Partition by admissions upheld as separate occupation was only a convenience arrangement, not a legal partition.

Admissions in the written statement and repeated in-court statements justified a preliminary partition decree where the plaintiff and two contesting brothers were admitted to have equal rights in the property. The court treated the earlier probate finding disbelieving the Will as final, and noted that the parties' separate occupation was only a convenience arrangement, not a legal partition. The challenge to maintainability under Order VII Rule 11 also failed because the suit was within time on the defendant's own notice-based version, and estoppel and res judicata did not apply since the earlier probate dispute involved different relief and proceedings.

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Issues: (i) Whether a preliminary decree for partition could be passed on the basis of admissions in the written statement and statements recorded in court; (ii) Whether the suit was liable to be rejected under Order VII Rule 11 on the grounds of limitation, estoppel, or res judicata.

Issue (i): Whether a preliminary decree for partition could be passed on the basis of admissions in the written statement and statements recorded in court.

Analysis: The written statement contained an express admission that the plaintiff and the two contesting brothers had equal rights in the suit property. That admission was reiterated in court. The Will relied upon by the contesting defendant had already been disbelieved in probate proceedings, and the judgment on that issue had attained finality. The parties were found to be occupying portions of the property only as an arrangement of convenience and not by any legally effected partition. In such circumstances, trial on the admitted issue was unnecessary and a decree could be founded on the admissions.

Conclusion: The issue was decided in favour of the plaintiff, and a preliminary decree declaring equal one-third shares was justified.

Issue (ii): Whether the suit was liable to be rejected under Order VII Rule 11 on the grounds of limitation, estoppel, or res judicata.

Analysis: The plea of limitation was held to be within time even on the defendant's own version of notice, because the suit was filed within twelve years of the asserted denial of rights. The objections based on estoppel and res judicata failed because the earlier probate proceedings concerned a different relief and a different legal proceeding. The plea for rejection of the suit was therefore without merit.

Conclusion: The issue was decided against the defendant, and the application for rejection of the suit was dismissed.

Final Conclusion: The suit succeeded on admitted entitlement, resulting in a preliminary decree for partition and dismissal of the challenge to maintainability.

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