P. S. NARAYANA, J. ( 1 ) THIS appeal was filed by the unsuccessful plaintiff in O. S. No. 22/ 85 on the file of Subordinate Judge. Proddatur. The 2nd appellant who is brought on record as the legal representative of the first appellant in C. M. P. No. 23149/99 is now prosecuting the present litigation. The second appellant was brought on record on the strength of a will dated 2. 3. 1988 executed by the first appellant who died on 13. 3. 1988. It may be stated here itself that at the time when the second appellant was brought on record in this proceeding, no enquiry was held relating to the aspect of the validity or otherwise of the will. It is also brought to my notice that there are other legal representatives also and but for the will the other legal representatives also should have been brought on record. But because of the will dated 2. 3. 1988, the second appellant alone was brought on record. The plaintiff had instituted the suit for partition claiming l/3rd share in the plaint schedule properties and for a direction to direct the defendants/ respondents to put the first appellant-plaintiff in separate possession of her share and for future mesne profits and for costs of the suit. ( 2 ) THE parties are referred to as plaintiff and defendants for the purpose of convenience. ( 3 ) THE pleadings of the respective parties are as follows: one P. Bala Gurumurthy had four sons and during his life time, his first one Pullaiah and the second Balaiah divided from him and left the joint family and they have been living separately and they have nothing to do with the suit properties. Bala Guru murthy lived with his wife plaintiff and defendants who are his sons. He acquired the suit properties out of his own funds and by his self efforts and earnings. Suit properties are self-acquired properties of Bala gurumurthy. After his death, plaintiff and defendants lived together and enjoyed the suit properties. He died in the year 1977 leaving behind his wife plaintiff and defendants as sole heirs. He did not execute any will or settle the properties in favour of anybody. Since three years defendants and their wives have been ill-treating plaintiff. They are demanding her to relinquish her 1/3rd rights in the suit properties. Plaintiff refused to execute documents. He died in the year 1977 leaving behind his wife plaintiff and defendants as sole heirs. He did not execute any will or settle the properties in favour of anybody. Since three years defendants and their wives have been ill-treating plaintiff. They are demanding her to relinquish her 1/3rd rights in the suit properties. Plaintiff refused to execute documents. She has been demanding defendants to partition the suit properties into three equal shares and give separate possession of her 1/3rd share. Defendants have been evading to do so. In one year mediators Pedda Thirumala kondaiah, A. Ranganayakulu and others advised defendants to separate the properties and give plaintiffs share. They promised to do so, but subsequently refused to do so. Defendants are planning to create some documents in their favour as if plaintiff executed them voluntarily. In these state of affairs, it is not desirable to continue to have joint status with the defendants. Hence the plaintiff is filing the suit for partition. ( 4 ) THE first defendant being dumb and deaf, his wife was appointed as guardian of the first defendant as per the orders in LA. No. 261/85 dated 18. 11. 1985 and a written statement was filed to the following effect: it is true that Balaguni Murthy had four sons. During his lifetime, during 1956 his sons Pullaiah and Balaiah divided from the joint family. They have been living separately with properties got in partition. They have nothing to do with suit properties. After 1956 partition, defendants who are minors were living with their father jointly. Their father died in 1977. It is false that suit properties are self-acquired properties of Bala Gurumurthy. They are ancestral properties of Bala Gurumurthy. After his death, plaintiff and defendants lived jointly and enjoyed suit properties. Plaintiff is entitled to 1/9th share only. Misunderstandings arose between plaintiff and defendants. Plaintiff gave a lawyer s notice on 28. 6. 1980 for partition and separate possession of her 1/9th share. After the said notice elders like P. Guruppa, ranganayakulu, Nadipi Ranganayakulu and K. Narayana intervened and made partition between plaintiff and defendants. In the said partition, plaintiff was given a house bearing Door No. 9/43 and 250 grams of gold to her share. She took possession of the house and gold and shifted her residence to the said shop. After the said notice elders like P. Guruppa, ranganayakulu, Nadipi Ranganayakulu and K. Narayana intervened and made partition between plaintiff and defendants. In the said partition, plaintiff was given a house bearing Door No. 9/43 and 250 grams of gold to her share. She took possession of the house and gold and shifted her residence to the said shop. After a few days her son balaiah joined her and he is residing in the said house. On the evil advice of Balaiah during 1982 plaintiff again gave a notice to the defendants claiming 1/3rd share. Defendants gave a reply on 13. 10. 