008 (4) SCR 523: (2008) 7 SCC 85- relied on.

           Panchdeo Narain Srivastava v. Km. Jyoti Sahay
           and Another (1984) Supp. SCC 594 - partly
H          overruled.
 RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                 371
                 AND OTHERS

     Sushi/ Kumar Jain v. Mano} Kumar and another              A
     (2009) 14 SCC 38; Modi Spinning and Weaving
     Mills Co. Ltd. v. Ladha Ram & Co. 1977 (1)
     SCR 728: (1976) 4 SCC 320; Revajeetu Builders
     and Developers v. Narayanaswamy and Sons and
     others 2009 (15) SCR 103: (2009) 10 SCC 84 -              B
     referred to.

                     Case Law Reference

(1984) Supp. sec 594          partly overruled.   Para 17      c
(2009) 14 sec 38              referred to.        Para 18

1977 (1) SCR 728              referred to.        Para 19

2008 (4) SCR 523              relied on.          Para 20      D
2009 (15) SCR 103             referred to.        Para 21

1974 (2) SCR 544              relied on.          Para 23
     CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.            E
7213 & 7214 of2015
     From the Judgment and Order No. dated 09.09.2010 of
the Division Bench of the Calcutta High Court in APO No. 324
of 2008 arising out of Partition Suit being No. C.S. No. 696 of
1978, GA. No. 297 of 2004                                       F
                                WITH
     C. A. No. 7215 of 2015
     Vijay Hansaria, K. Datta, Abinav Hansaria, Ra haul· G
Malhotra, PraveenAgrawal,Abhay Kumar, Rahul Malhotra, Niti
Arora for the Appellant.

    Pradip Kumar Dutta, Debnath Ghosh, (for Abhijit
Sengupta), Partha Sil, Tavish B. Prasad for the Respondents. H
                          •
372       SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A        The Judgment of the Court was delivered by
         KURIAN, J. 1. Leave granted.
       2. Whether a defendant in a suit for partition can be
  permitted to withdraw an admission made in the written
B statement after a pretty long period, is the issue arising for
  consideration in these cases.

         3. Partition Suit No. 696of1978, filed in the High Court
  of Calcutta on Original Side, pertains to the partition of
C 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
D 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
E        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
F        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
G        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-
H        sharer for the Premises No. 6, Russel Street, Calcutta
 RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                        373
           ANb OTHERS [KURIAN, J.]

     and nor they have any right title or interest whatsoever in A
     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 B
     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 C
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          o
     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 ';Ne have no        E
     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."                                                    F

     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 G
     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. .. "
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374         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A       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
B 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:
c
           "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
D          Kajaria and husband of the defendant No. 12 Sm. Ginia
           Devi Kajaria was separated from his father and brothers
           in food, estate and business in 1942. He renounced all
           his right, title and interests in the moveable and
           immoveable properties of his father the said Motilal
E          Kajaria. The said Mahabir Prasad died in 1949. Since
           Mahabir Prasad Kajaria separated from his father he
           was carrying on his independent business and also
           acquired properties."
F           7. On 13.12.1979, the petitioner herein, who is Defendant
      No.4, had also filed his written statement on the same lines
      indicated above.

        8. On 02.07.1980, the learned Single Judge, on an
G application for perjury, had recorded the following findings:

           "Pannalal Kajaria had three sons Matilal, Jaharmal and
           Onkarmal Kajaria. Before the death of Motilal Kajaria on
           5th June, 1952 his second son, Mahabir Prasad Kajaria
H          was separated from him in 1942 in food and in estate
 RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                  375
            AND OTHERS [KURIAN, J.]

     and renounced all his claim over the properties of Motilal. A
     Kajaria .

     . .. There was a declaration given by Smt. Ginia Devi
     Kajaria, widow of Mahabir Prasad Kajaria on 251h
     February, 1956 before the Joint Arbitrators statin~ that B
     her husband Mahabir Kajaria separated himself from his
     father Matilal Kajaria and his brothers in food, estate and
     business renounced his right title and interest in the said
     joint immovable properties in favour of his brothers and
     father."                                                    C

      9. On 09.01.1989, Plaintiff No. 6, viz. Sulochna Devi had
filed an application seeking leave for withdrawal of the suit
wherein also there was a statement regarding relinquishment
of the claims of Defendant Nos. 5 and 12.                       D

     10. It is to be noted that Defendant No. 5 is a
businessman, and going by his date of birth, he was 37 in
1978 when he filed the affidavit, 38 when he filed the written
statement on behalf of his mother and in 1989, he was aged E
49years.

