JUDGMENT : Sathish Ninan, J. The preliminary decree in a suit for partition is under challenge by the fourth defendant. 2. The plaint schedule property has an extent of 1 acre 80 cents. The property originally belonged to one N.K.Chattanatha Karayalar. He had five sons and two daughters. He died in the year 1917. He had executed a Will in favour of one of his sons Subramonia Karayalar. Subramonia Karayalar had three sons and three daughters viz. Chattanatha Karayalar(Jnr.), Vaikunta Raman, Retnavelu, Avadi Ammal, Ponnammal and Chellammal. A truncated genealogy with the bare minimum members as is necessary for an easy understanding of the facts of the case is given hereunder. 3. The parties were governed by Mitakshara law. Subramonia Karayalar died in the year 1928. As per Ext.B29 agreement of the year 1950 entered into between his sons Chattanatha Karayalar(Jnr.), Vaikuntaraman and Retnavelu, the joint family status was disrupted resulting in each of the sons holding 1/3 shares over the ancestral properties. 4. Vaikuntaraman died in the year 1967. The plaintiff is his daughter. She seeks for partition and separate possession of her 1/9 shares over the plaint scheduled property. The plaintiff's brothers are defendants 1 and 2. Retnavelu died in the year 1994. His wife is the third defendant. Chattanatha Karayalar(Jnr.) died in the year 1972. His successors had conveyed the entire plaint scheduled property to the 4 th defendant, asserting exclusive right in themselves. 5. Defendants 1 to 3 supported the case of the plaintiff. 6. The 4 th defendant, who is the successor-in-interest of Chattanatha Karayalar(Jnr.) contested the suit. The 4 th defendant claimed exclusive title and possession over the property under Exts.A1 and A2 Sale Deeds (Exts.B22 and 23) dated 19.04.2000, executed by the legal heirs of Chattanatha Karayalar(Jnr.). The 4 th defendant asserted the exclusive title of Chattanatha Karayalar(Jnr.) over the property. It was claimed that such right was upheld in the prior litigations in the family viz. OS 33/1961 and OS 97/1981 . Accordingly they prayed for dismissal of the suit. 7. The trial court found that the joint family was disrupted under Ext.B29 agreement. It was found that Chattanatha Karayalar(Jnr.), who was the eldest son of Subramonia Karayalar, was managing and administering the assets of the Family and that there is no material to find his exclusive ownership over the property. Accordingly they prayed for dismissal of the suit. 7. The trial court found that the joint family was disrupted under Ext.B29 agreement. It was found that Chattanatha Karayalar(Jnr.), who was the eldest son of Subramonia Karayalar, was managing and administering the assets of the Family and that there is no material to find his exclusive ownership over the property. Accordingly, a preliminary decree was passed declaring the 1/9 shares of the plaintiff over the plaint scheduled property. 8. Pending the appeal, the appellant-4th defendant, purchased the rights of the plaintiff. Defendants 2 and 3 are pursuing their claim for partition and separate possession of their shares. 9. We have heard the learned counsel on either side. 10. The points that arise for determination in this appeal are: - (i) Does the evidence on record establish the exclusive title and possession of Chattanatha Karayalar(Jnr.) over the plaint scheduled property? (ii) The appellant-4th defendant having purchased the share of the plaintiff, pending the appeal, is the appeal maintainable? Does the conduct amount to estoppel? (ii) Does the decree and judgment of the trial court warrant any interference? 11. Admittedly, the plaint schedule property belonged to Subramonia Karayalar under a Will executed by his father late N.K.Chattanatha Karayalar. The parties were governed by the pristine Hindu Mitakshara Law. Of the three sons of Subramonia Karayalar, Chattanatha Karayalar(Jnr.) was the eldest. He was in management and administration of the assets. While in management of the family properties, Chattanatha Karayalar(Jnr.) had acquired other properties. Admittedly, the plaint schedule property is an ancestral property, inherited from Subramonia Karayalar. Paragraphs 1 and 2 of the plaint reads thus :- “1) The plaint schedule property comprises 1 acre and 80 cents of land with an old palatial building therein. This is known as the 'KARAYALAR COMPOUND'. 