JUDGMENT :

This appeal is filed challenging the judgment and decree in O.S.No.31/2003 dated 30.07.2012 on the file of Principal Senior Civil Judge and CJM, Mysore, partly decreeing the suit and rejecting the claim in respect of item Nos.1 to 3 of the suit schedule properties.

2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.

3. Brief facts of the case:

(i) The case of the plaintiff before the Trial Court is that the suit schedule properties are the self acquired properties originally belonged to the father of the plaintiff by name L.Mahadev. The said L.Mahadev had two children, a daughter by name M.Shobha, who is the plaintiff and a son by name M.Dinesh, who is the first defendant. The second defendant is the wife of said L.Mahadev. The plaint schedule properties are the self acquired properties of said L.Mahadev, which were acquired out of his own efforts and earnings.

(ii) It is contended that the said L.Mahadev passed away on 02.08.2000 leaving behind the plaintiff and defendants as his only legal representatives. After the death of L.Mahadev, the defendants are trying to alienate the suit schedule properties without bringing it to the knowledge of the plaintiff. With an intention to defraud the rights of the plaintiff, the defendants also made efforts to change the khatha in their names. The plaintiff had approached the defendants to give her share in the plaint schedule properties, but they refused to give any share. It is contended that plaintiff marriage was performed 9 years back and she is entitle to 1/3rd share in the suit schedule properties. The defendants also subsequent to the death of said L.Mahadev recovering rents which are derived from the suit schedule properties and hence, the plaintiff is also entitled for mesne profits.

(iii) In pursuance of the suit summons, the defendants appeared through their counsel and filed the written statement. The defendants, in the written statement admitted that the suit schedule properties are the self acquired properties of L.Mahadev and also admitted the relationship between the parties. The defendants have denied the allegation that the defendants made an effort to dispose of the property and so also denied that an attempt was made to transfer the khatha in their names in order to defraud the rights of the plaintiff.

(iv) It is contended that the marriage of the plaintiff was performed by spending huge amount and at the time of marriage, gold and silver articles were also given to her. It is also contended that the father of the plaintiff and the first defendant purchased the site in the name of the plaintiff, which is situated at Bogadi.

(v) The deceased L.Mahadev, in order to see that there will be no litigation after his death, during his lifetime, while he was in sound state of mind bequeathed the plaint schedule item Nos.1 to 3 in favour of the defendant through a Will dated 27.07.2000 and the same has been drafted by Advocate Sri.C.Puttaswamy and the said Will has been attested by witness S.Gnaneshwar and Dr.B.Sathyanarayana who is a family physician. As on that day, the executant of the said Will, i.e., L.Mahadev was in the Mission Hospital as he was suffering from Jandies and the said Will is also attested by Notary and the executant has signed the document in the hospital itself. After the death of said L.Mahadev, the khatha of the 3rd item of the plaint schedule property has been transferred in the name of the defendants and the defendants did not give any application for transfer of item Nos.1 and 2 of the properties as they were not apprehending any suit by the plaintiff as she was very well aware of the execution of the Will by the deceased. The defendants have denied the very contention of the plaintiff that she has approached the defendants and requested to give her share and also denied the refusal of giving any such share. It is contended on behalf of the defendants that t