B.V. Nagarathna, J.

1. This Regular Second Appeal is filed by defendant Nos. 2 to 4 in O.S. No. 222/96, assailing judgment and decree passed in R.A. No. 254/2002 by the Addl. Sessions Judge and Presiding Officer of Fast Track Court-I, Davanagere dated 13/09/2007. By that judgment and decree, the appeal filed by the respondent - plaintiff was allowed and the suit filed by her was decreed by setting aside the judgment and decree passed in O.S. 222/96 on 21/11/2002. For the sake of convenience, parties shall be referred to in terms of their status before the trial Court.

2. Respondent-plaintiff filed the suit seeking relief of partition and separate possession of the suit scheduled property consisting of land bearing Sy. No. 41/2, measuring 7 Acres 35 Guntas inclusive of 10 Guntas of kharab situated at Obajjihalli village, Davanagere Taluk and District.

3. The case of the plaintiff is that she is the younger sister of defendant No. 1. Their father was Nooni Satyanarayana. That the suit scheduled property was owned by one Kotramma and apart from the suit scheduled property, the total extent of Sy. No. 41, measured 15 Acres. That the said Kotramma sold 7 Acres 35 Guntas of land including 10 Guntas of kharab land in favour of the father of the plaintiff and defendant No. 1 - Nooni Satyanarayana in the year 1982 and the remaining 7 Acres and odd was purchased by the plaintiff. Thereafter, Sy. No. 41 was divided into Sy. No. 41/1, which was in the name of the plaintiff and Sy. No. 41/2 was in the name of the father of the plaintiff and defendant No. 1.

According to plaintiff, the suit scheduled property was the self acquired property of her father, who died in the year 1995 leaving behind plaintiff and defendant No. 1 as the legal heirs. Therefore, she has succeeded to the estate of her father along with defendant No. 1. She demanded her half share in the suit scheduled property in the last week of January 1996 but the defendant postponed the same, which ultimately let her to file the suit.

4. During the pendency of the suit, defendant No. 1 died leaving behind defendant Nos. 2 to 4 as his legal heirs. In response to the suit summons, defendant No. 1 and thereafter defendant No. 2 filed their written statements.

5. In the written statement filed by defendant No. 1, relationship between the parties has been admitted. It has also been admitted that Sy. No. 41 originally belonged to Smt. Kotramma and that it measured 15 Acres and odd and two parcels of the said land were purchased in the name of the father of the plaintiff and defendant No. 1 as well as in the name of the plaintiff and thereafter, the said land was divided as Sy. Nos. 41/1 and 41/2.

According to defendant No. 1, land purchased in the name of Nooni Satyanarayana was after selling ancestral properties at Kallattur village in Andhra Pradesh and out of the proceeds received from the said sale and therefore, the suit scheduled property is ancestral property. It has also been averred that prior to this, Nooni Satyanarayana had bequeathed his assets in favour of his grand children namely, defendant Nos. 2 to 4, by executing a Will dated 19/08/1994 and therefore, plaintiff is not entitled to make a claim in respect of the suit scheduled property. Defendant No. 1 therefore, sought for dismissal of the suit.

6. In the written statement filed by defendant No. 2, relationship between the parties has been admitted. It has been averred that the suit scheduled property was the self acquired property of Nooni Satyanarayana, who was the grand father of defendant Nos. 2 to 4. That he had executed a Will in favour of defendant Nos. 2 to 4 and therefore, by virtue of the Will, they had succeeded to the estate of their grand father, Nooni Satyanarayana. The claim of the plaintiff to half share in the suit scheduled property has been rightly denied and therefore, defendant No. 2 also sought for dismissal of the suit.

7. Plaintiff filed reply to the written statement under Order 8, Rule 9 r/w