JUDGMENT The appellant who was defendant No.1 in the suit is challenging the judgment and decree passed by the XXII Additional City Civil Judge, Bangalore on 30th July 2003 in O.S.No.6062/1999. 2. The brief facts leading to this appeal are: The plaintiff and the appellant-defendant No.1 are the children of one Anantha Bhatta who died on 22-11-1986. The second defendant is the minor son of the first defendant. Mother of the plaintiffs and defendant No.1 predeceased their father and she died in the year 1985. According to the plaint averments, Late Anantha Bhatta had possessed vast properties he under an allotment of his share at partition drawn on 14-2-1971. Anantha Bhatta had also possessed a Coffee Estate and he was also getting income from aracanut garden. He was a permanent resident of Koppa in Chikkamagalur District and he was looking after the lands and rarely he used to stay at Bangalore in the house set up by him at Shankar Mutt. The first defendant married in the year 1974 and later he secured a job as Clerk in the year 1977 at Vijaya Bank. According to the plaint averments, the first defendant was not contributing his income towards the maintenance of the family and that he was solely guided by his wife and parents-in-law. Anantha Bhatta had a Coffee estate of 43 acres and he was personally attending to aracanut cultivation and that the property left behind by Anantha Bhatta was ancestral property and to the best of knowledge of the plaintiffs, Anantha Bhatta died intestate. According to the plaint averments, Anantha Bhatta had also gold and silver articles at home. After the death of Anantha Bhatta, the first defendant has taken away all the gold and silver articles. It is also stated that some of the family lands were also lost under the Karnataka Land Reforms Act in favour of the tenants. Therefore, the plaintiffs filed a suit claiming 1/6th share by each of them. 3. The defendant contested the suit. He admitted his relationship with the plaintiffs and he also admitted that properties were possessed by Anantha Bhatta, but he denied the extent of land held by Anantha Bhatta including the income from the agricultural lands as stated in the plaint. Therefore, the plaintiffs filed a suit claiming 1/6th share by each of them. 3. The defendant contested the suit. He admitted his relationship with the plaintiffs and he also admitted that properties were possessed by Anantha Bhatta, but he denied the extent of land held by Anantha Bhatta including the income from the agricultural lands as stated in the plaint. According to him, Anantha Bhatta had entered into an agreement of purchase in respect of item No.1 plaint schedule properties from Shankar Mutt for a sum of Rs.48,840/- and that he had no funds to purchase the same though he was interested to purchase a house in Bangalore. Under the circumstances, he sold a house situated at Koppa – Narve in Chikkamangalur District from and out of the said sale consideration and a sum of Rs.21,000/- was paid as advance sale consideration to Sri.Sringeri Mutt and as he could not pay the balance sale consideration, Sri.Sringeri Mutt refused to execute the sale deed. In the circumstances, the Anantha Bhatta was constrained to file a suit in O.S.No.3495/1987 on the file of the Additional City Civil Judge, Bangalore to enforce the agreement of sale. 4. The suit filed by Anantha Bhatta was ended in compromise. In terms of compromise, Anantha Bhatta agreed to pay a sum of Rs.1,30,000/- with interest on or before 20-3-1986 in addition to the advance sale consideration of Rs.21,000/- paid by him at the time of entering into an agreement. It was also agreed in the compromise that if the amount of Rs.1,30,000/- is not paid on or before 20th March 1986, the agreement of sale stands cancelled and the suit stands dismissed with costs. Since Anantha Bhatta had no capacity to raise funds, in the compromise petition it was specifically agreed that Sree SringeruMutt to obtain registered sale deed either in his name or in the name of the first defendant or jointly in the name of Anantha Bhatta and the first defendant. So that the first defendant may avail loan from his employer M/S.Vijaya Bank Limited. Therefore, it was agreed that a sum of Rs.1,30,000/- + interest had to be paid to the Shankar Mutt in order to acquire the plaint item No.1 of the suit property. Pursuant to the compromise petition, the decree was passed on 21st September 1985. So that the first defendant may avail loan from his employer M/S.Vijaya Bank Limited. Therefore, it was agreed that a sum of Rs.1,30,000/- + interest had to be paid to the Shankar Mutt in order to acquire the plaint item No.1 of the suit property. Pursuant to the compromise