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 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 share in eastern and north-west portion buildings of item No.1. However, the plaintiff's claim in regard to item No.2 and 3 was rejected. 3(f) Feeling aggrieved by the judgment and decree of the Trial Court in denying share in items 2 and 3, the captioned appeal is filed by the plaintiff. The plaintiff produced additional evidence before this Court. Therefore, this Court remitted the matter to the Trial Court to record evidence in regard to additional evidence. The plaintiff pursuant to remand order has lead in ocular evidence and has got marked additional evidence. 4. The plaintiff produced additional evidence before this Court. Therefore, this Court remitted the matter to the Trial Court to record evidence in regard to additional evidence. The plaintiff pursuant to remand order has lead in ocular evidence and has got marked additional evidence. 4. The learned Senior Counsel appearing for the plaintiff would vehemently argue and contend before this Court that the Trial Court erred in dismissing the suit insofar as item Nos.2 and 3 are concerned. Relying on additional evidence, which was adduced by the plaintiff pursuant to the order passed by this Court, he would contend that the plaintiff has discharged her burden and the defendants pursuant to the remand order have not chosen to lead any rebuttal evidence and therefore, he would contend that the judgment and decree of the Trial Court insofar as dismissing the suit pertaining to item Nos.2 and 3 is concerned is not sustainable and therefore, warrants interference at the hands of this Court. Therefore, he would request this Court to draw an adverse inference against the defendants. He would further argue and contend that by placing on record the property details held by the family at Mulbagal, plaintiff has succeeded in establishing the joint family nucleus and therefore, he would contend that plaintiff's father sold all the ancestral properties and purchased the suit schedule properties from the sale proceeds and therefore, he would contend that plaintiff is entitled for 1/5th share in the suit schedule properties. Referring to para 12 of the written statement, the learned Senior Counsel would contend that there is no specific denial with regard to the assertion of the plaintiff that the suit schedule properties are joint family ancestral properties. He would also take this Court to the ocular evidence of D.W.1 recorded before remand and contend that several significant details when suggested to D.W.1, he has pleaded his ignorance. The learned Senior Counsel would further contend that defendant No.2 is the major beneficiary as substantial portion is given to defendant No.2. Therefore, the learned Senior Counsel would contend that defendant No.2 has conveniently withheld the title documents and the same are not produced, which would invite adverse inference against defendant No.2. He would also point out that defendant No.2 was so meticulous in furnishing sketch but has not produced the title documents. Therefore, the learned Senior Counsel would contend that defendant No.2 has conveniently withheld the title documents and the same are not produced, which would invite adverse inference against defendant No.2. He would also point out that defendant No.2 was so meticulous in furnishing sketch but has not produced the title documents. 4(a) Referring to para 5 of the plaint and by placing reliance on additional evidence, he would contend that the burden is on the defendants to establish that father of plaintiff and defendants 1 to 4 had an independent earning and the suit schedule properties are acquired with his own separate funds. To buttress his arguments, he would place reliance on the judgment rendered by the Apex Court in the case of Malleshappa Bandeppa Desai and another vs. Desai Mallappa alias Mallesappa and another, AIR 1961 SC 1268 . 4(b) Questioning the finding of the Trial Court on the Will, he would contend that there are several discrepancies and the defendants have not at all succeeded in establishing that the Will was executed on 5.7.1984. He would also contend that the Will is dated 5.7.1984 and the testator died on 4.11.1984. Referring to the cross-examination of D.W.10 who is the attesting witness, the learned Senior Counsel would contend that ocular evidence of attesting witness does not inspire any confidence and would not come to the aid of legatees to establish due execution. He would contend that the alleged Will is a concocted Will. 4(c) The learned Senior Counsel would take this Court through the disputed Will and contend that the relevant portion of Schedule E is tampered and the defendants have indulged in striking off some portion of the Will. He would further contend that there is absolute bequeath in favour of Lakshmidevamma, but, in the schedule only life interest is created in respect of Schedule E property. He would further contend that this altered part is not signed by the testator. 4(d) On these set of grounds, he would contend that the judgment and decree of the Trial Court is not sustainable and therefore, warrants interference at the hands of this Court. 5. Per contra, the learned counsel appearing for defendants would counter the contentions canvassed by the learned Senior Counsel appearing for plaintiff. 4(d) On these set of grounds, he would contend that the judgment and decree of the Trial Court is not sustainable and therefore, warrants interference at the hands of this Court. 