1982 denying all the facts. Balaiah wanted temporary injunction known away some more properties. He instigated the plaintiff to file this suit. ( 5 ) THE 2nd defendant had remained ex parts in the suit and on the strength of the pleadings originally five issues had been settled and subsequent thereto, two additional issues also had been settled and on behalf of the plaintiff, PW1 and PW2 were examined and on behalf of the defendants, DW1 to dw4 were examined and Exs. A1 to A7 and bl to B9 were marked. The Court below on appreciation of the oral and documentary evidence had ultimately dismissed the suit with costs of the first defendant and aggrieved by the same, the plaintiff who is no more had preferred the present appeal and the legatee came on record as the 2nd appellant, as stated supra and has been prosecuting this appeal. ( 6 ) SRI R. Subba Rao, the learned counsel appearing for the appellant had contended that the Court below had totally erred in dismissing the suit of the plaintiff. The learned Counsel had submitted that the court below had totally erred in finding that the suit properties are not the separate properties of the husband of the plaintiff bala Gurumurthy and they are ancestral properties. The learned Counsel also had pointed out that substantial properties like item Nos. 1, 2, 3, 6, 7, 10, 11 and 13 had been purchased by the husband of the plaintiff even during the life time of his father and hence they are the separate properties of the husband of the plaintiff only. The learned Counsel also had drawn my attention to Ex. 1, 2, 3, 6, 7, 10, 11 and 13 had been purchased by the husband of the plaintiff even during the life time of his father and hence they are the separate properties of the husband of the plaintiff only. The learned Counsel also had drawn my attention to Ex. A-6, the extract from house tax demand register, which establishes that the houses - items 8,9 and 12, stand in the name of the husband of the plaintiff only. The mere fact that there are no title deeds relating to acquisition of certain items will not make those properties ancestral properties. The learned Counsel also had contended that the introduction of the concept of nucleus and the acquisitions taking the character of the joint family properties is totally unwarranted in the facts and circumstances of the case. The learned counsel also had pointed out to the averments made in the written statement of the 1st defendant and had submitted that it is not the case of the 1st defendant even that items 4, 5, 8, 9 and 12 are ancestral properties and out of the income of the said properties the other properties had been acquired. The learned Counsel also had pointed out that the Court below had totally erred in placing reliance on Exs. B3, B4 and B9, the cist receipts, for the purpose of arriving at the conclusion that the father-in-law of the plaintiff had some ancestral properties. The learned Counsel also had explained the discrepancy which had crept in Ex. B1 notice, which is obviously a mistake though the plaintiff was entitled to l/3rd share in law and not 1/9th share as claimed in the said notice. The learned Counsel also had pointed out the relevant portions of the pleadings and also the evidence and the documents and had submitted that the appellant-plaintiff had clearly established her case and despite the same, the Court below had totally erred in dismissing the suit especially holding that there was proper and valid partition, that the plaintiff was given one house and gold towards her 1/9th share in the plaint schedule properties. ( 7 ) SRI Sadasiva Reddy, the learned counsel representing the respondent in the appeal had strenuously contended that in the facts and circumstances of the case, the court below had correctly arrived at the conclusion that the old cist receipts clearly establish that the family had sufficient ancestral nucleus out of which the other properties had been acquired. The learned counsel had pointed out certain admissions made by PW-1 that she had been residing in a portion of the house. The learned Counsel had drawn my attention to the aspect of prior partition and giving one house and gold in settlement of the claim of the appellant-plaintiff. The learned Counsel also had contended that the application to bring on legal representatives had been allowed without giving an opportunity to the respondent either to dispute or contest the will. The learned Counsel also had pointed out to the stand taken in Ex. B-1 at the earliest point of time claiming only 1/9th share and subsequent thereto changing the stand. ( 8 ) NOW the points which arise for consideration in the present appeal are:- (1) Whether the plaint schedule properties are the self-acquired properties or ancestral properties of P. Bala gurumurthy ? (2) Whether the plaintiff was entitled to the relief of partition and if so whether she was entitled to 1/3rd share or 1/9th share in the plaint schedule properties? (3) Whether there was earlier partition set up by the 1 st defdendant? (4) To what relief? ( 9 ) FOR the purpose of convenience, points 1 to 3 can be dealt with together. Point Nos. 1 to 3 :the husband of the 1st appellant-plaintiff died intestate in the year 1977 and apart from the defendants the husband of the plaintiff had left two more sons by name Pullaiah and Balaiah and Pullaiah is his son through his first wife who is none other than the sister of the plaintiff and Balaiah i. e. , the present 2nd appellant and the defendants, are the sons of Bala Gurumurthy through the plaintiff and Pullaiah and Balaiah got divided from their father. It was stated by the 1st defendant in his written statement that they got divided during the year 1956 and as per the plaintiff the suit properties are the separate self-acquired properties of her husband and hence the plaintiff and the defendants alone are entitled to 1/3rd share each and the 1 st defendant alone, a deaf and dumb person, is contesting the suit stating that they are ancestral properties and not self-acquired properties and further it is his specific case that there was partition between the plaintiff and the defendants and plaintiff was given one house and 250 grams of gold towards her1/9th share in the plaint schedule properties. To show that the plaint schedule properties are the self-acquired properties, the plaintiff had relied upon exs. Al,a2, A3, A4, A5, A6 and A7. PW1 had no doubt deposed to the effect that all the properties are self-acquired properties of her husband. PW2 was examined only to show that there was some mediation demanding 1/3rd share for which initially the defendants agreed and had gone back subsequently. Except the interested testimony of PW1, there is no other evidence available relating to the nature of the properties. It may be relevant to note here that there are no title deeds relating to items 4, 5, 8, 9 and 12 and how and why these properties are the family properties and