petition, the decree was passed on 21st September 1985. Since, the first defendant could not raise loan from his Employer, he and his father applied for loan with Vyalikaval House Building Co-operative Society (‘the Society’ for short) and the Society sanctioned the loan of Rs.1,24,000/-. Accordingly, the sale deed was registered jointly in the name of Anantha Bhatta and the first defendant. Immediately after obtaining the sale deed, Anantha Bhatta died without discharging the loan borrowed from the Society. In the circumstances, defendant No.1 obtained the loan of Rs.1,10,000/- from Vijaya Bank in order to discharge the loan payable to the Society. The entire loan of Rs.1,10,000/- borrowed by him from Vijaya Bank from and out of his monthly income on installment basis. Again by borrowing the loan, he had put up construction on the first floor and he completed the construction on the first floor in the year 1995. The first defendant alone has discharged the loan borrowed by him from Vijaya Bank in order to put up the first floor in item No.1 of the plaint schedule properties. Therefore, he contended that the first defendant has become the absolute owner of the plaint Item No.1 and he further contends that Anantha Bhatta during his lifetime has executed a Will on 11th June 1984 bequeathing his share in the joint family properties in favour of the plaintiffs and defendant subject to the plaintiffs and the first defendant discharging the loan of Anantha Bhatta proportionate to the share allotted to the plaintiffs and the first defendant. 5. According to the appellant, the family was not getting proper income and that the financial condition of the Anantha Bhatta was completely bad. According to him, the financial condition of Anantha Bhatta has been disclosed in his Will dated 11-6-1984. He further contends that after the death of Anantha Bhatta, defendant No.1 alone has discharged the loan. 5. According to the appellant, the family was not getting proper income and that the financial condition of the Anantha Bhatta was completely bad. According to him, the financial condition of Anantha Bhatta has been disclosed in his Will dated 11-6-1984. He further contends that after the death of Anantha Bhatta, defendant No.1 alone has discharged the loan. Even though plaintiffs 1 and 2 claim their share in the Coffee Estate, in terms of the Will of their father, though they were required to discharge 25% of the said loan amount by each of the plaintiffs, they did not discharge the loan. On the contrary, they claim coffee estate in terms of the Will made by Late Anantha Bhatta. According to him, the plaintiffs approached the Coffee Board by enclosing a copy of the Will of the deceased Anantha Bhatta and requested the Coffee Board to charge the Coffee Registration Certificate in respect of the land bequeathed to them by their father. He further contends that the plaintiffs cannot contend that Anantha Bhatta died intestate as the Will executed by Anantha Bhatta was known to the plaintiffs since plaintiffs have acted upon the Will. He further contends that in terms of the Will, the parties have acted upon and the plaintiffs have been put in possession of respective 7 acres of Coffee Land each. Therefore, the suit filed by the plaintiffs is not maintainable. 6. Based on the above pleadings, the following issues were framed by the Court below: 1. Whether plaintiffs prove that suit schedule properties are the ancestral properties of their father deceased Anantha Bhatta? 2. Whether the 1st defendant proves that item No.1 of the schedule property is his self-acquired property? 3. Further defendant No.1 proves execution of Will dated: 11.6.1984 and that it was acted upon? 4. Further, 1st defendant proves that he suffered loss from the portion of the land in item No.3 and entitled to deposit only Rs.30,000/- per year? 5. Whether plaintiff proves that item No.4 of the schedule property is available for partition? 6. What decree or order? 7. In order to prove their respective contentions, the second plaintiff Gayathri was got examined as P.W.1. In addition to that, one Srinivas Rao one of the attesters to the Will was examined as P.W.2. The plaintiffs relied upon Ex.P.1 to Ex.P.37. 6. What decree or order? 7. In order to prove their respective contentions, the second plaintiff Gayathri was got examined as P.W.1. In addition to that, one Srinivas Rao one of the attesters to the Will was examined as P.W.2. The plaintiffs relied upon Ex.P.1 to Ex.P.37. On behalf of the defendants, the first defendant got himself examined as D.W.1. One Laxmi Narasimhaiah, the maternal uncle of the plaintiffs and the first defendant who was also one of the attesters to the Will of Anantha Bhatta was examined as D.W.2 and the defendants relied upon Ex.D.1 to Ex.D.93. 