JUDGMENT : C.R. Kumaraswamy, J. 1. This regular first appeal is filed under Section 96 read with Order 41, Rule 1 of Code of Civil Procedure, 1908 against the judgment and decree dated 14-10-2009 passed in O.S. No. 4450 of 1995 on the file of the XXXVIII Additional City Civil Judge, Bangalore, partly decreeing the suit for partition, separate possession and mesne profits. Parties will be referred to with reference to the status in the Trial Court. 2. The case of the plaintiffs in the Trial Court is as under: The plaintiffs and defendant 1 are the children of Sri K. Lingappa and Smt. Lakshmamma. Defendants 2(a) to 2(d) are the children of defendant 2 -- K.L. Satya Murthy and they were brought on record as his legal heirs. Defendants 3 to 9 are the children of late Smt. Nagarathnamma, daughter of Sri K. Lingappa and Smt. Lakshmamma. The Genealogical tree of family of Sri K. Lingappa is as under : “FAMILY TREE” OF Late K. LINGAPPA Late LAKSHMAMMA (1) (2) (3) Daughter Son Daughter Rajamma (died) Shivananjamurthy (died) Nagarathnamma (died) W/o. Kashi Vishwanath (died) W/o. Ramalingegowda (died) Legal heirs Legal heirs Legal heirs Sarvamangala 64 years Manjunath 50 years Late Manjunath Srinivas Babu 61 years Girija 48 years Niveditha 64 years Shashikala 60 years Shamboonath 46 years Gayitri 58 years Sheela 56 years Bharathi 56 years Ramakrishna 54 years Shantharam 54 years Meenakshi 52 years Annapurna 52 years Bharathi 50 years Swarnalatha 50 years (4) (5) (6) (7) (8) (9) Son Daughter Daughter Son Daughter Daughter Nagaraju 80 years Susheela Devi (died) Sunanda Devi 76 years Sathyamurthy (died) Prema 73 years Padma 71 years W/o. Derannagowda (died) W/o. Rangaswamy (died) Legal heirs Legal heirs Lokesh 56 years Yamuna 55 years Mahesh 53 years Bharathi 53 years Suresh 50 years Vijaya 51 years Schhi 40 years Pramila 49 years Hindushekar 51 years Late Sri Lingappa was a native of Karehalli Village, Nelamangala Taluk, Bangalore District. He was working as Revenue Inspector. Smt. Lakshmamma was living with K. Lingappa. Some of the properties were acquired in the name of Smt. Lakshmamma. The properties, which were standing in the name of Smt. Lakshmamma are described in the schedule. The revenue records were also standing in the name of Lakshmamma as owner thereof. Smt. Lakshmamma died intestate in the year 1974. Smt. Lakshmamma was living with K. Lingappa. Some of the properties were acquired in the name of Smt. Lakshmamma. The properties, which were standing in the name of Smt. Lakshmamma are described in the schedule. The revenue records were also standing in the name of Lakshmamma as owner thereof. Smt. Lakshmamma died intestate in the year 1974. The legal heirs of late Lakshmamma, her husband Sri K. Lingappa and her children, namely the plaintiffs and defendant 1 succeeded to her estate. Defendants 3 to 9 are the legal heirs of predeceased daughter of K. Lingappa and Smt. Lakshmamma. After the death of Smt. Lakshmamma, her husband and children have succeeded to the schedule properties having undivided right, interest and joint possession in the schedule properties. For the sake of convenience and better management, the revenue records were changed in the name of Sri K. Lingappa. That apart, as suggested by K. Lingappa, the plaintiffs and defendant 1 have executed a General Power of Attorney in respect of their undivided right in the schedule properties in favour of Sri K. Lingappa, for management of the schedule properties. The plaintiffs and defendant 1 executed the said power of attorney to the extent of managing the properties with a bona fide belief and reposing confidence in K. Lingappa. On the basis of the said power of attorney, K. Lingappa has acquired the properties and was managing the properties. During the lifetime of K. Lingappa, the relationship of the plaintiffs and the defendants with him was cordial and K. Lingappa was looking after all his children with utmost love and affection. After his retirement, Sri K. Lingappa settled in his village. He was living with the third defendant and his family. The first defendant all along was residing at Bangalore with his family. The second defendant is residing in Germany. The daughters of Lingappa are residing in their respective husband's places. Though K. Lingappa started to live in his village, he used to come to Bangalore for managing the properties. Out of the schedule properties, there are tenants in various portions of item 1 situated at Bangalore. Sri K. Lingappa used to distribute the income out of the schedule properties among the children i.e., the plaintiffs, defendant 1 and legal heirs of predeceased daughter Smt. Nagarathnamma. Sri K. Lingappa had no absolute right or interest over the schedule properties. Out of the schedule properties, there are tenants in various portions of item 1 situated at Bangalore. Sri K. Lingappa used to distribute the income out of the schedule properties among the children i.e., the plaintiffs, defendant 1 and legal heirs of predeceased daughter Smt. Nagarathnamma. Sri K. Lingappa had no absolute right or interest over the schedule properties. He alone has not contributed money to acquire the schedule properties in the name of his wife Smt. Lakshmamma. The wife and children of Sri K. Lingappa have also contributed for acquiring the properties. In the last days of K. Lingappa, he was weak. He had undergone cataract operation. That apart, he was suffering from illness and due to paralysis, he was not in a position to understand the things and he was completely immobilized. In view of the state of affairs of Lingappa, he was shifted from Karehalli to Bangalore, for treatment. He was residing at Bangalore in the house of the first defendant. Apart from the second defendant, all other children of Lingappa were attending him during his last days. Sri Lingappa died on 21-7-1979 at Bangalore. Later his body was taken to Karehalli and obsequies ceremonies were performed by his children. Consequent to the death of Sri K. Lingappa, his heirs namely the plaintiffs and the defendants have succeeded to the extent of their right, title and interest in respect of the schedule properties. Thus, the plaintiffs and defendants have succeeded to 1/9th share each in the suit schedule properties. Defendants 6 to 12 have acquired 1/9th share in the schedule properties. Since the properties are undivided, the plaintiffs and the defendants have right, title and interest in the schedule properties and they are entitled for their respective share at the time of partition. The first defendant managed to get the khatha of the properties changed in his name and khatha of one of the properties in his wife's name. On the basis of the said entries, the first defendant is asserting absolute right in the schedule properties detrimental to the interest of the plaintiffs and defendants 2 to 10 and on further enquiry, the plaintiffs came to know that late K. Lingappa allegedly had executed a registered Will dated 26-3-1977 bequeathing the schedule properties in favour of the children of his three sons. Later, the plaintiffs also came to know that the said Lingappa by a document dated 18-7-1979 revoked the alleged Will dated 26-3-1977 and on the same day, it is alleged that another Will was executed bequeathing the schedule properties in favour of the first defendant. Consequently, the first defendant got the khatha transferred in his name. It is further revealed that on behalf of one of the beneficiaries under the Will dated 26-3-1977 namely Indushekar-son of defendant 3, defendant 3 as the guardian of his minor son had initiated probate proceedings in P and SC No. 54 of 1979, which was later converted as O.S. No. 2 of 1980 before the District Judge, Bangalore District, Bangalore. Later, it was transferred to City Civil Court and renumbered as O.S. No. 7248 of 1990. The said suit came to be dismissed for default. The plaintiffs are not parties to the said proceedings. The defendants have kept the plaintiffs in dark about these proceedings. Defendant 1 being a party to the said proceedings stealthily, with a view to defraud the plaintiffs, attempted to enter into a compromise, which could not be materialized. After coming to know about the acts and deeds of defendant 1, the plaintiffs thought it fit to get the properties partitioned and to take possession of their respective share out of the schedule properties. In this behalf, the plaintiffs made a demand with defendant 2 and they said that they have no objection for partition. In view of this, the plaintiffs and defendant 2 approached the first defendant in the month of May 1995 and sought to effect partition and to deliver their respective share. But the first defendant has refused to concede to the legitimate demands of the plaintiffs. In view of the above, the plaintiffs left with no other option except to approach the Trial Court, have filed the suit. The plaintiffs respectfully submit that Sri Lingappa has no absolute right to dispose of the schedule properties by way of the alleged Will dated 26-3-1977 or the Will dated 18-7-1979. As such, the beneficiaries under the Will do not get any right, title or interest. Moreover, the said Wills are not genuine, but are concocted and created to knock off the valuable properties. The said Lingappa was not in a sound state of mind or he had no intention of executing such Wills. As such, the beneficiaries under the Will do not get any right, title or interest. Moreover, the said Wills are not genuine, but are concocted and created to knock off the valuable properties. The said Lingappa was not in a sound state of mind or he had no intention of executing such Wills. The circumstances under which the said Wills came into existence and the contents of the said Wills reflect that the said K. Lingappa neither executed the said Wills nor there was any intention to execute such Wills and that he had executed the Wills with his free will and consciousness. Sri K. Lingappa was cordial with all his children and was treating them equally. From a reading of the alleged Will dated 23-6-1977, it is clear that to deprive the legitimate rights of the plaintiffs, defendant 1 has manipulated and designed the Wills as if the executant had intention to give the properties to his grandchildren which is indirectly beneficial to defendant 1. The latter Will has been created as if the other children of Lingappa were not looking after Lingappa and therefore, he is executing the Will in favour of the first defendant. In fact, Lingappa was in unconscious state of mind due to his age and the ailments including paralysis. He was no (sic) position to identify the persons nor express his state of mind. It is highly impossible for him to express his intention nor exercise his option or desire by free will. Hence, the alleged Wills came into existence under suspicious circumstances. Hence, no one will get any right, title or interest in the said properties under the said Wills. That apart, from a reading