The burden of proof in establishing joint family properties, the shift of burden when a nucleus is established, and the requirements for proving a will and codicil under the Indian Evidence Act.

JUDGMENT

1. This Second Appeal, under Sec. 100 of the Code of Civil Procedure, 1908, is filed by the unsuccessful appellants/defendants No.1 and 2 assailing the decree and judgment, dtd. 8/4/2010, of the learned Judge, Family Court-cum-Addl.District Court, East Godavari at Rajahmundry, passed in A.S.No.138 of 2009.

2. By the said decree and judgment, the learned Judge, Family Court-cum-Addl.District Court, East Godavari at Rajahmundry dismissed the first appeal, and confirmed the decree and judgment, dtd. 2/4/2009 of the learned Senior Civil Judge, Ramachandrapuram, delivered in O.S.No.181 of 2004.

3. Heard the submissions of Sri T.V.S.Prabhakara Rao, learned counsel appearing for the Appellants/Defendants No.1 and 2 ('defendants', for brevity) and Sri P.Prabhakar, learned counsel for the 1st Respondent/Plaintiff. Perused the material record.

4. The appellants are the defendants No.1 and 2. The 1st respondent is the plaintiff. The respondents No.2 and 3 are the defendants No.3 and 4 in the original suit. The parties in this second appeal shall hereinafter be referred to as arrayed in the original suit, for convenience and clarity.

5. To begin with, it is necessary to take note of the respective pleadings/cases of the parties and the events that led to the filing of this second appeal by the defendants No.1 and 2.

6. The plaintiff filed the suit against the defendants for partition of the plaint 'A' schedule land properties and 'B' schedule house properties, which are situated in Biccavole village. One Guvvala Venkata Reddy, who is husband of 2nd defendant and father of defendants No.1 and 3, developed along with his sons 1st defendant and plaintiff the ancestral estate of G.Venkata Reddy and acquired the plaint schedule 'A' and 'B' properties and he left the house and his whereabouts are not known from 1995 till 2004. The plaintiff, defendants No.1 and 3 are the only children to him and that the 3rd defendant was given in marriage to the 4th defendant, who is no one else than the brother of 2nd defendant. While so, taking advantage of absence of G.Venkata Reddy, the defendants are hatching plan to grab the entire property for themselves by creating some litigation against the plaintiff and therefore, the plaintiff filed the suit for partition of plaint schedule properties into three equal shares and also for future profits etc.

7. The 2nd defendant filed written statement and defendants No.1, 3 and 4 adopted the same. The 2nd defendant while admitting that her husband G.Venkata Reddy is absconding and not seen from the year 1995; and that the plaintiff is separated from the family long back; and that some properties were acquired in his name by her husband; and that the plaintiff acquired the property nominally in the name of his wife with the income realized from sale proceeds of the property, which was allotted to his share. It is further contended that a part of property in sub item No.1, sub item No.2 and sub item No.3 in item No.1of plaint 'A' schedule properties are self acquired properties of her husband G.Venkata Reddy; and that she purchased Ac.1-00 of land, a part of sub item No.1 of item No.1 of plaint 'A' schedule property; and she purchased five different sale deeds some of the plaint 'A' schedule properties; and thus, they are her self-acquired properties. It is further contended that her husband G.Venkata Reddy executed a will dtd. 27/9/1995 where under, he bequeathed item No.2 of plaint schedule property in favour of the 1st defendant; and that he also executed a codicil dtd. 1/6/1996 where under, he bequeathed sub item No.3 of item No.1 of plaint 'A' schedule property. Item No.II of plaint 'B' schedule in favour of the 1st defendant apart from Ac.1-00 covered by R.S.No.71/1; and Ac.0.33 cents covered by R.S.No.71/3, which are sub items 1 and 2 in item No.1 of plaint 'A' schedule and since there was already partition between the plaintiff and her husband G.Venkata Reddy, the plaintiff has no right to file the su