what is the origin of these properties, had not been explained. Exs. B3, B4 and B9 are bunch of cist receipts standing in the name of the father-in-law of the plaintiff, which are very old documents of 1904, 1905, 1911 and 1912 and these documents clearly go to show that the family had owned certain properties. DW3, the V. M till the village Officers posts had been abolished, had been examined and prior to him his father was the V. M. and DW3 in fact had identified the handwriting and signatures of his father in Ex. B1, cist receipts. Hence the plaintiff failing to produce the title deeds relating to certain items and the defendants placing some material to show that certain properties were available to the family, clearly goes to show that definitely there were certain properties available to the family. Ex. B-7 is the rental deed showing that the father-in-law of the plaintiff had let out one of his houses at Jammalamadugu on a monthly rent of 10 annas. Ex. B-7 is the rental deed showing that the father-in-law of the plaintiff had let out one of his houses at Jammalamadugu on a monthly rent of 10 annas. All these aspects no doubt clearly establish that there were certain ancestral properties and whether those properties and the income therefrom can be sufficient so as to acquire the other items of the properties standing in the name of the husband of the plaintiff, had not been established at all and there is no clear evidence in this regard. The Court below had recorded a finding that since certain properties of the family were available, it can be taken that in constitutes sufficient nucleus for the purpose"of subsequent acquisitions and hence in that view of the matter, at the best, after the death of the husband the plaintiff was entitled to only 1/9th share in the suit properties. It is no doubt true that she had issued a notice ex. B1 in which a claim was made relating to 1/9th share only. However, the original plaintiff is not alive and a legatee was brought on record and whether the legatee alone is entitled to succeed to the whole of the estate left by the deceased plaintiff or not, also is a question which may be have to be decided on the further evidence to be let in by the parties in this regard. The evidence of DW1 to DW4 also do not throw much light on this aspect. Hence in my considered opinion, it is essential that further evidence is needed to further establish whether the alleged ancestral nucleus of the family and the income therefrom is sufficient to make the subsequent acquisitions and whether in the facts and circumstances the ancestral nature of these properties had been established by the defendant properly or not. However, prima facie on the strength of Ex. Bl and the other material, it appears that the plaintiff may not be entitled to the share as claimed by her in the suit. ( 10 ) COMING to the aspect of prior partition, the evidence on record is highly insufficient. But however, a finding had been recorded by the Court below on the strength of the evidence of DW4. No doubt an attempt was made to show that certain items had been deliberately omitted an had not been included in the plaint schedule. ( 10 ) COMING to the aspect of prior partition, the evidence on record is highly insufficient. But however, a finding had been recorded by the Court below on the strength of the evidence of DW4. No doubt an attempt was made to show that certain items had been deliberately omitted an had not been included in the plaint schedule. This aspect also may have to be gone into in a suit of partition. No doubt, the 1st defendant had taken a stand in the written statement that Door No. 9/43 belonging to joint family in possession and enjoyment of Balaiah at the instance of the plaintiff, had not been included in the plaint schedule at all. It is needless to mention that in a suit for partition all properties which are liable for partition between the parties are to be included in the schedule and also all the parties who are entitled to the respective shares also should be on record for the purpose of rendering a just and proper decision in a suit of such a nature. The evidence of DW1 also does not throw much light on the question involved in the suit. It is no doubt true that on the further material which may be adduced by the respective parties, the Court may have to decide what are the respective shares of the parties depending upon the nature of the properties, whether ancestral or self-acquired properties, as contended by the respective parties. It is also made clear that in the light of the fact that the 2nd appellant was brought on record as legatee under the will, unless the will is proved in accordance with law, all the heirs of the deceased 1 st appellant- plaintiff will be entitled to their respective shares in such properties. As already observed, the evidence available on record on the aspect of prior partition is highly insufficient and the oral evidence available in this regard is neither believable nor trustworthy. As already observed, the evidence available on record on the aspect of prior partition is highly insufficient and the oral evidence available in this regard is neither believable nor trustworthy. ( 11 ) COMING to Point No. 4, in the light of the findings recorded above and also the facts and circumstances of the case, especially in the light of the fact that the 2nd appellant was brought on record as legatee of the plaintiff-1st appellant during the pendency of the appeal, for having a just and proper decision the matter has to be remanded to the Court below for giving opportunity to the parties to the litigation to adduce further evidence relating to all the aspects involved in the suit, including the proof of the will. ( 12 ) HENCE for the foregoing reasons, the judgment and decree made in O. S. No. 22/ 85 on the file of Subordinate Judge, proddatur are hereby set aside and the matter is remanded to the Court below for the purpose of disposal in accordance with law. However, in view of the close relationship between the parties, each party do bear their own costs.