of the said Wills show that the properties which are the subject-matter of Wills are not the properties on which Sri Lingappa had absolute right to transfer/convey in favour of anybody after his death. Thus the alleged Wills executed by Sri Lingappa were hit by provisions of the Indian Succession Act, 1925. Even if the said Wills are genuine and executed as alleged by defendant 1, the same will not affect the right, title or interest of the plaintiffs in respect of the schedule properties. The Wills are void ab initio so far as the rights of the plaintiffs are concerned. Even if the said Wills are genuine and executed as alleged by defendant 1, the same will not affect the right, title or interest of the plaintiffs in respect of the schedule properties. The Wills are void ab initio so far as the rights of the plaintiffs are concerned. All the proceedings or steps taken on the basis of the said Wills are void and not binding on the plaintiffs. Since the plaintiffs are not parties to the proceedings between defendants 1 and 2 or their children, the orders passed in those litigations are also not binding on the plaintiffs. In view of the above, the right, title and interest of the plaintiffs in respect of the schedule properties being the co-owners of the properties along with defendants is unaffected. There is no division of the properties at any point of time. The defendants more particularly the first defendant is now asserting exclusive rights in the properties. The plaintiffs are entitled to partition of the schedule properties by way of dividing the properties by metes and bounds and are also entitled for separate possession of 1/9th share each in the schedule properties. The cause of action for the suit arose in the year 1974 when Smt. Lakshmamma died intestate. Therefore, the plaintiffs sought for partition and separate possession of their 1/9th share in the suit schedule property by metes and bounds and for an enquiry in respect of mesne profits under Order 20, Rule 12 of Code of Civil Procedure. 3. The first defendant filed the written statement in the Trial Court as under: The averments made in paragraph 3 of the plaint that defendants 1 to 3 are the children of late Sri K. Lingappa and Smt. Lakshmamma and defendants 4 to 10 are the children of Smt. Nagarathnamma, who is the daughter of late K. Lingappa and Lakshmamma are true and correct. It is true that late K. Lingappa was working as a Revenue Inspector at Mandya and took voluntary retirement from service on 1-2-1947. The further averments made in paragraph 3 of the plaint that some of the suit schedule properties were acquired by Sri Lingappa in the name of Lakshmamma is true and correct. It is true that late K. Lingappa was working as a Revenue Inspector at Mandya and took voluntary retirement from service on 1-2-1947. The further averments made in paragraph 3 of the plaint that some of the suit schedule properties were acquired by Sri Lingappa in the name of Lakshmamma is true and correct. K. Lingappa after taking voluntary retirement from service worked for Bangalore Provident Fund, Cauvery Paper Mills, owned a Fair Price Shop and he was also worked as an agent for Life Insurance Corporation vide agent No. 1686611 and earned money during his lifetime. K. Lingappa entered into a sale agreement dated 30-1-1950 with one Sri M. Krishnappa, son of M. Muniswamappa of Bangalore, agreeing to purchase the property shown at item 1 of the suit schedule for a consideration of Rs. 5,000/- and paid a sum of Rs. 150/- as advance under the sale agreement and subsequently on 8-2-1950, got registered the property in the name of his wife Smt. Lakshmamma, after paying the balance sale consideration of Rs. 4,850/-. Thus, the entire money to purchase item 1 of the suit schedule property was paid by K. Lingappa. It is also stated that Smt. Lakshmamma was holding this property for and on behalf of her husband viz. K. Lingappa. Thus, the suit schedule item 1 property is the self-acquired property of K. Lingappa, out of his hard earned money. Smt. Lakshmamma did not have any right over the suit schedule properties and the same are self-acquired properties of K. Lingappa. It is further stated that Smt. Lakshmamma was born in a poor family and she had no independent income to acquire the schedule properties. It is further stated that the children of Smt. Lakshmamma were minors at that point of time and did not have any income of their own to contribute for acquiring the schedule properties. The averments made in paragraph 7 of the plaint that consequent to the death of Lingappa, the plaintiffs and the defendants succeeded to the extent of their right, title and interest in respect of the schedule property and the plaintiffs and the defendants have succeeded to their 1/9th share each, out of which, defendants 4 to 10 have acquired right to 1/9th share and they are entitled to their respective share are not correct. It is stated that K. Lingappa had executed a registered Will dated 18-8-1979 bequeathing all the schedule properties in favour of this defendant. Thus, this defendant is the absolute owner of the schedule properties. The averments made in paragraph 8 of the plaint that third defendant's son initiated probate proceedings and later, it was converted as a original suit and the said proceedings came to be dismissed for default need not be traversed in view of the fact that Sri K. Lingappa revoked the earlier Will dated 26-3-1977. It is stated that though the suit schedule properties were acquired in the name of Smt. Lakshmamma, the actual sale consideration was paid by Sri K. Lingappa. Thus, Smt. Lakshmamma was only a Benami holder and she was holding the schedule properties for and on behalf of her husband Sri K. Lingappa. Thus, the suit schedule properties are self-acquired properties of K. Lingappa. It is stated that Smt. Lakshmamma never had any manner of right, interest or title over the suit schedule properties. Such being the case, the plaintiffs or the other defendants does not get any manner of right over the suit schedule properties. It is stated that K. Lingappa has executed a Registered Will dated 18-7-1979, bequeathing the schedule properties in favour of this defendant. This defendant is in possession and enjoyment of the suit schedule properties. It is stated that the schedule properties are self-acquired properties of K. Lingappa and as such, K. Lingappa had every right to dispose of the same and the Will executed by late K. Lingappa is not hit by the provisions of the Indian Succession Act. It is further stated that K. Lingappa was in good state of mind and fully conscious and he was in a position of expressing his intention, his desire, by free will. Sri K. Lingappa was fully aware of his acts and deeds. It is stated that the schedule properties were purchased by K. Lingappa in the name of his wife Smt. Lakshmamma and Smt. Lakshmamma did not have any manner of right, title or interest over the schedule properties and such being the case, the plaintiffs do not have any manner of right over the suit schedule properties. The plaintiffs have no right to seek partition of the schedule properties. The plaintiffs have no right to seek partition of the schedule properties. It is stated that a large portion of property shown as item 1 in the suit schedule was acquired by the Bangalore Development Authority for the purpose of widening the Lalbagh Road. In that process, the concerned authority demolished the existing building. This defendant reconstructed the existing building in the said property out of the money earned by his profession. It is stated that the plaintiffs or defendants 2 to 10 have not contributed any amount for development of the schedule properties. It is stated that K. Lingappa hailed from Karehalli Village, Thyamagondlu Hobli, Nelamangala Taluk. He owned ancestral properties. The ancestral properties situated at Karehalli Village are not included in the suit schedule. This fact shows that the plaintiffs have colluded with the other defendants and the suit is filed to harass this defendant. It is stated that there is ill-will between the sisters with this defendant because this defendant objected to the private life of the second plaintiff and to the marriage between the son of the first plaintiff with the daughter of third plaintiff. The said marriage was within the prohibited degree. Hence, this defendant strongly objected to it. Since then, the relationship between them stand strained. This also has added to the concerted action for initiating this suit on false grounds. 4. The first defendant filed additional written statement in the Trial Court as under: It is stated that the property bearing Sy. No. 75, Karehalli, Tyamagondlu Hobli, Nelamangala Taluk, shown as item 7 in the plaint schedule is the self-acquired property of this defendant which exclusively belongs to him and as such, the said property is not liable for partition. This defendant relied upon the Will dated 19-7-1979 executed by Sri Lingappa. He participated in LAC No. 1104 of 1980. On the basis of the said Will, this Court answered the reference holding that this defendant was the legal representative of Sri Lingappa and entitled to receive compensation in respect of acquisition of a portion of item 1 plaint schedule property. This defendant has been in exclusive and uninterrupted possession of items 1 to 4 of the plaint schedule properties exercising all rights of ownership. He also got the khatha changed in his name. He has been paying the taxes from the date of the said Will. This defendant has been in exclusive and uninterrupted possession of items 1 to 4 of the plaint schedule properties exercising all rights of ownership. He also got the khatha changed in his name. He has been paying the taxes from the date of the said Will. The plaintiffs have lost their right in respect of the said items of plaint schedule by prescription as envisaged under the law of limitation. Without prejudice to the contentions raised, assuming but not admitting that the plaintiffs have any share in items 1 to 4 of the plaint schedule, this defendant having been in exclusive possession and enjoyment of the said items from the date of death of Sri Lingappa, he has perfected his title to the said items on the doctrine of ouster as well as adverse possession. This plea is in the alternative to the averments in the preceding paragraphs. It is stated that the suit is barred by limitation. 5. Defendant 2 has filed the written statement in the Court below as under: It is stated that this defendant admits the relationship of the parties and that all the children of Late Smt. Lakshmamma and Lingappa are entitled to a share in the schedule properties. This defendant submit that Sri Lingappa has no absolute right to execute a Will bequeathing the properties. The alleged will has come into existence in suspicious circumstances. The said document is fraudulent and created as Sri Lingappa was not in a position to exercise his free will or consent at the said point of time. Hence, the Will alleged to have been executed by the said Lingappa is not binding on this defendant nor it affects the undivided right, title and interest of the schedule properties. This defendant stated that he being a legal representative and heir of Smt. Lakshmamma and Sri Lingappa, is also entitled to a share in the schedule properties. 