-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1533 OF 2005 APPEAL NO.1533 OF 2005 APPEAL NO.1533 OF 2005 Arvind Mahadeo Gadhave ...Appellant vs. Anil Suryakant Gadhave & Ors. ...Respondents Mr.Parag Shelke h/f Mr.A.M.Kulkarni for the Appellant Mr.M.A.Choudhari for Respondent No.1 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 P.C.: P.C.: P.C.: 1. Heard the learned Advocate for the Appellant. The Appellant is the original plaintiff. A suit for possession filed by the Appellant on the basis of the title has been dismissed by the trial court and the decree has been affirmed by the Appellate Court. The first Respondent-first defendant relied upon the Will executed by one Rau dated 24th January 1976 by which the suit property was bequeathed by the said Rau in his favour. Both the courts below accepted the case made out by the first Respondent and held that the Will has been duly proved by the first Respondent. 2. The learned Advocate for the Appellant invited my attention to the various findings recorded by the Appellate Court as regards evidence of the only attesting witness to the Will examined by the first Respondent. He pointed out that there were major discrepancies in the evidence of the -2- attesting witness. He also pointed out that even according the said attesting witness, the Will was dictated to the scribe by one Baban and not by the Testator. He submitted that these discrepancies go to the root of the matter and therefore, the courts below ought to have disbelieved the case made out by the first Respondent as regards the proof of execution of the Will. 3. Perusal of the Judgment of the Appellate Court shows that the Appellate Court has considered the said discrepancies pointed out by the Appellant. The Appellate Court has noted that the evidence of the attesting witness whose age at the time of recording of evidence was 65 years was recorded 22 years after the date of execution of the Will and therefore, the discrepancies in the evidence will have to be ignored. The version of the said witness as regards the execution of the Will by the testator has not shaken by the said discrepancies. Apart from this aspect, the Will was duly registered in the office of the Sub Registrar. The first Respondent also examined the son of the scribe of the Will who identified the handwriting of his father in the Will. 4. There is no reason to interfere with the concurrent findings of fact recorded by the courts below as regards the execution of the Will. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. -3- JUDGE JUDGE JUDGE