5. Per contra, the learned counsel appearing for defendants would counter the contentions canvassed by the learned Senior Counsel appearing for plaintiff. Referring to additional evidence, he would submit that the additional evidence contains only record of rights and assessment extracts which have no relevancy to the controversy on hand. To counter the claim of the plaintiff that their father had purchased the suit schedule properties from the joint family funds, he would contend that the family admittedly owned several houses which did not yield any income. Insofar as agricultural lands are concerned, he would contend that the said lands are dry lands and therefore, did not yield any income. He would further contend that the present suit lacks specific pleadings. Referring to Para 5, he would contend that there is absolutely no foundation laid by the plaintiff. He would point out that no particulars are furnished. Referring to ocular evidence of D.W.1, he would contend that there are absolutely no material to indicate that father of defendants 1 to 4 purchased the suit schedule properties out of the joint family funds. 5(a)Referring to Will, he would contend that it was never concealed and mutations were effected and infact Will was acted upon. Referring to paras 15 and 17 of the ocular evidence of plaintiff, he would point out that plaintiff had knowledge of Will and this is conveniently suppressed in the plaint. Insofar as due execution of Will is concerned, he would contend that the attesting witness has specifically deposed in regard to due execution of Will and nothing worth is elicited in the cross-examination. He would further contend that registered Will was drafted by an advocate and his daughter is examined as D.W.11 to identify his signature. He would further contend that the clinching rebuttal evidence clearly indicates that Will was acted upon and its due execution is proved and hence, prays for dismissal of the appeal. He would further contend that registered Will was drafted by an advocate and his daughter is examined as D.W.11 to identify his signature. He would further contend that the clinching rebuttal evidence clearly indicates that Will was acted upon and its due execution is proved and hence, prays for dismissal of the appeal. 5(b) To buttress his arguments, he has placed reliance on following judgments: (1) Mst.Rukhmabai vs. Lala Laxminarayan and others [AIR 1960 Senior Counsel 335] (2) Mudigowda Gowdappa Sankh and others vs. Ramchandra Revgowda Sankh(dead) by his legal representatives and another [ AIR 1969 SC 1076 ] (3) Ganesan(D) through Lrs .vs. Kalanjiam and others [Civil Appeal Nos.5901-5902 of 2009] (4) Basettappa Bangareppa Bangarshettar vs. Smt.Irawwa Kom. Totappa Pattanshetti and others [ AIR 1988 KAR 174 ] (5) Rabindra Nath Mukherjee and another vs. Panchanan Banerjee(dead) by Lrs. and others [ (1995) 4 SCC 459 ] (6) S.A. Quddus .vs. Veerappa and others [ AIR 1994 KAR 20 ] 6. Heard the learned Senior Counsel for plaintiff and the learned counsel for defendants 1 to 4. Perused the records and also the judgments cited by both the counsel. 7. The following points would arise for consideration: (1)Whether the finding of the Trial Court that suit schedule properties are self acquired properties of P. Srinivasaiah suffers from perversity? (2)Whether the finding of the Trial Court that defendants have succeeded in proving due execution of Will is perverse and palpably erroneous? 8. Regarding Point No.1: The plaintiff has specifically asserted that her father P. Sreenivasaiah has purchased the suit schedule properties out of the joint family and ancestral nucleus. The suit schedule properties were allotted by the CITB authority. It is the specific case of the plaintiff that the joint family fund was utilised and therefore, claims 1/5th share in the suit schedule properties. 8(a) Since, it is the plaintiff who has approached the Court, it would be relevant to examine the pleadings in regard to the existence of joint family nucleus and also the surplus income which was generated from the joint family properties. The first six lines of Para 5 of the plaint reads as under: "5. The plaintiff further submits that since the suit schedule properties were acquired out of the joint family and ancestral nucleous hence the plaintiff has got qual share in the suit schedule property. The first six lines of Para 5 of the plaint reads as under: "5. The plaintiff further submits that since the suit schedule properties were acquired out of the joint family and ancestral nucleous hence the plaintiff has got qual share in the suit schedule property. Hence the defendants 1-4 have no independent manner of right over the suit schedule properties." 8(b) On perusal of the averments made in the plaint, this Court would find that there are absolutely no particulars forthcoming in the plaint in regard to the nature of crops grown in the agricultural lands and the income that was generated from the said lands. It appears a feeble attempt is made by plaintiff to lay a claim over the suit schedule properties when admittedly plaintiff is fully aware of the arrangement made by her father under Ex.D3-Will. It is more than a trite that the plaint must allege the existence of all the ingredients which contribute cause of action and therefore, should not allow the plaintiff to go on trial in the absence of pleadings. It is also a trite law that parties must lay down foundation for the relief they seek by making a clear and specific allegation in the pleadings. 