6. Defendants 2(a) to 2(d) filed written statement in the Court below as hereunder: The genealogy as furnished by the plaintiffs in paragraph 2 of the plaint is admitted as true. The properties standing in the name of Smt. Lakshmamma were her absolute properties. It was her stridhan properties. It is true that revenue records were in the name of Smt. Lakshmamma as absolute owner thereof. The properties standing in the name of Smt. Lakshmamma were her absolute properties. It was her stridhan properties. It is true that revenue records were in the name of Smt. Lakshmamma as absolute owner thereof. It is true that revenue records were changed in the name of K. Lingappa for the sake of convenience and better management. It is admitted that the plaintiffs and the first defendant have executed a general power of attorney in favour of Lingappa for management of the schedule properties. It is true that K. Lingappa had no absolute right, title or interest over the properties owned by Smt. Lakshmamma. It is true that plaintiffs and defendants 1 to 3 are entitled to 1/9th share each in the properties owned by Smt. Lakshmamma and defendants 4 to 7 are jointly entitled to 1/9th share out of the schedule properties. It is further admitted that the said properties are undivided till date and liable to be partitioned amongst the plaintiffs and the defendants. The alleged registered Will dated 26-3-1977 said to have been executed by K. Lingappa is not within the knowledge of these defendants. The alleged execution of a second registered Will dated 18-7-1979 by K. Lingappa is also not within the knowledge of these defendants. The alleged Will dated 18-7-1979 executed by K. Lingappa is concocted and fabricated by the first defendant in order to knock off the properties and to deprive others of their legitimate share. It is true that consequent to the death of K. Lingappa on 21-7-1979, the first defendant got the khatha of the properties transferred to his name. The Court proceedings in P and SC No. 54 of 1979 are not within the knowledge of these defendants. These defendants state that K. Lingappa had no manner of right, title or interest over the properties owned by Smt. Lakshmamma to execute the alleged Wills. The said properties are the absolute properties of Smt. Lakshmamma. The only properties that were owned by K. Lingappa were his ancestral properties over which he had no absolute right, title or interest to have executed the alleged Wills. None of the schedule properties are self-acquired properties of K. Lingappa. The said properties are the absolute properties of Smt. Lakshmamma. The only properties that were owned by K. Lingappa were his ancestral properties over which he had no absolute right, title or interest to have executed the alleged Wills. None of the schedule properties are self-acquired properties of K. Lingappa. These defendants state that all the properties owned by Smt. Lakshmamma and K. Lingappa are very much in existence and liable for partition and that the plaintiffs and defendants 1 to 3 are entitled to 1/9th share each and defendants 4 to 10 are jointly entitled to 1/9th share in the properties owned by Smt. Lakshmamma and K. Lingappa and further entitled to 1/4th + 1/9th share of 1/4th share in the ancestral properties of K. Lingappa. These defendants state that they have no objection for partition and separate possession of the schedule properties by metes and bounds and these defendants being the legal representatives of the deceased second defendant (earlier third defendant) are jointly entitled to 1/9th share in the schedule properties. 7. On the basis of the pleadings, the Trial Court initially framed the following issues: 1. Whether the plaintiffs prove that the suit schedule properties were acquired by late Lingappa out of his own earnings? 2. Whether late Lingappa had absolute right to execute Will dated 26-3-1977 bequeathing all the schedule properties in favour of first defendant? 3. Whether plaintiffs prove that the Will executed by late Lingappa are all void and not binding upon them? 4. Whether plaintiffs are entitled for 1/9th share each in the suit schedule property? 5. What decree or order? In view of additional written statement filed by defendant 1 on 8-1-2008, the following additional issue is framed: Whether the suit of plaintiffs is in time? But it appears due to oversight, issue 1 had been wrongly framed. According to plaintiffs, Will dated 26-3-1977 said to have been executed by Sri K. Lingappa was revoked by him on 18-7-1979. According to defendant 1, Sri K. Lingappa had executed another Will on 18-7-1979 and bequeathed items 1 to 4 of suit schedule properties in his favour. The same has been denied by the plaintiffs. But it appears, due to oversight, issue 2 has been wrongly framed regarding execution of Will dated 26-3-1977 by Sri K. Lingappa. According to defendant 1, Sri K. Lingappa had executed another Will on 18-7-1979 and bequeathed items 1 to 4 of suit schedule properties in his favour. The same has been denied by the plaintiffs. But it appears, due to oversight, issue 2 has been wrongly framed regarding execution of Will dated 26-3-1977 by Sri K. Lingappa. On the other hand, issue 2 could have been framed regarding the execution of Will dated 18-7-1979 by Sri K. Lingappa. Hence, issues 1 and 2 require amendment. In view of contentions taken by defendant 1 in his written statement and additional written statement to the effect that items 1 to 4 of suit schedule properties are self-acquired properties of late Sri K. Lingappa and item 7 of suit schedule property is his self-acquired property and that he has perfected his title to the suit schedule properties by adverse possession, three more additional issues are required to be framed. Hence, at the time of judgment, acting under Order 14, Rule 5 of Code of Civil Procedure, issues 1 and 2 were amended and three additional issues were framed as additional issues 2 to 4. The amended issues 1 and 2 reads as under: (i) Whether plaintiffs prove that items 1 to 4 of suit schedule properties have been acquired by late Sri K. Lingappa, out of his own earnings and earnings of his wife and children? (ii) Whether defendant 1 proves that late Sri Lingappa had executed a Will dated 18-7-1979 and bequeathed items 1 to 4 of suit schedule properties in his favour and hence after the death of late Sri K. Lingappa he has become absolute owner of the same? The additional issues 2 to 4 reads as under: Additional Issue 2: Whether defendant 1 proves that items 1 to 4 of suit schedule properties are self-acquired properties of late Sri K. Lingappa? Additional Issue 3: Whether defendant 1 proves that item 7 of suit schedule property is his self-acquired property? Additional Issue 4: Whether defendant 1 proves that he has perfected his title to suit schedule properties by adverse possession? 8. The Trial Court answered the above mentioned issues as under: Issue 1: In the negative. Issue 2: In the negative. Issue 3: In the negative. Additional Issue 4: Whether defendant 1 proves that he has perfected his title to suit schedule properties by adverse possession? 8. The Trial Court answered the above mentioned issues as under: Issue 1: In the negative. Issue 2: In the negative. Issue 3: In the negative. Issue 4: In the negative, it is held that, plaintiffs 1, 2(a) to 2(d) together and plaintiffs 3 to 5 are entitled to 1/9th share each in items 1, 2 and 4 and 1/36th share each in items 5 to 7 and plaintiff 6 is entitled to 1/9th share in items 1, 3 and 4 and 5/18th share in items 5 to 7 of suit schedule properties. Additional Issue 1: In the affirmative. Additional Issue 2: In the affirmative. Additional Issue 3: In the negative. Additional Issue 4: In the negative. Issue 5: As per final order. 9. The finding of the Trial Court is as under: The Trial Court held that the plaintiffs have failed to prove that items 1 to 4 of suit schedule properties have been acquired out of the earnings of late Sri K. Lingappa and Smt. Lakshmamma and their children because P.W. 1 is not knowing regarding who had purchased items 1 to 4 of suit schedule properties and who had paid the sale consideration amount. His evidence to the effect that he has also contributed amount for purchasing the said properties cannot be accepted. The documents produced by both the parties, more particularly, the sale deeds goes to show that the said properties have been purchased in the name of Smt. Lakshmamma. The evidence of P.W. 1 prove that his mother Smt. Lakshmamma was a housewife and she had no independent source of income for purchasing items 1 to 3 schedule properties and that K. Lingappa was working as Revenue Inspector. He was having sufficient income. The oral and documentary evidence on record shows that at the time of purchase of items 1 to 4 schedule properties, the plaintiffs and defendants were aged 10 to 15 years and they were not in a position to work and earn money. The Trial Court at paragraph 15 of the judgment has mentioned that D.W. 1 i.e. defendant 1 in his evidence had stated that his father by executing a Will dated 18-7-1979 has bequeathed items 1 to 4 suit schedule properties in his favour. The Trial Court at paragraph 15 of the judgment has mentioned that D.W. 1 i.e. defendant 1 in his evidence had stated that his father by executing a Will dated 18-7-1979 has bequeathed items 1 to 4 suit schedule properties in his favour. Hence, after the death of his father, he has become absolute owner in respect of items 1 to 4 schedule properties. Though the plaintiffs have denied the fact that their father Sri K. Lingappa executed a Will dated 18-7-1979 bequeathing items 1 to 4 of suit schedule properties in his favour, defendant 1 has not produced the Will dated 18-7-1979 said to have been executed by his father Sri K. Lingappa. Even he has failed to examine any of the attesting witness to the Will said to have been executed by his father Sri K. Lingappa. Hence, it has to be held that defendant 1 has not proved the execution of Will dated 18-7-1979 by his father Sri K. Lingappa, bequeathing items 1 to 4 of suit schedule properties in his favour, in accordance with law. Therefore, the Trial Court held that defendant 1 has failed to prove that his father Sri K. Lingappa had executed a Will dated 18-7-1979 and bequeathed items 1 to 4 suit schedule properties in his favour and hence, after the death of his father, he has become absolute owner in respect of the same. The Trial Court held that the Will said to have been executed by Sri K. Lingappa bequeathing items 1 to 4 suit schedule properties