2) The said property originally belonged to the late Subramonia Karayalar by virtue of a will executed by his father, the late N.K.Chattanatha Karayalar.” The above is of significance in the light of the suit that ensued as OS 33/1961 between the three brothers-the three sons of Subramonia Karayalar. 12. The suit OS 33/1961 was filed by Vaikuntaraman and Retnavelu as plaintiffs, against their brother Chattanatha Karayalar(Jnr.), for partition of various items of properties. Ext.B1 is the plaint in OS 33/1961. Ext.B1 categorically admits disruption of the joint family. 12. The suit OS 33/1961 was filed by Vaikuntaraman and Retnavelu as plaintiffs, against their brother Chattanatha Karayalar(Jnr.), for partition of various items of properties. Ext.B1 is the plaint in OS 33/1961. Ext.B1 categorically admits disruption of the joint family. It also admits the division of all the ancestral properties between the brothers by metes and bounds, except the “Adu” and “Mitta” lands which were included in Schedule-II to Ext.B1. The acquisitions made by Chattanatha Karayalar(Jnr.) while in management of the ancestral properties were included in Schedule-I. The properties included in both the schedules were sought to be partitioned. Conspicuously, Ext.B1 plaint acknowledged the earlier division of all their ancestral properties excluding, the “Adu” and “Mitta” lands. The present plaint schedule, which is admittedly an ancestral property, was not included in Ext.B1. The plaint further acknowledged the separate enjoyment of the said partitioned ancestral properties. Not only that there was no statement that any ancestral property was left out, but there was a positive assertion that, except the “Adu” and “Mitta” lands the ancestral properties were partitioned between the brothers. The plaint affirmed that the only ancestral properties which remained in the management of Chattanatha Karayalar(Jnr.) were, the “Adu” and “Mitta” lands. The relevant plea in Ext.B1 reads thus :- “..... Subsequently, the said ancestral properties were divided between the brothers by metes and bounds and each is enjoying his share separately excepting the Adu and Mitta lands, which are described in the 2 nd schedule hereunder . These properties continue to remain in the management of the defendant No.1 as properties of co-owners. The first defendant is in management on behalf of the plaintiffs as their agent with a liability to account for their due share of the income and profits as well. The other common assets are shown in the 1 st schedule.” 13. The present plaint schedule property is admittedly lying contiguous to item No.3 in Schedule – I to Ext.B1 plaint. The said item No.3 in Schedule-I was sought to be partitioned as an acquired asset. In spite of the above, the present plaint schedule was not claimed to be a partible property. 14. The present plaint schedule property is admittedly lying contiguous to item No.3 in Schedule – I to Ext.B1 plaint. The said item No.3 in Schedule-I was sought to be partitioned as an acquired asset. In spite of the above, the present plaint schedule was not claimed to be a partible property. 14. In OS 33/1961 the contention of Chattanatha Karayalar(Jnr.), who was the first defendant therein was that, the brothers had partitioned between them not only the ancestral properties but also some of the acquired properties to facilitate equalisation of shares, and that the said item 3 in schedule-I was also allotted to him for enjoyment along with the present plaint schedule. He had claimed that such allotment was under Ext.B5 Yadasth. Ext.B8 is the judgment in the said suit OS 33/1961. Issue No.28 raised therein reads thus: - “28. Whether the building in Thaicaud, Trivandrum was allotted to the 1 st defendant ? Whether it is an annexe to the main building as alleged ?” The “annexe” mentioned therein was the plaint I-schedule item 3 in that suit and the “main building” is the present plaint schedule. At paragraph 16 of Ext.B8 judgment it was observed, “.....It (Ext.B 29) also provides for a future division of the properties left by their father into three equal shares and pending such division income from those properties are to be shared equally by the three brothers. The plaintiffs' case is some of the properties left behind by the father had been divided later that is in or about year 1953 and the remaining properties left by the father are described in 2 nd schedule of the plaint. 