8(c) The argument canvassed by the learned Senior Counsel that the burden is on the defendants in the light of the principle laid down by the Apex Court in the judgments cited supra cannot be acceded to. The principles laid down by the Apex Court in the case of Mallesappa Bandeppa Desai and another has no application to the present case on hand. The principle that the burden is on the Manager/Kartha to prove that he had his own separate funds cannot be applied to the present case on hand. For want of pleadings and documents, this Court cannot cast burden on the defendants to establish that their father had an independent income and the yield from the joint family nucleus was not utilized while purchasing the suit schedule properties. In civil proceedings, the rights of the parties are to be decided on the basis of preponderance of probabilities. The fact that the father of plaintiff and defendants 1 to 4 was a Government employee is not under dispute. Plaintiff also admitted in unequivocal terms in her ocular evidence. The cross-examination of P.W.1 dated 26.7.2007 at paragraph 4 reads as under: "4. The fact that the father of plaintiff and defendants 1 to 4 was a Government employee is not under dispute. Plaintiff also admitted in unequivocal terms in her ocular evidence. The cross-examination of P.W.1 dated 26.7.2007 at paragraph 4 reads as under: "4. My late father Srinivasaiah was working as 1st Division Assistant in Revenue Department of Government of Karnataka during the year 1964. My late father was promoted as Sheristedar in the year 1976 and he held the said post till he retired in the year 1981. 8(d) If these admitted facts are taken into consideration, this Court would find that plaintiff's father who was gainfully employed applied to the then City Improvement Trust Board seeking allotment of a site and the Board has allotted the site and consequently, executed the sale deed. Thereafter, father of plaintiff and defendants 1 to 4 has constructed a residential house and has also constructed commercial shops. If the father of plaintiff and defendants 1 to 4 was working as a First Division Assistant and later was promoted as a Sheristhedar and was holding the post till his retirement in 1981, a presumption would arise in favour of defendants that their father purchased the suit schedule properties out of his independent earnings. Therefore, the initial burden was always on the plaintiff. Though all possible efforts were made by the plaintiff by producing additional evidence before this Court, on examining the additional evidence, this Court would find that the plaintiff has failed to utilize the second opportunity afforded by this Court. All that is produced by the plaintiff by way of additional evidence is record of rights and assessment extracts. It is not in dispute that the ancestral properties were sold by their father. The plaintiff has not furnished the details of the sale transactions. Even while producing additional evidence, the plaintiff has not taken any pains to demonstrate the existence of surplus income from the joint family properties. 8(e) Having regard to the pleadings and the materials placed on record by the plaintiff, this Court is of the view that the plaintiff has miserably failed to prove that the family possessed joint family property which, from its nature and relative value could have formed a nucleus from which the property in question could have been acquired. Therefore, no presumption arises and consequently, the burden would not shift on the defendants. Therefore, no presumption arises and consequently, the burden would not shift on the defendants. It is an established concept, that mere existence of a joint family cannot raise a presumption and therefore, the onus of proving self acquisition would not shift on the defendants. 8(f) However, the material on record clearly establishes that the father of plaintiff and defendants was gainfully employed as he was serving as a Sheristhedar in the revenue department and therefore, in all probability, the father of plaintiff and defendants 1 to 4 acquired the suit schedule properties from his savings. In the present case on hand, the plaintiff has failed to establish adequate nucleus out of which acquisitions could have been made by the father of plaintiff and defendants 1 to 4. An important element for consideration is the income which the nucleus yielded. Plaintiff has not furnished any details. 8(g) The principles cited in the above said judgment cannot be applied to the present case on hand. The suit is not defended by the father of plaintiff and defendants 1 to 4. One cannot expect the children to explain as to how their father mobilized the funds while acquiring the suit schedule properties at Bengaluru. What can be inferred from the material on record is that the father of plaintiff and defendants shifted to Bengaluru after securing a job. The slender evidence on record indicate that all agricultural lands possessed by the family were dry lands. Therefore, this Court is of the view that plaintiff has not produced any evidence to show that her father though employed in Bengaluru was also taking monetary assistance. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that family had, as a result of the nucleus, sufficient surplus income from which the subsequent acquisitions could be made. All these ingredients are missing in the present case on hand. 8(h) This Court also has to bear in mind that the plaintiff has tried to improvise her case by canvassing arguments to the effect that plaintiff's father sold all ancestral properties and purchased the present suit schedule properties. These arguments canvassed for the first time before this Court would be of no consequence for want of pleadings. For the foregoing reasons, point No.1 is answered in negative. 9. These arguments canvassed for the first time before this Court would be of no consequence for want of pleadings. For the foregoing reasons, point No.1 is answered in negative. 9. Regarding Point No.2: To prove the due execution of Will vide Ex.D1, the legatees have examined the attesting witness as D.W.10. The defendants claim that the Will was drafted at the instructions of testator by an advocate. To substantiate the said claim, the defendants have also examined the daughter of the advocate who had drafted the Will as D.W.11. I have meticulously examined the ocular evidence of the attesting witness as well as the evidence of D.W.11. This Court is of the view that the legatee has succeeded in establishing due execution of the Will. The material on record does not indicate that Will is shrouded by suspicious circumstances. On the contrary, the clinching rebuttal evidence led by the defendants establishes that the Will is acted upon way back in 1988 and the parties are in exclusive possession based on Will. These significant details can be gathered from Ex.D1 which is the certified copy of the judgment and decree passed in O.S.6672/1989. 