in favour of defendant 1 is not binding on the plaintiffs. The Trial Court held that defendant 1 has proved that his father Sri K. Lingappa had purchased items 1 to 4 suit schedule properties out of his self-earnings. Hence, late Sri K. Lingappa was the absolute owner of the same and he had every right to bequeath the same in favour of any person, including defendant 1. The case of plaintiffs that their father Sri K. Lingappa had no right to bequeath items 1 to 4 suit schedule properties by executing a Will and if at all he had executed a Will, the same is void and not binding on them cannot be accepted. The Trial Court held that plaintiffs have failed to prove issue 3 in their favour. The Trial Court held that plaintiffs have failed to prove issue 3 in their favour. The Trial Court at paragraph 18 of the judgment has mentioned that defendant 1 in his written statement has contended that since 1979, he is in possession and enjoyment of all the suit schedule properties continuously to the knowledge of plaintiffs and other defendants. Hence, he has perfected his title to the suit schedule properties by adverse possession. He has also contended in his additional written statement that, since 1979, the plaintiffs and other defendants are not in possession and enjoyment of suit schedule properties. In view of doctrine of ouster, the plaintiffs are not entitled to a share in the suit schedule properties and the suit filed by plaintiffs for the relief of partition and separate possession of their alleged share in the suit schedule properties is barred by limitation. On the other hand, it is the case of plaintiffs that the cause of action for filing the suit arose in the month of May 1995, when the first defendant has refused to effect the partition. The Trial Court at paragraph 19 of the judgment has mentioned that the evidence of P.W. 1 clearly goes to prove that since 1979, defendant 1 is in exclusive possession and enjoyment of suit schedule properties. Since 1979, the plaintiffs and other defendants are not in possession and enjoyment of suit schedule properties. Hence, defendant 1 has perfected his title to the suit schedule properties by adverse possession. In view of the doctrine of ouster, the plaintiffs are not entitled for the relief of partition and separate possession of their alleged share in suit schedule properties. The Trial Court held that there is a distinction between adverse possession as between strangers and ouster and exclusion of co-owners. In the case of adverse possession as against strangers, it is sufficient that adverse possession is overt and without any attempt at concealment. It is not necessary that adverse possession should be to the knowledge of the owner. When the adverse possession is open, visible and notorious, if the owner remains ignorant and indifferent, he cannot complain. In case of ouster of a co-owner, the position is different. To constitute ouster, the law requires something more than mere exclusive possession and exclusive receipt of income. When the adverse possession is open, visible and notorious, if the owner remains ignorant and indifferent, he cannot complain. In case of ouster of a co-owner, the position is different. To constitute ouster, the law requires something more than mere exclusive possession and exclusive receipt of income. There must also be an ouster, a hostile, open denial and an open repudiation of the co-owner's right to the latter's knowledge. But this does not mean that the co-owner who has been ousted or excluded should be expressly informed as such by the other co-owner, if other circumstances concur. The Court can legitimately infer from exclusive possession for a considerable length of time that the other co-owner has been excluded to his knowledge. The theory of lost grant is applicable to support long continued possession for considerable length of time, if the co-owner does not assert his right for a considerable length of time. The inactive co-owner must take the consequences for long delay in bringing a suit to establish his right which delay has prejudiced the other side and occasioned loss of evidence by lapse of time. Good sense and justice require that Courts should be reluctant to unsettle quiet and undisturbed possession for over a few decades. The law presumes a lawful origin of possession which must originate from ouster and continues to be such for the statutory period. The Trial Court at paragraph 20 of the judgment has mentioned that the learned Counsel for plaintiffs and defendants 3(a) to 3(d) argued before the Court to the effect that mere possession of suit schedule properties by defendant 1 for any length of time without hostile intention to dispossess other co-owners of suit schedule properties and with an hostile intention to acquire title by adverse possession is not sufficient to perfect his title to the suit schedule properties by adverse possession. Defendant 1 must prove that he was in possession and enjoyment of suit schedule properties continuously for a period of more than 12 years without anybody's interruption and to the knowledge of the plaintiffs and other defendants with hostile intention to acquire title to the suit schedule properties by adverse possession. Defendant 1 must prove that he was in possession and enjoyment of suit schedule properties continuously for a period of more than 12 years without anybody's interruption and to the knowledge of the plaintiffs and other defendants with hostile intention to acquire title to the suit schedule properties by adverse possession. The averments made in the plaint and the evidence on record prove that one of the legatee under the Will dated 26-3-1977 said to have been executed by Sri K. Lingappa, defendant 3(c) - K.S. Indushekar, through his minor guardian, had initiated probate proceedings in P and SC No. 54 of 1979, which was later converted as O.S. No. 2 of 1980. The suit was later transferred to City Civil Court, Bangalore, and renumbered as O.S. No. 7248 of 1990. The said suit came to be dismissed for default. This clearly prove that the other defendants and plaintiffs, who are co-owners of suit schedule properties, are all along claiming their share in the suit schedule properties. It is the case of defendant 1 as contended in the written statement and his evidence that in view of the bequest said to have been made by Sri Lingappa under the alleged Will dated 18-7-1979, he has become absolute owner of items 1 to 4 suit schedule properties. In order to perfect his title to suit schedule properties, defendant 1 must admit the title of the plaintiffs and other defendants over the suit schedule properties and then he must prove that he has enjoyed the suit schedule properties continuously for a period of more than 12 years to the knowledge of the plaintiffs with hostile intention to acquire title by adverse possession. But these things are lacking. Therefore, the Trial Court held that it cannot be said that defendant 1 has perfected his title to the suit schedule properties by adverse possession. The Trial Court has also mentioned that defendant 1 in his evidence has stated that the family members of deceased defendant 2 (earlier defendant 3) are enjoying the usufructs of item 5 suit schedule property. Therefore, the Trial Court held that it cannot be said that defendant 1 has perfected his title to the suit schedule properties by adverse possession. The Trial Court has also mentioned that defendant 1 in his evidence has stated that the family members of deceased defendant 2 (earlier defendant 3) are enjoying the usufructs of item 5 suit schedule property. Therefore, the Trial Court held that defendant 1 has failed to prove that he has perfected his title to the suit schedule properties by adverse possession and he has also failed to prove that plaintiffs and other defendants have been ousted from suit schedule properties and that the suit of the plaintiffs is barred by time. According to the plaintiffs, the cause of action for the suit arose in the month of May 1995 when defendant 1 refused to effect partition of the suit schedule properties. There is no material placed on record by defendant 1 to disbelieve the case of the plaintiffs. Therefore, the Trial Court held that the suit of the plaintiffs is in time. The Trial Court at paragraph 21 of the judgment has mentioned that the evidence on record goes to prove that defendant 1 has acquired item 7 schedule property out of the income of other suit schedule properties. Defendant 1 in his written statement has admitted that items 5 and 6 schedule properties are ancestral properties of Sri K. Lingappa. The Trial Court at paragraph 29 of the judgment has mentioned that Sri K. Lingappa died leaving behind his three sons and six daughters as his legal heirs. His wife predeceased him. Plaintiff 6, defendant 1 and deceased defendant 3 are sons and plaintiffs 1 to 5 and mother of defendants 4 to 10 i.e. late Smt. Nagarathnamma are daughters of late Sri K. Lingappa. During the pendency of suit, defendant 3 died and his legal representatives defendants 3(a) to 3(d) were brought on record. The Trial Court held that there is no clear, cogent and corroborative evidence to prove that plaintiff 6 has been converted to Christianity. The Trial Court at paragraph 30 of the judgment has mentioned that as items 1, 2 and 4 of suit schedule properties are self-acquired properties of Sri K. Lingappa, after his death, his three sons and six daughters, being his Class I heirs, have succeeded to the same and are entitled for 1/9th share each. The Trial Court at paragraph 30 of the judgment has mentioned that as items 1, 2 and 4 of suit schedule properties are self-acquired properties of Sri K. Lingappa, after his death, his three sons and six daughters, being his Class I heirs, have succeeded to the same and are entitled for 1/9th share each. Sri K. Lingappa died in the year 1979. Immediately after his death, the succession opened. Hence, a notional partition has to be effected in ancestral properties i.e. items 5 to 7 of suit schedule properties between Sri K. Lingappa and his three sons i.e. plaintiffs 6 and defendants 1 and 3. Each of them become entitled for 1/4th share in the same. After the death of Sri K. Lingappa, his three sons and six daughters have succeeded to 1/4th share of late Sri K. Lingappa in items 5 to 7 of suit schedule properties. Hence, each of them become entitled for 1/36th share. Hence, plaintiff 5 and defendants 1 and 3 become entitled for 1/18th share each and all the daughters of late Sri K. Lingappa are entitled for 1/36th share each in items 5 to 7 of suit schedule properties. After the death of defendant 3, his legal representatives i.e. defendants 3(a) to 3(d) have succeeded to the share of defendant 3 in suit schedule properties. During the pendency of suit, plaintiff 2 died and her legal representatives have been brought on record. The legal representatives of deceased plaintiff 2 have succeeded to their