The burden of proof in establishing joint family nucleus and self-acquisition of properties lies with the plaintiff and defendants respectively. The due execution of a Will can be established through attesting witnesses and subsequent conduct of parties.

JUDGMENT :

The captioned appeal is filed by unsuccessful plaintiff questioning the judgment and decree dated 3.9.2009 passed in O.S.No.3553/2004 wherein the suit filed by the plaintiff for partition and separate possession is dismissed.

2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

3. The brief facts of the case are as under: The plaintiff and defendants 1 to 4 are brothers and sisters. At para(2) of the plaint, it is specifically contended that plaintiff and defendants 1 to 4 are children of Late P. Srinivasaiah and Smt.Lakshmidevamma. The defendants 5 to 16 are the tenants of the suit schedule properties.

3(a) The plaintiff has specifically contended that she constitutes an Hindu Undivided family. Plaintiff claims that suit properties were purchased by her father Late P. Srinivasaiah from joint family funds and ancestral nucleus. Plaintiff claims that after death of her parents she is in joint possession and enjoyment over the suit schedule properties. It is also specifically contended by the plaintiff that after the death of her father, her mother was managing the properties and after the death of plaintiff's mother, defendants 1 to 4 started acting detrimental to the interest of the plaintiff and also denied her legitimate share in the rents collected by defendants 1 to 4. This compelled the plaintiff to issue a notice on 22.1.2004 calling upon the defendants 1 to 4 to effect partition by metes and bounds and allot her legitimate 1/5th share in the suit schedule properties. Plaintiff has further contended that though defendants 1 to 4 initially came forward for settlement and participated in negotiations, however later retracted and refused to grant plaintiff's legitimate share in the suit schedule properties. On these set of pleadings, the plaintiff has instituted the present suit.

3(b) Defendants 1 to 4 on receipt of summons and stoutly denied the entire averments made in the plaint. The defendants specifically contended that plaintiff's father P. Srinivasaiah was the absolute owner of the suit schedule properties and he acquired all the suit schedule properties from his independent income and during his life time executed a Will and bequeathed the suit schedule properties to the defendants. The defendants also contended that defendants 2 to 4 have got their names mutated on the basis of the Will and they are paying tax. The defendants have narrated the specific details in regard to the mode of arrangement made by the testator at Paragraph 10 of the written statement. At para 10 of the written statement the defendants have also contended that plaintiff high handedly tried to interfere with possession of their mother and therefore, P. Lakshmidevamma was constrained to file a bare suit for injunction in O.S.No.6672/1989 which came to be decreed by the judgment and decree dated 16.8.1987. On these set of defence, defendants 1 to 4 sought for dismissal of the suit.

3(c) Based on rival contentions, the Trial Court framed following issues:

3(d) The plaintiff to substantiate her claim examined herself as P.W.1 and produced documentary evidence vide Exs.P1 to 7. The defendants to counter the claim of plaintiff have examined in all eleven witnesses and have adduced documentary evidence vide Exs.D1 to D60.

3(e) The Trial Court after having assessed oral and documentary evidence answered issue No.1 in negative and issue Nos. 2 to 4 in the affirmative. While answering Issue No.1, Trial Court held that suit schedule properties are joint family ancestral properties. While examining Issue No.2, the Trial Court held that defendants have succeeded in proving that the suit schedule properties are self acquired properties of their late father P.Srinivasaiah and while dealing with Issue No.3, the Trial Court has held that defendants have succeeded in proving due execution of Will by late Sri.P. Srinivasaiah as per Ex.D1. Accordingly, the Trial Court partly decreed the suit by granting 1/5th s