Judgment :-

Sudhansu Jyoti Mukhopadhaya, J.

This appeal has been preferred by defendant No.3 against the judgment dated 20th January, 2003 passed by the High Court of Karnataka in R.F.A. No.319 of 1998. By the impugned judgment and decree the High Court allowed the appeal, set aside the judgment and decree of trial court and decreed the suit declaring that defendant Nos.1,2,3 and 4 are entitled to 11/50th share each and the plaintiff, defendant Nos.5,6,7,8 and 9 are entitled to 1/50th share each in the suit schedule properties.

2. The facts of the case are as follows:

The plaintiff-respondent No.4 filed a suit for partition and separate possession of 1/10th share in the suit schedule properties by metes and bounds and also sought for an enquiry under Order 20 Rule 12 C.P.C. to ascertain the mesne profits. She is the second daughter of late Shri Kunnaiah whereas defendant Nos.1,2,3 and 4, including the appellant herein are the sons and defendant Nos.5,6,7 and 8 are the daughters of late Shri Kunnaiah. Defendant No.9 is the son of the first daughter of late Shri Kunnaiah.

3. Plaintiff claimed that the suit schedule properties are self-acquired properties of late Shri Kunnaiah and, therefore, she is entitled for 1/10th share in the suit schedule properties.

Defendant Nos.1, 2 and 4 filed a joint written statement claiming 1/5th share in the suit schedule properties, as according to them the suit schedule properties are the ancestral joint family properties. The appellant-defendant No.3 filed a separate written statement claiming the right over total 32 acres 55 cents of lands. According to defendant No.3, the suit schedule properties are the self-acquired properties of their father, late Shri Kunnaiah who bequeathed the same in his favour under a Will dated 14th June, 1991. As per the Will he is entitled for a total extent of 32 acres 55 cents of lands in respect of which the plaintiff and other defendants have no right whatsoever. The rest of the defendants did not choose to file written statement.

4. The trial court framed the following issues:

“1. Whether the suit schedule properties are the self-acquired properties of late Shri Kunnaiah as contended by plaintiff or they are joint family properties as contended by defendants 1, 2 and 4 ?

2. Whether the plaintiff is entitled to1/10th share as contended by her or she is entitled to 1/50th share as contended by defendants 1, 2 and 4 ?

3. Whether the plaintiff is entitled to the relief prayed for ?

4. Whether defendants 1, 2 and 4 are entitled to the reliefs prayed for in the counter claim ?

5. What decree or order ?”

On issue No.1 the trial court has held that the suit schedule properties are the self-acquired properties of late Shri Kunnaiah. On issue No.2 it was held that the Will set up by defendant No.3 has been proved and, therefore, the plaintiff was not entitled for a share in the suit schedule properties. Issue Nos.3 and 4 were accordingly answered in negative.

Two additional issues were also framed by the trial court which are as follows:

“1. Whether 3rd defendant proves that late Shri Kunnaiah executed a Will dated 14.6.1991 under which the properties mentioned in para 9 of his written statement have been bequeathed in his favour?

2. Whether the event of the court holding that the properties were not the self acquisitions of late Shri Kunnaiah the properties in the possession of 3rd defendant could be allotted to him, as prayed for by him in para 2 of the additional written statement filed on 26.05.1997 ?”

The trial court answered additional issue No.1 in the affirmative and held that consequently additional issue No.2 was not necessary to be decided.

5. In appeal, the High Court considered the following three questions:

“i) Whether the suit schedule properties are the joint family properties of late Shri Kunnaiah and if so what share is to be allotted to each of the parties in the suit ?

ii) Whether the defendant No.3 proves the execution of the Will dated 14.06.1991 said to have been ex