mother's share in suit schedule properties. Hence, plaintiffs 1 and 2(a) to 2(d) together, and plaintiffs 3 to 5 and defendants 4 to 10 together are entitled for 1/9th share each in items 1, 2 and 4 of suit schedule properties and 1/36th share each in items 5 to 7 of suit schedule properties and plaintiff 6, defendant 1 and defendants 3(a) to 3(d) together are entitled to 1/9th share each in items 1, 2 and 4 of suit schedule properties and 5/18th share each in items 5 to 7 of suit schedule properties. Hence, plaintiffs are not entitled to 1/9th share each in all the suit schedule properties as claimed by them. Hence, I hold that plaintiffs are not entitled to 1/9th share each in all the suit schedule properties. Hence, plaintiffs are not entitled to 1/9th share each in all the suit schedule properties as claimed by them. Hence, I hold that plaintiffs are not entitled to 1/9th share each in all the suit schedule properties. Hence, I answer issue 4 in the negative, but I hold that plaintiffs 1, 2(a) to 2(d) together and plaintiffs 3 to 5 are entitled for 1/9th share each in items 1, 2 and 4 of suit schedule properties and 1/36th share each in items 5 to 7 suit schedule properties and plaintiff 6 is entitled to 1/9th share in items 1, 2 and 4 suit schedule properties and 5/18th share in items 5 to 7 suit schedule properties. The Trial Court at paragraph 31 of the judgment has mentioned that the plaintiffs have averred in the plaint that claiming to be a legatee under the Will dated 26-3-1997, defendant 3(c)-Indushekar initiated proceedings in P and SC No. 54 of 1979 which was later converted as O.S. No. 2 of 1980 and transferred to City Civil Court, Bangalore, and renumbered as O.S. No. 7248 of 1990. However, the said suit came to be dismissed for default. They were not parties in P and SC proceeding and the suits. Moreover, O.S. No. 7248 of 1990 came to be dismissed for default. The Trial Court held that the earlier suit was dismissed for default and therefore, the subsequent suit for partition is not barred as the cause of action in partition cages continues. Defendants 3(a) to 3(d) in their written statement have prayed to pass a decree for partition and separate possession of their share in the suit schedule properties. The plaintiffs have also sought for initiate proceedings under Order 20, Rule 12 of the Code of Civil Procedure for ascertaining mesne profits. Defendant 1 is in possession and enjoyment of all the suit schedule properties. Hence, plaintiffs are entitled for mesne profits from defendant 1. The plaintiffs have also sought for initiate proceedings under Order 20, Rule 12 of the Code of Civil Procedure for ascertaining mesne profits. Defendant 1 is in possession and enjoyment of all the suit schedule properties. Hence, plaintiffs are entitled for mesne profits from defendant 1. The Trial Court partly decreed the suit and ordered that plaintiffs 1, 2(a) to 2(d) together and plaintiffs 3 to 5 are entitled, for partition and separate possession of their 1/9th share each in items 1, 2 and 4 suit schedule properties and 1/36th share each in items 5 to 7 suit schedule properties and plaintiff 6 is entitled for partition and separate possession of his 1/9th share in items 1, 3 and 4 suit schedule properties and 5/18th share in items 5 to 7 suit schedule properties. It is further ordered and decreed that plaintiffs are also entitled for future mesne profits in respect of items 1, 2 and 4 to 7 suit schedule properties from the date of suit till they are put in possession and enjoyment of their share by effecting partition by metes and bounds. There shall be a separate enquiry under Order 20, Rule 12 of Code of Civil Procedure for ascertaining mesne profits, for which the plaintiffs are entitled to. It is further ordered that defendants 3(a) to 3(d) are entitled for partition and separate possession of their 1/9th share in items 1, 2 and 4 suit schedule properties and 5/18th share in items 5 to 7 suit schedule properties. It is also ordered that the partition in the suit schedule properties shall be effected either by amicable settlement between the parties, if not through Court by appointing a Court Commissioner. 10. I have heard the learned Counsel for the appellants as well as the learned Counsel for respondents 1(a) to 1(f), 2(a) to 2(d), 3 to 5 and the learned Counsel for respondents 7(a) to 7(d). I have perused the Trial Court records. 11. Learned Counsel for the appellants submits as under: Defendant 1 has been in exclusive possession and enjoyment of the suit schedule items 1 to 4 and he has perfected his title to the said items based on the doctrine of ouster as well as adverse possession. The Trial Court erred in not considering this aspect. 11. Learned Counsel for the appellants submits as under: Defendant 1 has been in exclusive possession and enjoyment of the suit schedule items 1 to 4 and he has perfected his title to the said items based on the doctrine of ouster as well as adverse possession. The Trial Court erred in not considering this aspect. The Trial Court also erred in forming an opinion that the Will executed by K. Lingappa is void and not binding on the plaintiffs. The Trial Court erred in exercising power under Order 11, Rule 5 of the Code of Civil Procedure in amending issues 1 and 2 and framing additional issues 2 to 4 without giving opportunity to the parties. The Trial Court erred in considering the case of the plaintiffs that a daughter who was born prior to 1976 is eligible for a share in the property as Hindu Succession Act, 1956 came into force on 17-6-1956. The Trial Court erred in observing that Will dated 18-7-1979 has not been produced at trial. The Trial Court erred in coming to a conclusion that the first defendant did not establish item 7 property is not self-acquired property of K. Lingappa. He further submits that no issues have been framed in this regard. 12. Learned Counsel for the appellants relied on the following rulings: (i) In the case of Perikal Malappa v. T. Venkatesh Gupta 2006 (5) Kar. L.J. 325 : ILR 2006 Kar. 3313; wherein Head Note reads as under: "CODE OF CIVIL PROCEDURE, 1908, Order 14, Rule 5 -- Issues -- Trial Judge noticing that the issues framed by his predecessor was not based on the pleadings of the parties -- Learned Counsel for both parties heard-case reserved for judgment -- Trial Court framing additional issues at the stage of judgment without giving an opportunity for both the parties and gave its finding on the issues framed afresh-suit decreed -- Appealed against -- Held -- If the Court was of the opinion that issues have to be recanted and that the additional issues were to be framed, it was for the Court to frame issues and give an opportunity to both the parties. If the parties are willing to let in further evidence, an opportunity should be given to such party to lead their evidence. If the parties are willing to let in further evidence, an opportunity should be given to such party to lead their evidence. If both the parties are not willing to lead further evidence, after hearing the Learned Counsel for the parties on additional issues the Court could have disposed of the suit on merits. If, whenever additional issues are framed by a Court at the stage of judgment, it is the duty of the Court to hear the parties on additional issues and to proceed further in the matter. No Court is expected to proceed for judgment without giving an opportunity to the parties as it amounts to infringement of principles of natural justice (paras 15 and 16)". (ii) In the case of Mohammad Baqar and Others v. Naim-un-Nisa Bibi and Others AIR 1956 SC 548 ; wherein Head Note 'b' reads as under: "(b) INDIAN LIMITATION ACT, 1908, Article 144 -- Possession of co-owners. As under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is participation in the profits to any degree (para 3). In a suit for partition the facts found were that the plaintiffs were minors at the time of their father's death, that they continued to live with their brothers in the same house down to the year 1918, that thereafter they went to reside with their husbands but that they continued to draw from the family chest for all expenses. It was not until 1933 when the defendants executed a waqf deed that there was any denial of the title of the plaintiffs, and down to that date, they had been in enjoyment of the properties. The evidence showed that what the plaintiffs received was not merely maintenance but was of the same character as the receipts by the defendants themselves from the estate during that period. Held that the defendants' possession was not adverse to the plaintiffs (para 7)". The evidence showed that what the plaintiffs received was not merely maintenance but was of the same character as the receipts by the defendants themselves from the estate during that period. Held that the defendants' possession was not adverse to the plaintiffs (para 7)". (iii) In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 : 1957 SCR 195 , (V 44 C 45 APRIL); wherein Head Note 'b' reads as under: "(b) INDIAN LIMITATION ACT, 1908, Article 144 -- Possession of co-owners -- Co-heirs -- Possession of co-heir when adverse to other co-heirs -- Burden of proof -- Indian Evidence Act, 1872, Sections 101 to 104 and 114. The ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precarious. Secretary of State for India v. Debendra Lal Khan, AIR 1934 PC 23 (25), rel. on. (para 4). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Radhamani Debi v. Collector of Khulna, 27 Ind App 136 at p. 140 (PC), rel. on. (para 4). But it is well-settled that in order to establish adverse possession of one-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. Corea v. Appuhamy, 1912 AC 230, rel. on (para 4). The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession (para 4)". Corea v. Appuhamy, 1912 AC 230, rel. on (para 4). The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession (para 4)". (iv) In the case of Pushpalatha N.V. v. V. Padma and Others 2010 (3) Kar. L.J. 549 (DB) : ILR 2010 Kar. 1484 (DB); wherein Head Note 'C' reads as under: "(C) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (Act No. 39 of 2005), Section 6(1)-- Status of the daughter of a coparcener born prior to 17-6-1956 and after 17-6-1956 -- Benefit of the Amended Act to the daughter of a coparcener born prior to 17-6-1956 and after 17-6-1956 -- Discussed -- Held, when the Act was enacted, the Legislature had no intention of conferring rights which are conferred for the first time on a female relative of a coparcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a coparcener was not conferred the status of a coparcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to coparcenary property is given from the date of her birth. Therefore it should necessarily follow such a date of birth should be after the Act came into force, i.e., 17-6-1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a coparcener who was born prior to 17-6-1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. Therefore, in this context also the opening words of the amending section assumes importance. The status of a coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a coparcener who is born after the Act came into force alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17-6-1956 -- Further held, thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of coparcenary property and coparcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of coparcenary governed by Mitakshara School is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a coparcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a coparcener enures to her benefit by birth makes the said provision retroactive, (paras 56 and 57)". 