1. The case of the plaintiffs is that the suit schedule properties are ancestral properties. The propositus was one Channappa. He did not have sons. Hence he adopted one Shivappa. Shivappa was married to Ningavva - 1st plaintiff. Through their marriage, they have eight children. Plaintiffs No.2 to 8 and defendant No. 1 are their children. Defendants No.2 and 3 are the children of defendant No. 1. Since a share of the plaintiffs was denied, the instant suit was filed for Partition and separate possession.

2. On service of summons, the defendants entered appearance. Defendants No. 1 and 2 filed a joint written statement, which was adopted by defendant No.3. They contended that Shivappa was the adopted son of Channappa, who has inherited the properties. Therefore, the suit schedule properties are the self-acquired properties of Shivappa. During his lifetime, Shivappa had executed a Will dated 13.05.2002 in favour of defendants No.2 and 3, namely, the children of defendant No. 1. In the said Will, a sum of Rs. 25,000/- each was deposited in the names of his unmarried daughters Savakka and Manjavva namely plaintiffs No.7 and 8. Therefore, the plaintiffs are not entitled for any share in the suit schedule properties.

3. Based on the pleadings, the trial Court framed the following issues and additional issues:

i. Whether the plaintiffs prove that the suit properties are ancestral and joint Hindu family properties and they and defendant No. 1 are in joint possession and enjoyment of the same?

ii. Whether the plaintiffs further prove that the Will executed by Shivappa in favour of defendants 2 and 3 pertaining to suit properties is illegal, void and is not binding on their share?

iii. Whether the plaintiffs are entitled for the relief claimed in the suit?

iv. What order or decree ?

Additional Issues Dated 9.8.2011

i. Whether the defendants prove that by virtue of the Will dated 13.5.2002 said to have been executed by deceased Shivappa the defendants 2 and 3 are the absolute owners of suit properties as contended in para 3 of the mitten statement?

ii. Whether the defendants further prove that the deceased Shivappa during his life time has deposited a sum of Rs. 20,000/- in the name of his wife the plaintiff No. 1 and a sum of Rs. 25,000/- each in the name of plaintiffs 7 and 8 in Mallaprabba Grameen Bank towards their maintenance as contended in further para 3 of their written statement ?

4. Plaintiff No.8 examined herself as PW1 and got marked 4 documents at Exhibits PI to P4. Defendant No.2 examined himself as DW1, examined 4 witnesses as DWs. 2 to 5 and got marked 13 documents. Issues 1 to 3 were held in the affirmative and additional issues 1 and 2 were held in the negative.

5. By the impugned judgment and decree, the suit of the plaintiffs was decreed. The plaintiffs No. 1 to 8 and defendants No.1 to 3 were together entitled to claim 1/9th share of the suit schedule properties Aggrieved be the same, defendants No. 1, 2 and 3 have filed this appeal. The parties are referred to as per their rank before the trial Court.

6. Smt. Hemalekha K.S, learned counsel appearing for the appellants contends that the impugned judgment and decree is erroneous and is liable to be set aside. That the trial Court failed to consider the validity of the Will. That the trial Court has wrongly held that the Will has not been proved. Once the property has been received by Shivappa, who was the adopted son, the said property becomes the self-acquired property of Shivappa. Therefore, even if the trial Court's finding that the properties are ancestral properties is held to be valid, Shivappa is entitled to bequeath his share of suit schedule properties. His share in the suit schedule properties amounts to ?rd of the share. The other ?rd will go to his wife Ningavva who is still alive and their son Channabasappa. Therefore, the division of shares of 1/9th is erroneous.

7. On the other hand, Sri. Sachin S. Magadum, learned counsel for the respondents defends the s