MANJUNATH, J

1. The appellants are questioning the legality and correctness of the judgment and decree passed in O.S.No.118/2004 by the I Addl. City Civil and Sessions Judge, Bangalore, dated 20th April 2008.

2. The facts leading to filing of this appeal are hereunder:

According to the plaint averments, one Narve Somoji Rao, was the full and absolute owner of the plaint schedule property. He had no male issues and died intestate. He died leaving behind him his wife Ladu Bai and daughter -Ganga Bai, who was the mother of the plaintiff and defendant. It is also his case that in addition to the plaintiff and defendants, their mother had three daughters by name Kousalya Bai, Muktha Bai and Kasturi Bai and they married prior to 1990. The maternal grand father -Narve Somoji Rao died in the year 1932 leaving behind him his widow -Ladu Bai and only daughter -Ganga Bai, who is the mother of the parties. It is also his case that Ladu Bai -grand mother of the parties died in the year 1956 leaving behind her only daughter -Ganga Bai, who succeed the estate of Narve Somoji Rao. On the ground that Ganga Bai died on 20.3,1976, the plaintiff and defendants being the sons of Ganga Bai are entitled to equal share, suit was filed claiming partition and separate possession of 1/3 share. The appellant who was 1st defendant before the court below contested the case.

The 2nd defendant did not contest the suit and he was placed ex-parte.

3. According to the 1stdefendant, the relationship between the plaintiff and 1st defendant is not in dispute. It is also not in dispute that the maternal grand father -Narve Somoji Rao was the absolute owner of the schedule property. He also admits that Narve Somoji Rao died in the year 1932 leaving behind his widow -Ladu Bai and daughter -Ganga Bai, as his legal-heirs. During the life time of Somoji Rao, he had celebrated his daughters marriage and the mother of the parties was residing separately from her parents. According to him, after the death of Narve Somoji Rao, as per the provisions of the Hindu Woman's Right to Property Right ('Act' for short) Act, 1937, Ladu Bai being the widow of Narve Somoji Rao succeeded to the schedule property and she was the only absolute owner of the suit schedule property.

4. It isalso the case of the 1st defendant that Ladu Bai executed a registered Will on 15.3.1952 bequeathing the entire schedule property to the 1st defendant. It is also his case that he was given in adoption and he was brought up by his maternal grandparents. It is also his case that after the death of Ladu Bai, he has beenenjoying the schedule property as absolute owner and he had borrowed loan from the Bank by mortgaging the property and constructed the houses out of his funds. Therefore, he requested the Court to dismiss the suit.

5. Based on the above pleadings, the following issues were framed by the Court below;

1) Whether the plaintiff proves that the suit schedule property is ancestral property?

2) Whether the plaintiff is entitled for relief of partition by metes and bounds of his share?

3) If so, to what share?

4) Whether the plaintiff is entitled for mesne profit from date of suit?

5) Whether the suit is barred by limitation?

6) Whether the suit is bad for non-joinder of necessary party?

7) Whether the defendant No.1 proves that Ladu Bai executed her last Will dated 15.3.1952 and thereby bequeathed property in favour of defendant No.1?

8) Whether defendant proves that he is adopted son of Ladu Bai?

9) What Order or decree?

6. In order to prove their respective contentions, plaintiff was examined as P.W.1 and he also relied upon the evidence of P.W.2 and P.W.3 and Ex.P.1 to Ex.P.21. The appellant who was defendant no.1, was examined as D.W.1 and he relied upon Ex.D.1 to Ex.D.27. The Trial Court after appreciating the evidence let in by the parties held issue no.1 in affirmative, issues 5 to 8 in negative. In regard to issues 2 and 3, it was held that plaintiff is entitled to 1/3 share on th