13. Sri B.K. Sampat Kumar, learned Counsel for respondents 1(a) to 1(f), 2(a) to 2(d), 3 to 5 submits that Ex. D. 3-Will does not bear the signature of father of defendant 1. K. Lingappa did not come to the Sub-Registrar's Office for the purpose of registering the Will. He also submits that there is positive evidence to the effect that father of defendant 1 was not in a condition to come to the Sub-Registrar's Office. He further submits that as per the evidence, the Sub-Registrar came to his house. K. Lingappa did not come to the Sub-Registrar's Office for the purpose of registering the Will. He also submits that there is positive evidence to the effect that father of defendant 1 was not in a condition to come to the Sub-Registrar's Office. He further submits that as per the evidence, the Sub-Registrar came to his house. He invited the attention of the Court to the cross-examination of D.W. 1 wherein he has stated that he has received the compensation amount from the Government in respect of the property which was acquired by the Government and that item 4 of the schedule property, i.e. Sy. Nos. 71 and 70 were purchased in the name of his father. He further submits that during the cross-examination of D.W. 1, he admits that khatha in respect of item 4 of the suit schedule property was transferred in the name of his wife, Smt. Nagalakshmamma and in his name. He further submits that khatha in respect of item 4 of the schedule property was cancelled by the Assistant Commissioner. He also admits that items 5 and 6 properties are the joint family properties. 14. The learned Counsel, Sri B.K. Sampat Kumar, relied on the following rulings in support of his contention: (i) In the case of Smt. Guro v. Atma Singh and Others (1992) 2 SCC 507 : (1992) 2 SCR 30 ; wherein Head Note reads as under: "Will -- Genuineness -- Proof of -- Suspicious circumstances -- Burden on propounder to remove the suspicion -- Held on facts, burden not discharged and will not proved to be a genuine document -- High Court not justified in interfering with findings of fact of the First Appellate Court based on proper appreciation of evidence -- Indian Succession Act, 1925, Section 63 -- Civil Procedure Code, 1908, Section 100. The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator (para 3)". (ii) In the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam AIR 2003 SC 761 : (2003) 2 SCC 91 ; wherein Head Notes 'A', 'B' and 'C' read as under: "(A) INDIAN SUCCESSION ACT, 1925 (39 of 1925), Section 63(c) -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will -- Proof of -- Simply proving that signature on Will was that of testator -- Not enough -- Requirement of its attestation by 2 or more witnesses, is mandatory -- Attestation must be proved to have been made as required by Section 63(c) of the Indian Succession Act -- One attesting witness if able to prove execution i.e. if satisfies requirement of attestation of Will by other witness also - Examination of other attesting witness can be dispensed with. (B) INDIAN EVIDENCE ACT, 1872 (1 of 1872), Sections 71 and 68 -- Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Execution of Will -- Proof of, by "other evidence" with aid of Section 71-- Section 71 cannot be interpreted so as to allow party to give a go-bye to mandate of Section 68 qua requirement of calling attesting witnesses -- Aid of Section 71 when can be resorted, stated. Manki Kaur v. Hansraj Singh, AIR 1938 Pat. 301, overruled. Manki Kaur v. Hansraj Singh, AIR 1938 Pat. 301, overruled. (C) INDIAN SUCCESSION ACT, 1925 (39 of 1925), Section 63(c) -- Indian Evidence Act, 1872 (1 of 1872), Sections 68 and 71 - Execution of Will -- Examined attesting witness not able to prove attestation of Will by the other attesting witness -- Other attesting witness though available, not examined -- Will is not proved as mandatory required under Section 68 -- Evidence of other witnesses viz., that of respondent who claims suit properties on basis of Will and that of scribe -- Cannot be considered with aid of Section 71 -- Provision of Section 71 which is permissive does not apply to such a situation". (iii) In the case of N. Kamalam (dead) and Another v. Ayyasamy and Another AIR 2001 SC 2802 : (2001) 7 SCC 503 ; wherein Head Notes 'A', 'B' and 'C' read as under: "(A) INDIAN SUCCESSION ACT, 1925, Section 63(c) -- Attestation of Wills -- Overriding significance of statutory requirements -- Held, signature of scribe of Will cannot be granted equality of status with signatures of attesting witnesses, which are required under Section 63(c) (read with Section 68 of Indian Evidence Act, 1872 and Section 3of Transfer of Property Act, 1882 for proving proper execution of a Will -- More so where propounder has not examined attesting witnesses nor taken any other step to have them produced in Court -- Held, on facts, plaintiff/appellants had failed to satisfactorily prove non-availability of the two attesting witnesses -- Evidence of scribe could not displace statutory requirement as he did not have necessary intent to attest -- High Court rightly dismissed appeal of plaintiffs against dismissal of their suit for partition -- Indian Evidence Act, 1872, Section 68 -- Proof of execution of Will -- Transfer of Property Act, 1882, Section 3 -- "Attested" document -- Words and Phrases -- "Scribe". (B) INDIAN SUCCESSION ACT, 1925, Section 63(c) -- Attesting witness -- Held, must be proven by evidence to have animo testandi or animus or intent to attest -- Only then would the signature of such witness stand up as a complete attestation of the Will -- Words and Phrases -- "Onus probandi", "animo testandi" -- Indian Evidence Act, 1872, Section 68 -- Transfer of Property Act, 1882, Section 3. (C) CIVIL PROCEDURE CODE, 1908, Order 41, Rule 27 - Production of additional evidence in Appellate Court -- Provisions of Rule 27, held, are not designed to help parties patch up weak points and make up for omissions earlier made -- Jurisdiction of Appellate Court is restricted to permitting such additional evidence as would enable it to pronounce judgment". (iv) In the case of Sadasivam v. K. Doraisamy AIR 1996 SC 1724 : (1996) 8 SCC 624 , wherein Head Note 'A' reads as under: "(A) LIMITATION ACT, 1963 (36 of 1963), Articles 64 and 65 -- Adverse possession -- Exclusive possession by a coparcener -- Not adverse to other coparceners unless such possession is exercised by ousting others". (v) In the case of Shashi Kumar Banerjee and Others v. Subodh Kumar Banerjee (since deceased) and after him his legal representatives and Others AIR 1964 SC 529 ; wherein Head Note 'a' reads as under: "Civil Appeal No. 295 of 1960. (a) INDIAN SUCCESSION ACT, 1925, Sections 63 and 289 -- Will -- Mode of proof -- Onus -- Principles indicated -- When Court would grant probate -- Subodh Kumar Banerjee and Others v. Soshi Kumar Banerjee and Others, AIR 1958 Cal. 264 , reversed. The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveat or alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. Where the caveat or alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. H. Venkatachala Iyengar v. B.N. Thimmajamma and Others, AIR 1959 SC 443 and Rani Purnima Debi and Another v. Kumar Khagendra Narayan Deb and Another, AIR 1962 SC 567 , foil, (para 4)". (vi) In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and Others AIR 1959 SC 443 (V 46 C 56); wherein Head Note reads as under: "INDIAN EVIDENCE ACT, 1872, Sections 67, 68, 45 and 47 - Proof of Will -- Onus of proof on propounder -- Nature - Appreciation of evidence -- Duty of Court -- Indian Succession Act, 1925, Sections 59 and 63 -- Wills". (vii) In the case of Smt. Chinmoyee Saha v. Debendra Lal Saha and Others AIR 1985 Cal. 349 ; wherein Head Note 'A' reads as under: "(A) INDIAN SUCCESSION ACT, 1925 (39 of 1925), Sections 59, 61 and 63 -- Will -- Proof -- Suspicious circumstances -- Due execution and attestation of Will as well as sound disposing mind of testatrix proved -- Court cannot refuse to grant probate when testatrix has made only some of her grandchildren as legatees to exclusion of other near relations". (viii) In the case of Apoline D'Souza v. John D'Souza 2007 (5) Kar. L.J. 213 (SC) : 2007 (4) AIR Kar. R. 537 (SC) : AIR 2007 SC 2219 : (2007) 7 SCC 225 : 2007 AIR SCW 3886; wherein Head Notes 'A', 'B' and paragraph 13 read as under: "(A) INDIAN SUCCESSION ACT, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will -- Execution of -- Suspicious circumstances -- Testatrix 96 years old lady -- Scribe of Will not known -- Attesting witness not known to testatrix and stated that Will was not drafted before her -- She had only proved her signature -- As per said witness document was handwritten one - Whereas Original Will is typed -- No evidence to show that contents of Will were read over and explained to testatrix -- Several cuttings and over writings in Will -- Establishing suspicious circumstances - Due execution of Will, cannot be said to be proved (paras 8 and 13). (B) INDIAN SUCCESSION ACT, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will -- Suspicious circumstances -- Has to be removed by propounder of Will -- Having not done so, execution of Will, is not proved -- Order declining to grant letters of administration, proper (para 20). ............ 13. Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the Will is to be proved. Proof of attestation of the Will is a mandatory requirement. Attestation is sought to be proved by P.W. 2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The Will was full of suspicious circumstances. P.W. 2 categorically stated that the Will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the Will but the document was a handwritten one. The Will was full of suspicious circumstances. P.W. 2 categorically stated that the Will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the Will but the document was a handwritten one. The original Will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the Will were read over and explained to the testatrix. P.W. 2 was not known to her. Why was she called and who called her to attest the Will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and over writings also in the Will". (ix) In the case of Arjan Singh v. Kartar Singh and Others AIR 1951 SC 193 : 1951 SCR 258 ; wherein Head Notes 'a' and 'b' read as under: "(a) CIVIL PROCEDURE CODE, 1908, Order 41, Rule 27 - Discretion to admit additional evidence -- How to be exercised. The discretion given to the Appellate Court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non-existent (para 7). Anno. CPC, Order 41, Rule 27, N. 1. (b) CIVIL PROCEDURE CODE, 1908, Order 41, Rule 27 -- Test for admitting additional evidence. The legitimate occasion for the application of Order 41, Rule 27 is when, on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. The true test, therefore, is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. (para 7) Anno. CPC, Order 41, Rule 27, N. 1". 