1 st schedule catelogues the acquisition made by 1 st defendant during his term as the manager of the joint family. …..” Paragraph 22 of Ext.B8 judgment dealt with issue No.28 referred to above. Therein the court held, “This is concerned with Corporation building adjacent to the main house allotted to 1 st defendant for his share in Thaicaud, Trivandrum. It is admittedly acquired property. The acquired property is contiguous to the ancestral Thaicaud residence allotted to 1 st defendant. From this it cannot be stated that it is an annexe to the ancestral property though 1 st defendant had annexed this to his ancestral residence. It is admittedly acquired property. The acquired property is contiguous to the ancestral Thaicaud residence allotted to 1 st defendant. From this it cannot be stated that it is an annexe to the ancestral property though 1 st defendant had annexed this to his ancestral residence. …..”.“.....Hence it cannot be stated that because of its contiguity to the main building it should have been purchased and allotted along with the main building to 1 st defendant. It follows that it is not an annexe to the main building and it was not allotted to the 1 st defendant.” As noticed, the “ancestral residence-main building” mentioned therein is the present plaint schedule and the “adjacent - acquired property - annexe” was the schedule-I item 3 in that suit. 15. Ext.B3 is the replication filed by the plaintiffs, in reply to the written statement of the first defendant. Therein, at paragraph 7 it was again reaffirmed that the ancestral properties were divided after Ext.B29 agreement which disrupted the joint status. The same reads thus:- “The agreement recording the terms of the division in status of 1-1-1126 was executed on 12-1-1126. The properties set out in Schedule I of the plaint were not divided and they continued to be common assets. The ancestral properties left by the father was subsequently divided.” From the above it is beyond cavil that the parties very well acknowledged that there was an earlier partition of the ancestral properties, and that all the ancestral properties except the “Adu” and “Mitta” lands, described in schedule-II to Ext.B1 plaint in OS 33/1961, were already partitioned. 16. Undisputedly, the 1 st defendant therein namely, Chattanatha Karayar(Jnr.) was in possession of the present plaint schedule. Evidently, the parties were very much conscious of the existence of the present plaint schedule property. They were very much aware that it was not included in the suit. A reading of Exts.B1 to B3, the plaint, written statement and the replication, along with Ext.B8 judgment therein, leaves no room of doubt that the non-inclusion of the present plaint schedule property as an item in the said suit was not an omission, but that the parties had no dispute that the said property was allotted to Chattanatha Karayalar(Jnr.) in an earlier partition between the brothers. As was noticed earlier, the plaintiff in OS 33/1961 was none other than Vaikuntaraman, the father of the present plaintiff. As was noticed earlier, the plaintiff in OS 33/1961 was none other than Vaikuntaraman, the father of the present plaintiff. The plaintiff cannot urge a claim in respect of the ancestral property, which was not available for her predecessor, her claim being only as a legal heir of her father Vaikuntaraman. 17. Learned counsel for the respondent would argue that in OS 33/1961 Chattanatha Karayalar(Jnr.) had raised a plea that, under Ext.B5 Yadasth there was a partition of the properties whereunder, the present plaint schedule along with the adjacent property which has been referred to in the earlier suit as “Annexe to the main building” was allotted to him. However, as per Ext.B8 judgment the court had negatived the claim. Ext.B5 Yadasth was not accepted by the court. The claim of Chattanatha Karayalar(Jnr.) of partition and separate allotment of the present plaint schedule property along with the annexe under Ext.B5 therein having been negatived by the court, the present claim by the successor-in-interest of Chattanatha Karayalar(Jnr.) with regard to exclusive title over the present plaint schedule property cannot be sustained, it is argued. 