8. The Trial Court after considering the evidence let in by the parties, held Issue No.1 in the affirmative, Issue Nos.2 and 3 in the negative. Issue No.4 as does not survive for consideration. Issue No.5 in the affirmative, ultimately the suit of the plaintiffs came to be decreed by a judgment and decree dated 30th July 2003, holding that each of the plaintiffs are entitled to 1/6th share in the plaint item Nos.1 to 4 and further held that they are entitled for mesne profits. Accordingly, the Trial Court passed a decree in favour of the plaintiffs. 9. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the first defendant. 10. Though several grounds were urged by the appellant in the appeal memo, at the time of arguments, learned counsel for the appellant has raised the following grounds: According to him the Trial Court has committed a serious error in holding that all the suit schedule properties are joint family properties and further committed an error in holding that the appellant herein has failed to prove the Will of Anantha Bhatta and he further contends that the Trial Court did not consider the averments made in the plaint and the documents relied upon by the plaintiffs as well as the defendants in order to hold that the Will has not been proved by the first defendant. According to him, the plaintiffs have admitted the execution of the Will by late Anantha Bhatta and thereafter, by producing a copy of the Will, they claimed 7 acres of coffee land each before the Director of Coffee Board requesting the Coffee Board to change the Coffee Registration Certificate in their favour in respect of the land bequeathing to them. According to him, the plaintiffs have admitted the execution of the Will by late Anantha Bhatta and thereafter, by producing a copy of the Will, they claimed 7 acres of coffee land each before the Director of Coffee Board requesting the Coffee Board to change the Coffee Registration Certificate in their favour in respect of the land bequeathing to them. He further contends that when once the Will is admitted and acted upon, the plaintiffs by suppressing the material facts even without mentioning the execution of the Will filed the suit as if Anantha Bhatta died intestate which only disclose the conduct of the plaintiffs and suppression of material facts by them in approaching the Court. He further contends that the Trial Court without considering the relevant documents produced by the defendants to show the admission of the Will by the plaintiffs. 11. He further contends that the suit filed by the plaintiff was also barred by limitation as the Will of the father has not been challenged by them within three years from the date of knowledge of the Will. He alternatively contends that under any circumstances, item No.1 could not have been decreed in favour of the plaintiffs since item No.1 was purchased by the first defendant along with his father and the entire loan to purchase the property has been discharged by the first defendant and not by his father. He further contends that he has put up first floor by raising loan from Vijaya Bank and therefore, the said property has to be treated as self-acquired property of the first defendant and not that of late Anantha Bhatta. In the circumstances, he requests the Court to set aside the judgment and decree of the Trial Court holding that the findings of the Trial Court as perverse since the Trial Court did not appreciate both oral and documentary evidence let in by the parties. 12. Per contra, learned counsel appearing for the respondents submits that the defendant who has set up a Will has failed to prove the execution of the Will of Anantha Bhatta. When once the defendant No.1 has failed to prove the execution of the Will, the Trial Court is justified in granting a decree by holding that each one of the plaintiffs are entitled to claim 1/6th share in all the plaint schedule properties. When once the defendant No.1 has failed to prove the execution of the Will, the Trial Court is justified in granting a decree by holding that each one of the plaintiffs are entitled to claim 1/6th share in all the plaint schedule properties. He further contends that in view of the amendment brought into the Hindu Succession Act, the share of the plaintiffs get enlarged, as the second plaintiff Gayathri born in the year 1962 and in the circumstances, she has to be treated as co-parcener. In the circumstances, he requested the court that while dismissing the appeal, the share allotted to the parties are to be decided based on the amendment brought into the Hindu Succession Act in the year 2005. 