      11. After about 15 years of the written statement, on
17.01.2004, Defendant Nos. 5 and 12 filed an application for
amendment of the written statement mainly seeking to resile F
from the admissions regarding relinquishment of their right in
the suit property.

      12. After one year of the said application for amendment
of the written statement, they also filed a civil suit (Civil Suit
No.9 of 2005) on 19.01.2005, seeking a declaration attacking G
the arbitration award dated 13.09.1956 regarding the partition
of the property and claiming right in the suit property.

     13. On 13.09.2008, the learned Single Judge dismissed
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376      SUPREME COURT REPORTS                  (2015] 12 S.C.R.


A the application. However, the intra-court appeal filed by
  Defendant Nos. 5 and 12 was allowed by the Division Bench
  of the High Court and hence these appeals.

        14. The Division Bench in the impugned judgment has
B taken the view that the rejection of the application for
  amendment would result in failure of justice and would cause
  irreparable injury to Defendant Nos. 5 and 12. According to
  the Division Bench, in the impugned Judgment:

C       "In our view, there was no justification of denying such an
        opportunity to the appellants to prove the amended
        version on the ground of mere delay, the effect of which
        will be, to unjustly permit the opposing defendants to reap
        the benefit of an apparent admission, which is not
D       conclusive proof of the fact contained in the pleading in
        accordance with the law of the land, and which may not
        be true. Moreover, for considering the question whether
        the amendment is a malafide one, we cannot lose sight
        of the fact it is not even the case of the opposing
E       defendants that by way of relinquishing his interest,
        Mahabir got any property of the Coparcenary in lieu of
        relinquishment. Thus, malafide on the part of the
        appellants cannot be inferred from the apparent facts of
        the present case.
F
          We, thus, find that the learned Single Judge, while
        rejecting the application for amendment of the written
        statement filed by the appellants, did not follow the well-
        accepted principles, which are required to be followed,
G       while deciding this type of an application for amendment
        of the written statement. Thus, it was a case of improper
        exercise of discretion by the learned Trial Judge by not
        following the binding precedents, which justified
        interference by the appellate Court."
H
 RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                   377
            AND OTHERS [KURIAN, J.]

      15. We are afraid the view taken in the impugned A
judgment is not true to facts. Even according to Defendant Nos.
 5 and 12, they had their separate property and they were doing
independent business. In the affidavit filed on 29.11.1978
 before the High Court (Annexure-P5), it is stated as follows:
                                                                B
     "1. I am a respondent No. 5 herein and Smt. Giniya Devi
     Kajaria, respondent No. 12 is my mother and I am
     acquainted with the facts and circumstances of this case
     and as such I am competent to affirm this affidavit on
     behalf and on behalf of my mother Smt. Giniya Devi C
     Kajaria the respondent No. 12.1 have read a copy of the
     Notice of Motion taken out by the Advocate of the
     petitioner on 19th September, 1978 and a petition
     affirmed by Shreelall Kajaria on 19th September, 1978
     to be intended to be used as grounds in support of the D
     said Notice of Motion and I state that I have understood
     the meaning, intents and purposes thereof.

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

     3. I further state neither I nor my mother is a co-sharer of F
     the Premises No. 6, Russel Street, Calcutta and we have
     no right, title and interest whatsoever in the said Pre~ises
     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 G
     defendants.

     4. I state that my grand father Late Motilal Kajaria died
     on 5th June, 1952 and disputes and differences arose
     between the heirs and legal representatives of Late H
378     SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A      Motilal Kajaria in respect of immovable properties left
       by my said grand father which disputes were referred to
      an arbitration of Dulichand Kheria, Sheo Prasad Patadia
      and Ramnath Kanoria and in the said Arbitration
      Proceedings my mother Smt. Giniya Devi Kajaria
8     defendant No. 12 herein made a declaration in writing
      on 251h February, 1956 before the Arbitrators stating that
      my Late father Mahabir Prasad Kajaria separated
      himself from father and his brothers in food, estate and
      business and renounced the right, title and interest in the
c     joint immovable property in favour of his brothers and
      father. A copy of the said declaration dated 25th February,
      1956 of my mother Smt. Giniya Devi Kajaria defendant
      No. 12 herein addressed to the Arbitrators is enclosed
      herewith and marked with letter "A".
D
      5. I state and submit that the petition is not maintainable
      and should be dismissed with cost.

