1. This is defendant No.2's Appeal filed under Section 96 of the Code of Civil Procedure, challenging the impugned judgment and decree dated 20.2.2009 made in O.S. No.2010/1997 on the file of XXXVIII Addl. City Civil Judge, Bangalore City.

2. For the purpose of convenience and better understanding, 'the appellant' and 'the respondent Nos.1 to 3' are hereinafter referred to as 'defendant No.2' and 'plaintiff Nos.1 to 3', respectively.

3. Brief facts of the case leading to the filing of the Appeal may be stated as under:

On 11.3.1997, plaintiffs filed a Suit against the defendants for partition and separate possession of half share in the suit schedule house property, mesne profits from the date of Suit till plaintiffs are put in separate possession of their share and for permanent injunction restraining defendants from alienating the suit schedule property till plaintiffs are put in separate possession.

It is the case of the plaintiffs that T.S. Ananda (husband of plaintiff No.3 and father of plaintiff Nos.1 and 2) and defendant No.2/T.S. Prakash are the children of defendant No.1/T.D. Somasundaram, who was the Kartha of the Joint Hindu Family. T.S. Ananda died on 19.6.1977. It is pleaded in para-5 of the plaint that 1st defendant, who is owner of the suit house bearing No.709, situated at 42nd Cross, 3rd Block, Rajajinagar, Bangalore- 560 010 constructed out house, for which T.S. Ananda who was working as a driver, contributed. It is further pleaded that during the life time of T.S. Ananda, the 1st defendant had decided to give half share in the suit property to T.S. Ananda, but unfortunately T.S. Ananda pre-deceased his father-defendant No.1. After the death of T.S. Ananda, the relationship between the plaintiffs and the defendants strained and they were thrown out of the house. Finally on 18.1.1997 the plaintiffs demanded the defendants to effect partition in the suit schedule property but in vain. Further, the defendants threatened the plaintiffs with dire consequences. They also learnt that the defendants will dispose of the suit schedule property so as to deprive the legitimate claim of the plaintiffs. Therefore, the plaintiffs filed a Suit for the relief as stated above.

On 24.3.1997, summons was issued to the defendants. Case was called on 20.12.1997. Defendant No.1 was absent. Defendant No.2 entered appearance through his Advocate and prayed for time to file written statement. Defendant No.1 died on 7.5.1998 and his contesting sole LR was already on record. Defendant No.2 filed written statement on 30.9.2004 admitting that T.S. Ananda is his elder brother and his father-1st defendant who was absolute owner of the suit property has bequeathed the suit property in his favour and prayed for dismissal of the Suit. He has denied the other averments of the plaint including the plaintiffs' relationship with the deceased-T.S. Ananda. As per para-6 of the written statement the defendant No.2 has enclosed a copy of will marked as document No.1.

Plaintiffs filed their rejoinder to the written statement of the 2nd defendant. They have contended that the Will dated 19.12.1977 is created, forged and manipulated after the death of 1st defendant. It is further contended that the 2nd defendant appeared before the trial Court on 20.12.1997, but filed his written statement on 30.6.2004 by creating the alleged unregistered Will after the death of the 1st defendant. On 23.1.2004, the trial Court held that written statement was not filed and adjourned the case to 30.6.2004 for production of documents and plaintiffs' evidence. Thereafter, the defendant No.2 filed an application to recall the order dated 23.1.2004 and permit him to file written statement on 30.6.2004. It is further contended that the defendant has obtained khata in respect of the suit schedule property without notice to them and also suppressing pendency of the suit. In view of the pleadings on record, the trial Court framed as many as 7 issues. In support of the case of th