9(a) The present plaintiff was defendant in the above said suit. The above said suit was filed by plaintiff's mother seeking permanent injunction against the plaintiff herein. In the said suit, the plaintiff's mother had set up Will and there was a reference to the Will. The plaintiff's mother claimed that she is in possession of eastern portion of premises bearing No.795 on the basis of the Will dated 5.7.1984 and therefore, plaintiff's mother seriously alleged that present plaintiff has concocted lease deed and is interfering with her possession. The suit for bare injunction filed by plaintiff's mother against plaintiff came to be decreed by judgment and decree dated 16.8.1987. 9(b) These significant details clearly establish that plaintiff was well aware of the bequeath made by her father in favour defendants as well as her mother. At para 15 of the cross-examination, she has admitted that she has not filed any objections while effecting change of katha in favour of plaintiff's mother and defendant No.3. At para 12 of the cross-examination, she has deposed that she came to know about the Will only in the year 2002. This statement is factually incorrect and the said statement stands falsified from the judgment rendered in O.S.6672/1989 as per Ex.D1. At para 12 of the cross-examination, she has deposed that she came to know about the Will only in the year 2002. This statement is factually incorrect and the said statement stands falsified from the judgment rendered in O.S.6672/1989 as per Ex.D1. She has also deposed at para 13 of the cross-examination dated 20.7.2007 that her father might have bequeathed a portion of item No.1 in favour of her mother. 9(c) Therefore, on overall appreciation of oral and documentary evidence this Court would find that defendants have successfully established the execution and attestation of the Will. The defendants have also succeeded in establishing that the testator was the absolute owner of the suit schedule properties and therefore, the bequeath in favour of defendants stands proved and beneficiaries have succeeded to the properties which were bequeathed by the father of the plaintiff. There is sufficient material placed on record by the defendants to show that the properties were acquisition of testator. The subsequent conduct of parties would also be relevant in the present case on hand. The material on record clearly assumes importance in the background of the dispute between the parties. The material on record clearly reveals that the legatees pursuant to Will have got their names mutated on the basis of the Will and mutations are accordingly effected in the records in terms of the Will vide Ex.D3. All these significant details clearly establish that the Will was acted upon. The material on record would also demonstrate that plaintiff's mother had an occasion to protect the properties which were bequeathed to her by her husband. The present plaintiff asserting possessory rights on the basis of the lease deed did make an attempt to interfere with plaintiff's mother possession and this compelled her to file a suit in O.S.No.6672/1989. In the said suit, at the earliest point of time, the plaintiff's mother did lay a claim on the basis of the Will. All these significant details would clearly indicate that plaintiff was quite aware of the Will executed by her father. In the said suit, at the earliest point of time, the plaintiff's mother did lay a claim on the basis of the Will. All these significant details would clearly indicate that plaintiff was quite aware of the Will executed by her father. It is quite strange to note that if plaintiff had a share in the suit schedule properties and if she is asserting that the suit schedule properties are joint family ancestral properties then plaintiff would not have set up a lease deed against her mother asserting possessory right based on a lease deed instead of asserting her right by laying a claim that the suit schedule properties are the joint family properties. The defence set up by the plaintiff in the earlier suit against her mother would demolish the very stand taken by the plaintiff in the present suit. 9(d) All these significant details would further strengthen the claim made by defendants under the Will. The material on record clearly shows that the father had made arrangements by bequeathing the property. He has mentioned in the Will that he has financially assisted the plaintiff in buying a property at Bengaluru and therefore, the testator has clearly explained in the Will for plaintiff's exclusion. In the light of the aforesaid reasons, I proceed to answer Point No.2 in the negative. 10. In the light of the findings recorded by this Court while answering points 1 and 2, the following conclusions are recorded: (i)The finding of the Trial Court that the suit schedule properties are the self acquired properties of plaintiff's father is in accordance with law and does not warrant any interference at the hands of this Court. (ii)The finding of the Trial Court that defendants have succeeded in proving the Will does not suffer from any infirmities. 11. In the light of findings recorded by this Court on points 1 and 2, this Court concurs with the findings and reasons assigned by the learned Judge while answering issues 2 and 3. This Court does not find any illegality in the judgment and decree under challenge. 12. Accordingly, I pass the following: ORDER The appeal is devoid of merits and accordingly, stands dismissed.