THE HONOURABLE SMT. JUSTICE K. SUJANA

JUDGMENT:

Challenging the judgment dated 13.12.2007 passed in O.S.No.17 of 2003 by the learned Principal District Judge, Khammam District, the present appeal suit is filed.

2. The brief facts of the case are that the plaintiff, claiming to be the second wife of Late Bandaru Prasada Rao, filed a suit for declaration of title and perpetual injunction over the suit schedule properties based on a will dated 23.07.1993, allegedly executed by the deceased. She contended that after their marriage in the year 1980, she lived with him until his death in the year 2002, and by virtue of the will, she became the absolute owner of the properties. The first defendant, son of the deceased, denied the marriage and will, asserting that the plaintiff was only a servant of his father and that the will was fabricated. He further claimed that the properties were joint family properties of the deceased and his adoptive father, Late Kabbaiah, and not the self-acquired properties of Prasada Rao. The defendants also pointed to earlier legal proceedings and documents, including a legal heir certificate and voter list that did not mention the plaintiff as a wife or legal heir. The plaintiff’s prior testimony in a different case also revealed that she had earlier identified herself as unmarried and a servant. The defense argued that the will was neither produced nor mentioned at the time of death of the Prasada Rao and that its execution and attestation were not credibly proved in the trial Court.

3. Basing on the above pleadings, the trial Court framed four issues and on behalf of the plaintiffs i.e., PWs.1 to 3 were examined and Ex.A1 to A9 are marked. DWs.1 to 4 are examined and Exs.B1 to B11 were marked on behalf of the defendants.

4. After examining the evidence, the trial Court, vide order dated 13.12.2007, dismissed the suit holding that the will to be suspicious and unproven and held that the plaintiff failed to establish either her marital relationship with the deceased or valid execution of the will. The trial Court further concluded that the properties in question were joint family properties and not subject to testamentary disposition. Aggrieved thereby, the present appeal suit is filed.

5. Heard Sri D. Raghavulu, learned counsel appearing on behalf of the appellant as well as Sri C.B.Ram Mohan Reddy, learned counsel appearing on behalf of the respondents.

6. Learned counsel for the appellant submitted that the judgment and decree passed by the trial Court are contrary to law, the material evidence on record, and the facts and circumstances of the case and that the appellant had duly proved the execution of Ex.A2 - Will deed through cogent oral and documentary evidence as required under the Indian Evidence Act, and there was no positive rebuttal evidence adduced by the defendants to disprove the same. He further submitted that Exs.A2 to A9 clearly established that the appellant was the second wife of late Sri Bandaru Prasada Rao, with whom she got married in the year 1980, and both oral and documentary evidence on record sufficiently proved her marital status and the circumstances under which the Will was executed and that the trial Court erred in disbelieving the claim of the appellant merely on the basis of a criminal complaint filed by defendant No.4 after the death of Prasada Rao, without appreciating that such proceedings are not binding on the civil Court which alone is competent to adjudicate the validity of the Will and the title of the appellant based on it.

7. Learned counsel for the appellant contended that although the trial Court framed specific issues regarding the relief sought and the validity of the Will, it failed to address each issue independently and instead disposed of the matter by clubbing all issues together without properly appreciating the oral and documentary evidence adduced by the appellant. He further contended that the trial Court erred in discarding the Will deed merely becaus