Judgment Joytosh Banerjee, J. This appeal from appellate decree is directed against the judgment dt.12.6.90 passed by the Additional District Judge, 12th Court, Alipore, 24-Parganas(S), by which the learned appellate court below allowed the appeal, set aside the judgment and decree passed by the Assistant District Judge, 8th Court, Alipore in T.S. 9/78 and dismissed the said suit. 2. The facts giving rise to the present appeal are as follows :- The plaintiff/appellants filed the suit alleging, inter alia, that the suit property was purchased by all the 5 brothers, namely, Surendra Nath Mukherjee, Narendra Nath Mukherjee, Rajendranath Mukherjee, Debendra Nath Mukherjee and Jitendra Nath Mukherjee, who were the predecessor-in-interest of the parties of the suit. All of them contributes towards purchase and development of the suit property. The purchase was made in the name of one of the brothers late Rajendra Nath Mukherjee and tax bills also stood in his name. Later on, the said Rajendra Nath Mukherjee executed a deed declaring that of the aforesaid brothers had 1/5th share each in the said property. Although the suit property was a joint property, the defendants alone were realising the rent of the suit property from the tenants. In this background, the plaintiff/appellants were constrained to file the suit for partition and accounts. The defendant Nos. 1 to 4 (respondents) in the written statement denied the material allegations raised in the plaint and contended that the suit property was purchased by their predecessor late Rajendra Nath Mukherjee alone from his personal fund and during his lifetime rents and taxes were paid by the said Rajendra Nath Mukherjee. The alleged deed of declaration was never acted upon and was all along within the custody of the defendants and the same was made in order to avoid income tax hazards. Furthermore, the said Rajendra Nath Mukherjee before his death executed a Will on 11.6.69 and bequeathed the suit property to his wife for life. 3. The learned trial court decreed the suit and declared respective shares of the parties. In doing so, the learned trial court heavily relied on the deed of declaration Ext.N, which was admittedly executed by the alleged sole owner Rajendra Nath Mukherjee. The learned trial court pointed out that the execution of the said document was not denied by the defendants, the successor-in-interest of the said Rejendra Nath Mukherjee. In doing so, the learned trial court heavily relied on the deed of declaration Ext.N, which was admittedly executed by the alleged sole owner Rajendra Nath Mukherjee. The learned trial court pointed out that the execution of the said document was not denied by the defendants, the successor-in-interest of the said Rejendra Nath Mukherjee. They only contended that the document was not acted upon and the same was prepared for the purpose of avoiding hazards of income tax, but the learned trial court refused to accept that the document was prepared for avoiding hazards of income tax. On going through the recitals of the deed, namely, Ext.N wherein it was clearly stated that the property had been acquired by joint account of all the five brothers and admitted 1/5th interest of each of the five brothers. In appeal, learned appellate court found that there was no oral or documentary evidence to support the declaration that the suit property had been constructed by joint contributions of all the brothers. The learned appellate court also pointed out that atleast one of the brothers who was alive at the time of trial of the suit and who was a witness (P.W. 1) admitted in his evidence that he was a student at the relevant point time when the suit property had acquired. Therefore, he found from such admission from P.W. 1 that there could not be any contribution from one of the brothers, namely, P.W. 1. He also pointed out that there was no evidence to show that taxes for the property were paid by the contribution from all the brothers. On the other hand, Rajendra Nath Mukherjee in whose name, the suit property was admittedly had an employment of a Sr. Charge-man in the Railways and a man of affluence. The learned appellate court below further found that prior to the execution of the deed of declaration Ext.N there were some notices in respect of the suit premises served upon Rajendra Nath Mukherjee for payment of taxes. He also pointed out to certain exhibits showing that Rajendra Nath Mukherjee applied for House Building advance from office of the District Electrical Engineer, Kancharapara prior to the construction of the house. He also pointed out to certain exhibits showing that Rajendra Nath Mukherjee applied for House Building advance from office of the District Electrical Engineer, Kancharapara prior to the construction of the house. That apart, the learned appellate court below relied on certain other document to come to an ultimate conclusion that it was not sufficiently proved that the deed of declaration on which the trial court much relied in coming to a conclusion in favour of the plaintiff/appellant, was actually acted upon. After reaching at such a conclusion, the learned appellate court below allowed the appeal and dismissed the suit as has been noted above. 