18. We are unable to agree with the submission. We had already noticed that the specific pleading in OS 33/1961 was that all the ancestral properties except the “Adu” and “Mitta” lands were partitioned between the brothers. Therefore, out of the ancestral properties, all that remained for partition were the “Adu” and “Mitta” lands which were sought to be partitioned in Ext.B1 suit. The claim in OS 33/1961 was not in respect of the present plaint schedule property but was in respect of the adjacent property, which they called as, “Annexe”. Therein the plea of Chattanatha Karayalar(Jnr.) that, under Ext.B5 Yadasth, along with the ancestral plaint schedule property, the annexe was also allotted to him. The said plea was negatived by the Court. However, that does not mean that there is a finding that the present plaint schedule property was not partitioned and allotted earlier. This is so in the light of the categoric admission in Ext.B1 plaint regarding partition of ancestral properties, which was noted above. In other words, in OS 33/1961 the fact that there was an earlier partition of the ancestral properties was not in dispute. This is so in the light of the categoric admission in Ext.B1 plaint regarding partition of ancestral properties, which was noted above. In other words, in OS 33/1961 the fact that there was an earlier partition of the ancestral properties was not in dispute. So also it is important to note that, in that suit, the predecessor-in-interest of the present defendants 1 and 2 and the predecessor-in-interest of the present third defendant, never raised a claim that the present plaint schedule property is partible. 19. There was yet another suit in the family as OS 97/1981. Ext.B14 is the plaint in the said suit. It was filed by Muthuswamy, one of the sons of the ancestor N.K.Chattanatha Karayalar, the head of the larger family. That was also a suit for partition. In the said suit, all the children of the original ancestor N.K.Chattanatha Karayalar, or their branches, were parties. Plaint schedule- I item No.2 therein, was the present plaint schedule property. Chattanatha Karayalar(Jnr.) had expired on 06.08.1972. Defendants 1 and 2 therein were his two daughters. Vaikuntaraman, the father of the present plaintiff, had died in the year 1967. His two sons, who are the present defendants 1 and 2, were the defendants 3 and 4. Retnavelu, who is the brother of Chattanatha Karayalar(Jnr.) and Vaikuntaraman and the husband of the present 3 rd defendant, was the 5 th defendant therein. Ext.B17 is the judgment in OS 97/1981. It reveals that, defendants 1 and 2 therein, ie. the legal heirs of Chattanatha Karayalar(Jnr.) had raised a plea of adverse possession and limitation. Defendants 3 and 4 therein, who are the brothers of the present plaintiff and the children of Vaikuntaraman, supported the claim of defendants 1 and 2 therein. Ext.B15 is the written statement filed in that suit by the 5 th defendant therein viz. Retnavelu. Therein he acknowledged that the plaint schedule property belonged absolutely to defendants 1 and 2 therein. At paragraph 6 of Ext.B15 it is pleaded thus :- “6. Subramania Karayalar's eldest son S.Sattanatha Karayalar along with his parents and brothers was residing in Trivandrum and he became an Advocate and was practising in Trivandrum which was the seat of High Court of Travancore State. At paragraph 6 of Ext.B15 it is pleaded thus :- “6. Subramania Karayalar's eldest son S.Sattanatha Karayalar along with his parents and brothers was residing in Trivandrum and he became an Advocate and was practising in Trivandrum which was the seat of High Court of Travancore State. He became a member of the Legislative Assembly of Travancore later on an M.P and hence after his father's death in 1928 he was given the Trivandrum property by his brothers and he was enjoying the property as full owner with the consent and knowledge of all the members of the other branches including the Plaintiffs and defendants 3 to 15. At the time when the grand father of defendants 1 & 2 and father of 5 th defendant was enjoying the Trivandrum property there was only a small bungalow. After the death of his father S.Sattanatha Karayalar put up a big bungalow at a cost of Rs.50,000.00 in 1932 and for the house warming ceremoney all his paternal uncless then living including the grand father of Plaintiffs 1 to 3 and 6 th defendant were present.” Further, at paragraph 8 of Ext.B15, the title of defendants 1 and 2 were acknowledged thus: - “8. None of the parties to this suit except defendants 1 and 2 are entitled to the Plaint schedule item 2 in 2 nd schedule viz. Trivandrum property.” As per Ext.B17 judgment, the court upheld the title of defendants 1 and 2 therein [the children of Chattanatha Karayalar(Jnr)] by virtue of adverse possession and limitation. Though the plaintiff herein was not a party in OS 97/1981, as was noticed, her brothers were parties as defendants 3 and 4. They along with Retnavelu [the brother of Chattanatha Karayalar(Jnr)] who was the 5 th defendant therein, had asserted, affirmed and acknowledged the exclusive title of Chattanatha Karayalar(Jnr.) and his successors over the present plaint schedule property. 