13. Having heard the learned counsel for the parties, We have to consider the following points: (i) Whether Anantha Bhatta died intestate or he had executed a Will on 11-6-1984 and whether the Will dated 11-6-1984 of Anantha Bhatta has been acted upon by the plaintiffs. If the Will dated 11-6-1984 of Anantha Bhatta has been acted upon by the plaintiffs, whether the suit is maintainable without challenging the execution of the Will by Anantha Bhatta? (ii) Whether the suit filed by the plaintiffs is barred by limitation? (iii) Whether the plaintiffs are entitled to claim equal share in the suit item No.1 treating the same as joint family properties of the plaintiffs and defendant? Or In the alternative whether the appellant-defendant No.1 proves that the suit item No.1 is self-acquired property of him? (iv) Whether the judgment and decree of the Trial Court requires to be modified or set aside or confirmed? Since all the points formulated by us are inter-linked with each other, we would like to deal all the points together. 14. Having heard the learned counsel for the parties, this Court has noticed the following undisputed facts in this appeal: The relationship between the plaintiffs and the first defendant is not in dispute and they are the children of Anantha Bhatta who died on 22-11-1986. It is also not in dispute that their mother pre-deceased the Anantha Bhatta and she died in the year 1985. Except item No.1, the remaining properties were allotted to Anantha Bhatta in the family partition drawn on 14-2-1971. The only dispute is in regard to the suit item No.1. It is also not in dispute that their mother pre-deceased the Anantha Bhatta and she died in the year 1985. Except item No.1, the remaining properties were allotted to Anantha Bhatta in the family partition drawn on 14-2-1971. The only dispute is in regard to the suit item No.1. In the suit item No.1, Anantha Bhatta was residing as a tenant under Srinigeri Shankar Mutt, later he agreed to purchase the same for a sum of Rs.45,000/- and a sum of Rs.21,000/- was paid as advance sale consideration. Since the balance sale consideration was not paid by Anantha Bhatta, the agreement entered into between the Sringeri Shankar Mutt and Anantha Bhatta came to be cancelled by the Mutt which resulted in filing a suit by Anantha Bhatta to enforce the agreement of sale in O.S.No.3495/1981 on the file of the City Civil Judge, Bangalore. It is also not in dispute that the said suit came to be decreed pursuant to the compromise entered into whereunder, Anantha Bhatta agreed to pay a sum of Rs.1,30,000/- with interest on or before 20th March 1986, excluding the amount of Rs.21,000/-which was paid at the time of entering into an agreement of sale. It is also not in dispute that in the aforesaid suit, defendant No.1 was arrayed as co-plaintiff and in the compromise petition, it was agreed that the sale deed can be obtained either in the name of the first defendant or in the name of Anantha Bhatta or jointly in the name of Anantha Bhatta and the first defendant. It is also not in dispute that in the compromise petition, the first defendant was arrayed as party to enable Anantha Bhatta to secure the loan through the Employer of the first defendant-Vijaya Bank. 15. The only dispute in this appeal is that according to the first defendant, since the Vijaya Bank did not sanction the loan to purchase the property, the first defendant and his late father Anantha Bhatta approached the Vyalikaval House Building Co-operative Society for sanctioning of loan of Rs.1,24,000/-and the same was sanctioned equally between him and his father. According to him, a sum of Rs.62,000/- was sanctioned to the first defendant and a sum of Rs.62,000/-was sanctioned to his father Anantha Bhatta. Later the property has been registered jointly in the name of Anantha Bhatta and the first defendant. According to him, a sum of Rs.62,000/- was sanctioned to the first defendant and a sum of Rs.62,000/-was sanctioned to his father Anantha Bhatta. Later the property has been registered jointly in the name of Anantha Bhatta and the first defendant. It is the specific case of the first defendant that Anantha Bhatta died without discharging the loan payable to Vyalikaval House Building Co-operative Society and the first defendant alone discharged the loan by borrowing loan from his Employer-Vijaya Bank Limited by applying for loan of Rs.1,10,000/- and the entire loan of Rs.1,10,000/- was directly paid by Vijaya Bank to Vyalikaval House Building Cooperative Society. In view of the same, he contends that he has become the absolute owner of the schedule properties. 