The court ruled that a will must be proven with proper attesting witness testimony, emphasizing that affidavits lacking cross-examination are insufficient under law.

JUDGMENT :

ASHOK S. KINAGI, J.

1. These two appeals are arise out of the same judgment and decree dated 04.09.2013 passed in RA No.10 of 2011 by the learned Senior Civil Judge and JMFC, Nelamangala.

2. For convenience, the parties are referred to based on their rankings before the trial Court. In RSA No.2014/2013, the appellant was defendant No.1, respondent No.1 was the plaintiff, respondent No.2 were the legal representatives of deceased defendant No.2. In RSA No.1526/2013, the appellants were legal representatives of deceased defendant No.2, respondent No.1 was the plaintiff and respondent No.2 was defendant No.1.

3. Brief facts, leading rise to the filing of these appeals are as follows.

4. The plaintiff filed a suit for declaration to declare that the plaintiff is the absolute owner of the suit schedule properties and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties. It is the case of the plaintiff that the plaintiff is the foster son of defendant No.1. Defendant No.1 and her husband, Marisiddaiah had no issues. Defendant No.1 and her husband fostering the plaintiff since childhood and they were looking after the welfare of the plaintiff. The plaintiff, defendant No.1 and Marisiddaiah were living together and managing their entire family and enjoying all the suit schedule properties. It is contended that Marisiddaiah executed a will dated 15.04.1991 bequeathing all the suit schedule properties in favour of the plaintiff. The plaintiff’s foster father died on 03.06.1991. After the demise of Marisiddiah, the plaintiff became the absolute owner of the suit schedule properties by virtue of a will dated 15.04.1991. The defendants have no right or interest over the suit schedule properties. It is contended that the defendants based on the created and manipulated documents tried to interfere with the plaintiff's peaceful possession over the suit schedule properties. The plaintiff lodged a complaint against the defendants, however, the police have not taken any action against the defendants. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit.

5. During the pendency of the suit, defendant No.2 passed away and his legal representatives were brought on record. During the lifetime of defendant No.2, defendant Nos.1 and 2 jointly filed a written statement denying the averments made in the plaint and also denied the relationship of the plaintiff with Marisiddaiah and defendant No.1 and also denied the execution of an alleged will. It is contended that after the death of husband of defendant No.1, their daughters have succeeded to the properties. It is contended that item No.6 of the suit schedule property was sold to defendant No.2 in discharge of the family debts. Defendant No.2 is in peaceful possession and enjoyment of item No.6 of suit schedule property. Hence, prays to dismiss the suit.

6. The trial court based on the pleadings of the parties framed the following issues:

i. Whether the plaintiff proves that he is the absolute owner of the suit schedule properties?

ii. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule properties?

iii. Whether the plaintiff proves that interference by the defendant?

iv. Whether the plaintiff proves that he is the foster son of the deceased Marisiddaiah and the defendant No.1?

v. Whether the plaintiff proves that the deceased Marisiddiah has executed a will in favour of the plaintif