4. At the time of admission of the appeal, the learned Division Bench did not formulate any substantial question of law involved in the present appeal. In that background, at the time of hearing of the appeal, the following question has been taken up as the substantial question of law :- Whether the deed, Ext.N dated 18.1.39 was acted upon and whether the fact that the deed in question was produced from the custody of the defendants, who did not deny the execution of the document by their predecessor-in-interest, Rajendra Nath Mukherjee would preclude them from challenging that the said deed was never acted upon? Subsequently, the said substantial question of law has been recast in the following manner in course of the hearing of the appeal. Whether the deed Ext.N dated 18.1.39 executed by the predecessor of the defendants would be an admission on the part of such predecessor-in-interest and whether unless such an admission is explained in any other way, if the same binds the parties and their legal representatives. An additional question has been formulated also in course of the hearing of the appeal which reads as follows :- Whether the suit is bad under the provisions of the Specific Relief Act, due to the absence of the prayer for any declaration that the said Rajendra Nath Mukherjee was also the benamdar on behalf of his other brothers? 5. An additional question has been formulated also in course of the hearing of the appeal which reads as follows :- Whether the suit is bad under the provisions of the Specific Relief Act, due to the absence of the prayer for any declaration that the said Rajendra Nath Mukherjee was also the benamdar on behalf of his other brothers? 5. The learned Advocate for the appellant has contended in the argument on the first point formulated that by the deed of declaration of the year, 1939 (Ext.N), the predecessor-in-interest of the defendants, in whose name the suit property stands made a declaration indicating that the same was purchased by all the five brothers, sons of Nagendra Nath Mukherjee in the name of such predecessor-in-interest Rajendra Nath Mukherjee and in this way the said Rajendra Nath Mukherjee, the predecessor-in-interest of the defendant/respondents admitted that all the brothers were actual owners of the suit property and they had contributed for the purpose of acquisition of such property. The aforesaid admission, unless the same is explained in another way binds upon the party making such admission and their legal representatives. It is the further argument that the consistent case of the plaintiff was joint contribution for purchasing the land underneath and raising the suit structure. In para-11 of the written statement, the defendant/respondents tried to explain the declaration by stating that the document was created for the purpose of using it against claims of creditors of Rajendra Nath Mukherjee and the income tax authority. It was submitted that the learned appellate court below misdirected itself by observing that there was no evidence on the point of joint family fund. The learned Advocate drew my attention that the specific observation made by the learned Judge on this point at page 12 of the Paper Book and submitted that there was no allegation from the side of the plaintiff/appellants that the property in question was purchased from joint family fund. But the specific case of the plaintiff/appellants was that such property was purchased by the joint contribution made by all the brothers. But the specific case of the plaintiff/appellants was that such property was purchased by the joint contribution made by all the brothers. It has been specifically pointed out by the learned Advocate that the explanation furnished from the side of the defendant/respondents should not be accepted in view of the fact that Ext.F series were not income tax notices, therefore, there was no question of evading the income tax authorities by creating the document, namely, the deed of declaration. That apart those notices were given to R.N. Mukherjee long after the purchase or even the deed in question. On the other hand, learned Advocate for the defendant/respondents has fully supported the judgment passed by the learned appellate court below by contending that there is no adequate reason to take a contrary view by this court as the onus is also on the plaintiff/appellants to show why the suit property was purchased in the name of one brother when according to their case, contributions were made by all the brothers at the time of purchasing the land underneath and at the time of raising the building in question. 6. The learned Advocate for the plaintiff/appellants has placed his reliance on the case of Union of India vs. Moksh Builders and Financiers Ltd.& Ors., reported in AIR 1977 SC 409 , to point out that an admission by a party is substantive evidence of the fact admitted, and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. In that reported case, the Apex Court was to determine the controversy related to a house in Delhi. In doing so the Apex Court referred to an admitted position that in connection the attachment, the defendant No.2 who was as the father of defendant No.3 took a plea that the house could not be attached in connection with any claim for income tax against defendant No.3 as the house belonged to defendant No.2, the father. The defendant No.2 filed an application before the authority objecting to the attachment on the ground that the house belonged to him, but the collector dismissed the objection holding that the house belonged to defendant No.3. The defendant No.2 filed an application before the authority objecting to the attachment on the ground that the house belonged to him, but the collector dismissed the objection holding that the house belonged to defendant No.3. Defendant