20. OS 97/1981 was a suit in the larger family. As noticed, all the children of the original ancestor N.K.Chattanatha Karayalar or their branches were adequately represented in the suit. Out of the three children of Vaikuntaraman, except the plaintiff, the other two sons were parties as defendants 3 and 4. The interests of the group Vaikuntaraman was sufficiently and substantially represented. As noticed, all the children of the original ancestor N.K.Chattanatha Karayalar or their branches were adequately represented in the suit. Out of the three children of Vaikuntaraman, except the plaintiff, the other two sons were parties as defendants 3 and 4. The interests of the group Vaikuntaraman was sufficiently and substantially represented. There is no case for the plaintiff that her brothers had colluded in the said suit with the branch of Chattanatha Karayalar(Jnr.) in acknowledging their title over the present plaint schedule property. 21. In Thayyil Gopalan and Ors. v. Thayyil Madhavi and Ors. ( 2018 (5) KHC 871 ) a learned single Judge of this Court explaining the doctrine of substantial representation held thus: - “8. The doctrine of substantial representation promotes substantial justice based on principle of equity, laches and acquiescence and avoids multiplicity of proceedings. The principle behind it can be made applicable when there is a substantial representation of common estate, either in a suit or proceedings, when identical or common interests are involved. When the estate or the common interest was substantially represented, the result would bind on the estate and all those who are having same interest over the estate irrespective of whether they were made as parties to the proceedings or not. The only exception is fraud or collusion in obtaining the decree. A mere non-contest of the suit or the proceedings by the parties does not itself satisfy either fraud or collusion though the same are relevant factors to be looked into in answering fraud or collusion in obtaining a decree. There should be evidence that the decree was obtained by playing fraud or collusion and the burden would be on the person who claims it, otherwise the liability under doctrine of substantial representation would operate against all those who hold the same interest or identical interest with that of parties to the suit or the proceedings over the estate.” Therein this Court had referred to the judgment of the Apex Court in N.K.Mohd. Sulaiman Sahib v. N.C. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb and Others (AIR 1966 SC 792) wherein it was held that, where on account of a bona fide error, a suit is instituted against a person who is not representing the estate of a deceased person, in the absence of fraud or collusion or other grounds which taint the decree, the decree binds the estate, even though the persons interested are not brought on record. It was also held that, “this principle is a part of law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law”. Therefore, it is possible to say that the decree in OS 97/1981 binds the present plaintiff also. 22. Incidentally we also notice that, pending the appeal, the rights of the plaintiff was purchased by the appellant-4 th defendant. Therefore, the contention of the plaintiff that she was not a party to OS 97/1981 and that the decree does not bind her, does not survive any more. 23. While considering the claim of defendants 1 to 3, as noticed, in OS 97/1981 the present defendants 1 and 2 were defendants 3 and 4. The husband of the third defendant was the 5 th defendant in OS 97/1981; she claims right in the present suit only as his legal heir. Therefore, the pleadings and the decree in OS 97/1981 binds the present defendants 1 to 3. Hence, the claim of the present defendants 1 to 3 for partition of the plaint schedule property, has no leg to stand. 24. In the light of the admissions made in Ext.B1 plaint in OS 33/1961 with regard to the partition of the ancestral properties, and the admissions in OS 97/1981 by the present defendants 1 and 2 and the predecessor of the 3 rd defendant, acknowledging the exclusive right of Chattanatha Karayalar(Jnr.) over the present plaint schedule property, it would be appropriate to refer to the evidentiary value of admissions made by the parties in their pleadings. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram Others (AIR 1974 SC 471) the Apex Court highlighted that, admissions by pleadings stand on a higher pedestal, compared to other admissions. The Apex Court held: - “..... Admission is true and clear are by far the best proof of the facts admitted. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram Others (AIR 1974 SC 471) the Apex Court highlighted that, admissions by pleadings stand on a higher pedestal, compared to other admissions. The Apex Court held: - “..... Admission is true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under S.58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” Therefore, admissions in pleadings are binding on the maker. 25. The admissions made by Vaikuntaraman, who is the predecessor-in-interest of the plaintiffs and defendants 1 and 2, and by his brother Retnavelu, who is the predecessor- in-interest of the present third defendant, that there had been a partition of ancestral properties excluding the “Adu” and “Mitta” lands, which were sought to be partitioned under OS 33/1961, have already been taken note of. Same is the case with regard to the acknowledgment made by defendants 1 and 2 herein and by the predecessor-in -interest of the third defendant herein, in OS 97/1981, affirming exclusive title over the present plaint schedule property with Chattanatha Karayalar(Jnr.). It is important to note that, in OS 97/1981 a claim for partition of the present plaint schedule property was not raised by the present defendants 1 and 2 and the predecessor-in-interest of the present third defendant, though they were parties. On the other hand, they in unison, asserted that the title over the plaint schedule property vested with Chathanatha Karayalar(Jnr.). Significantly, neither the plaintiff nor defendants 1 to 3 mounted the witness box and even attempted to explain the stance that was adopted by them or their predecessors in the earlier litigations. 26. On the other hand, they in unison, asserted that the title over the plaint schedule property vested with Chathanatha Karayalar(Jnr.). Significantly, neither the plaintiff nor defendants 1 to 3 mounted the witness box and even attempted to explain the stance that was adopted by them or their predecessors in the earlier litigations. 26. The fact that Chattanatha Karayalar(Jnr.) and his successors were in admitted possession of the property, coupled with the judicial admission in O.S.33 of 1961, by Vaikundaraman, the predecessor-in-interest of the present plaintiff and defendants 1 and 2, and of Retnavelu, the predecessor-in-interest of the present 3 rd defendant, that all the ancestral properties except the “Adu” and “Mitta” lands were partitioned, and the conspicuous non-inclusion of the property in O.S.33 of 1961 for partition, when considered along with the affirmation in OS 97/1981 by the present defendants 1 and 2 and by the predecessor in interest of the 4 th defendant, of the exclusive title of Chattanatha Karayalar(Jnr.) over the property, leads to the conclusion that, in a partition between the three brothers, the present plaint schedule property was allotted exclusively to Chattanatha Karayalar(Jnr.) and that title vested with him. We find accordingly. 27. The respondents would contend that the appellant- 4th defendant, has no consistent case regarding the derivation of title. While in OS 33/1961, title was claimed under a Yadasth, in OS 97/1981, the claim of title was by adverse possession. In Ext.B10 Partition Deed, followed by Exts.B11 and B12 documents, between the legal heirs of Chattanatha Karayalar(Jnr.), the property was referred to as his acquisition. In Exts.A1 and A2 conveyance obtained by the 4 th defendant, the title referred to is, a compromise. On the face of such inconsistencies, the claim of the 4 th defendant regarding exclusive title over the property is liable to be negatived, it is argued. It is also argued that, the above constitutes fraud rendering the decree in OS 97/1981 void. 28. We do not find any merit in the contention. In OS 33/1961 the dispute was between the three brothers. As already noticed, the said suit did not relate to the present plaint schedule property. It is true that, therein the