15. The true test, therefore, is whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. (para 7) Anno. CPC, Order 41, Rule 27, N. 1". 15. The points that arise for my consideration in this appeal are as under: (i) Whether any ground is made out to interfere with the impugned judgment and decree of the Trial Court? (ii) Whether I.A. No. 4 of 2014 filed under Section 151 of the Code of Civil Procedure seeking permission to examine Mr. Lingegowda as a witness to prove the Will by way of additional evidence is liable to be allowed? 16. One of the contentions urged by the learned Counsel for the appellants is that the Trial Court erred in coming to the conclusion that the Will is not binding on the plaintiffs. He has made an application to examine one of the attesting witness of the Will at the appellate stage. He submits that the Will is genuine and has been executed by K. Lingappa bequeathing all the properties in favour of the first defendant. On the basis of the Will, khatha had been effected in favour of the first defendant. The question that arises for my consideration is whether the Will has been proved after the death of the testator. 17. Section 63 of the Indian Succession Act reads as under: "63. Execution of unprivileged Wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules.-- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary". 18. In the instant case, the beneficiary of the Will i.e. defendant 1 has not examined any attesting witness. When Section 63 of the Indian Succession Act mentions that one of the attesting witness has to be examined, defendant 1 should have examined the attesting witness to explain about the execution of the Will by the testator. He has not done so. The onus of proving the Will is on the beneficiary and he has to remove the suspicious circumstances surrounding the Will. In the instant case, defendant 1 has neither examined the attesting witness nor removed the suspicious circumstances surrounding the Will. The initial burden was on defendant 1 to remove the suspicious circumstances. When he removes the suspicious circumstances, then only the burden shifts on the plaintiffs to adduce rebuttal evidence. But, defendant 1 was unable to examine any attesting witness in order to remove the suspicious circumstances to the satisfaction of the Court below. Therefore, the Trial Court came to the conclusion that the beneficiary of the Will has not proved the Will. Applying the principles laid down in the case of H. Venkatachala Iyengar, wherein it is observed that Section 68 deals with the proof of the execution of the document required by law to be attested and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. In the instant case, defendant 1 has omitted to examine the attesting witness and was unable to satisfactorily remove the suspicious circumstances attached to the Will. Therefore, it is difficult to accept the contention of the learned Counsel for defendant 1-appellants herein. 19. The death of the testator has occurred three days after the execution of the Will dated 18-7-1979 in the presence of the Sub-Registrar, who was called to the residence. There is positive evidence to the effect that the testator was suffering from illness and he was bedridden and his mental capacity was not sound. Merely because the Will is registered, its genuineness will not be presumed. Whether Will is registered or not, it is for the propounder to establish that the Will was signed or thumb impression was affixed by the testator when his mental capacity was sound. He cannot adopt a stand that registration of Will is sufficient to prove the Will. At best, registration of the Will, though not required in law, is only a piece of evidence of execution and cannot have a greater sanctity. 20. One of the contentions raised by the learned Counsel for the appellants is that defendant 1 has perfected his title based on the doctrine of ouster and adverse possession. 21. In the Limitation Act, 1963, by J.N. Mallik, M.A., LL.B., Second Edition, January 1983, published by S.C. Sarkar and Sons (Private) Limited, Calcutta, at page 218, it is mentioned as under: "Co-sharers and adverse possession: In case of co-sharers or co-owners, possession of one is the possession of all. To bar the right of others, there must be denial of their right to their knowledge and exclusion from possession and ouster for the statutory period of 12 years. Ouster must be clearly established. Hostile animus without any overt hostile acts to call attention of other co-sharers intended to be ousted will not do. Co-sharer's possession to be adverse must be one 'nee vi, nec clam, nec precario', adequate in continuity in publicity and in extent. To displace lawful title, evidence must be adduced of open assertion of hostile title coupled with exclusive possession and enjoyment of one to the knowledge of the others so as to constitute ouster. Co-sharer's possession to be adverse must be one 'nee vi, nec clam, nec precario', adequate in continuity in publicity and in extent. To displace lawful title, evidence must be adduced of open assertion of hostile title coupled with exclusive possession and enjoyment of one to the knowledge of the others so as to constitute ouster. Possession according to arrangement between co-sharers is not adverse. Mere non-participation in rents and profits unaccompanied by other circumstances indicating a denial of title does not amount to ouster. Any secret hostile animus is not sufficient. There must be open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of others. Receiver's possession cannot be used by a successful party to establish adverse possession as no suit could be brought during Receiver's possession and there would be no actual possession with requisite animus". 22. In this background, I have carefully examined the evidence of the plaintiffs as well as the defendants. No doubt, defendant 1 was in possession of the property. Just because he is in possession of the property, the co-owners' rights will not extinguish, unless there is a hostile intention to acquire title by adverse possession. There must be positive intention to dispossess the co-owners. The starting point of the adverse possession is important. Defendant 1 has not admitted the title of the plaintiffs and other defendants. He must also establish his case that he enjoyed the property for more than 12 years and there was a hostile intention between the plaintiffs and defendant 1. Such things are not forthcoming in the evidence of defendant 1. Defendant 3(c)-Indushekar had instituted proceedings for grant of succession certificate and subsequently, it was converted into O.S. No. 7248 of 1990 and the same was dismissed for default. Therefore, it can be inferred that even at that point of time, the parties were agitating for partition of the property, but they were not successful. Therefore, defendant 1 is unable to establish his case that he has perfected his title by ouster or through adverse possession. No doubt, he may be receiving the rent, but that itself is not sufficient to infer that he is in exclusive possession and enjoyment of the joint family property. 23. Therefore, defendant 1 is unable to establish his case that he has perfected his title by ouster or through adverse possession. No doubt, he may be receiving the rent, but that itself is not sufficient to infer that he is in exclusive possession and enjoyment of the joint family property. 23. The next contention that was raised by the learned Counsel for the appellants is that issues have been recanted or reformulated at the time of judgment and no opportunity has been given to defendant 1 to adduce evidence after recasting the issues. At the first instance, the Trial Court has framed issues 1 to 5 and an additional issue. Subsequently, the Trial Court observed that due to oversight, issue 1 has been wrongly framed. Therefore, issue 1 was amended. According to defendant 1, Will dated 26-3-1977 executed by K. Lingappa was revoked by him and on 18-7-1999, he had executed another Will and bequeathed suit schedule items 1 to 4 in his favour. The same has been denied by the plaintiffs. The Trial Court has observed that due to oversight, issue 2 has been wrongly framed regarding execution of the Will dated 26-3-1977. On the other hand, issue 2 should have been framed regarding the Will dated 18-7-1979. Therefore, the Trial Court exercising power under Order 14, Rule 5 of the Code of Civil Procedure has amended issues 1 and 2 and three additional issues have been framed. 24. The pleadings disclose that there were two Wills executed by Sri K. Lingappa. The Will dated 26-3-1977 was revoked and subsequently, another Will was executed by the testator on 18-7-1979. The Trial Court has wrongly framed the issue with regard to the earlier Will executed by the testator dated 26-3-1977. Therefore, issue 2 has been recanted and reframed as under: "Whether defendant 1 proves that late Sri Lingappa had executed a Will dated 18-7-1979 and bequeathed items 1 to 4 of suit schedule properties in his favour and hence after the death of late Sri K. Lingappa he has become absolute owner of the same?" 25. Order 14, Rule 5 of the Code of Civil Procedure reads as under: "5. Order 14, Rule 5 of the Code of Civil Procedure reads as under: "5. Power to amend, and strike out, issues.--(1) The Court may at anytime before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced". 