( 1 ) THESE appeals arise from the judgment and decree dated 14th July, 1987 delivered by (Sri M. Shama Bhat) the II Additional Civil Judge, mangalore, in Original Suit No. 26 of 1979 dismissing the plaintiffs claim for partition as well as the claim of the first: defendant for partition and separate possession of their respective shares.

( 2 ) THE facts of the case in a nutshell are that the plaintiff Padmavathi filed a suit along with her husband K. Prabhakar Rai (deceased) for division of plaint 'a' to 'd' schedule properties into three equal shares and for allotment of one such share to her in the aforesaid property. The plaintiffs have also sought for relief for accounting the income of mesne profits of the schedule properties with effect from 25-11-1978 till the delivery of the share to them.

( 3 ) BEFORE proceeding further, it will be appropriate to mention the relationship inter se between the parties.

Ramanna Shetty and his wife Poovakka Shedthi

Padmavathi

Yeshoda R. Shetty

Ramakrishna Shetty

(1st daughter) Plaintiff

(2nd daughter) Defendant 2

(Third child-son) 1st defendant

the above geneology clearly shows that plaintiff 1 and defendants 1 and 2 are blood relations, being sisters and brother. First defendant ramakrishna Shetty is the third child of Ramanna Shetty and his wife poovakka Shedthi. Plaintiff 2-Prabhakar Rai is the husband of plaintiff 1. Plaintiff filed the above suit for partition claiming 1/2rd share with the allegations that Poovakka Shedthi owned and acquired certain immovable properties, apart from other assets including cash and other moveables. According to the plaintiffs case, Poovakka Shedthi died on 25-11-1978 at her residence in Nandoor cross, Kadri, Mangalore. The plaintiff further alleged that Poovakka Shedthi had executed her last will and Testament on May 6, 1973, which the plaintiff has filed with the plaint. The plaintiff alleged that under that Will dated May 6, 1973 the plaint 'a' schedule properties have been bequeathed to the plaintiff padmavathi. Plaint 'b' schedule properties have been bequeathed to her son, first defendant and the plaint 'c' schedule properties have been bequeathed to the second defendant. Poovakka Shedthi also owned certain immovable properties described in the plaint 'd' schedule, which are in the possession of tenants. It is further alleged in the plaint that poovakka Shedthi during her life-time was in possession and enjoyment of the house comprised in No. 3-1408. According to the plaintiff, poovakka Shedthi was in possession of moveables as mentioned in plaint Schedule 'e'. She asserted that the first plaintiff and the defendants, for the present, are in joint possession of the properties and that she wanted an amicable settlement but there is no chance of the same and therefore, the plaintiff has to file a suit for partition and separate possession as stated in the Will dated 6-5-1973.

( 4 ) DEFENDANTS 1 and 2 filed their separate written statements.

( 5 ) DEFENDANT 1 did not admit the genuineness and validity of the Will said to have been executed by Poovakka Shedthi dated 6-5-1973 and also did not admit or accept the genuineness and the validity of the Will dated 3-6-1966 relied upon by the second defendant in her written statement as having been executed by Poovakka Shedthi. The first defendant asserted that the plaintiff and defendants are in joint and exclusive constructive possession. He also did not admit that the movable items mentioned in Schedule 'e' belonging to Poovakka Shedthi. He also asserted that all the suit schedule properties mentioned in schedules 'a' to 'e' have got to be partitioned, as well as the income and the profits from the properties. In para-1 of the written statement, it is stated that defendant 1 has paid the Court fee with reference to the claim of his share in the partition. He asserted that he is not in actual possession of the schedule properties, is not correct.

( 6 ) THE second defendant-Yeshoda R. Shett