        6. With reference to paragraph 20 of the said petition I
E       deny that I have got 2.78% in the said premises No.6,
      . Russel Street, Calcutta as alleged or at all which will also
        appear from the Registered Award dated 131h
        September, 1956 of the said Arbitrators. Save and
        except I have no knowledge in the allegations made in
F       different paragraphs of the said petition and I do not
        admit the same.

      7. I state that the petition No.1 Shreelall Kajaria after he
      was released from imprisonment he was serving as my
G     employee in my firm M/s. Evergreen Industries at Sonepat
      Haryana at a monthly salary of Rs.400/- per month upto
      the year 1972 and was staying at Sonepat Haryana till
      he was under my service."

H     16. The clear stand taken by Defendant No. 5 when he
    RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                 379
               AND OTHERS [KURIAN, J.]

was aged 37 and when he was in active business is that his A
father had separated from the grandfather in the year 1942
and since then, he was carrying on independent business and
holding separate property. It is crucially relevant to note that
the declaration of Defendant No. 12 before the Arbitrators
regarding the relinquishment was produced by them only.          B

      17. Learned Counsel for Defendant Nos. 5 and 12, in
the impugned order has placed heavy relevance on Panchdeo
Narain Srivastava v. Km. Jyoti Sahay and Another1. It was
a case where the plaintiff moved an application for amendment C
of the plaint regarding the relationship of the second defendant.
It was stated in the plaint that he was the uterine brother of one
R. Later, an application for amendment was moved for deletion
of the word "uterine" from the plaint. The Trial Court allowed
the application but in Revision, the High Court set aside the D
order. While restoring the order passed by the Trial Court, this
Court held at Paragraph-3 of the Judgment as follows:

        "3. Even if the High Court was justified in holding that the
        deletion of the word 'Uterine' has some significance and E
        may work in favour of either side to a very great extent
        yet that itself would not provide any justification for
        rejecting the amendment in exercise of its revisi~:inal
        jurisdiction. We may, in this connection, refer to Ganesh
         Trading Co. v. Moji Ram wherein this Court after a review F ·
        of number of decisions speaking through Beg, C.J.
        observed that procedural law is intended to facilitate and
        not to obstruct the course of substantive justice. But the·
        learned counsel for the respondents contended that by
        the oevice of amendment a very important admission is G
        being withdrawn. An admission made by a party may be
        withdrawn or may be explained away. Therefore, it cannot

1
    (1984) Supp. SCC594                                           H
380           SUPREME COURT REPORTS                  [2015] 12 S.C.R.



 A          be said that by amendment an admission of fact cannot
             be withdrawn. The learned Trial Judge, granting the
            application for amendment was satisfied that in order to
            effectively adjudicate upon the dispute between the
            parties, amendment of the pleading was necessary. The
·s           High Court in its revisional jwisdiction for a reason which
             is untenable ought not to have interfered with the order
            inade by the trial court. The learned counsel for the
             respondents in this connection read one unreported
            decision of this Court in which this Court upheld the
 c          decision of the High Court setting aside the order granting
            amendment in exercise of its revisional jurisdiction. We
            have gone through the judgment. The decision does not
            lay down any particular principle of law and appears to
            be a decision on its own facts. And ordinarily, it is well
 D
            settled that unless there is an error in exercise of
            jurisdiction by the trial court, the High Court would not
            interfere with the order in exercise of its revisional
            jurisdiction."
 E          18. The above decision was followed in Sushi I Kumar
      Jain v. Manoj Kumar and another2. The case pertained to
      eviction proceedings. The original stand taken by the tenant
      was that there were different tenancies. However, an
 F    application for amendment was moved stating that there are
      three different portions under one tenancy and not different
      portions under different tenancies. The Court, at Paragraph-
      12, held as follows:

            "12. In our view, having considered the averments made
G           in the application for amendment of the written statement,
            it cannot be said that in fact neither any admission was
            made by the appellant in his original written statement


H     2 (2009) 14   sec 38
 RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                    381
            AND OTHERS [KURIAN, J.]

      nor had the appellant sought to withdraw such admission A
      made by him in his written stateme~t. That apart, after a
      careful reading of the application for amendment of the
      written statement, we are of ttie view that the appellant
      seeks to only elaborate and clarify the earlier
      inadvertence and confusion made in his written B
      statement. Even assuming that there was admission
      made by the appellant in his original written statement,
      then also, such admission can be explained by
      amendment of his written statement even by taking
      inconsistent pleas or substituting or altering his defence." C

