JUDGMENT/ORDER

1. The defendant has filed this appeal praying to set aside the judgment and decree dtd. 12/1/2006 passed by the II Additional District Judge, Tumkur in R.A. No. 174/2004 and also judgment and decree dtd. 24/10/1997 passed in O.S. No. 227/1995 on the file of the Civil Judge (Junior Division) and JMFC, Koratagere and prayed to dismiss the suit.

2. The parties will be referred as per trial Court rankings.

3. The respondent was the plaintiff and the appellant was the defendant in O.S. No. 227/1995. The said suit is filed seeking partition and separate possession of the plaintiff's half share in the suit schedule properties.

It is pleaded in the plaint that the suit schedule properties belongs to one Chinnappaiah and he got the same in the family division taken place among his brothers. Plaintiff and defendant are the daughters of the said Chinnappaiah. Chinnappaiah died one year back prior to filing of the suit. It is stated that the said Chinnappaiah has not executed any testamentary document in respect of the suit schedule properties. The said plaintiff and defendant being the daughters of deceased - Chinnappaiah are entitled to equal share in the suit schedule properties being Class - I heirs. It is stated that both plaintiff and defendant are in joint possession of the suit schedule properties. It is stated that the parties are Hindus and governed by Mithakshara Law. As the defendant has refused to effect partition, on the request made by the plaintiff, the suit came to be filed seeking partition and separate possession of the plaintiff's half share in the suit schedule properties.

4. In the written statement, the defendant has denied the relationship with the plaintiff. It is stated that the suit schedule properties are self-acquired properties of the deceased - Chinnappaiah and the defendant is the only daughter of the deceased - Chinnappaiah. It is stated that the suit schedule properties are exclusively in possession and enjoyment of the defendant. It is further stated that late Chinnappaiah has bequeathed the suit schedule properties in favour of the defendant under a registered Will dtd. 23/1/1984 and subsequently the said Chinnappaiah died on 8/12/1994. After the death of Chinnappaiah, the defendant has become absolute owner in possession and enjoyment of the suit schedule properties. It is stated that the plaintiff is a stranger to the family of the defendant and father of the defendant. It is stated that the plaintiff is not the daughter of late Chinnappaiah and claim of the plaintiff is false, frivolous and vexatious and prayed to dismiss the plaintiff's suit.

5. Based on the pleadings, the trial Court has framed the issues and additional issues, which reads as follows:

Issues

1. Whether the plaintiff proves that the suit schedule property is the ancestral property of the plaintiff and defendant?

2. Whether the plaintiff proves that she herself and defendant are in joint possession over the suit schedule property?

3. To what relief the plaintiff is entitled?

4. What order or decree?

Additional Issues

1. Whether the defendant proves that the plaintiff is not the daughter of late Chinnappaiah, the defendant is the only daughter of late Chinnappaiah?

2. Whether the defendant proves late Chinnappaiah has bequeathed the suit schedule properties in favour of the defendant under the registered will dtd. 23/1/1984?

6. Plaintiff and three witnesses were examined as PWs.1 to 4 and got marked the documents as Exs.P1 to P6. The defendant and four witnesses have been examined as DWs.1 to 5 and got marked documents as Exs.D1 to D24. The trial Court after hearing the arguments and appreciating the evidence on record, has answered issue Nos.1 and 2 in the affirmative and additional issue Nos.1 and 2 in the negative and decreed the suit of the plaintiff declaring that the plaintiff is having half share in the suit schedule properties. Aggrieved by the said judgment and decree passed by the trial Court, the defendant filed a