predecessor-in-interest of the 4 th defendant herein had claimed allotment of the adjoining property (the “annexe property”) under Ext.B5 Yadasth, and the said document was not accepted by the Court. As already noticed, the said suit did not relate to the present plaint schedule property. It is true that, therein the predecessor-in-interest of the 4 th defendant herein had claimed allotment of the adjoining property (the “annexe property”) under Ext.B5 Yadasth, and the said document was not accepted by the Court. However, the claim of title by Chattanatha Karayalar(Jnr.) was based on a partition and the plaintiffs themselves had admitted about an oral partition with regard to the ancestral properties. OS 97/1981 was by the uncle of the three brothers. The plea of adverse possession was against him. Therein the present defendants 1 to 3 or their predecessors asserted that the property belonged to Chattanatha Karayalar(Jnr.). The mere fact that the title traced was not uniform would not affect the title once it is found that title vested with Chattanatha Karayalar(Jnr). 29. Elaborate arguments were raised by either side on res judicata and adverse possession. Reference is to the two earlier litigations ie. OS 33/1961 and OS 97/1981 . Various decisions were cited across the bar regarding the same. As noticed, the plaint schedule property herein was not a subject matter in OS 33/1961. The claim therein was not in respect of the ancestral property but in respect of a subsequently acquired property while Chattanatha Karayalar(Jnr.) was in management. The title over the present plaint schedule property was not at all in issue in the said suit. With regard to OS 97/1981, as was noticed above, the claim of adverse possession was against the plaintiff therein and not in between the brothers or their successors. Therefore, the arguments on res judicata and adverse possession, based on OS 33/1961 and OS 97/1981 , does not have any significance. 30. Pending the appeal, the 4 th defendant purchased the rights of the plaintiff under the preliminary decree. The learned counsel for the respondent would raise an argument that the 4 th defendant has, by their conduct, accepted the preliminary decree and are estopped from arguing against the same. We find that the argument has no substance. There has been no representation on the part of the appellant as against the respondents, to make them believe some fact to be true and to act upon such representation to their prejudice. We find that the argument has no substance. There has been no representation on the part of the appellant as against the respondents, to make them believe some fact to be true and to act upon such representation to their prejudice. The appellant has, pending their appeal, to avert any claims from the plaintiff, chosen to purchase the plaintiff's right as declared under the decree. That does not amount to estoppel, to operate against the appellant-4 th defendant. 31. Though the trial court held the property to be partible, it had not declared the shares of the defendants. The suit being one for partition, the status of all the parties are akin to that of plaintiffs. This court has in Thomas K.T. v. Anna @ Accamma John and others [ 2018 (3) KHC 749 ] held that, in a preliminary decree the court is bound to declare the shares/rights of the parties to the suit and it is not dependent on the payment of court fees. Payment of court fee can be insisted only for separation of the share. The trial court was to declare the shares of the defendants also. Anyhow, defendants 1 to 3 have filed IA 696/2023 before the trial court seeking passing of a supplementary preliminary decree to declare their shares over the property. The very partibility of the property is still in issue. Hence the 4 th defendant who claims impartibility of the property has a legal right to maintain the appeal to challenge the decree declaring partibility. 32. Incidentally, we also do notice that, Subramonya Karayalar had died in the year 1928. Succession had opened then. The present suit for partition is filed in the year 2002. 33. On the above discussions, we hold that the plaint schedule property belongs to the 4 th defendant and the claim for partition by the other parties to the suit is bound to fail. The impugned judgment is liable to be interfered with. In the result, the appeal is allowed. The decree and judgment of the trial court are set aside and the suit will stand dismissed. No costs.