      19. The learned Counsel appearing for the appellant
mainly referred to three Judgments of this Court. In Modi
Spinning and Weaving Mills Co. Ltd. v. Ladha Ram &Co. 3,
it was held as follows at Paragraph-10:                   D

      "10. It is true that inconsistent pleas can be made in
      pleadings but the effect of substitution of paras 25 and
      26 is not making inconsistent and alternative pleadings
      but it is seeking to displace the plaintiff completely from E
      the admissions made by the defendants in the written
      statement. If such amendments are allowed the plaintiff
      "Yill be irretrievably prejudiced by being denied the
      opportunity of extracting the admission from the
      defendants. The High Court rightly rejected the F
      application for amendment and'agreed with the trial
      court."

     20. In Gautam Sarup v. Leela Jetly and others4 , after
considering Panchdeo Narain Srivastava (supra) and Modi G
Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co.


' (1976) 4 sec 320
• (2008) 7 sec 85                                                 H
382         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A (supra) and several other decisions dealing with the
  amendment on withdrawal of admissions in the pleadings, it
  was held at Paragraph-28 as follows:

           "28. What, therefore, emerges from the discussions
B          made hereinbefore is that a categorical admission
           cannot be resiled from but, in a given case, it may be
           explained or clarified. Offering explanation in regard to
           an admission or explaining away the same, however,
           would depend upon the nature and character thereof. It
C          may be that a defendant is entitled to take an alternative
           plea. Such alternative pleas, however, cannot be mutually
           destructive of each other."

           21. On amendments generally, in the decision reported
o     in Revajeetu Builders and Developers v. Narayanaswamy
      and Sons and others 5 , after referring to Gautam Sarup
      (supra), the principles on amendment have been summarized
      at Paragraph-63. It has been held as follows:

E          "63. On critically analyzing both the English and Indian
           cases, some basic principles emerge which ought to be
           taken into consideration while allowing or rejecting the
           application for amendment:

                   (1) whether the amendment sought is imperative
F
           for proper and effective adjudication of the case;

                   (2) whether the application for amendment is
           bona fide or mala fide;

G                   (3) the amendment should not cause such
           prejudice to the other side which cannot be compensated ·
           adequately in terms of money;


H • (2009) 10 sec 84
 RAM NIRANJAN KAJARIAv. SHEO PRAKASH KAJARIA                        383
            AND OTHERS [KURIAN, J.]

               (4) refusing amendment would in fact lead to A
      injustice or lead to multiple litigation;

               (5) whether the proposed amendment
      constitutionally or fundamentally changes the nature and
      character of the case; and                               B

             (6) as a general rule, the court should decline
     amendments if a fresh suit on the amended claims would
     be barred by limitation on the date of application.

     These are some of the important factors which may be C
     kept in mind while dealing with application filed under
     Order 6 Rule 17. These are only illustrative and not
     exhaustive."

       22. In the case before us, we are afraid, many of the        D
factors referred to above, have not been satisfied. It is
significant to note that Defendant Nos. 5 and 12, after moving
an application for amendment withdrawing the admissions
made in the written statement, have filed a substantive suit
attacking the alleged relinquishment of their claim in the family   E
property and we are informed that the trial is in progress. In
that view of the matter, we do not propose to deal with the
matter any further lest it should affect the outcome of the suit
filed by Defendant Nos. 5 and 12 since the declaration sought       F
in the suit filed in 2005 is to take away the basis of the said
relinquishment of the claim in the suit property. However, as
far as amendment is concerned, the attempt to wholly resile
from the admission made aftertwentyfive years, we are afraid,
cannot be permitted.                                                G

      23. Delay in itself may not be crucial on an application
for amendment in a written statement, be it for introduction of
a new fact or for explanation or clarification of an admission or
for taking an alternate position. It is seen that the issues have H
384       SUPREME COURT REPORTS                    [2015] 12 S.C.R.