16. Before considering the rights of the parties in respect of the agricultural lands, we have to focus our attention to consider the rights of the parties in respect item No.1 in view of the specific contention of the first defendant that the suit property is his absolute property. We have also noticed that in the Will executed by the deceased Anantha Bhatta it is a mentioned about the suit filed by him against the Mutt to enforce the agreement of sale in respect of item No.1. It is also recited in the Will that the plaintiffs and defendant No.1 are required to distribute the said property in terms of the properties bequeathed under the Will in respect of the remaining properties in favour of the plaintiffs and defendant No.1. 17. Now the contention of the first defendant is that he has discharged the loan on behalf of his father and later by obtaining license and plan, he has constructed the first floor and therefore, he has become the absolute owner. But, the fact remains that Anantha Bhatta and the first defendant were the members of the Hindu undivided family and they were the co-parceners. When the advance sale consideration of Rs.21,000/-was paid to purchase the suit item No.1 by Anantha Bhatta by selling two residential houses situated at Koppa and Narve village of Chikkamagalur District, it would only disclose that the said advance sale consideration money is paid out of the joint family nucleus. It is also not in dispute that as Kartha of the joint family, Anantha Bhatta has filed a suit to enforce the agreement of sale against the Sringeri Mutt. It is also not in dispute that as Kartha of the joint family, Anantha Bhatta has filed a suit to enforce the agreement of sale against the Sringeri Mutt. But the question remains to be decided is as to whether defendant No.1 has become the absolute owner in view of the loan discharged by him after the death of Anantha Bhatta. 18. Mr. Vedavyasachar, learned counsel appearing for the respondents 1 and 2 contends that the loan was never raised by Anantha Bhatta and defendant No.1 from Vyalikaval House Building Co-operative Society and Ex.D.22 is a concocted document under Ex.D.25 and Ex.D.26. The loan granted to Anatha Bhatta to purchase the suit item No.1 has not been mentioned and he further contends that since the Secretary of the Vyalikaval House Building Co-operative Society is a close relative of the wife of the first defendant, these documents were got up by the first defendant. Therefore, he contends that even though the property is standing in the joint name of Anantha Bhatta and the first defendant, the plaintiffs are having equal share on par with the first defendant. But, We are unable to accept the arguments advanced by Sri. Vedavyasachar since in the pass book produced by defendant No.1 it is shown that a sum of Rs.50,000/- was sanctioned as loan under the account of IPL and Rs.10,000/- as Surety loan and Rs.2,000/- as simple loan. Thus, in all, Rs.62,000/- has been sanctioned in favour of Anantha Bhatta under Ex.D.25 similarly the same amount has been sanctioned in favour of the first defendant. 19. The main contention of Mr.Vedavyasachar is that in Ex.D.22, the date of issuance of stamp paper in favour of the deceased Anantha Bhatta and defendant No.1 has not been mentioned by the Stamp Vendor who has issued stamp paper. But, non-mentioning of date of issuance of stamp paper alone cannot be considered that the said application was not filed by the deceased Anantha Bhatta and the first defendant. We have also seen the signature of Anantha Bhatta in Ex.D.22 and the admitted signature of Anantha Bhatta in various documents produced by the plaintiffs and defendant No.1, which are not in dispute. On mere comparison of signature found in Ex.D.22, even an ordinary man of prudence can say that it is the signature of Anantha Bhatta and it is not a concocted one. On mere comparison of signature found in Ex.D.22, even an ordinary man of prudence can say that it is the signature of Anantha Bhatta and it is not a concocted one. It is to be noted that D.W.1 has been cross-examined at length by the plaintiff’s Counsel, but not even a suggestion is put that signature found on Ex.D.22 is not that of Anantha Bhatta. Be that as it may, even if we hold that the loan was raised jointly by Anantha Bhatta and defendant No.1, and if the loan has been discharged by the first defendant after the death of Anantha Bhatta, the rights of the plaintiffs, out of the share of Anantha Bhatta cannot be taken away and at no stretch of imagination, this Court can hold that defendant No.1 has become the absolute owner of item No.1. Under the circumstances, we are of the opinion that the contentions of the first defendant that he is the absolute owner of the suit item No.1 cannot be accepted and the said property has to be divided between the plaintiffs and defendant No.1. 