26. Learned Counsel for the appellants submits that after amending the issues, opportunity should have been given to defendant 1 to adduce evidence by the Court below. The case of defendant 1 is that the Will was executed by his father, i.e. testator on 18-7-1979. The burden lies on defendant 1 to establish and prove the Will dated 18-7-1979. He was fully aware of his case that he has to adduce evidence to prove the Will and remove the suspicious circumstances if any to succeed to the estate of deceased Lingappa. The object of framing an issue is to prevent surprises at the trial and enabling the parties to understand the points they are required to prove by adducing evidence. The parties proceeded to trial with full knowledge of rival contentions, lead evidence in support of their respective case and the Court below considered such evidence in coming to the conclusion. In such circumstances, it cannot be said that the trial was vitiated in the absence of any issue. In the instant case, the Court has framed issue 2 at the earlier stage with regard to the Will dated 26-3-1977 and subsequently, it was amended and recanted with regard to the Will dated 18-7-1979. Such being the case, defendant 1 was fully aware that he has to establish the Will dated 18-7-1979. It is contended by the learned Counsel for the respondents that Will dated 26-3-1977 has not been produced before the Trial Court. Therefore, the question of establishing the Will dated 26-3-1977 does not arise at all. 27. Section 167 of the Indian Evidence Act, 1872 reads as under: "167. It is contended by the learned Counsel for the respondents that Will dated 26-3-1977 has not been produced before the Trial Court. Therefore, the question of establishing the Will dated 26-3-1977 does not arise at all. 27. Section 167 of the Indian Evidence Act, 1872 reads as under: "167. No new trial for improper admission or rejection of evidence.--The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision". 28. In the instant case, it is the contention of the learned Counsel for the appellants that after recasting the issue, opportunity was not given to defendant 1 to adduce further evidence. The parties had known their case and lead their evidence before the Trial Court. The Trial Court has appreciated the evidence in a proper perspective and has come to the conclusion that the evidence adduced before the Court was sufficient to take a decision in the case. The Trial Court has also mentioned that the evidence lead by the parties covers amended issues 1 and 2 and additional issues 2 to 4 framed in the suit. Therefore, the Trial Court felt that it is unnecessary to give opportunity to the parties to adduce additional evidence. Even if defendant 1/appellant herein was permitted to adduce additional evidence, the decision rendered by the Trial Court may not vary. In that view of the matter, the contention of the learned Counsel for the appellants that sufficient opportunity has not been given after recasting the issues has no merit. 29. One of the contentions raised by the learned Counsel for the appellant is that whether a female co-owner is entitled for joint family property in view of the ruling of this Court in the case of Pushpalatha N.V. Defendant 1 has not pleaded in his written statement that a female co-owner is not entitled for a share. Even evidence was not adduced by him to this effect. It is well-settled that principle that objection to any point of law should be framed in definite language. Even evidence was not adduced by him to this effect. It is well-settled that principle that objection to any point of law should be framed in definite language. Ordinarily, these objections are heard and decided at the time of trial. But in the instant case, there is no pleadings to the effect that female co-owner is not entitled for a share in the joint family property. 30. Smt. Revathi, learned Counsel for respondents 7(a) to 7(d) submits that admittedly these properties are the self-acquired properties of K. Lingappa who was working as a Revenue Inspector. He has acquired the properties during his lifetime. Therefore, she submits that these properties are not joint family properties. Therefore, Hindu Succession (Amendment) Act, 2005 would not apply to the facts and circumstances of the case. 31. No doubt, a contention is raised by the appellants that defendant 1 has omitted to state this point in the written statement. There is no finding recorded by the Trial Court on this aspect because the point as to 'whether a female co-owner is entitled for a share in the joint family property or self-acquired property' has not been urged before the Trial Court, no evidence is adduced and no finding is recorded by the Trial Court in this regard. For the first time, in the Appellate Court, the said point is raised by the learned Counsel for the appellants. This point should have been urged at the earliest point of time before the Trial Court and sufficient evidence should have been adduced by defendant 1 to prove that a female co-owner is not entitled to a share in the joint family property. But, such step has not been taken by the appellants in the Court below. 32. Learned Counsel, Sri Sampath Kumar, appearing for respondents 1(a) to 1(f), 2(a) to 2(d) and 3 to 6 elaborated on the decision in the case of Sri Badrinarayan Shankar Bhandari and Others v. Omprakash Shankar Bhandari R.S.A. No. 566 of 2011, wherein Full Bench of the High Court of Bombay has held thus: "Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive in operation, as explained in this judgment. Clause (1) of sub-section (1) of amended Section 6 is prospective in operation; Clauses (b) and (c) and other parts of sub-section (1) as well as sub-section (2) of amended Section6 are retroactive in operation, as indicated hereinafter". By a plain reading, it is clear that daughters have also been allotted same share as of a son. 33. Way back on 11-4-1947, Hindu Code Bill was introduced in the Constituent Assembly. The Bill was moved for referring to the Select Committee on 9th April, 1948. There were several objects incorporated in the Bill. One of the object was to provide equal rights to the women as enjoyed by men. In 1955, the laws relating to marriage, adoption, maintenance, divorce etc. were passed in the Parliament. With an amendment Act of 2005, Hindu Succession (Amendment) Act was passed on 5-9-2005. The legislative body was of the view that daughters should also get equal share as that of a son. No doubt, this question remains unsettled even till this date. In the instant case, there is no pleading to the effect that daughters are not entitled for a share in the joint family properties. Besides, such a pleading is not forthcoming in the written statement. No evidence is adduced on that aspect. For the first time, at the appellate stage, this contention is raised. There is no finding recorded by the Trial Court in this regard. Therefore, I do not find any force in the submission of the learned Counsel for the appellants and this point does not survive for consideration since he has not pleaded the same before the Trial Court. 34. Learned Counsel for the appellants has filed an application to examine Mr. Lingegowda as a defendant witness to prove the Will marked as Ex. D. 3. In support of the application, he has sworn to an affidavit stating that he along with other legal heirs of Shivananjamurthy have filed the above appeal seeking to set aside the judgment and decree dated 14-10-2009. They have produced Ex. D. 3 -- registered Will dated 18-7-1979 before the Trial Court. Under the said Will, K. Lingappa has bequeathed his self-acquired properties in favour of the appellant. K. Lingappa was having sound mind and was fully conscious and out of free will, he has executed the Will. They have produced Ex. D. 3 -- registered Will dated 18-7-1979 before the Trial Court. Under the said Will, K. Lingappa has bequeathed his self-acquired properties in favour of the appellant. K. Lingappa was having sound mind and was fully conscious and out of free will, he has executed the Will. He did not examine Lingegowda as witness in the Trial Court because the Will was a registered document. He also states that he has acquainted himself with the actual position of law and it is necessary to examine the above said witness in order to prove the genuineness of the Will. He further states that even after due diligence, he could not bring him as a witness before the Trial Court. He also states that the proposed witness is the husband of the plaintiff and he did not come to the Court to give evidence. He was under the impression that registered Will is sufficient to prove the genuineness of the Will. This is the special reason for not examining the witness before the Trial Court. 35. Respondent 4 has filed objection to the said application as under: The application is not maintainable. The appellants want to examine a witness to prove the Will dated 18-7-1979, at this stage. He submits that the appellants have utterly failed to show as to why he was prevented from examining the said witness. The appellants have filed this application only in order to get over the decree that has been passed against them which is not permissible. The application is filed only to fill-up the lacuna of the appellants' case. The appellants are making improvements in their case at this stage. 36. It is well-settled principle of law that weak points of the appellants-defendant 1 cannot be filled-up by examining the witness at a belated stage. He cannot fill-up the lacuna at a belated stage by filing an application to supplement the evidence. It is the contention of the learned Counsel for the appellants that registration of the Will is sufficient to prove the Will. Section63 of the Indian Succession Act clearly states that one of the attesting witness has to be examined to prove the Will. Ignorance of law cannot come to the rescue of appellants/defendant 1. Defendant 1 might have been more careful and diligent in examining the attesting witness at the earliest point of time. Section63 of the Indian Succession Act clearly states that one of the attesting witness has to be examined to prove the Will. Ignorance of law cannot come to the rescue of appellants/defendant 1. Defendant 1 might have been more careful and diligent in examining the attesting witness at the earliest point of time. He has not done so. Therefore, at this belated stage, the application filed seeking permission to examine Mr. Lingegowda as a defendant witness is liable to be dismissed. 37. The Trial Court has carefully examined and appraised the evidence and the material placed before it and has partly decreed the suit. The finding recorded by the Trial Court is based on evidence and it is sound and proper. 38. Learned Counsel for the respondents submit that they intend to file an application for appointment of a receiver in the final decree proceedings. They are at liberty to do so. In case an application is filed by the respondents, the same shall be disposed of in accordance with law as expeditiously as possible. In view of the above discussion, I pass the following: ORDER (i) This regular first appeal is dismissed. (ii) I.A. No. 4 of 2014 filed by the appellants seeking permission to examine Mr. Lingegowda is also dismissed. (iii) Since liberty is reserved to the respondents to file an application for appointment of receiver before the Executing Court, I.A. Nos. 1 of 2013 and 2 of 2014 does not survive for consideration and accordingly, they are disposed of. (iv) In view of disposal of appeal, Misc. Cvl. No. 6043 of 2010 for stay and I.A. No. 3 of 2014 filed for clarification of the order dated 8-7-2014 does not survive for consideration and accordingly, they are disposed of. (v) The parties to bear their own costs.