A been framed in the case before us, only in200B. The nature
  and character of the amendment and the other circumstances
  as in the instant case which we have referred to above, are
  relevant while considering the delay and its consequence on
  the application for amendment. But a party cannot be permitted
B to wholly withdraw the admission in the pleadings, as held by
  this Court in Nagindas Ramdas v. Dalpatram lchharam alias
  Brijram and others6 . To quote Paragraph-27:

          "27. From a conspectus of the cases cited at the bar, the
c         principle that emerges is, that if at the time of the passing
          of the decree, there was some material before the Court,
          on the basis of which, the Court could be prima facie
          satisfied, about the existence of a statutory ground for
          eviction, it will be presumed that the Court was so
D         satisfied and the decree for eviction though apparently
          passed on the basis of a compromise, would be valid.
          Such material may take the shape either of evidence
          recorded or produced in the case, or, it rnay partly or
          wholly be in the shape of an express or implied
E         admission made in the compromise agreement, itself.
          Admissions, if true and clear, are by far the best proof of
          the facts admitted. Admissions in pleadings or judicial
          admissions, admissible under Section 58 of the
          Evidence Act, made by the parties or their agents at or
 F
          before the hearing of the case, stand on a higher footing
          than evidentiary admissions. The former class of
          admissions are fully binding on the party that makes them
          and constitute a waiver of proof. They by themselves can
G         be made the foundation of the rights of the parties. On
          the other hand, evidentiary admissions which are
          receivable at the trial as evidence, are by themselves,
          not conclusive. They can be shown to be wrong."
                                          (Emphasis supplied)
 H • (1974) 1 sec 242__ _
 RAM NIRANJAN KAJARIA v. SHEO PRAKASH KAJARIA                    385
            AND OTHERS [KURIAN, J.]

     24. We agree with the position in Nagindas Ramdas A
(supra) and as endorsed in Gautam Sarup (supra) that a
categorical a_dmission made in the pleadings cannot be
permitted to be withdrawn by way of an amendment. To that
extent, the proposition of law that even an admission can be
withdrawn, as held in Panchdeo Narain Srivastava (supra), B
does not reflect the correct legal position and it is overruled.

     25. However, the admission can be clarified or
explained by way of amendment and the basis of admission
can be attacked in a substantive proceedings. In this context, C
we are also mindful of the averment in the application for
amendment that:

     "11.      , ... Mahabir Prasad Kajaria died at age of 24
     years on 7th May, 1949 when the defendant No. 5 was D
     only 2 years and the defendant No. 12 was only 21 years.
     Till the death of Mahabir and even thereafter, the
     petitioners had been getting benefits from income of the
     joint properties. The defendant No.5 and his two sisters,
     namely, Kusum and Bina were brought up and were E
     maintained from the income of the joint family properties.
     The petitioners after the death of Mahabir, they continued
     to live in the joint family as members and till now
     members of the joint family. In the marriage of the two
     sisters of the defendant no.5 Kusum and Bina (now after F
                                          .
     marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the
                                                 .
     expenses were wholly borne out from the incomes of the
     joint family properties. The said facts are Well known to
     all the family members and their relations."
                                                                 G
    26. In the counter affidavit filed before this Court,
Defendant Nos. 5 and 12 have stated as follows:

     'The alleged letter of 1956 allegedly issued by the widow
     of Mahabir Prasad used in the arbitration proceedings       H
386          SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A           where she was not a party admitting relinquishment of
            the share of her husband and thereafter admitting such
            letter in the original pleading is not what the answering
            respondents want to resile and/or withdraw from but by
            the present amendment had only ought to explain the
B           circumstances in which such letter has been written."

        27. In the above circumstances, we do not intend to
  make the suit filed in the year 2005 otherwise infructuous. The
  application for amendment withdrawing the admissions made
C in the written statement on relinquishment of the claim to the
  suit property by Defendant Nos. 5 and 12 is rejected. However,
  we, in the facts and circumstances of the case, are of the view
  that Defendant Nos. 5 and 12 should be given an opportunity
  to explain/clarify the admissions made in the written statement.
D Accordingly, Defendant Nos. 5·and 12 are permitted to file an
  application within one month from today limiting their prayer
  only to the extent of explaining/clarifying the disputed
  admissions in the written statement which will be considered
  on its merits and in the light of the observations made herein
E above.

        28. Though the learned Counsel for the appellant ·
  vehemently pressed for costs, we reluctantly refrain from
  passing any order in that regard. After all, it is a suit for partition
F of the family property. At any stage, the parties can have a
  change of heart and ignore the law or facts or other
  technicalities and reach an amicable settlement.

       29. The appeals are partly allowed as above. The
G impugned Judgment will stand modified to the extent indicated
  herein above.

            30. There shall be no order as to costs.

H     Kalpana K. Tripathy                         Appeals partly allowed.