20. Admittedly, the first defendant has put up construction in the year 1995 by borrowing loan from the Vijaya Bank. A suit has been instituted by the plaintiffs herein in the year 1994 and the plaint was presented as an indigent person on 23-6-1994. Any improvement made by the first defendant would also enure to the benefit of plaintiffs 1 and 2 subject to the plaintiffs discharging their share towards the improvement made by the first defendant. In the circumstances, We are of the opinion that since the suit plaint item No.1 has been purchased jointly by Anantha Bhatta and the first defendant. Half share in the suit property should go to Anantha Bhatta and defendant No.1 would be the owner of the remaining 1/2 share of the of the suit property. After the death of Anantha Bhatta, his half share has to be divided equally among the plaintiffs and defendant No.1. Therefore, each of the plaintiffs are entitled to 1/6th share in the suit item No.1 subject to they discharging loan paid by the first defendant towards Vyalikaval House Building Co-operative Society. After the death of Anantha Bhatta, his half share has to be divided equally among the plaintiffs and defendant No.1. Therefore, each of the plaintiffs are entitled to 1/6th share in the suit item No.1 subject to they discharging loan paid by the first defendant towards Vyalikaval House Building Co-operative Society. Similarly, they are also liable to discharge the value of their share in respect of the improvement made by the first defendant, subject to income derived by the first defendant from and out of the first floor and of the property and so also in respect of the ground floor and these cases are to be considered in the Final Decree Proceedings by leading proper evidence by both the parties. 21. Having answered the said point holding that the plaint item No.1 is the property of co-ownership of defendant No.1 and the deceased Anantha Bhatta, what remains to be decided is suit item Nos.2 and 3. The Trial Court has held that suit item No.4 is not available for partition. Against the said finding, the plaintiffs have not approached this court. Therefore, the said finding has become final. So far as suit item Nos.2 and 3 are concerned, the existence of the property are not in dispute. The only dispute is the share of the plaintiffs. The plaintiffs claim that the said two items as joint family properties of them and in view of the amendment of Hindu Succession Act in the year 2005, their share has been enlarged and the second respondent has to be treated as co-parcener along with defendant No.1. But the first defendant has stated that his father did not die intestate. Anantha Bhatta had executed a Will dated 11-6-1984 and that the execution of the Will by Anantha Bhatta was known to the plaintiffs and the plaintiffs having admitted the execution of the Will have also acted upon by claiming their share given to them in the Coffee Estate. Therefore, he contends that the suit filed by them in respect of the aforesaid two items of the property is not maintainable. 22. In order to prove that the will executed by Anantha Bhatta was known to the plaintiffs and that they have acted upon, the plaintiffs’ counsel has relied upon the admission made by the second plaintiff Gayathri in her evidence. 22. In order to prove that the will executed by Anantha Bhatta was known to the plaintiffs and that they have acted upon, the plaintiffs’ counsel has relied upon the admission made by the second plaintiff Gayathri in her evidence. In paragraph 12 of the cross-examination, the second plaintiff Gayathri has admitted as hereunder: “Now I see Will dated 11-6-1984 written in the handwriting of my father marked at Ex.D.7. It is true that as per the terms of the Will, my father bequeathed 7 acres to me and the remaining 7 acres to my sister in item No.2 of the schedule property. It is true that as per the order passed in MFA No.752/1995, We have given 7 acres each to me and my sister. It is true that accordingly, our names have been mutated in the register to the extent of 7 acres each.” Further in the same paragraph, she has admitted as hereunder: “It is true that the Coffee Board issued me a letter dated 4-9-1987 calling upon me to pay the loan obtained by my father to the extent of 7 acres bequeathed under the Will. It is true that I have submitted a reply to the Coffee Board as per Ex.D.8. It is true that my sister Lalitha also replied to the Coffee Board as per Ex.D.9. We both sisters have got discharged the loan due to Coffee Board. It is true that the first respondent Ramesh Repaid the entire which was due to the Coffee Board.” 