K.S. MUDAGAL, J.

1. The above appeal and cross-objections arise out of the judgment and decree dated 17.08.2005 in O.S. No. 146/1995 passed by the II Additional Senior Civil Judge, Dharwad.

2. Smt. Elizabeth was defendant No. 1 in the suit. On the death of defendant No. 1 the appellant David came on record as defendant No. 1(a) as her legal representative. The cross-objectors are defendant Nos. 3 and 4 in the suit. Subhoda Prakash respondent No. 1 herein filed the said suit against defendant Nos. 1 to 4 for partition and separate possession of his half share in the suit schedule properties.

3. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court.

4. The properties which are subject matter of the suit are shown in Schedules A to C of the plaint. Schedule A properties are six agricultural lands situated within the revenue limits of Murakatti village of Dharwad taluk; Schedule B property is the site bearing C.T.S. No. 2/27A measuring 407 and 3/3 sq. yards with a building thereon situated in Jaynagar, Hubli; Schedule C properties are the movables, like furniture, electronic goods, etc.

5. The plaintiff contended that himself and Devadatta the husband of first defendant were the sons of Artur N. Kumar, who died on 10.07.1974 and his wife Sulochanabai who died on 14.03.1991. Plaintiff contended that the couple left behind them seven sons including the plaintiff & Devadatta and two daughters. He contended that the suit lands were being cultivated by himself and his father jointly as tenants, as Devadatta was the eldest son, his name was entered in record of rights and occupancy rights were granted in his name.

6. Regarding the house property, he contended that the same was acquired by his father, but still the name of Devadatta was entered in the property records as he was the eldest son. He further contended that except himself and Devadatta, all other children of his parents are residing abroad therefore, they have no right in the suit properties. He contended that on death of Devadatta on 07.06.1981, of late defendant No. 1 is not co-operating for maintenance and enjoyment of the properties and when he demanded partition and separate possession of his share, she declined. Thus, he claimed decree for partition and separate possession of his share.

7. Defendant No. 1 contested the suit denying that the suit lands were being cultivated by Artur Kumar and plaintiff jointly. She further denied that Devadatta was only a name lender in acquiring the suit house and obtaining the occupancy rights of the lands in the property records because he being the eldest son.

8. She contended that the suit lands and the site and building were acquired by her husband and he was the exclusive owner of those properties. She contended that on the death of Devadatta Kumar, the properties have devolved exclusively on her as his legal representative. She contended that with similar contentions, the plaintiff went before the Revenue Courts and failed. Alternatively, she further contended that the suit is not properly valued and court fee paid is insufficient and sought dismissal of the suit.

9. Pending the suit, defendant No. 1 Elizabeth died and defendant No. 1(a) (present appellant) came on record contending that he is the adopted son of defendant No. 1 Elizabeth. He further contended that defendant No. 1 Elizabeth has executed registered Will dated 04.07.1997 bequeathing all the suit properties in his favour and the said Will is probated in P & Sc. No. 1/2001 by the order of I Additional District Court, Hubli.

10. Elizabeth sold plaint schedule Item Nos. 1 to 3 properties to defendant Nos. 2 to 7 under different sale deeds. The sale in favour of defendant No. 2 was effected on 19.12.1988. The sale in favour of defendant Nos. 3 and 4 was effected on 20.02.1999 and sale in favour of defendant Nos. 5 to 7 was effected on 22.09.1999. Therefore, they were impleaded as defendant Nos. 2 to 7 in the sui