The execution of a Will must be proved by examining at least one attesting witness as per Section 68 of the Indian Evidence Act, 1872, and failure to do so renders the document ineffective, especially when challenged by rightful legal heirs in a partition suit.

THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908, PRAYING TO CALL FOR ENTIRE RECORDS IN O.S.NO.35/2012 PASSED BY CIVIL JUDGE AND J.M.F.C AT YELABURGA AND IN R.A.NO.12/2018 BEFORE THE SENIOR CIVIL JUDGE AND J.M.F.C. YALABURGE, KOPPAL; SET ASIDE THE JUDGMENT AND DECREE DATED 13.08.2025 IN R.A.NO.12/2018 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C. AT YALABURGA; SET ASIDE THE JUDGMENT AND DECREE DATED 31.03.2018 IN O.S.NO.35/2012, PASSED BY THE CIVIL JUDGE AND J.M.F.C. AT YALABURGA.

THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.

ORAL JUDGMENT

This is the appeal filed by defendant Nos.15 and 16 under Section 100 of C.P.C. challenging the judgment and decree passed in O.S.No.35/2012 on the file of Civil Judge and J.M.F.C., Yelburga which is confirmed in R.A.No.12/2018 on the file of Senior Civil Judge and J.M.F.C., Yelburga.

2. Parties will be referred with their ranks, as they were before trial court for the sake of convenience and clarity.

3. The plaintiffs who are the grandchildren of deceased Siddavva have filed suit for partition and separate possession of their respective shares in suit schedule properties by metes and bounds, contending that suit schedule properties were originally belonged to their grandmother Siddamma @ Siddavva wife of Mailarappa Jantli. Plaintiffs have annexed genealogical tree to the plaint, which reads as follows:

4. The contention of plaintiffs is that, husband of Siddavva died after death of Siddavva. Her 4 sons and 2 daughters became joint owners in possession of suit schedule properties as co-heirs. They continued to possess and enjoy the suit schedule properties. In the year 2002, when they had been to their village in harvesting season, they came to know that defendant No.1 got mutated suit lands into her name based on the judgment and decree passed in O.S.No.12/2000 before Civil Judge (Jr.Dn.), Yelburga and it was a collusive decree in between defendant Nos.1 and 4. Defendant No.4 is none other than the daughter of defendant No.1 and defendant No.1 did not examine herself even in that suit. Defendant Nos.1 and 4 got created documents to mutate their names. The said judgment and decree does not bind plaintiffs because, they were not parties to it. They have denied the execution of Will by deceased Siddavva in favour of defendant No.1. Siddavva died in 1972. The alleged Will was not at all acted upon, till getting decree in O.S.12/2000. They came to know about defendant Nos.1 and 4 trying to alienate suit schedule properties without their consent. Hence, they have filed suit in the year 2008 and for want of jurisdiction, plaint was returned and then, present suit is filed. Defendant No.1 has filed her written statement denying the plaint averments, contending that she became absolute owner of the properties by virtue of Will, executed by her mother. She contended that defendant No.15 is her son-in-law and defendant No.16 is her daughter and they have assured that they will pay ₹.10,37,000/- and obtained sale deed from her, but they have not paid any such sale consideration amount. Siddhavv