23. In this background, we have to consider certain documents admitted by the plaintiffs in addition to Ex.D8 and Ex.D9 i.e. the reply sent by the plaintiffs to the Development Officer, Coffee Board, Bangalore as per Ex.D.16. The first plaintiff Lalitha Vasanth has addressed a letter to the Development Officer, Coffee Board, Bangalore on 13-9-1990 in order to appreciate the fact whether the Will has been accepted by the plaintiffs and acted upon by them. We are of the view that the entire Ex.D.16 has to be extracted by us. Accordingly, We extract Ex.D.16 as hereunder: Lalitha Vasanth, W/o, Sri.A.R.Vasanth, No.83, III Main, “Panduranga Krupa” Gokulam III Stage, Mysore-570 002 Date: 13.01.1990 To The Development Officer, Coffee Board, Post Box No.5302, Bangalore-560 001. Dear Sir, Sub: Coffee Estate of Late Sri.B.Anantha Bhatta Berkody Coffee Estate and Post: Chikkamagalur District. Accordingly, We extract Ex.D.16 as hereunder: Lalitha Vasanth, W/o, Sri.A.R.Vasanth, No.83, III Main, “Panduranga Krupa” Gokulam III Stage, Mysore-570 002 Date: 13.01.1990 To The Development Officer, Coffee Board, Post Box No.5302, Bangalore-560 001. Dear Sir, Sub: Coffee Estate of Late Sri.B.Anantha Bhatta Berkody Coffee Estate and Post: Chikkamagalur District. Ref: Your letter No.DD/6/89/4011 dated: 19.12.1989 regarding return of document. According to the last will of my father Sri.B.Anantha Bhatta, I am one of the legatees of an extent of 7 acres of land at Nuggi Village which is bequeathed to me. As stated in your letter No.DD/14/87/3068 dated: 4.9.1987 (copy enclosed Nuggi Village, 7 acres each goes to Smt.Lalitha Vasanth and Smt.Gayathri Mohan and the balance 29.00 acres goes to Sri.B.Ramesh. Thus, I am the owner of an extent of 7 acres of Coffee land and I request you to kindly register my name in respect of the said extension of land in your records, consequent to the cancellation of CRC.No.8739 of Sri.Anantha Bhatta, Berkod “B” Estate. I further request you not to effect any change regarding the registration of CRC of the said land in favour of any person without my knowledge or consent. Thanking you, Yours faithfully, (sd) Lalitha Vasanth Encls:- 1. Xerox copy of the Will written by Sri.B.Anantha Bhatta. 2. Xerox copy of grant of development loan to B.Anantha Bhatta, Berkody Coffee Estate, Post; Koppa. 3. Return of document. 4. Xerox copy of letter No.DD/14/87/3068, dated: 4.9.1987. 24. From the above document, it is clear that the first plaintiff relying upon the Will of Anantha Bhatta has claimed 7 acres of land and similarly the second plaintiff Gayathri has also claimed 7 acres and she requested for change the Coffee Registration Certificate in her favour from the name of her father Anantha Bhatta. Now having accepted the Will under Ex.D.8, Ex.D.9 and Ex.D.16, We have to look into the conduct of the plaintiffs in approaching the Court. According to the defendant, the plaintiffs by suppressing the material facts have approached the Court, as if their father died intestate. Now having accepted the Will under Ex.D.8, Ex.D.9 and Ex.D.16, We have to look into the conduct of the plaintiffs in approaching the Court. According to the defendant, the plaintiffs by suppressing the material facts have approached the Court, as if their father died intestate. Therefore, he contends that even if the plaintiffs were of the opinion that at later stage, they learnt that the Will acted upon by them was not a genuine Will and the same was fabricated by the first defendant, it was for the plaintiffs to explain the circumstance which made to be believe that the Will has been manipulated or concocted or got up by the first defendant and what made them to state the Will as genuine and requested the Court to set aside the will, which was relied upon and acted upon by them. He further contends that at least after filing of the written statement, it was open for the plaintiffs to make necessary amendment to the plaint. 25. In order to appreciate the said contention, We have perused the entire plaint averments which is stated as if Anantha Bhatta died intestate and therefore, the plaintiffs in paragraph 12 and 13 have claimed 1/6th share each based on the Hindu Succession Act. Now what is pleaded in the entire plaint is with regard to the Will, which reads in one sentence as hereunder: “11. To the best knowledge of the plaintiffs, Anantha Bhatta died intestate”. 