No.2 did not appeal against that order and did not question it by a suit. The Apex Court further found that defendant No.2 was examined by the income tax officer wherein he stated that he had purchased the house in the name of his son and the money had been paid out of his bank accounts. The Hon'ble Court observed that the defendant No.3 had full opportunity to appear in defence himself, but he did not do so and the case proceeded against him ex parte. Furthermore, the defendant No.3 at one point of time shows the income accursed from the house as his own income in his return. In that background, the Apex Court refused to ignore such admission and treat the same not admissible against defendant No.2. But in this case, the circumstances are quite different. Here the admission through a declaration in a deed was made by the predecessor-in-interest of the defendant/respondents long back. There is no evidence from either side. Under what circumstances such admission was made by the predecessor-in-interest of the defendant/respondents. True it is that allegation raised in the written statement by the defendant/respondents that the same was made for the purpose of avoiding harassment of income tax authority is of doubtful nature and the defendants are not in a position to prove the same by cogent evidence. But at the same time, it should be pointed out that it was also the duty of the plaintiff/appellants to establish here under what circumstances a declaration to that effect was made by the predecessor-in-interest of the defendants when the house stood in the name of such person who paid the taxes and there were overwhelming evidence to show that the house in question had been constructed by such predecessor-in-interest by taking house building loan. There is yet another very relevant circumstance here to doubt the actual nature of the document the alleged declaration by the predecessor-in-interest of the defendants as the document in question admittedly remained in the custody of the defendants. There is yet another very relevant circumstance here to doubt the actual nature of the document the alleged declaration by the predecessor-in-interest of the defendants as the document in question admittedly remained in the custody of the defendants. If really there was a declaration by which the owner of the suit property had any intention to establish that actually the property in question had been built with the assistance of the contribution by all the brothers then atleast it is expected that the brothers had copies of such declaration and such document would not remain in the custody of the defendants only. Apart from this it is well settled that the burden of proof that a particular person in whose name admittedly the suit property stood was a benamdar and actually he was not the sole owner of such property but the same was acquired by the joint contribution of his brothers as well, rest upon the party who alleged the same. In the instant case, the said party, namely, the plaintiff/appellants wanted to discharge such onus only by referring to a declaration by the ostensible owner and I have already noted that apart from such document there is no other circumstance in support of the particular allegation as noted above made by the plaintiff/appellant. On the other hand there is no evidence to establish under what circumstances that particular document was executed by the alleged ostensible owner of the suit property. 7. Before I conclude on this point, it should be noted that an admission merely as an admission is not conclusive against the person making it; but it may operate as an estoppel under section 115 of the Evidence Act that is when the person who made the admission is not permitted to deny it. Now, under section 115 of the Evidence Act, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe on a thing to be true and to act upon such belief neither he nor his representatives shall be allowed, in any suit or proceeding between himself and such person or his representatives to deny the truth of that thing. Now, in the instant case there is nothing to show that by such a declaration which remained in the custody of the person who made the declaration and/or his successors-in-interest long after his death, the plaintiff/appellants acted upon such belief and there was any overt act on the basis of such belief. So there cannot be any question of any estoppel here. That being so I do not find any difficulty in answering the first point formulated for consideration in negative. 8. Regarding the second point I find that a suit cannot be bad for defect seen in the prayer made. That is merely a technical aspect of the matter and the court may grant permission to the parties to make necessary amendment in the plaint, if the same is not otherwise barred by any other law. Moreover, on this point no specific argument has been advanced from the side of the respondent/plaintiffs and I find that in view of my finding on the first point there is no necessity to consider the point at all. 9. In this result, I hold that the finding of the appellate court below on the point at issue should not be disturbed and the present appeal must fail. Accordingly, the appeal is dismissed but having regard to the circumstances I make no order as to cost. Interim order, if any, passed in connection with the present appeal stands vacated with immediate effect. Let a copy of this judgment along with the L.C.R. be sent down to the court below for necessary action, if any. Appeal dismissed.