26. We have also seen the written statement filed by the first defendant. In the written statement, the first defendant has contended that his father executed a Will and the plaintiffs have acted upon the Will and he has also mentioned that the plaintiffs approaching the Coffee Board for change of registration certificate and the same has been elaborately dealt by him in paragraphs 8 to 11 of the written statement. Having seen the written statement, at least the plaintiffs had an opportunity to amend the pleadings in regard to the Will. But for the reasons beat known to them, amendment has not been brought into the pleadings in order to overcome their conduct in accepting the Will and acting upon the Will of late Anantha Bhatta. Having seen the written statement, at least the plaintiffs had an opportunity to amend the pleadings in regard to the Will. But for the reasons beat known to them, amendment has not been brought into the pleadings in order to overcome their conduct in accepting the Will and acting upon the Will of late Anantha Bhatta. In view of Ex.D.16, Ex.D.8 and Ex.D.9 we are of the opinion, the Will of Anantha Bhatta having admitted by the plaintiffs have not chosen to challenge the Will as not a genuine one within a period of 3 years. The suit is filed in the month of June 1994. When the Will is not challenged within the stipulated time; when there is no proper pleadings and no relief is sought on the Will, this Court is of the opinion that the Trial Court is not justified in holding that the defendant has not proved the Will without looking into the conduct of the plaintiffs. 27. Mr. Vedavyasachar, learned counsel for the respondents 1 and 2 relying upon several decisions and also the evidence of Srinivas Rao and Laxminarasimhaiah, attesters of the Will contended that defendant No.1 has filed to prove the Will said to have been executed by the deceased Anantha Bhatta. We could have appreciated the said contention provided the plaintiffs had laid foundation challenging the execution of the Will. In the instant case, the plaintiffs have accepted the Will of Anantha Bhatta and they have acted upon the Will. As a matter of fact, P.W.1, while in the witness box in paragraph 12 of her cross-examination has made categorical admission that the Will of her father was in the handwriting of her father. When she has admitted execution of the Will and in view of Ex.D.8, Ex.D.9 and Ex.D.16, We are of the opinion that it is too late in the day for the plaintiffs to contend that their father did not execute the Will, having accepted the Will. At this stage, it is not open for them to contend that defendant No.1 did not prove the execution of the Will by late Anantha Bhatta. In the circumstances, the judgments relied upon by Mr. Vedavyasachar are of no use. Considering the facts, following are the judgments relied upon by Mr. Vedavyasachar: 1. Smt. Parameshwari Bai V/s. Muthojirao Scindia, Reported in AIR 1981 KAR 40 2. In the circumstances, the judgments relied upon by Mr. Vedavyasachar are of no use. Considering the facts, following are the judgments relied upon by Mr. Vedavyasachar: 1. Smt. Parameshwari Bai V/s. Muthojirao Scindia, Reported in AIR 1981 KAR 40 2. Chikkam Koteswara Rao, V/S. Chikkam Subbarao and others reported IN AIR 1971 SC 1542 3. Janki Narayan Bhoir V/s. Narayan Namdeo Kadam, Reported in AIR 2003 SC 761 4. Lalitaben Jayantilal Popat V/s. Pragnaben Jamnadas Kataria and others, reported in AIR 2009 SC 1389 5. Benga Behera and another V/s. Braja Kishore Nanda and others, AIR 2007 SC 1975 6. AIR 1951 SC 103 28. Therefore, we are of the view that considering the pleadings and evidence let in by the parties, the aforesaid decisions have no reliance to the facts of the case. Accordingly, We hold that Anantha Bhatta had executed a Will on 11-6-1984 and the same has been acted upon by the plaintiffs and the defendant. In view of the same, suit filed by the plaintiffs claiming partition and separate possession of suit item Nos.2 and 3 is not maintainable. When we hold that the suit items 2 and 3 are not liable for partition, in view of the Will dated 11-6-1984, the other arguments advanced by Mr. Vedavyasachar that the plaintiffs are entitled for their share in view of the amendment to the Indian Succession Act, 2005 has no application. Accordingly, we reject the said contention. 29. In the result, the appeal is allowed in part. In modification of the judgment and decree of the Trial Court, We hold as hereunder: 30. The plaintiffs 1 and 2 and defendant No.1 are entitled to suit item Nos.2 and 3 in terms of the Will dated 11-6-1984 of Anantha Bhatta. So far as item No.1 is concerned, each of the plaintiffs are entitled to 1/6th share and defendant No.1 is entitled for 4/6 share subject to account to be considered in the Final Decree Proceedings, as We have held in the earlier paragraphs while dealing with the suit item No.1. Considering the relationship between the parties, the parties shall bear their costs.